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U.P. LAW BOC CONSTITUTIONAL LAW I POLITICAL LAW

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U.P. LAW BOC CONSTITUTIONAL LAW I POLITICAL LAW

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U.P. LAW BOC
TABLE OF CONTENTS
CONSTITUTIONAL LAW I ........................................ 1
THE 1987 PHILIPPINE CONSTITUTION .................. 2
A. DEFINITION, NATURE, AND CONCEPTS ... 2
B. PARTS OF A CONSTITUTION...................... 3
C. AMENDMENTS AND REVISIONS ................ 3
D. METHODS OF INTERPRETING THE
CONSTITUTION .................................................... 7
BASIC CONCEPTS ................................................... 7
A. DECLARATION OF PRINCIPLES AND
STATE POLICIES ......................................... 7
B. SOVEREIGNTY .......................................... 12
C. STATE IMMUNITY ............................................ 12
D. SEPARATION OF POWERS ............................... 16
E. CHECKS AND BALANCES ................................. 17
F. DELEGATION OF POWERS ............................... 19
G. FUNDAMENTAL POWERS OF THE STATE ............ 20
1. Police Power ........................................... 20
2. Eminent Domain ..................................... 22
3. Taxation .................................................. 24
NATIONAL TERRITORY ........................................ 27
CITIZENSHIP .......................................................... 28
A. KINDS OF CITIZENSHIP AND PURPOSE OF
DISTINGUISHING CITIZENSHIP ........................... 28
B. WHO ARE CITIZENS ......................................... 29
C. WHO CAN BE CITIZENS .................................... 31
D. MODES OF ACQUIRING CITIZENSHIP .................. 32
E. MODES OF LOSING AND REACQUIRING
CITIZENSHIP .................................................. 34
F. DUAL CITIZENSHIP AND DUAL ALLEGIANCE ....... 36
Legislative Department ......................................... 37
A. LEGISLATIVE POWER ...................................... 37
1. Scope and Limitations ............................. 37
2. Principle of non-delegability; exceptions . 38
B. CHAMBERS OF CONGRESS; COMPOSITION;
QUALIFICATIONS ................................................. 39
1. Senate ..................................................... 40
2. House of Representatives ....................... 40
C. LEGISLATIVE PRIVILEGES, INHIBITIONS, AND
DISQUALIFICATIONS ............................................ 43
1. Privileges ................................................ 43
2. Inhibitions and Disqualifications .............. 44
3. Duty to Disclose ...................................... 45
D. QUORUM AND VOTING MAJORITIES .................. 45
E. DISCIPLINE OF MEMBERS ................................ 47
F. PROCESS OF LAW-MAKING .............................. 47
G. ELECTORAL TRIBUNALS AND THE COMMISSION ON
APPOINTMENTS .................................................. 52
1. Nature ..................................................... 52
2. Powers .................................................... 53
1. Nature ..................................................... 54
2. Jurisdiction .............................................. 54
H. POWERS OF CONGRESS ................................. 54
1. Legislative Inquiries and Oversight
Functions ................................................ 54
2. Non-legislative ........................................ 57
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I. INITIATIVE AND REFERENDUM .......................... 58
Executive Department ........................................... 58
A. QUALIFICATIONS, ELECTION, AND TERM OF THE
PRESIDENT AND VICE-PRESIDENT .................... 58
B. PRIVILEGES, INHIBITIONS, AND DISQUALIFICATIONS
.................................................................... 59
1. Presidential Immunity .............................. 59
2. Presidential Privilege ............................... 60
C. POWERS OF THE PRESIDENT ........................... 62
1. General Executive And Ministrative Powers
................................................................ 62
2. Power Of Appointment ............................ 63
3. Power Of Control And Supervision ......... 67
4. Emergency Powers ................................. 68
5. Commander-In-Chief Powers .................. 69
6. Executive Clemency ................................ 73
7. Diplomatic Power .................................... 76
8. Powers Relative to Appropriation Measures
................................................................ 78
9. Delegated powers ................................... 78
10. Residual Powers ................................. 79
11. Veto Powers ........................................ 80
12. Executive Privilege .............................. 80
D. RULES OF SUCCESSION .......................... 82
Judicial Department ............................................... 85
A. CONCEPTS ................................................ 85
1. Judicial Power ......................................... 85
2. Judicial Review ....................................... 85
B. JUDICIAL INDEPENDENCE AND AUTONOMY .
.................................................................... 89
C. APPOINTMENTS TO THE JUDICIARY ................... 91
1. Qualifications of Members of the Judiciary .
................................................................ 91
2. Judicial and Bar Council .......................... 91
D. THE SUPREME COURT .................................... 92
1. Composition ............................................ 92
2. Powers and Functions ............................. 94
Constitutional Commissions ................................ 97
A. CONSTITUTIONAL SAFEGUARDS TO
ENSURE INDEPENDENCE OF
COMMISSIONS .......................................... 97
B. POWERS AND FUNCTIONS; COMPOSITION AND
QUALIFICATIONS OF MEMBERS ........................ 98
C. PROHIBITED OFFICES AND INTERESTS ............ 103
D. JURISDICTION .............................................. 103
E. REVIEW OF FINAL ORDERS, RESOLUTIONS, AND
DECISIONS................................................... 105
National Economy and Patrimony ...................... 105
A. EXPLORATION AND DEVELOPMENT, AND
UTILIZATION OF NATURAL RESOURCES ........... 107
B. FRANCHISES, AUTHORITY, AND CERTIFICATES FOR
PUBLIC UTILITIES ......................................... 109
C. ACQUISITION, OWNERSHIP, AND TRANSFER OF
PUBLIC AND PRIVATE LANDS ......................... 110
D. PRACTICE OF PROFESSIONS .......................... 111

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E. ORGANIZATION AND REGULATION OF
CORPORATIONS, PRIVATE AND PUBLIC........... 111
F. MONOPOLIES, RESTRAINT OF TRADE AND UNFAIR
COMPETITION .............................................. 111
SOCIAL JUSTICE AND HUMAN RIGHTS ........... 112
A. CONCEPT OF SOCIAL JUSTICE ...................... 112
B. ECONOMIC, SOCIAL, AND CULTURAL RIGHTS .... 112
C. COMMISSION ON HUMAN RIGHTS ................... 115
1. Powers .................................................. 115
2. Composition and Qualification of Members
116
CONSTITUTIONAL LAW II ................................... 117
A. CONCEPT OF BILL OF RIGHTS............... 118
1. Privacy and Autonomy .......................... 118
2. Relation to Human Rights ..................... 119
B. DUE PROCESS OF LAW .......................... 119
1. Concept of Right to Life, Liberty and
Property ................................................... 120
2. Kinds of Due Process ........................... 120
C. EQUAL PROTECTION OF LAWS ............ 127
1. Concept ................................................. 127
2. Requisites for Valid Classification ......... 127
3. Levels of Scrutiny .................................. 128
D. RIGHT AGAINST UNREASONABLE
SEARCHES AND SEIZURES........................ 129
1. Concept of Privacy ................................ 130
2. Concept of a Search ............................. 130
3. Requisites of a Valid Warrant ............... 130
4. Warrantless Searches ........................... 133
5. Warrantless Arrests and Detentions ..... 136
6. Exclusionary Rule ................................. 138
7. Effects of Unreasonable Searches and
Seizures .................................................. 138
E. PRIVACY OF COMMUNICATIONS AND
CORRESPONDENCE ....................................... 138
1. Concept of communications,
correspondence ....................................... 139
2. ............... Intrusion, when and how allowed
140
3. Exclusionary Rule ................................. 141
F. FREEDOM OF SPEECH AND EXPRESSION
.................................................................. 142
1. Concept ................................................. 142
2. Types of Regulation .............................. 143
3. Judicial analysis, presumptions and levels
and types of scrutiny ............................... 149
4. Special topics in Free Expression Cases ....
.............................................................. 152
5. Cognate rights ....................................... 155
G. FREEDOM OF RELIGION......................... 161
1. Basic Principles ..................................... 161
2. Principle of Separation of Church and State
.............................................................. 161
3. Non-establishment Clause .................... 162
4. Free Exercise Clause ............................ 164
H. LIBERTY OF ABODE AND FREEDOM OF
MOVEMENT ...................................................... 166
1. Scope and Limitations ........................... 166
2. Watch-list and hold departure orders .... 166
I. EMINENT DOMAIN ................................... 168
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1. Concept ................................................. 168
2. Just Compensation ............................... 170
3. Abandonment of Intended Use and Right of
Repurchase ........................................... 171
4. Expropriation by local government units 171
J. NON-IMPAIRMENT OF CONTRACTS ...... 171
K. ADEQUATE LEGAL ASSISTANCE AND
FREE ACCESS TO COURTS.................... 173
L. RIGHT AGAINST SELF-INCRIMINATION 174
1. Scope and Coverage ............................ 174
2. Application ............................................. 175
3. Immunity Statutes ................................. 175
M. RIGHTS OF PERSONS UNDER CUSTODIAL
INVESTIGATION ................................................. 176
1. Availability ............................................. 177
2. Requisites ............................................. 178
3. Waiver ................................................... 179
N. RIGHTS OF THE ACCUSED................. 180
1. Criminal Due Process ........................... 180
2. Bail ........................................................ 181
3. Presumption of innocence ..................... 183
4. Right to be heard ................................... 184
5. Assistance of Counsel ........................... 184
6. Right to be informed of the nature and
cause of accusation .............................. 185
7. Right to a speedy and impartial trial ...... 185
8. Right of confrontation ............................ 186
9. Compulsory process ............................. 186
10. Trial in absentia ................................. 187
O. RIGHT TO THE SPEEDY DISPOSITION OF
CASES .......................................................... 192
P. RIGHT AGAINST EXCESSIVE FINES AND
CRUEL, DEGRADING, AND INHUMAN
PUNISHMENTS ............................................ 193
Q. NON-IMPRISONMENT FOR DEBTS .... 193
R. RIGHT AGAINST DOUBLE JEOPARDY ... 194
1. Requisites; scope .................................. 194
2. Limitations; Exceptions to the Rule on
Double Jeopardy ..................................... 195
S. RIGHT AGAINST INVOLUNTARY SERVITUDE
196
T. EX POST FACTO LAWS AND BILLS OF
ATTAINDER .................................................. 197
LAW ON PUBLIC OFFICERS ............................... 199
A. GENERAL PRINCIPLES ........................... 200
1. Public Office .......................................... 200
2. Public Officer ......................................... 202
B. MODES OF ACQUIRING TITLE TO PUBLIC OFFICE ...
.................................................................. 204
1. Appointments ........................................ 204
2. Election ................................................. 207
3. Designation ........................................... 207
C. MODES AND KINDS OF APPOINTMENT ............. 208
1. Classification of Appointments .............. 208
D. ELIGIBILITY AND QUALIFICATION REQUIREMENTS ...
.................................................................. 212
E. DISABILITIES AND INHIBITIONS OF PUBLIC
OFFICERS .................................................... 218
F. POWERS AND DUTIES OF PUBLIC OFFICERS.... 224
G. RIGHTS OF PUBLIC OFFICERS ......................... 227
1. Rights incident to public office ............... 227
2. Rights as a Citizen ................................ 227

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3. Other Rights .......................................... 229
H. LIABILITIES OF PUBLIC OFFICERS .................... 230
1. Preventive suspension and back salaries ...
.............................................................. 232
2. Illegal dismissal, reinstatement, and back
salaries .................................................. 236
I. IMMUNITY OF PUBLIC OFFICERS ...................... 237
J. DISTINGUISH: DE FACTO AND DE JURE OFFICERS ...
.................................................................. 238
K. TERMINATION OF OFFICIAL RELATION .............. 240
1. Expiration of the Term or Tenure of the
Office ....................................................... 241
2. Reaching the Age Limit (Retirement) .... 241
3. Death or Permanent Disability .............. 242
4. Resignation ........................................... 242
5. Acceptance of an Incompatible Officer . 243
6. Abandonment of Office ......................... 243
7. Prescription of Right to Office ............... 244
8. Removal ................................................ 244
9. Impeachment ........................................ 245
10. Abolition of office .............................. 245
11. Conviction of a Crime ....................... 246
12. Recall ................................................ 246
13. Non-User/ Failure to assume Office . 246
L. CIVIL SERVICE ............................................. 246
LOCAL GOVERNMENTS...................................... 342
1. Scope .................................................... 246
2. Appointments to the Civil Service ......... 247
M. ACCOUNTABILITY OF PUBLIC OFFICERS ...... 255
1. Accountability (Administrative and Criminal)
.............................................................. 255
2. The Ombudsman and the Office of the
Special Prosecutor .................................. 258
3. Sandiganbayan ..................................... 262
N. TERM LIMITS ........................................... 263
ADMINISTRATIVE LAW ....................................... 265
A. GENERAL PRINCIPLES .................................. 266
B. ADMINISTRATIVE AGENCIES .......................... 266
C. POWERS OF ADMINISTRATIVE AGENCIES ........ 268
1. Rule-making Power ............................... 269
2. Adjudicatory Power ............................... 276
3. Fact-Finding, Investigative, Licensing, and
Rate-Fixing Powers ............................... 285
D. JUDICIAL REVIEW ......................................... 287
1. Doctrine of Primary Administrative
Jurisdiction ............................................ 288
2. Doctrine of Exhaustion of Administrative
Remedies .............................................. 289
PUBLIC INTERNATIONAL LAW .......................... 390
3. Doctrine of Finality of Administrative Action
292
ELECTION LAW ................................................... 293
A. SUFFRAGE ............................................... 294
1. Qualification and disqualification of voters ..
.............................................................. 295
2. Registration and deactivation of voters . 297
3. Inclusion and exclusion proceedings .... 301
4. Local and overseas absentee voting .... 303
5. Detainee voting ..................................... 304
B. POLITICAL PARTIES ................................ 305
1. Jurisdiction of the Commission on Elections
over Political Parties ................................ 306
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2.Registration of Political Parties ............. 307
C. CANDIDACY ............................................. 311
1. Qualifications and disqualifications of
candidates ............................................. 311
2. Filing of certificates of candidacy .......... 314
D. CAMPAIGN ............................................... 320
1. Premature campaigning ........................ 321
2. Lawful and prohibited election propaganda
.............................................................. 323
3. Electoral Contributions .......................... 324
4. Limitations on expenses [Sec. 13, R.A.
7166] ........................................................ 326
5. Statement of contributions and expenses
(SOCE) .................................................... 326
E. BOARD OF ELECTION INSPECTORS AND
BOARD OF ELECTION CANVASSERS ........ 326
F. REMEDIES ................................................ 331
1. Petition to deny due course or cancel
certificate of candidacy ............................ 331
2. Petition for disqualification .................... 331
3. Failure of election; call for special election ..
.............................................................. 333
4. Pre-proclamation controversy ............... 335
5. Election Contest .................................... 339
A. AUTONOMOUS REGION AND THEIR RELATION TO
THE NATIONAL GOVERNMENT ........................ 343
B. PUBLIC CORPORATIONS ................................ 344
1. Concept; Distinguished from Government-
Owned or Controlled Corporations .......... 344
2. Classifications ....................................... 346
C. PRINCIPLES OF LOCAL AUTONOMY ................. 355
D. POWERS OF LOCAL GOVERNMENT UNITS
.................................................................. 359
1. General Welfare Clause ........................ 359
2. Eminent Domain .................................... 360
3. Taxing Power ........................................ 362
4. Closure and Opening of Roads ............. 364
5. Legislative Power .................................. 365
6. Ultra Vires Acts ..................................... 372
7. Corporate Powers ................................. 373
8. Liability of Local Government Units ....... 374
9. Settlement of Boundary Disputes .......... 376
10. Local Officials .................................... 377
11. Recall ................................................ 386
12. Term Limits ....................................... 388
A. CONCEPTS .............................................. 391
B. RELATIONSHIP BETWEEN
INTERNATIONAL AND PHILIPPINE
DOMESTIC LAW ....................................... 393
C. SOURCES OF INTERNATIONAL LAW ..... 394
D. SUBJECTS OF INTERNATIONAL LAW .... 399
1. States .................................................... 400
2. International Organizations ................... 402
3. Natural Or Juridical Persons ................. 402
4. Others ................................................... 403
E. JURISDICTION OF STATES ..................... 403
1. Basis of Jurisdiction .............................. 403
2. Exemptions from Jurisdiction ................ 404
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F. DIPLOMATIC AND CONSULAR LAW....... 405

1. Diplomatic Law ...................................... 405
2. Consular Relations ................................ 408
G. NATIONALITY AND STATELESSNESS ... 411
H. GENERAL PRINCIPLES OF TREATY LAW....
.................................................................. 413
I. DOCTRINE OF STATE RESPONSIBILITY 417
J. REFUGEES .............................................. 422
K. TREATMENT OF ALIENS ......................... 423
L. INTERNATIONAL HUMAN RIGHTS LAW. 427
1. The Universal Declaration of Human Rights
(“UDHR”) ................................................. 427
2. The International Covenant on Civil and
Political Rights (“ICCPR”) ........................ 428
3. The International Covenant on Economic,
Social and Cultural Rights (“ICESCR”) .... 428
M. INTERNATIONAL HUMANITARIAN LAW
429
1. Categories of Armed Conflict: ............... 430
2. Core International Obligation of States . 430
3. Principles of International Humanitarian Law
.............................................................. 431
4. Law on Neutrality .................................. 432
N. LAW OF THE SEA................................. 433
1. Baselines .............................................. 433
2. Archipelagic States ............................... 433
3. Internal waters ...................................... 434
4. Territorial Sea ....................................... 434
5. Contiguous Zone ................................... 435
6. Exclusive Economic Zone (EEZ) .......... 435
7. Continental Shelf ................................... 436
8. The International Tribunal for the Law of the
Sea (ITLOS) ............................................ 437
O. INTERNATIONAL ENVIRONMENTAL LAW
.............................................................. 438
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U.P. LAW BOC CONSTITUTIONAL LAW I
THE 1987 PHILIPPINE
CONSTITUTION
A. DEFINITION, NATURE,
AND CONCEPTS
1. Political Law — branch of public law which
deals with the organization and operations of
the governmental organs of the State and
defines the relations of the State with the
inhabitants of its territory [People v. Perfecto,
43 Phil 88 (1922)].
2. Constitutional Law — branch of
jurisprudence which treats of Constitutions,
their nature, formation and amendment,
operation and interpretation [De Leon,
Philippine Constitutional Law, Volume I [2017]].
This is 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.
3. Constitution Defined
It is the document which serves as the
fundamental law of the state; that written
instrument enacted by the direct action of the
people by which the fundamental powers of the
government are established, limited, and
defined, and by which those powers are
distributed among the several departments for
their safe and useful exercise, for the benefit of
the body politic [MALCOLM, Phil.
Constitutional Law].
“A law for the government, safeguarding
individual rights, set down in writing”
[Hamilton].
A written instrument by which the fundamental
power of the Government is established,
limited, and defined and by which these powers
are distributed among the several branches for
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their safe and useful exercise for the benefit of
the people [De Leon].
Date of Ratification of the 1987
Constitution:
The 1987 Constitution was ratified on February
2, 1987. It became effective on February 2,
1987, rather than on the date the proclamation
of its ratification was promulgated (or on
February 11, 1987). [De Leon v. Esguerra,
G.R. No. 78059, August 31, 1987].
Permanence of the Constitution
1. Constitution intends to govern far into the
indefinite future
● It can govern not just the life of the
people at the time of framing, but also
in the future, as social and economic
conditions change
2. Constitution intended to have an indefinite
life
● It must be permanent, but only subject
to amendments and revisions done
constitutionally
● It must not be transitory – this goes
against its attribute of being permanent
and supreme
3. Constitution intended to be adapted to
changing conditions
● Intended to ensure for ages and
adapted to various crisis of human
affairs – it is a continuing instrument of
government
● It must contain not rules for the present
but principles for the expanding future
4. Constitution intended to be construed with a
measure of flexibility
● The words employed by it are not to be
construed to yield fixed and rigid
answers but with necessary attributes
of flexibility and accommodation to
enable them to meet adequately
whatever future problems.
● Not a brief finality but a dynamic
process [De Leon]

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The Supremacy of the Constitution and the
Role of the Courts
The Constitution is the fundamental law of the
land to which every statute must conform; laws,
statutes, or treaties may be nullified if in conflict
with the Constitution [Gatmaytan, Legal
Method Essentials 3.0 (2017)].
Branches of the government must discharge
their functions within the limits of authority
conferred by the Constitution; Courts have the
duty to ensure this is so.
B. PARTS OF A
CONSTITUTION
1. Constitution of Government: establishes
the structure of government, its branches
and their operation; e.g. Art. VI, VII, VIII, IX
2. Constitution of Sovereignty: Provides
how the Constitution may be changed; i.e.
Art. XVII
3. Constitution of Liberty: states the
fundamental rights of the people; e.g. Art.
III [Lambino v. COMELEC, G.R. No.
174153. October 25, 2006]
C. AMENDMENTS AND
REVISIONS
Refer to ART. XVIII – AMENDMENTS OR
REVISIONS
Amendments: An addition or change within
the lines of the original constitution as will effect
an improvement, or better carry out the
purpose for which it was framed; a change that
adds, reduces or deletes without altering the
basic principles involved; affects only the
specific provision being amended [Lambino v.
COMELEC, supra].
Revisions: A change that alters a basic
principle in the constitution, like altering the
principle of separation of powers or the system
of checks-and- balances; alters the substantial
entirety of the constitution, as when the change
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affects substantial provisions of the constitution
[Id.].
Difference: Revision generally affects several
provisions of the constitution, while
amendment generally affects only the specific
provision being amended [Id.]. This distinction
is significant because the 1987 Constitution
allows people’s initiative only for the purpose of
amending, not revising, the Constitution [See
Lambino v. COMELEC, supra].
Legal Tests
Lambino considered the two-part test: the
quantitative test and the qualitative test.
a. Quantitative test: The court examines
only the number of provisions affected
and does not consider the degree of
the change.
b. Qualitative test: The court inquires
into the qualitative effects of the
proposed change in the constitution.
The main inquiry is whether the change
will “accomplish such far reaching
changes in the nature of our basic
governmental plan as to amount to a
revision.” The changes include those to
the “fundamental framework or the
fundamental powers of its Branches,”
and those that “jeopardize the
traditional form of government and the
system of check and balances.”
Whether there is an alteration in the
structure of government is a proper
subject of inquiry [Lambino v.
COMELEC, supra].
Procedure
There are two steps in the amendatory
process:
a. Proposal: This refers to the adoption
of the suggested change in the
Constitution.
1. Congress (as a Constituent
Assembly) – a vote of 3/4 of ALL its
members.
2. Constitutional Convention –
Called into existence by (i) 2/3 of all
members of Congress OR (ii) the
electorate, in a referendum called
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for by a majority of all members of Note: The process of revision is the same in all
Congress [Sec. 3, Art. XVII] respects except that it cannot be proposed via
3. People (through a People’s a People’s Initiative [See Lambino v.
Initiative) – petition of at least 12% COMELEC, supra].
of the total number of registered
voters; every legislative district Judicial Review of Amendments: The
must be represented by at least 3% validity of the process of amendment is not a
of the registered voters therein political question because the Court must
i. Limitation on Initiative: No review if constitutional processes were
amendment in this manner followed [See Lambino v. COMELEC, supra].
shall be authorized (1) within
5 years following the TWO STAGES OF
ratification of the 1987 Const. AMENDATORY/REVISION PROCESS
nor (2) more often than once
By Proposal Ratification
every 5 years thereafter.
ii. Enabling Law:
Constitutional provision on Congress By a vote Via
(as Consti- of ¾ of all Plebiscite,
amendments via People’s
tuent its 60-90 days
Initiative are not self- Assembly) members after
executory [Defensor- submission of
Santiago v. COMELEC, 270 Constitu- Per the
SCRA 170 (1997)] tional internal amendments
Conven- rules,
tion limited by
b. Ratification: The Proposed Amendments
the
shall be submitted to the people and shall be Doctrine of
deemed ratified by the majority of the votes Amend- Proper
cast in a plebiscite, held not earlier than 60 ments Submis-
days nor later than 90 days: sion
1. After approval of the proposal by
People’s Upon
Congress or ConCon;
Initiative COME-
2. After certification by the COMELEC of LEC’s
sufficiency of petition of the people. certifica-
tion of the
Doctrine of Proper Submission sufficiency
A plebiscite may be held on the same day as a of the
petition
regular election [Gonzales v. COMELEC, G.R.
No. L-28196 (1967)]. The entire Constitution
must be submitted for ratification at one Congress By a vote Via
plebiscite only. The people must have a proper as Consti- of ¾ of all Plebiscite,
“frame of reference” [J. Barredo’s Dissent in tuent its 60-90 days
Assembly members after
Tolentino v. COMELEC, G.R. No. L-34150 submission of
(1971)]. No “piecemeal submission” is allowed Constitu- Per the revision
e.g. submission of age amendment ahead of tional internal
other proposed amendments [Lambino v. Revision Conven- rules,
COMELEC, supra]. tion limited by
the
Doctrine of
Proper
Submis-
sion

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TABLE OF CASES RE: CONSTITUTIONAL AMENDMENTS AND CHANGES IN GOVERNMENT

Title Facts Held and Ratio

Mabanag v. Lopez Vito Resolution of Congress proposing DISMISSED; Proposal of

(Congressional Resolution the Parity Amendment was assailed amendments to the Constitution is a
on the grounds that it did not comply political question. The enrolled copy
proposing the Parity
with the ¾ rule prescribed by the of the resolution in which it was
Amendment) Constitution certified that the proposal had been
approved by the required vote was
Note: Expressly overturned in conclusive upon the Courts
Gonzales v. COMELEC

Gonzales v. COMELEC RBH No. 1 called for an increase in DENIED; (1) Proposal of
(Resolutions of both Houses membership of the HOR; RBH No 2 amendments is not a political
called for a Constitutional question and it is subject to judicial
calling for the 1971
Convention RBH No. 3 called for the review. (2) Congress may propose
Constitutional Convention and amendment of Sec 16, Art. VI to amendments and at the same time
amendments to the 1935 allow members of the Congress to be call for a Constituent Assembly. (3)
Constitution) delegates to the ConCon without Ratification may be done
losing their seats. Petitioners sought simultaneously with a general
to restrain respondents from election or in a special election called
enforcing the law passed by specially for that purpose. There was
Congress submitting RBH Nos. 1 proper submission.
and 2 for ratification during the
general elections of 1967.

Tolentino v. COMELEC ( 1973 The validity of the ConCon GRANTED. All amendments
Constitutional Convention Resolution (submitting, for proposed by the ConCon shall be
ratification the proposal to lower the submitted to the people in a single
convened)
voting age to 18) was assailed. election.
Issue: W/N piecemeal amendments
to the Constitution could be
submitted to the people for
ratification or rejection.

Planas v. COMELEC Petitioners sought to enjoin DISMISSED. The validity of calling

(Plebiscite cases)
respondents from implementing PD for a plebiscite is justiciable BUT, the
73 which called for a plebiscite (to be issue became moot
held on Jan. 15, 1973) for the
Constitution to be approved by the
ConCon on 1972, on the theory that:
(a) The power to submit is lodged
exclusively in Congress and (b) there
is no proper submission to the
people

Javellana v. Executive Petitioners sought to enjoy Although the question of whether

Secretary (Ratification cases) implementation of any of the Constitution was validly ratified is a
provisions of the “new constitution” justiciable question, the question of
which are not found in the 1935 whether a Constitution has come into
Constitution, on the theory that it was force and effect is a political question
not validly ratified in accordance with beyond the Court’s competence.
Art. 1, Sec XV.

Sanidad v. COMELEC (1976 Petitioners question the authority of The amending process, both as to
Amendments) the President in issuing several PDs proposal and ratification is
proposing amendments to the New justiciable. In a crisis government,
Constitution and calling for a national the President shall have the power to

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referendum-plebiscite for the said
amendments.
Mitra v. COMELEC (1973 Petitioners argue that the 1973 Even without valid ratification, a new
Constitution) Constitution never validly took effect,
on the theory that the 1973
Constitution was still and is still at the
stage of proposal. They ask the
Court to order a plebiscite for the
ratification of the 1973 Constitution
Lawyer’s League v. Aquino Petitioners question the legitimacy of The question of legitimacy of a new
(EDSA Revolution) the Aquino Government government
De Leon v. Esguerra (1987 Petitioners question the appointment Date of effectivity of the 1987
Constitution ratified) of respondents as barangay officials Constitution retroacts to the date of
and maintain that with the ratification
of the 1987 Constitution, the OIC did
not have authority to simply appoint
their replacements
Defensor Santiago v. Petitioners seek to enjoin respondent COMELEC
COMELEC (PIRMA case) COMELEC from acting on the
petition by the PIRMA group asking
for an order fixing details on how to
collect signatures for the people’s
initiative to amend the Constitution.
Estrada v. Desierto (EDSA II) Estrada questions legitimacy of
Arroyo government and claims that
he did not resign from position and
that Arroyo is merely an acting
president
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assume the constituent power to
propose amendments lodged in the
Legislative body.
Constitution could come into force
and effect by the acquiescence of the
people. Popular acquiescence to a
new Constitution gives the document
the force and effect of the
Fundamental Law of the Land
regardless of the method of
ratification. If it is accepted by the
people (as shown in their
participation in several elections and
referenda since then), in whom
sovereignty resides according to the
Constitution, the Courts cannot
refuse to yield assent to such political
question
arising from a
successful revolution is a political
question beyond review by the
Courts
the plebiscite (Feb 2, 1987).
Provisional Constitution deemed to
have been superseded by 1987
Constitution on said date of
effectivity
was permanently
enjoined from entertaining or taking
cognizance of any petition for
initiative until a sufficient law shall
have been validly enacted to provide
for the implementation of the system
The system of initiative under Art
XVII, Sec 2 is not self-executory and
needs an enabling law before the
right of the people could be
exercised. However, an examination
of its provisions reveals that RA 6735
is incomplete, inadequate or wanting
in essential terms and conditions
insofar as initiative on amendments
to the Constitution is concerned.
The Government arising from EDSA
I was extra-constitutional while
EDSA II was a constitutional
exercise of the right to free speech,
freedom of assembly, and to petition
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the government for redress

Lambino v. COMELEC (Labino Petitioners seek review of The constituent power reserved to
Group People’s Initiative) COMELEC decision denying due people under Art. XVII Sec 2 is
course to a people’s initiative to limited to the power to propose
amend the 1987 Constitution amendments to, not revision of , the
Constitution
Moreover, “direct proposal by the
people” means that the petition
signed by the people should contain
full text of the proposed amendments
to the Constitution

and local position is deemed the latest

D. METHODS OF INTERPRETING expression of the will of the people.
THE CONSTITUTION
Doctrine of Necessary Implication —
Whatever is necessary to render effective a
Words given their ordinary meaning [Verba provision, whether a grant of power of right or
Legis] —✮Then there is no occasion for prohibition or a restriction, must be deemed
resource to other means of interpretation. It is implied or intended in the provision itself
presumed that words in construction have [Nitafan v. COMELEC, Gatmaytan].
been carefully selected to give a definite
meaning and the framers and the people
adopting it intended what they said.
BASIC CONCEPTS
In case of ambiguity, the words of the
Constitution should be interpreted in
accordance with the intent of the framers
[Ratio Legis Est Anima] — Intent must be
A. DECLARATION OF PRINCIPLES
gathered from the letter and spirit of the AND STATE POLICIES
document.

Construction as a whole [Ut Res Magis
Valeat Quam Pereat] — If there is
repugnance, Courts must harmonize them.
This is on the theory that the document was
prepared and intended as a consistent whole.
Every part must be given effect — Court
should avoid construction which renders any
provision meaningless or inoperative and must
lean in favor of construction rather than
idle/nugatory.
Conflicting provisions harmonized — If
there is conflict between a general and a
specific provision, the special provisions must
prevail since it will be considered as a limitation
on the general rule. Where one provision
cannot be considered an exception to another,
and there is conflict, the last in order of time
Art. II, 1987 Constitution: Declaration of
Principles and State Policies
- Sections 1-6: Binding rules which must be
observed in the conduct of government
[Bernas].
- Sections 7-28: Guidelines for the
Orientation of the State [Bernas]
The Philippines is a Democratic and
Republican State
Section 1: The Philippines is a democratic
and republican State. Sovereignty resides in
the people and all government authority
emanates from them.
The Philippines, under the 1987 Constitution,
is not just a representative government but also
shares some aspects of direct democracy such

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as, for instance, the “initiative and referendum”
under Art. VI, Sec. 32 [Bernas]
Renunciation of War
Section 2. The Philippines renounces war as
an instrument of national policy, adopts the
generally accepted principles of international
law as part of the law of the land and adheres
to the policy of peace, equality, justice,
freedom, cooperation, and amity with all
nations.
Only refers to wars of aggression, not
defensive war.
Adoption of Generally Accepted Principles
of International Law
Under the 1987 Constitution, international law
can become part of the sphere of domestic law
either by transformation or incorporation.
Transformation: Requires that an
international law be transformed into a
domestic law through a constitutional
mechanism such as local legislation.
Incorporation: When, by mere constitutional
declaration, international law is deemed to
have the force of domestic law.
[Pharmaceutical and Health Care Assoc. Of
the Philippines v. Duque III, G.R. No. 173034
(2007)]
Generally accepted principles of international
law, by virtue of the incorporation clause of the
Constitution, form part of the laws of the land
even if they do not derive from treaty
obligations.
"Generally accepted principles of
international law" - norms of general or
customary international law which are binding
on all states, i.e,
1. Renunciation of war as an instrument of
national policy,
2. The principle of sovereign immunity,
3. A person's right to life, liberty and due
process, and
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4. Pacta sunt servanda (international
agreements must be performed in good
faith)
The classical formulation in international law
sees those customary rules accepted as
binding result from the combination of two
elements:
1. The established, widespread, and
consistent practice on the part of States;
and
2. A psychological element known as the
opinion juris sive necessitates (opinion as
to law or necessity) [Mijares v. Rañada,
G.R. No. 139325 (2005)].
International customary rules are accepted as
binding as a result from the combination of two
elements:
1. The established, widespread, and
consistent practice on the part of States;
and
2. A psychological element known as the
opinion juris sive necessitates (opinion as
to law or necessity) [Poe-Llamanzares v.
COMELEC, G.R. No. 221697 (2016)].
Civilian Supremacy
Section 3. Civilian 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.
The supremacy of civilian authority over the
military is implemented under the 1987
Constitution with the President as
Commander-in-Chief of the Armed Forces of
the Philippines.
Civilian authority (Section 3, Article II) is not
defeated in a joint task force between the PNP
and Marines for the enforcement of law and
order in Metro Manila as long as control is left
to the PNP [IBP v. Zamora (2000)].
Role of the Armed Forces
a. Protector of the people and the State
b. Secure the sovereignty of the State and the
integrity of the national territory

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U.P. LAW BOC CONSTITUTIONAL LAW I
Compulsory military and civil service
Section 4. The prime duty of the
Government is to serve and protect the
people. The Government may call upon the
people to defend the State and, in the
fulfillment thereof, all citizens may be
required, under conditions provided by law,
to render personal, military or civil service.
N.B. Under conditions provided by law.
Maintenance of Peace and Order,
Promotion of General Welfare
Section 5. The maintenance of peace and
order, the protection of life, liberty, and
property, and promotion of the general
welfare are essential for the enjoyment by all
the people of the blessings of democracy.
Recognition of Hierarchy of Rights [Bernas;
Sec. 5, supra]
a. Life
b. Liberty
c. Property
Separation of Church and State
Section 6. The separation of Church and
State shall be inviolable.
The fact that R.A. No. 3350 grants a privilege
to members of said religious sects cannot by
itself render the Act unconstitutional, for the Act
only restores to them their freedom of
association which closed shop agreements
have taken away and puts them in the same
plane as the other workers who are not
prohibited by their religion from joining labor
unions [Victoriano v. Elizalde Rope Workers,
G.R. No. L-25246, 1974].
The duty of the state to inculcate values of
patriotism and nationalism such as a flag salute
cannot intrude into other fundamental rights,
such as the right to religion [Ebralinag v.
Division Superintendent of Schools of Cebu,
G.R. No. 95770, 1993].
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Independent Foreign Policy
Section 7. The State shall pursue an
independent foreign policy. In its relations
with other states, the paramount
consideration shall be national sovereignty,
territorial integrity, national interest, and the
right to self-determination.
Paramount consideration: national
sovereignty, territorial integrity, national
interest, and the right to self-determination
Freedom from Nuclear Weapons
Section 8. The Philippines, consistent with
the national interest, adopts and pursues a
policy of freedom from nuclear weapons in its
territory.
Promote a Just and Dynamic Social Order
Section 9. The State shall promote a just
and dynamic social order that will ensure the
prosperity and independence of the nation
and free the people from poverty through
policies that provide adequate social
services, promote full employment, a rising
standard of living, and an improved quality of
life for all.
Promote Social Justice in All Phases of
National Development
Section 10. The State shall promote social
justice in all phases of national development.
Personal Dignity and Human Rights
Section 11. The State values the dignity of
every human person and guarantees full
respect for human rights.
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Family as Basic Social Institution and well-being is likewise imperiled as minor

Natural and Primary Right and Duty of children are prone to making detrimental
Parents in the Rearing of the Youth decisions.” [SPARK v. Quezon City, G.R. No.
225442, August 8, 2017].
Section 12. The State recognizes the
sanctity of family life and shall protect and
Protection of the Life of the Mother and the Life
strengthen the family as a basic autonomous
of the Unborn from Conception
social institution. It shall equally protect the
The question of when life begins is a scientific
life of the mother and the life of the unborn
and medical issue that should not be decided
from conception. The natural and primary
right and duty of parents in the rearing of the [in the RH petitions] without proper hearing and
evidence [Imbong v. Ochoa, supra].
youth for civic efficiency and the
development of moral character shall receive
Vital Role of Youth in Nation-Building
the support of the Government.
Section 13. The State recognizes the vital
role of the youth in nation-building and shall
The right and duty referred to here is primary,
promote and protect their physical, moral,
not exclusive.
spiritual, intellectual, and social well-being. It
shall inculcate in the youth patriotism and
The State, as parens patriae, has an inherent
nationalism, and encourage their
right to aid parents in the moral development of
involvement in public and civic affairs.
the youth. Hence, the provision in the RH Law
mandating the teaching of age- and
development- appropriate reproductive health Role of Women in Nation Building
education is not per se unconstitutional; a Fundamental Equality Before the Law of
ruling on its constitutionality would be Women and Men
premature absent an actual curriculum
Section 14. The State recognizes the role of
formulated by the Dept. of Education [Imbong
women in nation-building, and shall ensure
v. Ochoa, G.R. No. 204819, Apr. 8, 2014, on
the fundamental equality before the law of
the constitutionality of the RH Law].
women and men.
Quezon City’s imposed curfew does not violate
Section 12, Art. II of the Constitution because Right to Health
the curfew was done within the role of the State Section 15. The State shall protect and
as parens patriae. While parents have a promote the right to health of the people and
primary role in raising a child, “when actions instill health consciousness among them.
concerning the child have a relation to the
public welfare or the well-being of the child, the
State may act to promote these legitimate Right to a Balanced and Healthful Ecology
interests”, especially in cases that may bring Section 16. The State shall protect and
harm to a child or to public safety. This advance the right of the people to a balanced
overrides a parent’s right to control upbringing and healthful ecology in accord with the
of a child. The state is mandated to support rhythm and harmony of nature.
parents in exercise of rights and duties, and
state authority is therefore, not exclusive of, but
rather complementary to parental supervision.
The Curfew Ordinances merely serve as legal
restrictions designed to aid parents in
promoting their child’s welfare. Though these
are inherently limiting on the part of the minor,
this is necessary because the youth is
vulnerable and inexperienced, and “their moral

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Priority to Education, Science, and
Technology, Arts, Culture, and Sports
Section 17. The State shall give priority to
education, science and technology, arts,
culture, and sports to foster patriotism and
nationalism, accelerate social progress, and
promote total human liberation and
development.
Labor as a Primary Social Economic Force
Section 18. The State affirms labor as a
primary social economic force. It shall protect
the rights of workers and promote their
welfare.
Self-Reliant and Independent National
Economy
Section 19. The State shall develop a self-
reliant and independent national economy
effectively controlled by Filipinos.
Role of Private Sector
Section 20. The State recognizes the
indispensable role of the private sector,
encourages private enterprise, and provides
incentives to needed investments.
Comprehensive Rural Development and
Agrarian Reform
Section 21. The State shall promote
comprehensive rural development and
agrarian reform.
Recognition and Promotion of Rights of
Indigenous Cultural Communities
Section 22. The State recognizes and
promotes the rights of indigenous cultural
communities within the framework of national
unity and development.
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Community-Based, Sectoral Organizations
Section 23. The State shall encourage non-
governmental, community-based, or sectoral
organizations that promote the welfare of the
nation.
Rule of Communication and Information in
Nation-Building
Section 24. The State recognizes the vital
role of communication and information in
nation-building.
Autonomy of Local Governments
Section 25. The State shall ensure the
autonomy of local governments.
Equal Access for Public Service and
Prohibition of Political Dynasties
Section 26. The State shall guarantee equal
access to opportunities for public service and
prohibit political dynasties as may be defined
by law.
The state policy against political dynasties is
not self-executing. It does not provide a
judicially enforceable constitutional right but
merely specifies a guideline for legislative or
executive action. [Belgica v. Ochoa, G.R. No.
208566, Nov. 19, 2013]
Honesty and Integrity in Public Service
Section 27. The State shall maintain
honesty and integrity in the public service
and take positive and effective measures
against graft and corruption.
Policy of Full Public Disclosure
Section 28. Subject to reasonable
conditions prescribed by law, the State
adopts and implements a policy of full public
disclosure of all its transactions involving
public interest.

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B. SOVEREIGNTY
Sovereignty is the supreme and
uncontrollable power inherent in the State by
which the state is governed.
Two kinds of sovereignty:
1. Legal Sovereignty — authority which has
the power to issue final commands
2. Political Sovereignty — power behind the
legal sovereign, or the sum total of all the
influences that operate upon it
Sovereignty may also be internal or
external:
1. Internal Sovereignty — refers to the power
of the state to control its domestic or
internal affairs
2. External Sovereignty — the power of the
State to direct its relations with other states,
also known as independence
Section 1, Article II. The Philippines is a
democratic and republican State.
Sovereignty resides in the people and all
government authority emanates from them.
Territorial Jurisdiction — authority of State to
have all within its [territorial] bounds to be
subject to control and protection.
Personal Jurisdiction — authority of the state
over all its nationals, their person, property,
and acts, whether within or outside its territory
Extraterritorial Jurisdiction — authority of
state over persons, things, and acts outside of
its territorial limits as it affects the people of the
state
C. STATE IMMUNITY
Summary of Rule
General Rule: The State cannot be sued
Exception: When the State consents to be
sued. How consent is given:
1. Express
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a. Through general law; or
b. Through special law
2. Implied
a. When the State enter into business
contracts with individuals
(performing proprietary functions);
b. When the State commences
litigation and becomes vulnerable
to counterclaim;
c. When it would be inequitable for
the State to invoke immunity; and
d. In eminent domain cases.
In instances of Money claims:
When a money judgment is given against the
government, the ordinary rule for execution
would not apply, for the consent of the
government to be sued is only up to the point
of judgment. If it does not pay, it cannot be
compelled to pay by attachment or otherwise
CONCEPTS
STATE
A community of persons, more or less
numerous, permanently occupying a definite
portion of territory, independent of external
control, and possessing a government to which
a great body of the inhabitants render habitual
obedience; a politically organized sovereign
community independent of outside control
bound by ties of nationhood, legally supreme
within its territory, acting through a government
functioning under a regime of law [Collector of
Internal Revenue v. Campos Rueda, G.R. No.
13250 (1971)].
The state as a person of international law
should possess the following qualifications: (a)
a permanent population; (b) a defined territory;
(c) government; and (d) capacity to enter into
relations with the other states [Art. 1,
Montevideo Convention].
Constitutional Basis
Section 3, Article XVI. The State may not
be sued without its consent.
International Law Basis
“Par in parem non habet imperium.”

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Jurisprudential Basis
1. Positivist Theory – There can be no legal
right as against the authority that makes
the laws on which the right depends. Also
called the doctrine of Royal Prerogative of
Dishonesty. [Department of Agriculture v.
NLRC, G.R. No. 104269 (1993)]
2. Sociological Theory – If the State is
amenable to suits, all its time would be
spent defending itself from suits and this
would prevent it from performing its other
functions [Republic v. Villasor, G.R. No. L-
30671 (1973)].
Two Theories of Sovereign Immunity (US v.
Ruiz)
1. Absolute Theory — A sovereign cannot,
without its consent, be made a respondent
in the courts of another sovereign.
○ This derives from the principle of
sovereign equality found in Article
2(1) of the UN Charter as well as
generally accepted principles of
international law.
2. Restrictive Theory — The immunity of the
sovereign is recognized only with regard to
public acts or acts (jure imperii) of state, but
not regard to private acts or acts (jure
gestionis)
● The Philippines follows the
restrictive theory.
Suits Against the State
A suit against the state will only prosper if the
state gives its express consent.
When is a suit against the State?
1. If it produces adverse consequences to
public treasury in terms of disbursement as
well as loss of government property,
regardless of the defense;
2. When the Republic is sued in its name;
3. When the suit is against an unincorporated
government agency; and
4. Even when the suit, on its face, is against
an officer but liability will belong to/fall on
the government.
When is a suit NOT against the State?
1. When suits engage in matters partaking
more of the nature of ordinary business
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rather than functions of a governmental or
political character;
2. When the purpose of the suit is to compel
an officer charged with the duty of making
payments pursuant to an appropriation
made by law in favor of the plaintiff to make
such payment, since the suit is intended to
compel performance of a ministerial duty
[Begosa v. Philippine Veterans
Association, G.R. No. L-25916(1970)];
3. When, from the allegations in the
complaint, it is clear that the respondent is
a public officer sued in a private capacity;
4. When the action is not in personam with the
government as the named defendant, but
an action in rem that does not name the
government in particular.
Action in personam v. Action in rem
1. Action in personam — the government as
the named defendant.
2. Action in rem — does not name the
government in particular.
Official Capacity v. Personal Capacity
The doctrine of non-suability applies only in
cases wherein the complaint is against officials
of state for acts performed in discharge of
duties or his official capacity. When officials
abuse this authority gravely (like discriminatory
behavior), this is no longer an official state act
and the official may now be sued in his
personal capacity [Shauf v. CA].
Beyond Scope of Authority
When officials, while discharging their official
functions, commit acts that are beyond their
scope of authority (i.e. police forces firing upon
civilians and killing them, mistakenly believing
they were Communists), they will be liable in
their personally capacity and thus will not be
covered by state immunity [Republic v.
Sandoval].
Waiver of Immunity
When the State expressly states their consent
to be sued through legislation (including
treaties), it waives its immunity from suit.
However, this waiver of immunity may be
limited to certain legal actions (i.e. under the
VFA, there is a waiver of immunity by the US

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under criminal jurisdiction but not to civil
actions) [Arigo v. Swift].
CONSENT TO BE SUED
Express Consent
Effected only by the will of the legislature
through the medium of a duly enacted statute;
may be embodied either in a general law or a
special law.
General Law
Authorizes any person who meets the
conditions stated in the law to sue the
government in accordance with the procedure
in the law; e.g.
a. Money claims arising from contract
express or implied
Act No. 3083: An Act Defining the Conditions
under which the Government of the Philippines
may be sued.
Sec. 1. Subject to the provisions of this Act,
the Government of the Philippines hereby
consents and submits to be sued upon any
moneyed claim involving liability arising from
contract, express or implied, which could
serve as a basis of civil action between
private parties.
Sec. 2. A person desiring to avail himself of
the privilege herein conferred must show that
he has presented his claim to the
Commission on Audit and that the latter did
not decide the same within two months from
the date of its presentation. xxx
Sec. 5. When the Government of the
Philippines is plaintiff in an action instituted
in any court of original jurisdiction, the
defendant shall have the right to assert
therein, by way of set-off or counterclaim in a
similar action between private parties. xxx
b. Torts
1. Liability of local government units
● Provinces, cities and municipalities
shall be liable for damages for the
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death or injuries suffered by any
person by reason of the defective
conditions of roads, streets, public
buildings and other public works under
their control and supervision [Art.
2189, CC].
2. Vicarious liability for special agents
• The Government is only liable for the
acts of its agents, officers and
employees, when they act as special
agents within the meaning of the
provision [Art. 2180(6), CC].
3. Liability under the Local Government Code
4. Local government units and their officials
are not exempt from liability for death or
injury to persons or damage to property
[Sec. 24, LGC].
Special Agent — One who receives a definite
and fixed order or commission, foreign to the
exercise of the duties of his office if he is a
special official [Merritt v. Government of the
Philippine Islands, G.R. No. L- 11154(1916)].
One who performs his regular functions, even
if he is called a “special agent”, is not a special
agent within the context of Government liability
[USA v. Guinto, G.R. No. 76607, (1990)].
Special Law — May come in the form of a
private bill authorizing a named individual to
bring suit on a special claim
Implied consent
a. In instances when the State takes private
property for public use or purpose (eminent
domain)
b. When the State enters into a business
contract (in jure gestionis or proprietary
functions)
c. When it would be inequitable for the State
to invoke its immunity.
d. If the government files a complaint, the
defendant may file a counterclaim against
it. When the state files a complaint,
suability will result only where the
government is claiming affirmative relief
from the defendant.
Note: When the DOTC constructed the
encroaching structures and subsequently
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maintenance, it was carrying out a sovereign
function. Therefore, these are acts jure imperii
that fall within the cloak of state immunity.
However, the doctrine of state immunity cannot
serve as an instrument for perpetrating an
injustice to a citizen. The SC, citing Ministerio v
CFI (1971), held that when the government
takes any property for public use, which is
conditioned upon the payment of just
compensation, to be judicially ascertained, it
makes manifest that it submits to the
jurisdiction of a court. The Department's entry
into and taking of possession of the
respondents' property amounted to an implied
waiver of its governmental immunity from suit
[DOTC v. Sps. Abecina, G.R. No. 206484
(2016)].
SPECIFIC RULES
Suits against Government Agencies:
Depends on whether the agency is
incorporated (i.e. there is a separate charter) or
unincorporated (i.e. no separate personality).
a. Incorporated: If the charter provides that
the agency can sue, then the suit will lie.
The provision in the charter constitutes
express consent [See SSS v. Court of
Appeals, 120 SCRA 707 (1983)].
b. Unincorporated: There must be an inquiry
unto the principal functions of government.
i. If governmental: No suit without
consent [Bureau of Printing v.
Bureau of Printing Employees
Association (1961)].
ii. If proprietary: Suit will lie, because
when the state engages in
principally proprietary functions, it
descends to the level of a private
individual, and may, therefore be
vulnerable to suit. [Civil
Aeronautics Administration v.
Court of Appeals, G.R. No. L-
51806 (1988)]. State may only be
liable for proprietary acts (jure
gestionis) and not for sovereign
acts (jure imperii).
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Type Function Rule
Governmen CAN be sued
tal or ONLY IF
Incorporated
proprietary charter
allows
Governmen CANNOT be
tal sued unless
Unincorpora- consent is
ted given
Proprietary CAN be sued
Note: The mantle of the State's immunity from
suit did not extend to the NHA despite its being
a government-owned and -controlled
corporation. Under Sec. 6(i) of PD No. 757,
which was its charter, the NHA could sue and
be sued. There is no question that the NHA
could sue or be sued, and thus could be held
liable under the judgment rendered against it.
But the universal rule remains to be that the
State, although it gives its consent to be sued
either by general or special law, may limit the
claimant's action only up to the completion of
proceedings anterior to the stage of execution.
The power of the court ends when the
judgment is rendered because government
funds and property may not be seized pursuant
to writs of execution or writs of garnishment to
satisfy such judgments. The functions and
public services of the State cannot be allowed
to be paralyzed or disrupted by the diversion of
public fund from their legitimate and specific
objects, and as appropriated by law. The rule
is based on obvious considerations of public
policy [National Housing Authority v. Roxas,
G.R. No. 171953 (2015)].
Suits against Public Officers
General Rule: The doctrine of state immunity
also applies to complaints filed against officials
of the State for acts performed by them in the
discharge of their duties within the scope of
their authority.
Exception: The doctrine of immunity from suit
will not apply and may not be invoked where
the public official is being sued in his (1) private
and personal capacity as an ordinary citizen,

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for (2) acts without authority or in excess of the
powers vested in him [Lansang v. CA, G.R. No.
102667 (2000)].
Note: Acts done without authority are not acts
of the State (see Beyond Scope of Authority).
Exceptions to Prior Consent Rule
Jurisprudence provides these exceptions,
when the State or public officer may be sued
without prior consent:
1. To compel the State or public officer to do
an act required by law;
2. To restrain the State or public officer from
enforcing an act claimed to be
unconstitutional
3. To compel the payment of damages from
an already appropriated assurance fund or
to refund tax over-payments from a fund
already available for the purpose;
4. To secure a judgment that the officer
impleaded may satisfy by himself without
the State having to do a positive act to
assist him;
5. Where the government itself has violated
its own laws [Sanders v. Veridiano II, G.R.
No. L-46930 (1988)].
SCOPE OF CONSENT
Consent to be sued is not a concession of
liability: Suability depends on the consent of
the state to be sued, and liability on the
applicable law and the established facts. The
circumstance that a state is suable does not
necessarily mean that it is liable, but it can
never be held liable if it does not first consent
to be sued. When the state does waive its
sovereign immunity, it is only giving the plaintiff
the chance to prove that it is liable [United
States of America v. Guinto, 182 SCRA 644
(1990)].
ESTOPPEL
General Rule: The State cannot be put in
estoppel by the mistakes or errors of its officials
or agents. [Republic v. Galeno, G.R. No.
215009 (2017)].
Exception: Estoppel may not be invoked
where they would operate to defeat the
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effective operation of a policy adopted to
protect the public, or in those special cases
where the interest of justice clearly required it.
Respondent had already acquired a vested
right on the tax classification of its San Mig
Light as a new brand. To allow petitioner to
change its position will result in deficiency
assessments in substantial amounts against
respondent to the latter's prejudice
[Commissioner of Internal Revenue v. San
Miguel Corporation, G.R. Nos. 205045 &
205723 (2017)].
D. SEPARATION OF
POWERS
Ordains that each of the 3 branches of
government has exclusive cognizance of and
is supreme in matters falling within its
constitutionally allocated sphere; each branch
cannot invade the domain of others. Powers of
the government are separated to avoid
concentration of powers in any one branch
[Gatmaytan].
The government established by the
Constitution follows the theory of separation of
powers. Separation of powers is a fundamental
principle in our system of government and is
founded on the belief that, by establishing
equilibrium among the three (3) power holders,
harmony will result and power will not be
concentrated and tyranny will be avoided
[Bernas]. Any system that is violative of the
principle of separation of powers is
unconstitutional and void [See Belgica v.
Ochoa on the unconstitutionality of the PDAF].
The Philippine government is divided into three
(3) branches of government, namely:
1. Legislative
2. Executive; and
3. Judiciary
The principle of separation of powers ordains
that each of the three government branches
has exclusive cognizance of and is supreme in
concerns falling within its own constitutionally
allocated sphere. It intends to secure action, to

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forestall over-action, to prevent despotism, and
to promote efficiency
While the separation of powers is not expressly
provided for in the Constitution, it obtains from
actual division in the Constitution (found in Sec.
1 of Arts. VI, VII, and VIII). Each department
has exclusive cognizance of matters within its
jurisdiction and is supreme within its own
sphere (see Angara v. Electoral Commission).
Political Question Doctrine
A question of which a resolution has been
vested by the Constitution exclusively in the
people, or in which full discretionary authority
has been delegated to a co-equal branch of the
government (separation of powers) cannot be
decided upon by the Courts.
This is as opposed to a justiciable question
which deals with matters re: the law and its
interpretation, not left to the wisdom of the
people.
Application
A. Belgica v. Ochoa
The Pork Barrel System violates the separation
of powers because it is a form of post-
enactment authority in the implementation or
enforcement of the budget.
1. The system permits legislative
encroachment upon the executive
prerogative of implementing the law, by
giving individual legislators: (a) The power
to determine projects after the General
Appropriations Act (GAA) is passed; and
(b) through congressional committees,
authority in the areas of fund release and
realignment, the system encroaches on the
Executive’s power to implement the law.
2. Furthermore, identification of a project by a
legislator being a mandatory requirement
before his PDAF can be tapped as a source
of funds, his act becomes indispensable in
the entire budget execution process.
B. Ocampo v. Enriquez, G.R. No. 225973
(2016)
In the exercise of his powers under the
Constitution and the Executive Order No. 292
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(Administrative Code of 1987), to allow the
internment of Marcos at the LNMB, which is a
land of the public domain devoted for national
military cemetery and military shrine purposes,
President Duterte decided a question of policy
based on his wisdom that it shall promote
national healing and forgiveness. There being
no taint of grave abuse of discretion, as
discussed below, President Duterte’s decision
on that political question is outside the ambit of
judicial review.
C. Forietrans Manufacturing Corporation v.
Davidoff Et Cia. SA, G.R. No. 197482 (2017)
The task of determining probable cause is
lodged with the public prosecutor and
ultimately, the Secretary of Justice. Under the
doctrine of separation of powers, courts have
no right to directly decide matters over which
full discretionary authority has been delegated
to the Executive Branch of the Government.
D. OCA v. Reyes, A.M. No. P-08- 2535 (2010)
The legislative power imposing policies
through laws is subject to the substantive and
constitutional limitations. It cannot limit the
Court’s power to impose disciplinary actions
against erring justices, judges and court
personnel. Neither should such policy be used
to restrict the Court’s power to preserve and
maintain the Judiciary’s honor, dignity and
integrity and public confidence that can only be
achieved by imposing strict and rigid standards
of decency and propriety governing the
conduct of justices, judges and court
employees
E. CHECKS AND
BALANCES
Corollary to Separation of Powers: Prevent
authority from being concentrated in one
branch. Each branch is supreme within their
own sphere
It does not follow from the fact that the three
powers are to be kept separate and distinct that
the Constitution intended them to be absolutely
unrestrained and independent of each other.
The Constitution has provided for an elaborate

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system of checks and balances to secure
coordination in the workings of the various
departments of the government [Angara v.
Electoral Commission].
Congressional oversight is not per se violative,
but is integral to separation of powers.
However, for a post-enactment congressional
measure to be valid, it must be limited to:
1. Scrutiny: Congress’ power of
appropriation, i.e. budget hearings, and
power of confirmation
2. Investigation and monitoring of
implementation of laws: using its power
to conduct inquiries in aid of legislation
[Abakada Guro Partylist v. Purisima, G.R.
No. 166715, August 14, 2008]. Note: A
fuller discussion on congressional
oversight is provided in Macalintal v.
COMELEC, which concludes with the
Supreme Court "[adopting] the separate
opinion of Justice Reynato S. Puno as part
of the ponencia on the unconstitutionality of
Sections 17.1, 19 and 25 of R.A. No. 9189
insofar as they relate to the creation of and
the powers given to the Joint
Congressional Oversight Committee."
Suggest to confine oversight discussion
under Part V on the Legislative
Department.
A legislative veto, i.e. statutory provision (which
may take the form of a congressional oversight
committee) that requires the President or an
agency to submit the proposed implementing
rules and regulations of a law to Congress for
approval, is unconstitutional. It encroaches on:
1. The Executive: it allows Congress to take
a direct role in the enforcement of its laws;
2. The Judiciary: administrative issuances
enjoy a presumption of validity, and only
the courts may decide whether or not they
conform to statutes or the Constitution
[Abakada Guro Partylist v. Purisima, G.R.
No. 166715, August 14, 2008]
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Application
The Pork Barrel system is unconstitutional,
among others, because it violates the system
of checks and balances.
1. It deprives the president of his item-veto
power. As lump-sum appropriations, the
actual projects under each congressman’s
PDAF are determined (by the
congressman) only after the GAA is
passed. The president, then, would not be
able to discern whether or not he should
veto the appropriation.
2. It has a detrimental effect on
Congressional Oversight. Because
legislators effectively intervene in project
implementation, it becomes difficult for
them to exercise their (valid) post-
enactment role of scrutinizing,
investigating, or monitoring the
implementation of the law, when they are
no longer disinterested observers [Belgica,
supra].
Section 8(2) of RA No. 6770, providing that the
President may remove a Deputy Ombudsman,
is unconstitutional. Subjecting the Deputy
Ombudsman to discipline and removal by the
President, whose own alter egos and officials
in the Executive department are subject to the
Ombudsman’s disciplinary authority, cannot
but seriously place at risk the independence of
the Office of the Ombudsman itself. Section
8(2) of R.A. No. 6770 intruded upon the
constitutionally-granted independence of the
Office of the Ombudsman. By so doing, the law
directly collided not only with the independence
that the Constitution guarantees to the Office of
the Ombudsman, but inevitably with the
principle of checks and balances that the
creation of an Ombudsman office seeks to
revitalize. What is true for the Ombudsman
must equally and necessarily be true for her
Deputies who act as agents of the
Ombudsman in the performance of their duties.
The Ombudsman can hardly be expected to
place her complete trust in her subordinate
officials who are not as independent as she is,
if only because they are subject to pressures
and controls external to her Office [Gonzales III
v. Office of the President, G.R. No. 196231,
Jan. 28, 2014].

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F. DELEGATION OF
POWERS
Rule of Non-Delegation of Legislative
Power
Principle: Delegata potestas non potest
delegari – What has been delegated can no
longer be delegated.
Rationale: Since the powers of the government
have been delegated to them by the people,
who possess original sovereignty, these
powers cannot be further delegated by the
different government departments to some
other branch or instrumentality of the
government.
The powers which Congress is prohibited from
delegating are those which are strictly, or
inherently and exclusively, legislative. Purely
legislative power which can never be delegated
is the authority to make a complete law -
complete as to the time when it shall take effect
and as to whom it shall be applicable, and to
determine the expediency of its enactment. It is
the nature of the power and not the liability of
its use or the manner of its exercise which
determines the validity of its delegation.
General Rule: Only Congress (as a body) may
exercise legislative power.
Exceptions
a. Delegated legislative power to local
governments: Local governments, as an
immemorial practice, may be allowed to
legislate on purely local matters [See Rubi
v. Provincial Board, G.R. No. L-14078
(1919) cited in Belgica, supra. See also
Const., Art. X, Sec. 9, explicitly mentioning
“legislative bodies of local governments;”
and Sec. 20 providing for the coverage of
legislative powers delegated to
autonomous regions via the latter’s organic
acts].
b. Constitutionally-grafted Exceptions
i. Emergency power delegated to the
Executive during the State of War
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or National Emergency [Sec. 23(2),
Art. VI]; and
ii. Certain taxing powers of the
President [Sec. 28(2), Art. VI]. The
Congress may authorize the
President to fix, within specified
limits, and subject to such
limitations and restrictions as it
may impose, tariff rates, import and
export quotas, tonnage and
wharfage dues, and other duties or
imposts within the framework of the
national development program of
the Government.
c. The extent reserved to the people by the
provision on initiative and referendum [Sec.
1, Art. VI].
Subordinate legislation made by
administrative agencies
The principle of non- delegability should not be
confused with the delegated rule-making
authority of implementing agencies [Belgica,
supra]. Strictly speaking, what is delegated is
not “law-making” power, but rule-making
power, limited to (a) filling up the details of the
law; or (b) ascertaining facts to bring the law
into actual operation.
Traditional/Simplified Formulation: Who
may exercise legislative powers:
General Rule: Congress only.
Exceptions (PLATE):
(P) Delegation to the people (by initiative and
referendum)
(L) Delegation to the local governments
(A) Delegation to the administrative bodies
○ Increasing complexity of the task of
government
○ Lack of technical competence of
Congress
○ Administrative bodies may fill up details
of statute for implementation
○ Legislature may pass “contingent
legislation”, which leaves to another
body the business of ascertaining facts
(T) Delegation of tariff powers to the President
under Constitution (Art. 6, Sec. 28(2))

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(E) Delegation of emergency powers to the
President under Constitution (Art. 6, Sec.
23(2))
Note: The President did not proclaim a national
emergency, only a state of emergency in the
three places in ARMM. And she did not act
pursuant to any law enacted by Congress that
authorized her to exercise extraordinary
powers. The calling out of the armed forces to
prevent or suppress lawless violence in such
places is a power that the Constitution directly
vests in the President. She did not need a
congressional authority to exercise the same
[Ampatuan v. Puno, G.R. No. 190259 (2011)].
There is neither an express prohibition nor an
express grant of authority in the Constitution for
Congress to delegate to regional or local
legislative bodies the power to create local
government units. However, under its plenary
legislative powers, Congress can delegate to
local legislative bodies the power to create
local government units, subject to reasonable
standards and provided no conflict arises with
any provision of the Constitution [Sema v.
COMELEC, G.R. No. 177597 (2008)].
Test for Valid Delegation
Rule: There is a valid delegation of legislative
power when it passes the following tests –
a. Completeness test: The law sets forth the
policy to be executed, carried out, or
implemented by the delegate (Abakada,
supra), such that there is nothing left for the
delegate to do but to enforce the law
[Pelaez v. Auditor General, G.R. No. L-
23825(1965)]; and
b. Sufficient Standard Test: The standard is
sufficient if it defines legislative policy,
marks its limits, maps out its boundaries
and specifies the public agency to apply it.
It indicates the circumstances under which
the legislative command is to be effected
[Edu v. Ericta, G.R. No. L-32096 (1970)].
The standard must specify the limits of the
delegates authority, announce the
legislative policy and identify the conditions
under which it is to be implemented, e.g.:
● Public interest
● Justice and equity
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● Simplicity, sufficiency, and
economy
Note: Acts which are purely legislative in
character (e.g. making of laws) cannot be
delegated to an administrative body (in
contrast to the ascertainment of facts or the
filling in of details which can be delegated to
administrative agencies).
G. FUNDAMENTAL POWERS
OF THE STATE
The following are inherent in a State,
inseparable from its sovereignty; hence, can be
exercised even without being expressly
granted in the Constitution or laws. However,
the conditions for their exercise can be
regulated and limited [De Leon].
1. Police Power;
2. Eminent Domain; and
3. Taxation
1. Police Power
Definition
It is the inherent and plenary power of the state
which enables it to prohibit all that is hurtful to
the comfort, safety and welfare of society.
[Ermita-Malate Hotel and Motel Operators
Association, Inc. v. Mayor of Manila, G.R. No.
L-24693 (1967)]
The police power of the state is a power
coextensive with self-protection, and is not
inaptly termed the “law of the overruling
necessity” [Rubi v. Provincial Board of
Mindoro, G.R. No. L-14078 (1919)]
Police power, while incapable of an exact
definition, has been purposely veiled in general
terms to underscore its comprehensiveness to
meet all exigencies and provide enough room
for an efficient and flexible response as the
conditions warrant” [White Light Corporation v.
City of Manila, G.R. No. 122846 (2009)].

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Scope and Limitations
“The state in order to promote the general
welfare, may interfere with personal liberty,
with property, and with business and
occupations. Persons may be subjected to all
kinds of restraints and burdens, in order to
secure the general c.omfort, health and
prosperity of the state and to this fundamental
aim of our Government, the rights of the
individual are subordinated” [Ortigas and Co.,
Limited Partnership v. Feati Bank and Trust
Co., G.R. No. L- 24670 (1979)].
As police power derives its existence from the
very existence of the State itself, it does not
need to be expressed or defined in its scope.
XXX So it is that Constitutions do not define the
scope or extent of the police power of the State;
what they do is to set forth the limitations
thereof. The most important of these are the
due process clause and the equal protection
clause. [Ichong v. Hernandez, G.R. No. L-7995
(1957)].
Police power has been characterized as the
most essential, insistent, and the least limitable
of powers, extending as it does to all the great
public needs [Ermita-Malate Hotel and Motel
Operators Association, Inc. v. Mayor of Manila,
supra)].
Taxation and Eminent Domain as
Implements on Police Power
Taxation may be used as an implement of
police power [Lutz v. Araneta, G.R. No. L-7859
(1955)].
Eminent domain may be used as an implement
to attain the police objective. [Association of
Small Landowners v. Secretary of Agrarian
Reform, G.R. No. 78742, (1989)]
Specific Coverage
1. Public Health
2. Public Safety
3. Public Morals
4. General Welfare [Abe v. Foster Wheeler
Corporation, G.R. No. L-14785 & L-14923
(1960)]
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Who may Exercise Police Power
Generally: Legislature
Delegated
1. President
2. Administrative Bodies
3. Law-making Bodies of LGUs
Limitations on Delegation of Police Power
1. Express grant by law;
2. Within the territorial jurisdiction of LGUs;
and
3. Must not be contrary to law
TEST OF VALID EXERCISE
A. Means Purpose Test
1. Lawful Subject - the interests of the public,
generally, as distinguished from those of a
particular class, require such interference
and that the subject of the measure is
within the scope of the police power
[Ichong v. Hernandez, supra].
2. Lawful Means - the means employed are
reasonably necessary for the
accomplishment of the purpose and not
unduly oppressive upon individuals
[National Development Company v.
Philippine Veterans Bank, G.R. No. 84132-
33 (1990)]
B. Reasonability Test
The limit to police power is reasonability. The
Court looks at the test of reasonability to decide
whether it encroaches on the right of an
individual. So long as legitimate means can
reasonably lead to create that end, it is
reasonable [Morfe v. Mutuc, G.R. No. L-20387,
(1968)].
Application
The PWD mandatory discount on the purchase
of medicine is supported by a valid objective or
purpose as aforementioned. It has a valid
subject considering that the concept of public
use is no longer confined to the traditional
notion of use by the public, but held
synonymous with public interest, public benefit,
public welfare, and public convenience. As in
the case of senior citizens, the discount
privilege to which the PWDs are entitled is
actually a benefit enjoyed by the general public

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to which these citizens belong. The means
employed in invoking the active
participation of the private sector, in order
to achieve the purpose or objective of the
law, is reasonably and directly related.
Also, the means employed to provide a fair,
just and quality health care to PWDs are
reasonably related to its accomplishment,
and are not oppressive, considering that as a
form of reimbursement, the discount extended
to PWDs in the purchase of medicine can be
claimed by the establishments as allowable tax
deductions pursuant to Section 32 of R.A. No.
9442 as implemented in Section 4 of DOF
Revenue Regulations No. 1-2009. Otherwise
stated, the discount reduces taxable income
upon which the tax liability of the
establishments is computed [Drugstores
Association of the Philippines, Inc. v. National
Council on Disability Affairs, G.R. No. 194561,
(2016)].
Exercise of Police Power is subject to
judicial inquiry
Legislature’s determination as to what is a
proper exercise of its police powers is not final
or conclusive, but is subject to the supervision
of the court [US v. Toribio, G.R. No. L-5060
(1910)].
However, courts cannot delimit beforehand the
extent or scope of the police power, since they
cannot foresee the needs and demands of
public interest and welfare. So it is that
Constitutions do not define the scope or extent
of the police power of the State; what they do
is to set forth the limitations thereof. The most
important of these are the due process clause
and the equal protection clause [Ichong v.
Hernandez, supra]
Example of a Legitimate Exercise of Police
Power
RA 9257, the Expanded Senior Citizens Act of
2003, is a legitimate exercise of police power.
Administrative Order No. 177 issued by the
Department of Health, providing that the 20%
discount privilege of senior citizens shall not be
limited to the purchase of unbranded generic
medicine but shall extend to both prescription
and non-prescription medicine, whether
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branded or generic, is valid [Carlos Superdrug
Corporation v. DSWC et al. G.R. No. 166494,
(2007)].
2. Eminent Domain
Definition
The right of eminent domain is the ultimate right
of the sovereign power to appropriate, not only
the public but the private property of all citizens
within the territorial sovereignty, to public
purpose [Republic v. Heirs of Borbon, G.R. No.
165354 (2015)].
Scope and Limitations
The exercise of such right is not unlimited, for
two mandatory requirements should underlie
the Government’s exercise of the power of
eminent domain, namely:
(1) that it is for a particular public purpose; and
(2) that just compensation be paid to the
property owner [Mactan-Cebu International
Airport Authority v. Lozada, Sr., G.R. No.
176625 (2010)].
The power of eminent domain is the inherent
right of the State to condemn private property
to public use upon payment of just
compensation.
It is well settled that eminent domain is an
inherent power of the State that need not be
granted even by the fundamental law. Sec. 9,
Art. III merely imposes a limit on the
government’s exercise of this power [Republic
v. Tagle, G.R. No. 129079 (1998)].
Who may Exercise Eminent Domain
Generally: Legislature
Delegated (through charter):
1. LGUs
2. Other Government entities
The repository of eminent domain powers is
the legislature, i.e. exercised through the
enactment of laws. But power may be
delegated to LGUs and other government
entities (via charter); still, the delegation must
be by law [Manapat v. CA, G.R. No. 110478
(2007)].

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Requisites for the Valid Exercise of Eminent
Domain
1. Necessity
2. Private Property
3. Public Use
4. Taking
5. Just Compensation
6. Due Process
1. Necessity
There must be a necessity which must be of
public character [Manapat v. CA, supra].
Difference as to the exercising officer
a. If Congress exercises the power of eminent
domain, the question of necessity is a political
question.
b. If a delegate exercises such power under a
general authority, the question of necessity is a
justiciable question.
c. If a delegate exercises such power under a
special authority for a special purpose, the
question of necessity is a political question
[Manapat v. CA, supra].
2. Private Property
General Rule: All private property capable of
ownership may be expropriated and it may
include public utility and services [Republic v.
PLDT, G.R. No. 18841, January 27, 1961].
Exceptions
a. Money
b. Choses in Action
Chose in Action
It is a personal right not reduced into
possession such as debts owed by another
person; it is the right to recover a debt,
demand, or damages on a cause of action ex
contractu or for a tort or omission of a duty.
[Black’s Law Dictionary].
3. Public Use
Public use includes not only use directly
available to the public but also those which
redound to their indirect benefit [Heirs of
Ardona v. Reyes, G.R. Nos. L-60549, 60553-
55 (1983)].
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As long as the public has the right of use,
whether exercised by one or many members of
public, a public advantage or public benefit
accrues sufficient to constitute a public use
[Manosca v. CA, G.R. No. 106440 (1995)].
4. Taking
There is taking of property when the following
are present [Republic v. Castellvi, G.R. No. L-
20620 (1974)]:
1. the expropriator must enter a private
property
2. the entrance into private property must be
for more than a momentary period
3. the entry into the property should be under
warrant or color of legal authority
4. the property must be devoted to a public
use
5. the utilization of the property ousts the
owner and deprives him of all beneficial
enjoyment of the property
Not an instance of taking
Imposition of restrictions on the use of property
to protect the public health safety or morals
from danger is not taking as there is no
dedication to public use [Association of Small
Landowners in the Philippines, Inc. v. Sec. of
Agrarian Reform, G.R. No. 78742 (1989)].
5. Just Compensation
Just compensation is defined as the full and fair
equivalent of the property taken from its owner
by the expropriator. The measure is not the
taker's gain, but the owner's loss. The word
"just" is used to intensify the meaning of the
word "compensation" and to convey thereby
the idea that the equivalent to be rendered for
the property to be taken shall be real,
substantial, full, and ample [National
Transmission Corporation v. Oroville
Development Corporation, G.R. No. 223366
(2017)].
Determination of Just Compensation
General Rule: Computed at the time of the
filing of the complaint for expropriation (Sec. 4,
Rule 67, ROC)
Exception: At the time of taking, when taking
precedes filing of the complaint.

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It is also important to note that inflation will not
be considered in determining what the value is
[Nepomuceno v CA, G.R. No. 166246 (2008)].
Determination of Just Compensation is a
Judicial Function
The determination of just compensation is a
judicial function. The executive or legislature
may make the initial determination but when a
party claims a violation in the Bill of Rights, no
statute, decree, or executive order can
mandate that its own determination shall
prevail over the court’s mandate [EPZA v.
Dulay, G.R. No. L-59603, (1987)]
Difference between Eminent Domain and
Regulatory Taking
1) Eminent domain is an inherent power of the
State based on the Constitution. Just
compensation must be paid.
2) Regulatory taking is the exercise of the State
of its police power. In this case, just
compensation need not be paid.
Two stages of Eminent Domain
1. Determination of the authority of the
expropriator to exercise the power of eminent
domain and the propriety of its exercise
2. Determination by the court of the just
compensation
[Municipality of Biñan v. Garcia, G.R. No.
69260 (1989)]
3. Taxation
Definition
It is the power by which the State raises
revenue to defray the necessary expenses of
the Government. It is the enforced proportional
contributions from persons and property, levied
by the State by virtue of its sovereignty, for the
support of the government and for all public
needs.
It is as broad as the purpose for which it is
given.
Purpose:
1. To raise revenue
2. Tool for regulation
3. Protection/power to keep alive
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Lifeblood theory and Necessity theory
Taxes are the lifeblood of the government, for
without taxes, the government can neither exist
nor endure. A principal attribute of
sovereignty, the exercise of taxing power
derives its source from the very existence of
the state whose social contract with its citizens
obliges it to promote public interest and
common good. The theory behind the exercise
of the power to tax emanates from
necessity; without taxes, government cannot
fulfill its mandate of promoting the general
welfare and well-being of the people. [NPC v.
Cabanatuan, G.R. No. 149110, (2003)]
Tax for special purpose
Treated as a special fund and paid out for such
purpose only; when purpose is fulfilled, the
balance, if any, shall be transferred to the
general funds of the Government [Sec. 29 (3),
Art. VI].
Requisites [Sec. 28(1), Art. VI]
a. Uniform and Equitable
Taxes should be (a) uniform (persons or things
belonging to the same class shall be taxed at
the same rate) and (b) equitable (taxes should
be apportioned among the people according to
their ability to pay)
b. Progressive system of taxation
The rate increases as the tax base increases,
with social justice as basis (Taxation here is an
instrument for a more equitable distribution of
wealth).
c. Delegated tax legislation
Congress may delegate law-making authority
when the Constitution itself specifically
authorizes it.
Scope and Limitation
General Limitations
(1) Power to tax exists for the general welfare;
should be exercised only for a public purpose
(2) Might be justified as for public purpose even
if the immediate beneficiaries are private
individuals
(3) Tax should not be confiscatory: If a tax
measure is so unconscionable as to amount to
confiscation of property, the Court will
invalidate it. But invalidating a tax measure
must be exercised with utmost caution,

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otherwise, the State’s power to legislate for the
public welfare might be seriously curtailed.
(4) Taxes should be uniform and equitable
[Sec. 28(1), Art. VI]
Judicial review for unconscionable and
unjust tax amounting to confiscation of
property
The legislature has discretion to determine the
nature, object, extent, coverage, and situs of
taxation. But where a tax measure becomes so
unconscionable and unjust as to amount to
confiscation of property, courts will not hesitate
to strike it down; the power to tax cannot
override constitutional prescriptions. [Tan v. del
Rosario, G.R. No. 109289 (1994)]
Specific Limitations
a. Uniformity of taxation
General Rule: Simply geographical uniformity,
meaning it operates with the same force and
effect in every place where the subject of it is
found
Exception: Rule does not prohibit
classification for purposes of taxation, provided
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the requisites for valid classification are met
[Ormoc Sugar v. Treasurer of Ormoc, G.R. No.
L- 23793 (1968)].
b. Tax Exemptions
No law granting any tax exemption shall be
passed without the concurrence of a majority of
all the Members of Congress [Sec. 28 (4), Art.
VI].
There is no vested right in a tax exemption.
Being a mere statutory privilege, a tax
exemption may be modified or withdrawn at will
by the granting authority [Republic v. Caguioa,
G.R. No. 168584 (2007)].
Exemptions may either be constitutional or
statutory:
1. Constitutional exemptions [Sec. 28(3), Art.
VI]
2. If statutory, it has to have been passed by
majority of all the members of Congress [Sec.
28 (4), Art. VI]
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U.P. LAW BOC CONSTITUTIONAL LAW I POLITICAL LAW

Police Power Eminent Domain Taxation

1. As to concept Power to make and Power to take private Power to enforce
implement laws for property for public use contribution to raise
the general welfare with just government funds
compensation
2. As to scope Broad in application Merely a power to Plenary,
as it pertains to the take private property comprehensive and
general power to for public use supreme
make and implement
laws
3. As to the Government and its Generally, by the Government and its
exercising political subdivisions government but the political subdivisions
authority power may be granted
to public service or
public utility
companies
4. As to the Promotion of general The taking of private Enforced contribution
purpose welfare property is for public is to support the
use government
5. As to Upon valid delegation, Upon valid delegation, Upon valid delegation,
delegation it may be exercised by it may be exercised by the President and the
the President, Law- the President, Law- Law-making bodies of
making Bodies of making bodies of the LGUs can exercise
LGUs, and LGUs, Public it
Administrative corporation, Quasi-
Agencies public corporation and
Administrative
agencies
6. As to the Relatively free from Superior to and may Subject to
relationship to the constitutional override constitutional Constitutional and
Constitution limitations and is impairment provision Inherent Limitations;
superior to the non- because the welfare Inferior to non-
impairment clause of the State is superior impairment clause
to any private contract
7. As to Limitation Limited by the Bounded by public Constitutional and
demand for public purpose and just Inherent Limitations
interest and due compensation
process

[VALENCIA ROXAS, Income Taxation, 7th Edition]

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NATIONAL TERRITORY
The national territory is comprised of —
(1) Philippine archipelago, with all the islands
and waters embraced therein;
Internal waters – waters around, between,
and connecting the islands of the archipelago,
regardless of breadth and dimension; and
(2) All other territories over which the
Philippines has sovereignty or jurisdiction. It
consists of —
(a) Territorial sea, seabed, subsoil,
insular shelves, and other submarine
areas
(b) Terrestrial, fluvial, and aerial
domains [Article I, 1987 Constitution]
Archipelagic Doctrine
A body of water studded with islands, or the
islands surrounded with water, is viewed as a
unity of islands and waters together forming
one integrated unit. [N.B. Embodied in Art. I,
specifically by the mention of the “Philippine
archipelago” and the specification on “internal
waters.”].
Treaty limits of the Philippine archipelago
(1) Treaty of Paris of 10 December 1898:
“Spain cedes to the United States the
archipelago known as the Philippines Islands,
and comprehending the islands lying within the
following line” xxx
Article 3 defines the metes and bounds of the
archipelago by longitude and latitude, degrees
and seconds.
(2) Treaty of Washington of 7 November
1900 between the United States and Spain:
Ceding Cagayan, Sibuto and Sulu.
(3) Treaty of 12 January 1930 between the
United States and Great Britain: Ceding the
Turtle and Mangsee Islands [BERNAS (2003),
cited in Justice Velasco’s concurring opinion in
Magallona v. Ermita (2011)].
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Methods of Baseline Determination
Baselines laws such as RA 9522 are enacted
by United Nations Convention on the Law of
the Seas III (UNCLOS III) States parties to
mark-out specific basepoints along their coasts
from which baselines are drawn, either straight
or contoured, to serve as geographic starting
points to measure the breadth of the maritime
zones and continental shelf. UNCLOS III and
its ancillary baselines laws play no role in the
acquisition, enlargement or, as petitioners
claim, diminution of territory.
UNCLOS III has nothing to do with the
acquisition (or loss) of territory. It is a
multilateral treaty regulating, among others,
sea-use rights over maritime zones (i.e., the
territorial waters [12 nautical miles from the
baselines], contiguous zone [24 nautical miles
from the baselines], exclusive economic zone
[200 nautical miles from the baselines]), and
continental shelves that UNCLOS III delimits.
UNCLOS III was the culmination of decades-
long negotiations among United Nations
members to codify norms regulating the
conduct of States in the world's oceans and
submarine areas, recognizing coastal and
archipelagic States' graduated authority over a
limited span of waters and submarine lands
along their coasts. XXX Under traditional
international law typology, States acquire (or
conversely, lose) territory through occupation,
accretion, cession and prescription, not by
executing multilateral treaties on the
regulations of sea-use rights or enacting
statutes to comply with the treaty's terms to
delimit maritime zones and continental
shelves. Territorial claims to land features are
outside UNCLOS III and are instead governed
by the rules on general international law
[Magallona v. Ermita, G.R. No. 187167 (2011)].
RA 9522 (March 10, 2009) - The current
baselines law created 101 base points around
the Philippines to determine the baseline. This
aims to demarcate the country's maritime zone
and continental shelf in accordance with
UNCLOS III and is not meant to delineate
Philippine territory. Under the Treaty of Paris,
baselines cannot be drawn from the
boundaries or other portions of the rectangular

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U.P. LAW BOC CONSTITUTIONAL LAW I
area but the outermost islands and drying reefs
of the archipelago.
R.A. 9522 is not unconstitutional: (1) it is a
statutory tool to demarcate the maritime zone
and continental shelf of the Philippines under
UNCLOS III and does not alter the national
territory. (2) While UNCLOS III does not bind
the Philippines to pass a baselines law,
Congress may do so. (3) The law also does not
abandon the country's claim to Sabah, as it
does not expressly repeal the entirety of R.A.
No. 5446.
RA 9522 uses the framework of regime of
islands in determining the maritime zones of
the Kalayaan Island Group (KIG) and
Scarborough Shoal. Regime of islands refers
to any natural formed area of land surrounded
by water that generate their own applicable
maritime zone [UNCLOS III].
Straight baseline method — consists of
drawing straight lines connecting appropriate
points on the coast without departing to any
appreciable extent from the general direction of
the coast, in order to delineate the internal
waters from the territorial waters of an
archipelago. [Note: This is the method
prescribed under the UNCLOS]
RA 9522 amends RA 3046 (as amended by RA
5446). RA 3046 determined appropriate points
of the outermost islands of the archipelago,
then connected them by means of a straight
line until all islands were surrounded or
enclosed by the imaginary lines. RA 5446
states that the definition of the baselines of the
territorial sea of the Philippine Archipelago is
without prejudice to the delineation of the
baselines of the territorial sea around the
territory of Sabah, situated in North Borneo,
over which the Republic of the Philippines has
acquired dominion and sovereignty.
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CITIZENSHIP
A. KINDS OF CITIZENSHIP AND
PURPOSE OF DISTINGUISHING
CITIZENSHIP
Art. IV, Sec. 1. The following are citizens of
the Philippines:
1. Those who are citizens of the Philippines
at the time of the adoption of the Constitution;
2. Those whose fathers or mothers are
citizens of the Philippines;
3. Those born before January 17, 1973, of
Filipino mothers, who elect Philippine
citizenship upon reaching the age of majority;
and
4. Those who are naturalized in accordance
with law.
Classification of Citizens:
1. Natural-born citizens
2. Naturalized citizens
Natural-born Citizens
Sec. 2, Art. IV. Natural-born citizens are
those who are citizens of the Philippines
from birth without having to perform any act
to acquire or perfect their Philippine
citizenship. Those who elect Philippine
citizenship in accordance with paragraph
(3), Section 1 hereof shall be deemed
natural-born citizens.
Who are natural-born citizens
A. Citizens of the Philippines from birth
without having to perform any act to
acquire or perfect their Philippine
citizenship [Sec. 1(1) and Sec. 1(2), Art.
IV]; and
B. Those who elect Philippine citizenship in
accordance with Sec. 1(3), Art. IV

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A person who renounces all foreign citizenship
under Sec. 5(2) of RA 9225 recants this
renunciation by using his foreign passport
afterwards. [Maquiling v. COMELEC, G.R. No.
195649 (2013)].
Having the status of a natural-born citizen is
important for the purpose of certain political
and economic rights open only to such citizens.
Political Rights
Who must be natural-born?
(1) President [Sec. 2, Art. VII]
(2) Vice-President [Sec. 3, Art. VII]
(3) Members of Congress [Sec. 3 and 6, Art.
VI]
(4) Justices of SC and lower collegiate courts
[Sec. 7(1), Art. VIII]
(5) Ombudsman and his deputies [Sec. 8, Art.
XI]
(6) Members of Constitutional Commissions
(A) CSC [Sec. 1(1), Art. IX-B]
(B) COMELEC [Sec.1, Art. IX-C]
(C) COA [Sec. 1(1), Art. IX-D]
(7) Members of the central monetary authority
[Sec. 20, Art. XII]
(8) Members of the Commission on Human
Rights [Sec. 17(2), Art. XIII]
The Constitutional provision (i.e. “whose
fathers are citizens”) does not distinguish
between “legitimate” or “illegitimate” paternity.
Civil Code provisions on illegitimacy govern.
Economic Benefits of Citizens
Sec. 8, Art. XII. A natural-born citizen of the
Philippines who has lost his Philippine
citizenship may still be a transferee of private
lands, subject to limitations provided by law.
Naturalized Citizens
Those who are naturalized in accordance with
the law [Sec. 1 (4), Art. IV].
See modes of acquiring citizenship for more
details
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B. WHO ARE CITIZENS
The following are citizens of the Philippines:
[Sec. 1, Art. IV, Const.]
1. Citizens of the Philippines at the time of
the adoption of this Constitution;
2. Those whose fathers OR mothers are
citizens of the Philippines;
3. Those who elected to be citizens. This is
available only to:
a. Those born before Jan 17, 1973;
b. To Filipino mothers; AND
c. Elect Philippine citizenship upon
reaching the age of majority
4. Those naturalized in accordance with law.
Sec. 1 (3), Art. IV is also applicable to those
who are born to Filipino mothers and elected
Philippine citizenship before February 2, 1987.
This is to correct the anomalous situation
where one born of a Filipino father and an alien
mother was automatically granted the status of
a natural-born citizen, while one born of a
Filipino mother and an alien father would still
have to elect Philippine citizenship [Co v.
House Electoral Tribunal (1991)].
Who were the citizens of the Philippines at the
time of the adoption of the 1987 Constitution?
1. Citizens under the 1973 Constitution
a. Those who are citizens of the
Philippines at the time of the adoption
of this Constitution;
b. Those whose fathers or mothers are
citizens of the Philippines;
c. Those who elect Philippine citizenship
pursuant to the provisions of the
Constitution of 1935; and
d. Those who are naturalized in
accordance with law [Sec. 1, Art. III].
2. Citizens under the 1935 Constitution
a. Those who are citizens at the time of
the adoption of this Constitution;
b. Those born in the Philippine Islands of
foreign parents who, before the
adoption of this Constitution, had been
elected to public office in the Philippine
Islands; This is known as the Caram

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Rule, and is only applicable to elective
positions, not appointive ones
[Chiongbian v. de Leon, G.R. No. L-
2007, January 3, 1949];
c. Those whose mothers are citizens of
the Philippines and, upon reaching the
age of majority, elect Philippine
citizenship;
d. Those who are naturalized in
accordance with law [Sec. 1, Art. IV].
The following persons were citizens of the
Philippines on May 14, 1935 – the date of the
adoption of the 1935 Constitution:
1. Persons born in the Philippine Islands who
resided therein on April 11, 1899 and were
Spanish subjects on that date, unless they
had lost their Philippine citizenship on or
before May 14, 1935;
2. Natives of the Spanish Peninsula who
resided in the Philippines on April 11, 1899,
and who did not declare their intention of
preserving their Spanish nationality
between that date and October 11, 1900,
unless they had lost their Philippine
citizenship on or before May 14, 1935;
3. Naturalized citizens of Spain who resided
in the Philippines on April 11, 1899, and did
not declare their intention to preserve their
Spanish nationality within the prescribed
period (up to October 11, 1900);
4. Children born of (1), (2) and (3) subsequent
to April 11, 1899, unless they lost their
Philippine citizenship on or before May 14,
1935; and
5. Persons who became naturalized citizens
of the Philippines in accordance with
naturalization law since its enactment on
March 26, 1920.
“xxx. Any conclusion on the Filipino citizenship
of Lorenzo Poe could only be drawn from the
presumption that having died in 1954 at 84
years old, Lorenzo would have been born
sometime in the year 1870, when the
Philippines was under Spanish rule, and that
San Carlos, Pangasinan, his place of
residence upon his death in 1954, in the
absence of any other evidence, could have well
been his place of residence before death, such
that Lorenzo Poe would have benefited from
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the “en masse Filipinization” that the Philippine
Bill had effected in 1902 (Tecson v.
COMELEC, GR No. 161434, March 3, 2004].
Are foundlings natural-born citizens?
Yes. As a matter of law, foundlings are, as a
class, natural-born citizens. The presumption
of natural-born citizenship of foundlings stems
from the presumption that their parents are
nationals of the Philippines. While the 1935
Constitution’s enumeration is silent as to
foundlings, there is no restrictive language
which would definitely exclude foundlings
either. No such intent or language permits
discrimination against foundlings. On the
contrary, all three Constitutions (1935, 1973,
1987) guarantee the basic right to equal
protection of the laws. All exhort the State to
render social justice [Poe-Llamanzares v.
COMELEC, G.R. No. 221697 (2016)].
Application
To illustrate, If X was born and elected before
17 January 1973, his status under the 1973
and 1987 Constitutions is that of a natural-born
citizen, because although he had to perform an
act to perfect his citizenship, he could not
otherwise be classified since there was no
definition of natural-born citizens in the 1935
Constitution.
If X was born before and elected after 17
January 1973, whether before or after 2
February 1987, he was not a natural-born
citizen under the 1973 Constitution, because
he had to perform an act to be a citizen. If not
for the provision in the 1987 Constitution, he
would not have been deemed a natural-born
citizen either.
Case A: A Filipino woman married B, an
American in 1961. The marriage made A an
American citizen (which under CA 63, stripped
her of her Philippine citizenship, the marriage
having been celebrated before 17 January
1973). A and B lived in the US since then and
in 1962, begot C, who was automatically an
American citizen by jus soli and jus sanguinis.
In 1983, when C turns 21, can he elect
Philippine citizenship?

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Yes, according to obiters in Cu v Republic and
Villahermosa v CID, in order to elect Philippine
citizenship, at least for election purposes, it is
enough that (1) the person's mother was a
Filipino at the time of her marriage to the alien
father, even if she subsequently lose her
citizenship by virtue of the marriage and (2) the
person be a child of that marriage, for him to
elect Philippine citizenship.
If C wants to run for Congress, is he considered
a natural born Filipino? Under the 1973
Constitution, no. But under the 1987
Constitution, yes.
Note: If he were born after 17 January 1973,
the child would not even be a Filipino. You can
only be a Filipino if you are born to a Filipino
mother or father (Sec. 2 par. 2).
C. WHO CAN BE CITIZENS
Naturalization [CA 473]
Process by which a foreigner is adopted by the
country and clothed with the privileges of a
native-born citizen. The applicant must prove
that he has all of the qualifications and none of
the disqualifications for citizenship.
Qualifications [Sec. 2, C.A. 473]
a. Not less than twenty-one years of age on
the day of the hearing of the petition;
b. Resided in the Philippines for a continuous
period of 10 years or more;
c. Of good moral character; believes in the
principles underlying the Philippine
Constitution; conducted himself in a proper
and irreproachable manner during the
entire period of his residence towards the
government and community
d. Must own real estate in the Philippines
worth P5,000 or more OR must have
lucrative trade, profession, or lawful
occupation;
e. Able to speak or write English or Spanish
or anyone of the principal languages; and
f. Enrolled his minor children of school age in
any of the recognized schools where
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Philippine history, government and civics
are taught or prescribed as part of the
school curriculum, during the entire period
of the residence in the Philippines required
of him.
Special Qualifications [Sec. 3, C.A. 473] –
ANY will result to reduction of the 10-year
period to 5 years
a. Having honorably held office under the
Government of the Philippines or under
that of any of the provinces, cities,
municipalities, or political subdivisions
thereof;
b. Established a new industry or introduced a
useful invention in the Philippines;
c. Married to a Filipino woman;
d. Engaged as a teacher in the Philippines in
a public or recognized private school not
established for the exclusive instruction of
children of persons of a particular
nationality or race, in any of the branches
of education or industry for a period of 2
years or more; or
e. Born in the Philippines.
Disqualifications [Sec. 4, C.A. 473]
a. Persons opposed to organized government
or affiliated with groups who uphold and
teach doctrines opposing all organized
governments;
b. Persons defending or teaching the
necessity or propriety of violence, personal
assault, or assassination for the success of
their ideas;
c. Polygamists or believers in polygamy;
d. Persons convicted of crimes involving
moral turpitude;
f. Persons suffering from mental alienation or
incurable contagious diseases;
g. Persons who during the period of their stay,
have not mingled socially with the Filipinos,
or who have not evinced a sincere desire
to learn and embrace the customs,
traditions, and ideals of the Filipinos;
h. Citizens or subjects of nations with whom
the Philippines is at war; or
i. Citizens or subjects of a foreign country
other than the United States, whose laws
do not grant Filipinos the right to become
naturalized citizens or subject thereof.

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Burden of Proof
The applicant must comply with the
jurisdictional requirements, establish his or her
possession of the qualifications and none of
the disqualifications enumerated under the law,
and present at least two (2) character
witnesses to support his allegations [Go v.
Republic of the Philippines, G.R. No. 202809
(2014)].
Petition for Judicial declaration of
Philippine Citizenship
The petitioner believes he is a Filipino citizen
and asks a court to declare or confirm his
status as a Philippine citizen.
Petition for Judicial Naturalization under
CA 473
The petitioner acknowledges he is an alien,
and seeks judicial approval to acquire the
privilege of becoming a Philippine citizen
based on requirements required under CA 473
[Republic v. Batuigas, supra].
Denaturalization
Process by which grant of citizenship is
revoked.
Grounds [Sec. 18, C.A. 473]
Upon the proper motion of the Sol. Gen. or the
provincial fiscal, naturalization may be
cancelled when:
a. Naturalization certificate was fraudulently
or illegally obtained [See Po Soon Tek v.
Republic, 60 SCRA 98 (1974)];
b. If, within the five years next following the
issuance, he shall return to his native
country or to some foreign country and
establish his permanent residence there;
c. Remaining for more than one year in his
native country or the country of his former
nationality, or two years in any other
foreign country, shall be considered as
prima facie evidence of his intention of
taking up his permanent residence in the
same;
d. Petition was made on an invalid declaration
of intention;
e. Minor children of the person naturalized
failed to graduate from the schools
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mentioned in Sec. 2, through the fault of
their parents, either by neglecting to
support them or by transferring them to
another school or schools; or
f. If he has allowed himself to be used as a
dummy in violation of the Constitutional or
legal provision requiring Philippine
citizenship as a requisite for the exercise,
use or enjoyment of a right, franchise or
privilege.
Naturalization is never final and may be
revoked if one commits acts of moral turpitude
[Republic v. Guy (1982)].
Judgment directing the issuance of a certificate
of naturalization is a mere grant of a political
privilege and that neither estoppel nor res
judicata may be invoked to bar the State from
initiating an action for the cancellation or
nullification of the certificate of naturalization
thus issued [Yao MunTek v. Republic (1971)].
D. MODES OF ACQUIRING
CITIZENSHIP
Generally, two modes of acquiring citizenship:
1. By Birth
a. Jus Soli — “right of soil;” person’s
nationality is based on place of birth;
formerly effective in the Philippines
[see Roa v. Collector of Customs, G.R.
No. L-7011 (1912)].
b. b. Jus Sanguinis — “right of blood;” a
person's nationality follows that of his
natural parents. The Philippines
currently adheres to this principle.
2. By Naturalization
Naturalization signifies the act of formally
adopting a foreigner into the political body of a
nation by clothing him or her with the privileges
of a citizen.
Under existing laws, there are three modes by
which an alien may become a Filipino citizen
by naturalization:
1. Administrative naturalization pursuant to
RA 9139;

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2. Judicial naturalization pursuant to CA 437;
and
3. Legislative naturalization in the form of a
law enacted by Congress granting
Philippine citizenship to an alien [So, v.
Republic, GR No.170603, January 29,
2007].
Derivative Naturalization
Under this provision, foreign women who are
married to Philippine citizens may be deemed
ipso facto Philippine citizens and it is neither
necessary for them to prove that they possess
other qualifications for naturalization at the time
of their marriage nor do they have to submit
themselves to judicial naturalization [Republic
v. Batuigas, G.R. No. 183110 (2013)].
Pursuant to the principle of derivative
naturalization, Section 15 of CA 437, extends
the grant of Philippine citizenship to the minor
children of those naturalized thereunder.
The following are requisites should be applied
to the minor children in order to be entitled to
Philippine citizenship:
1. They are legitimate children of petitioner
2. They were born in the Philippines, and
3. They were still minors when petitioner was
naturalized as Filipino citizen [Tan Co v.
Civil Register of Manila, 423 SCRA 665].
Election of Filipino Citizenship
The constitutional and statutory requirements
of electing Filipino citizenship apply only to
legitimate children and not to one who was
concededly an illegitimate child, as her
Chinese father and Filipino mother were never
married. Being an illegitimate child of a Filipino
mother, respondent is a Filipino since birth,
without having to elect Filipino citizenship when
she reaches the age of majority [Republic v.
Lim, 420 SCRA 123, GR No. 153883, January
13, 2004].
Reglementary Period
Under Art. IV, Section 1(3) of the 1935
Constitution, the citizenship of a legitimate
child born of a Filipino mother and an alien
father followed the citizenship of the father,
unless, upon reaching the age of majority, the
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child elected Philippine citizenship. The 1935
Charter only provides that the election should
be made “upon reaching the age of majority.”
The age of majority then commenced upon
reaching 21 years. In the opinions of the
Secretary of Justice on cases involving the
validity of election of Philippine citizenship, this
dilemma is resolved by basing the time period
on the decisions of this Court prior to the
effectivity of the 1935 Constitution.
In these decisions, the proper period for
electing Philippine citizenship, should be made
within “reasonable time” after attaining the age
of majority. This phrase “reasonable time” has
been interpreted to mean the election should
be made within three years from reaching the
age of majority [Re: Application for Admission
to the Philippine Bar, Vicente D. Ching, Bar
Matter No. 914, October 1, 1999].
Eligibility under the Administrative
Naturalization Law; Rationale
RA 9139 is an act providing for the acquisition
of Philippine citizenship for 1) aliens born in the
Philippines and 2) residing therein since birth
by administrative naturalization subject to
certain requirements dictated by national
security and interest. RA 9139 was enacted as
a remedial measure intended to make the
process of acquiring Philippine citizenship less
tedious, less technical and more encouraging.
It also addresses the concerns of degree
holders who, by reason of lack of citizenship
requirement, cannot practice their profession,
thus promoting "brain drain for the Philippines
[So v. Republic, supra].
Qualifications prescribed under Act 473
NOT applicable to RA 9139
The qualifications and disqualifications of an
applicant for naturalization by judicial act are
set forth in Sections 2 and 4 of CA 473. On the
other hand, Sections 3 and 4 of RA 9139
provide for the qualifications and
disqualifications of an applicant for
naturalization by administrative act.
First, CA 473 and RA 9139 are separate and
distinct laws- the former covers all aliens
regardless of class while the latter covers

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native-born aliens who lived here in the
Philippines all their lives, who never saw any
other country and all along thought that they
were Filipinos; who have demonstrated love
and loyalty to the Philippines and affinity to
customs and traditions.
Second, if the qualifications prescribed in RA
9139 would be made applicable even to judicial
naturalization, the coverage of the law would
be broadened since it would then apply even to
aliens who are not native-born.
Third, applying the provisions of RA 9139 to
judicial naturalization is contrary to the
intention of the legislature to liberalize the
naturalization procedure in the country (Ibid.).
E. MODES OF LOSING AND
REACQUIRING CITIZENSHIP
Loss –
Grounds
a. Naturalization in a foreign country [C.A. 63,
sec.1(1)];
b. Express renunciation or expatriation
[Sec.1(2), CA 63];
c. Taking an oath of allegiance to another
country upon reaching the age of majority;
d. Marriage by a Filipino woman to an alien, if
by the laws of her husband’s country, she
becomes a citizen thereof. (Now qualified by
Art. IV, Sec. 4. Citizens of the Philippines who
marry aliens shall retain their citizenship,
unless by their act or omission they are
deemed, under the law, to have renounced it.)
e. Accepting a commission and serving in the
armed forces of another country, unless there
is an offensive/defensive pact with the country,
or it maintains armed forces in RP with RP’s
consent;
f. Denaturalization (The court, upon its
discretion, may cancel certificate of
naturalization subsequent to the requirements
provided. This is because naturalization is not
a natural right but a political privilege);
g. Being found by final judgment to be a
deserter of the AFP.
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General Rule: Expatriation is a constitutional
right. No one can be compelled to remain a
Filipino if he does not want to [Go Julian v.
Government, G.R. No. 20809 (1923)].
Exception: A Filipino may not divest himself of
Philippine citizenship in any manner while the
Republic of the Philippines is at war with any
country [C.A. 63, sec. 1(3)].
Loss of Philippine citizenship cannot be
presumed. Considering the fact that
admittedly, Osmeña was both a Filipino and an
American, the mere fact that he has a
certificate stating that he is an American does
not mean that he is not still a Filipino, since
there has been NO EXPRESS renunciation of
his Philippine citizenship [Aznar v. COMELEC,
G.R. No. 83820(1995)].
Reacquisition
a. Naturalization [C.A. 63 and C.A. 473]
Now an abbreviated process, no need to wait
for 3 years (1 year for declaration of intent, and
2 years for the judgment to become executory)
Requirements:
1. be 21 years of age
2. be a resident for 6 months
3. have good moral character
4. have no disqualification
b. Repatriation
Repatriation results in the recovery of the
original nationality. Therefore, if he is a natural-
born citizen before he lost his citizenship, he
will be restored to his former status as a
natural-born Filipino [Bengson III v. HRET,
G.R. No. 142840 (2001)].
Mere filing of certificate of candidacy is not a
sufficient act of repatriation. Repatriation
requires an express and equivocal act [Frivaldo
v. COMELEC, G.R. No. 120295(1989)].
In the absence of any official action or approval
by proper authorities, a mere application for
repatriation does not, and cannot, amount to an
automatic reacquisition of the applicant’s
Philippine citizenship [Labo v. COMELEC,
G.R. No, 86564 (1989)].

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c. Legislative Act: Both a mode of acquiring
and reacquiring citizenship
R.A. No. 9225 (CITIZENSHIP RETENTION
AND REACQUISITION ACT OF 2003)
Sec. 3. Retention of Philippine Citizenship. —
Any provision of law to the contrary
notwithstanding, natural-born citizens of the
Philippines ❣who have lost their Philippine
citizenship by reason of their naturalization as
citizens of a foreign country are hereby
deemed to have reacquired Philippine
citizenship upon taking the following oath of
allegiance to the Republic: xxx
Natural-born citizens of the Philippines who,
after the effectivity of this Act, become citizens
of a foreign country shall retain their Philippine
citizenship upon taking the aforesaid oath.
Sec. 4 Derivative Citizenship. — The
unmarried child, whether legitimate, illegitimate
or adopted, below eighteen (18) years of age,
of those who re-acquire Philippine citizenship
upon effectivity of this Act shall be deemed
citizens of the Philippines.
Sec. 5. Civil and Political Rights and Liabilities.
— Those who retain or re-acquire Philippine
citizenship under this Act shall enjoy full civil
and political rights and be subject to all
attendant liabilities and responsibilities under
existing laws of the Philippines and the
following conditions:
1. Those intending to exercise their right of
suffrage must meet the requirements under
Sec. 1, Art. V of the Constitution, RA 9189,
otherwise known as "The Overseas
Absentee Voting Act of 2003" and other
existing laws;
2. Those seeking elective public office in the
Philippines shall meet the qualifications for
holding such public office as required by
the Constitution and existing laws and, at
the time of the filing of the certificate of
candidacy, make a personal and sworn
renunciation of any and all foreign
citizenship before any public officer
authorized to administer an oath;
3. Those appointed to any public office shall
subscribe and swear to an oath of
allegiance to the Republic of the
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Philippines and its duly constituted
authorities prior to their assumption of
office: provided, that they renounce their
oath of allegiance to the country where
they took that oath;
4. Those intending to practice their profession
in the Philippines shall apply with the
proper authority for a license or permit to
engage in such practice; and
5. That right to vote or be elected or appointed
to any public office in the Philippines
cannot be exercised by, or extended to,
those who:
a. are candidates for or are occupying
any public office in the country of
which they are naturalized citizens;
and/or
b. are in active service as
commissioned or non-
commissioned officers in the
armed forces of the country in
which they are naturalized citizens.
Repatriation under RA 8171
RA No. 8171, which lapsed into law on October
23, 1995, is an act providing for the repatriation
(a) of Filipino women who have lost their
Philippine citizenship by marriage to aliens and
(b) of natural-born Filipinos who have lost their
Philippine citizenship on account of political or
economic necessity, including their minor
children [Angat v. Republic, GR No. 132244,
September 14, 1999]. Included in the second
group are minor children at the time of
repatriation and does not include one who is no
longer minor at the time of his repatriation or
one who lost his Philippine citizenship by
operation of law. The loss of Philippine
citizenship must be on account of political or
economic necessity and not by operation of law
such as derivative naturalization, or for the
purpose of avoiding deportation and
prosecution in the US [Tabasa v. CA, 500
SCRA 9].
Repatriation as a mode of reacquiring
Philippine citizenship does not require the filing
of a petition in court. All that an applicant had
to do is to take an oath of allegiance to the
Republic of the Philippines and registering said
oath in the Local Civil Registry of the place

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where the person concerned resides or last
resided [Angat, supra]. In addition thereto,
registration of the Certificate of Repatriation in
the Bureau of Immigration is a prerequisite in
effecting the repatriation of a citizen [Altarejos
v. COMELEC, 441 SCRA 655]. But in Tabasa,
supra, the Supreme Court ruled that a petition
for repatriation shall be filed with the Special
Committee on Naturalization (SCN) which was
designated to process petitions for repatriation
pursuant to AO 285 dated August 22, 2006.
Repatriation Under RA 9225
It allows former natural-born Filipino citizens
who have lost their Philippine citizenship by
reason of their naturalization as citizens of a
foreign country to reacquire Filipino citizenship.
It also allows Filipino citizens to retain their
Filipino citizenship even if they acquire another
citizenship in a foreign country. Retention or
reacquisition is accomplished by simply taking
the oath of allegiance as prescribed by RA
9225. The required oath of allegiance does not
contain the usual renunciation of allegiance to
any and all other states, thereby impliedly
allowing continued allegiance to the adopted
state. The usual absolute renunciation is,
however, required from those seeking public
elective office or appointed to public office in
the Philippines. Likewise, under the principle of
derivative citizenship, the unmarried child,
whether legitimate, illegitimate or adopted,
below 18 years of age, of those who re-acquire
Philippine citizenship upon the effectivity of RA
9225, shall be deemed citizens of the
Philippines.
RA 9225 NOT violative of Section 5 of
Article IV of the Constitution prohibiting
dual allegiance
Section 5 of Article IV of the Constitution is a
mere declaration of policy and it is not a self-
executing provision. The legislature still has to
enact the law on dual allegiance. In Section 2
and 3 of RA 9225, the framers were not
concerned with dual citizenship, per se, but
with the status of naturalized citizens who
maintain their allegiance to their countries of
origin even after their naturalization. Congress
was given a mandate to draft a law that would
set specific parameters as to what really
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constitutes dual allegiance. Until this is done, it
would be premature for the judicial department
to rule on the issues pertaining to dual
allegiance [Calilung v. Datumanong, GR
160869, May 11, 2007].
Citizenship Reacquired by Repatriation
Under Repatriation Laws
Repatriation results in the recovery of the
original nationality. This means that a
naturalized Filipino who lost his citizenship will
be restored to his prior status as a naturalized
Filipino citizen. On the other hand, if he was
originally a natural-born citizen before he lost
his Philippine citizenship, he will be restored to
his former status as a natural-born Filipino
[Bengson III v. HRET, et. al. GR No. 142840,
May 7, 2001].
Note: The issue of Citizenship may be threshed
out as the occasion demands. Res judicata
only applies once a finding of citizenship is
affirmed by the Court in a proceeding in which:
(a) the person whose citizenship is questioned
is a party; (b) the person's citizenship is raised
as a material issue; and (c) the Solicitor
General or an authorized representative is able
to take an active part.
When a person has already been declared and
recognized as a Philippine Citizen, by the BI
and the DOJ, he must be protected from
summary deportation proceedings. A citizen is
entitled to live in peace, without molestation
from any official or authority, and if he is
disturbed by a deportation proceeding, he has
the unquestionable right to resort to the courts
for his protection, either by a writ of habeas
corpus or of prohibition on the ground that the
BI lacks jurisdiction [Republic v. Harp, G.R. No.
188829 (2016)].
F. DUAL CITIZENSHIP AND
DUAL ALLEGIANCE
Dual Citizenship
Allows a person who acquires foreign
citizenship to simultaneously enjoy the rights
he previously held as a Filipino citizen. This is

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completely voluntary, and results in the
application of different laws of two or more
states to a dual citizen.
Dual Allegiance
a. Aliens who are naturalized as Filipinos
but remain loyal to their country of
origin;
b. Public officers who, while serving the
government, seek citizenship in
another country.
Dual citizenship v. Dual Allegiance
Dual citizenship arises when, as a result of the
concurrent application of the different laws of
two or more states, a person is simultaneously
considered a national by the said states. For
instance, such a situation may arise when a
person whose parents are citizens of a state
which adheres to the principle of jus sanguinis
is born in a state which follows the doctrine of
jus soli. Such person, ipso facto and without
any voluntary act on his part, is concurrently
considered a citizen of both states.
Dual allegiance on the other hand, refers to a
situation in which a person simultaneously
owes, by some positive acts, loyalty to two or
more states. While dual citizenship is
voluntary, dual allegiance is the result of an
individual’s volition [Mercado v. Manzano, 307
SCRA 630, May 29, 1999].
“Dual citizens” are disqualified from running for
any elective local position [Sec. 40(d), Local
Government Code]; this should be read as
referring to “dual allegiance.”
Once a candidate files his candidacy, he is
deemed to have renounced his foreign
citizenship in case of dual citizenship [Mercado
v. Manzano, G.R. No. 135083(1999)].
Clearly, in including Sec. 5 in Article IV on
citizenship, the concern of the Constitutional
Commission was not with dual citizens per se
but with naturalized citizens who maintain their
allegiance to their countries of origin even after
their naturalization. Hence, the phrase “dual
citizenship” in R.A. No. 7160, sec. 40(d) and in
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R.A. No. 7854, sec. 20 must be understood as
referring to “dual allegiance.”
Consequently, persons with mere dual
citizenship do not fall under this
disqualification. 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.
LEGISLATIVE
DEPARTMENT
A. LEGISLATIVE POWER
1. Scope and Limitations
Legislative power is the authority to make laws
and to alter and repeal them.
Who May Exercise Legislative Power
1. Congress
Legislative power shall be vested in the
Congress, which consists of a Senate and a
House of Representatives. [Sec. 1, Art. VI].
Grant of legislative power to Congress is
plenary. Congress may legislate on any subject
matter provided that constitutional limitations
are observed.
2. Regional/Local Legislative Power
N.B. A regional assembly exists for the ARMM.
Exercise of Legislative Powers by Local
Government
Requirements of a valid ordinance [CUPPU-
GC]:
a. It must not CONTRAVENE the Constitution
or any statute;
b. It must not be UNFAIR or oppressive;
c. It must not be PARTIAL or discriminatory;

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d. It must not PROHIBIT but may regulate
trade;
e. It must not be UNREASONABLE;
f. It must be GENERAL and CONSISTENT
with public policy [Magtajas v. Pryce
Properties, G.R. No. 111097 (1994)].
People’s Initiative on Statutes
Legislative power is also vested in the people
by the system of initiative and referendum
[Sec. 1, Art. VI]. The power of initiative and
referendum is the power of the people directly
to “propose and enact laws or approve or reject
any act or law or part thereof passed by the
Congress or local legislative body” [Sec. 32,
Art. VI]. The provision is not self-executing
[Defensor-Santiago v. COMELEC, G.R. No.
127325 (1997)].
R.A. 6735: “An Act Providing for a System
of Initiative and Referendum and
Appropriating Funds Therefor” This is valid
for (a) laws, (b) ordinances, and (c) resolutions,
but not amendments to the Constitution
[Defensor-Santiago, supra].
Congress may delegate legislative powers to
the president in times of war or in other national
emergencies [David v. Macapagal-Arroyo,
G.R. No. 171396 (2006)].
The President Under Martial Law or in a
Revolutionary Government
Sec. 23, Art. VI.
(2) In times of war or other national
emergency, the Congress may, by law,
authorize the President, for a limited period
and subject to such restrictions as it may
prescribe, to exercise powers necessary and
proper to carry out a declared national policy.
Unless sooner withdrawn by resolution of the
Congress, such powers shall cease upon the
next adjournment thereof.
Congress may delegate legislative powers to
the president in times of war or in other national
emergencies [David v. Macapagal-Arroyo,
G.R. No. 171396 (2006)].
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2. Principle of non-delegability;
exceptions
Principle: Delegata potestas non potest
delegari – what has been delegated cannot be
further delegated.
Rationale: Since the powers of the
government have been delegated to them by
the people, who possess original sovereignty,
these powers cannot be further delegated by
the different government departments to some
other branch or instrumentality of the
government.
General Rule: Only Congress (as a body) may
exercise legislative power.
Exceptions
a. Delegated legislative power to local
governments:
b. Constitutionally-grafted Exceptions
i. Emergency power delegated to the
Executive during State of War or
National Emergency [Sec. 23(2),
Art. VI]; and
ii. Certain taxing powers of the
President [Sec. 28(2), Art. VI].
iii. The extent reserved to the people
by the provision on initiative and
referendum [Sec. 1, Art. VI]
N.B. Subordinate legislation made by
administrative agencies – The principle of non-
delegability should not be confused with the
delegated rule-making authority of
implementing agencies [Belgica, supra].
Strictly speaking, what is delegated is not “law-
making” power, but rule-making power, limited
to (a) filling up the details of the law; or (b)
ascertaining facts to bring the law into actual
operation.
Traditional/Simplified Formulation: Who
may exercise legislative powers:
General Rule: Congress only.
Exceptions (PLATE):
1. Delegation to the People (by initiative and
referendum)
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U.P. LAW BOC CONSTITUTIONAL LAW I POLITICAL LAW

2. Delegation to the Local governments filing of details which can be delegated to

3. Delegation to the Administrative bodies administrative agencies).
4. Delegation of Tariff powers to the President
under Constitution
5. Delegation of Emergency powers to the
B. CHAMBERS OF CONGRESS;
COMPOSITION; QUALIFICATIONS
President under Constitution

The President did not proclaim a national

emergency, only a state of emergency in the Senate v. House of Representatives
three places in ARMM. And she did not act House of
Senate (Secs. 2-
pursuant to any law enacted by Congress that Representatives
14, Article VI)
authorized her to exercise extraordinary (Secs. 5-8, Art. VI)
powers. The calling out of the armed forces to Composition
prevent or suppress lawless violence in such Not more than 250
places is a power that the Constitution directly members, unless
vests in the President. She did not need otherwise provided by
congressional authority to exercise the same 24 senators law, consisting of:
[Ampatuan v. Puno, G.R. No. 190259 (2011)]. elected at large a. District
Representatives
Under its plenary legislative powers, Congress b. Party-List
can delegate to local legislative bodies the Representatives
power to create local government units, subject
Qualifications
to reasonable standards and provided no
conflict arises with any provision of the a. Natural-born
a. Natural-born citizen
Constitution [Sema v. COMELEC, G.R. No. citizen
b. At least 25 years
177597 (2008)]. b. At least 35
old on the day of the
years old on the
election
Tests for valid delegation day of the
c. Able to read and
Rule: There is a valid delegation of legislative election
write
power c. Able to read
d. A registered voter
when it passes the following tests — and write
in the district he seeks
d. A registered
to represent
a. Completeness test: The law sets forth the voter
e. A resident of the
policy to be executed, carried out, or e. Resident of the
said district for at
implemented by the delegate [Abakada, Philippines for at
least 1 year
supra], such that there is nothing left for the least 2 years
immediately
delegate to do but to enforce the law [Pelaez v. immediately
preceding the day of
Auditor General, G.R. No. L-23825(1965)]; and preceding the day
the election
of the election
b. Sufficient Standard Test: The standard Term of Office
defines legislative policy, marks its limits, maps
6 years 3 years
out its boundaries and specifies the public
agency to apply it. It indicates the Term Limits
circumstances under which the legislative 2 consecutive
command is to be effected [Edu v. Ericta, G.R. 3 consecutive terms
terms
No. L-32096 (1970)].
Note: Frivaldo v. COMELEC — Citizenship
Note: Acts which are purely legislative in must be Filipino at the time of assumption of
character (e.g. making of laws) cannot be office [G.R. NO. 120295 (1996)].
delegated to an administrative body (in
contrast to the ascertainment of facts or the

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RESIDENCY REQUIREMENT
Residence — physical presence of a person in
a given area, community or country
Domicile — place of habitual residence
• A man must have a domicile somewhere
• Once established, it remains until a new
one is acquired
• A man can have but one residence or
domicile at a time.
Acquisition of domicile
• Bodily presence
• Animus manendi (intent to stay)
• Animus non revertendi (no intent to return)
Requisites to change domicile
• Actual change of domicile
• Bona fide intention of abandoning the
former place of origin and establishing a
new one
• Acts which correspond with the purpose
Residence for election purposes is used
synonymously with domicile
1. Senate
The Senate of each Congress acts separately
and independently of the Senate of the
Congress before it. Due to the termination of
the business of the Senate during the
expiration of one (1) Congress, all pending
matters and proceedings, such as unpassed
bills and even legislative investigations, of the
Senate are considered terminated upon the
expiration of that Congress and it is merely
optional on the Senate of the succeeding
Congress to take up such unfinished matters,
not in the same status, but as if presented for
the first time.[Balag v. Senate of the
Philippines, G.R. 234608, July 3, 2018].
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2. House of Representatives
a. District Representatives and
Questions of Apportionment
District Representatives — Elected from
legislative districts apportioned among the
provinces, cities, and Metro Manila area.
Rules on Apportionment of Legislative
Districts
1. Apportionment of legislative districts
must be by law which could be a:
a. General Apportionment Law; or
b. Special Law (i.e. creation of new
provinces)
Note: The power to apportion legislative
districts is textually committed to Congress by
the Constitution. Thus, it cannot be validly
delegated to the ARMM Regional Assembly
[Sema v. COMELEC, G.R. No. 177597 (2008)].
Under the Constitution and the LGC,
apportionment and reapportionment do not
require a plebiscite [Bagabuyo v. COMELEC,
G.R. No. 176970 (2008)].
2. Proportional representation based on
number of inhabitants:
a. Each city with a population of at
least 250,000 shall have at least 1
representative.
b. Each province, irrespective of the
number of inhabitants, shall have
at least 1 representative.
3. Each legislative district shall comprise, as
far as practicable, contiguous, compact,
and adjacent territory. (N.B. Anti-
gerrymandering provision)
4. Re-apportionment by Congress within 3
years after the return of each census.
Note: “Apportionment” refers to the
determination of the number of
representatives which a State, county, or
other subdivision may send to a legislative
body, while “reapportionment” refers to the
realignment or change in legislative

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districts brought about by changes in
population and mandated by the
constitutional requirement of equality of
representation [Bagabuyo v. COMELEC,
supra].
b. Party-List System
Party-List Representatives
They shall constitute 20% of the total number
of representatives, elected through a party-list
system of registered national, regional, and
sectoral parties or organizations.
Sectoral Representatives
For 3 consecutive terms from 2 February 1987,
1⁄2 of the party-list seats shall be allotted to
sectoral representatives to be chosen by
appointment or election, as may be provided by
law. Until a law is passed, they are appointed
by the President from a list of nominees by the
respective sectors [Sec. 7, Art. XVIII].
Note: The party-list system is not synonymous
with sectoral representation [Atong Paglaum v.
COMELEC, G.R. No. 203766 (2013), citing the
1986 Constitutional Commission Records].
Atong Paglaum Guidelines
1. Three different parties or organizations
may participate in the party-list system:
a. National;
b. Regional;
c. or sectoral;
2. National and regional parties or orgs do
not need to (a) organize along sectoral
lines, or (b) represent any “marginalized or
underrepresented” sector;
3. Political parties may participate in the
party-list system provided:
a. they register under the party-list
system;
b. they do not field candidates in
legislative district elections.
i. A party that participates in the
legislative district elections may
still participate in the party-list
through a sectoral wing.
ii. The sectoral wing can be part of
the political party’s coalition, but
the former must be registered
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independently in the party-list
system.
4. Sectoral parties or orgs may either be (a)
“marginalized or underrepresented” (e.g.
labor, peasant, fisherfolk); or (b) “lacking in
well-defined political constituencies” (e.g.
professionals, women, elderly, youth)
5. The nominees of sectoral parties or orgs,
of either type, must (a) belong to their
respective sectors, or (b) have a track
record of advocacy for their respective
sectors. Majority of the members of a
sectoral party, of either type, must belong
to the sector they represent.
6. National, regional, or sectoral parties or
orgs shall not be disqualified if some of
their nominees are disqualified, provided
they have at least 1 nominee who remains
qualified [AtongPaglaum, supra].
DISQUALIFICATIONS AND
QUALIFICATIONS
See R.A. 7941: An Act Providing For The
Election Of Party-List Representatives
Through The Party-List System, And
Appropriating Funds Therefor
Disqualified Parties:
1. Religious sects
2. Foreign organizations
3. Advocating violence or unlawful means
4. Receiving support from any foreign
government, foreign political party,
foundation, organization, whether directly
or through any of its officers or members
or indirectly through third parties for
partisan election purposes.
5. Violating or failing to comply with laws,
rules or regulations relating to elections;
6. Declaring untruthful statements in its
petition;
7. Ceased to exist for at least one (1) year; or
8. Failing to participate in the last two (2)
preceding elections or fails to obtain at
least 2 per centum of the votes cast under
the party-list system in the two (2)
preceding elections for the constituency in
which it has registered.

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U.P. LAW BOC CONSTITUTIONAL LAW I
Qualified Sectors
Note: This qualification applies only to sectoral
parties. Participating national or regional
parties need not fall under any of these sectors
[Atong Paglaum, supra].
1. Labor
2. Peasant
3. Fisherfolk
4. Urban Poor
5. Indigenous Cultural Communities
6. Elderly
7. Handicapped
8. Women
9. Youth
10. Veterans
11. Overseas Workers
12. Professionals
Four parameters of the party-list system:
1. 20% Allocation - 20% of the total number
of the membership of the House of
Representatives is the maximum number
of seats available to party-list
organizations
2. 2% Threshold - Garnering 2% of the total
votes cast in the party-list elections
guarantees a party- list organization one
(1) seat
3. Additional Seats - The additional seats,
that is, the remaining seats after allocation
of the guaranteed seats, shall be
distributed to the party-list organizations
including those that received less than two
percent of the total votes. This distribution
will continue until all the seats have been
filled
4. 3-Seat Cap - The three-seat cap is
constitutional
Note: It is intended by the Legislature to
prevent any party from dominating the party-list
system. There is no violation of the Constitution
because the 1987 Constitution does not
require absolute proportionality for the party-list
system [BANAT v. COMELEC, G.R. No.
179271 (2009)].
Rules on Computation of Seats: Two-
Round Allocation
Step 1: Compute total number of seats
allocated for party-list representatives
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Step 2: Rank all party-list candidates from
highest to lowest based on the number of votes
they garnered.
Step 3: Compute for each party-list candidate’s
percentage of votes garnered in relation to the
total number of votes cast for party-list
candidates.
Step 4: Round 1 – Allocate one (1) seat each
for a party-list that garnered at least 2% of the
total number of votes.
Step 5: Round 2 – Assign additional seats
from the balance (i.e. total number of party-list
seats minus Round 1 allocations) by:
a. Allocating one (1) seat for every whole
integer (e.g. if a party garners 2.73% of the
vote, assign it two (2) more seats; if 1.80%,
assign it one (1) more seat); then
b. Allocating the remaining seats (i.e. total
seats minus Round 1 and Round 2a
allocations) to those next in rank until all seats
are completely distributed.
Step 6: Apply the 3-Seat Cap, if necessary
[See BANAT v. COMELEC, supra].
In ARARO v. COMELEC, G.R. No. 192803,
December 10, 2013, the Supreme Court
further modified the formula used and
interpreted in BANAT v. COMELEC. Thus, the
formula to determine the proportion garnered
by the party-list group would now henceforth
be:
(Number of votes of party list)/(Total number of
valid votes for party-list candidates =
Proportion or percentage of votes garnered by
party-list
The formula to determine the additional
seats to be awarded would be:
(Total number of Party-list seats available) -
(Number of seats allocated in the first round) x
(Proportion or Percentage of votes garnered by
the Party) = Additional seats awarded

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U.P. LAW BOC CONSTITUTIONAL LAW I
C. LEGISLATIVE PRIVILEGES,
INHIBITIONS, AND
DISQUALIFICATIONS
1. Privileges
a. Salaries
Section 10, Art. VI. The salaries of Senators
and Members of the House of
Representatives shall be determined by law.
No increase in said compensation shall take
effect until after the expiration of the full term
of all the Members of the Senate and the
House of Representatives approving such
increase.
Section 17, Art. XVIII. Until the Congress
provides otherwise, the President shall
receive an annual salary of three hundred
thousand pesos; the Vice-President, the
President of the Senate, the Speaker of the
House of Representatives, and the Chief
Justice of the Supreme Court, two hundred
forty thousand pesos each; the Senators, the
Members of the House of Representatives,
the Associate Justices of the Supreme
Court, and the Chairmen of the
Constitutional Commissions, two hundred
four thousand pesos each; and the Members
of the Constitutional Commissions, one
hundred eighty thousand pesos each.
“Expiration of the full term of all Members of the
Senate and the House of Representatives” is
singular and means that the increase may only
take effect upon the expiration of the terms
of both houses who passed the law
increasing said salary. This means that even
if the House of Representatives term has
already expired but the senate has not, the
salary increase cannot yet take effect even if
the increase is different for each house
[PHILCONSA v. Mathay, G.R. No. L-25554
(1966)].
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This prohibition also applies to the benefits a
member of congress will attain upon
retirement. Thus, a member of congress may
not compute his retirement benefits based on
the salary increase which he was not able to
reach because his term has already expired
before said increase took effect [Ligot v.
Mathay, G.R. No. L-34676 (1974)] .
b. Freedom from Arrest
A Senator or Member of the House of
Representatives shall, in all offenses
punishable by not more than six years
imprisonment, be privileged from arrest while
the Congress is in session [...] [Sec. 11, Art. VI].
Regardless of the whereabouts of a Senator or
Member of the House, freedom from arrest
holds, so long as Congress is in session.
Freedom from arrest applies only to offenses
punishable by not more than six years
imprisonment.
Preventive suspension is not a penalty. Order
of suspension under R.A. 3019 (Anti-Graft and
Corrupt Practices Act) is distinct from the
power of Congress to discipline its own
members and did not exclude members of
Congress from its operation [Defensor-
Santiago v. Sandiganbayan, G.R. No. 128055
(2001)].
In People v. Jalosjos [G.R. No. 132875,
February 3, 2000], the SC denied the request
of Cong. Jalosjos that he be allowed to attend
legislative sessions. The denial was premised
on the following: (a) membership in Congress
does not exempt an accused from statutes and
rules which apply to validly incarcerated
persons; (b) one rationale behind confinement
is public self-defense; (c) it would amount to
creation of a privileged class, without
justification in reason; and (d) he was provided
with an office in the New Bilibid Prison.
c. Speech and Debate Clause
[...] No Member shall be questioned nor be held
liable in any other place for any speech or

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U.P. LAW BOC CONSTITUTIONAL LAW I
debate in the Congress or in any committee
thereof [Sec. 11, Art. VI].
This means the Senator or Member of the
House can still be questioned and held liable in
Congress.
To come under the guarantee, the speech or
debate must be one made "in Congress or in
any committee thereof." Publication of an
allegedly libelous letter is not covered by the
privilege [Jimenez v. Cabangbang, G.R. No. L-
15905 (1966)].
What is covered under this provision?
Anything a member of Congress says in line
with his legislative functions (Jimenez v.
Cabangbang, supra)
a. Speeches
b. Utterances
c. Bills signed
d. Votes passed
While the immunity of a Member of Congress
is absolute and thus even the Supreme Court
cannot discipline a lawyer-senator for remarks
made against the court, it does not shield said
member from the authority of Congress to
discipline its own members [Defensor-Santiago
v. Pobre, A.C. No. 7399 (2009)].
2. Inhibitions and
Disqualifications
a. May not hold any other office or
employment in the government
during his term without forfeiting his
seat [Sec. 13, Art. VI]
Incompatible Office — The forfeiture of the
seat in Congress shall be automatic upon a
member’s assumption of such office deemed
incompatible. Thus, when a governor-elect ran
for the Batasang Pambansa and won, he could
not hold both offices [Adaza v. Pacana, G.R.
No. L-68159 (1985)]
Note: The office of the Philippine National Red
Cross (PNRC) Chairman is not a government
office or an office in a government-owned or -
controlled corporation for purposes of the
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prohibition in Sec. 13, Art. VI [Liban v. Gordon,
G.R. No. 175352 (2009 & 2011); but note that
the structure of the PNRC is sui generis being
neither strictly private nor public in nature].
b. May not be appointed to any office
created or whose emoluments were
increased during the term for which
he was elected [Sec. 13, Art. VI]
Forbidden Office — One to which a member
cannot be appointed even if he is willing to give
up his seat in Congress. The effect of his
resignation from the Congress is the loss of his
seat therein but his disqualification for the
forbidden office nevertheless remains.
c. Shall not be financially interested,
directly or indirectly, in any contract
with, or franchise or special
privilege granted by the government
during his term of office [Sec. 14,
Art. VI]
d. Shall not intervene in any matter
before any office of the government
when it is for his pecuniary benefit
or where he may be called upon to
act on account of his office [Sec. 14,
Art. VI]
The Pork Barrel System “runs afoul” of Sec. 14,
Art. VI, because in “allowing legislators to
intervene in the various phases of project
implementation – a matter before another
office of government – [Pork Barrel] renders
them susceptible to taking undue advantage of
their own office” [Belgica, supra].
e. Cannot personally appear as
counsel before any court, electoral
tribunal, quasi judicial and
administrative bodies during his
term of office [Sec. 14, Art. VI]
This prohibition is absolute. Thus, when an
assemblyman acting as counsel for one group
in an internal dispute in a company was denied
leave to intervene, the court held that his action
of buying 10 stocks in order to be able to
intervene in the company’s dispute as a

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U.P. LAW BOC CONSTITUTIONAL LAW I
stockholder was an indirect violation of this rule
and still unconstitutional [Puyat v. De Guzman
Jr., G.R. No. L-51122 (1982)]
3. Duty to Disclose
a. SALN
Sec. 17, Art. XI. A public officer or employee
shall, upon assumption of office and as often
thereafter as may be required by law, submit
a declaration under oath of his assets,
liabilities, and net worth. In the case of the
President, the Vice-President, the Members
of the Cabinet, the Congress, the Supreme
Court, the Constitutional Commissions and
other constitutional offices, and officers of
the armed forces with general or flag rank,
the declaration shall be disclosed to the
public in the manner provided by law.
When to disclose:
1. Within 30 days after assuming office
2. On or before April 15 after the closing of the
calendar year
3. Upon expiration of term of office, resignation
or separation from office
Who must declare:
1. President
2. Vice President
3. Members of the Cabinet
4. Members of Congress
5. Members of the SC
6. Members of the Constitutional Commission
and other Constitutional Offices
7 Officers of the Armed Forces with general or
flag rank [Art XI, Sec 17]
b. Financial and Business Interests;
Potential Conflicts of Interest
Sec. 12, Art. VI. All Members of the Senate
and the House of Representatives shall,
upon assumption of office, make a full
disclosure of their financial and business
interests. xxx
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c. Amounts paid to/expenses incurred
by each member
Sec. 20, Art. VI. The records and books of
accounts of the Congress shall be preserved
and be open to the public in accordance with
law, and such books shall be audited by the
Commission on Audit which shall publish
annually an itemized list of amounts paid to
and expenses incurred for each Member.
D. QUORUM AND VOTING
MAJORITIES
1. Quorum
Sec. 16(2), Art. VI. A majority of each House
shall constitute a quorum to do business, but
a smaller number may adjourn from day to
day and may compel the attendance of
absent Members in such manner, and under
such penalties, as such House may provide.
In computing a quorum, members who are
outside the country, thus outside of each
House’s coercive jurisdiction, are not included.
“Majority” shall take into consideration the
number of members within the “jurisdiction” of
the Congress (those it can order arrested for
the purpose of questioning). In Avelino v.
Cuenco [G.R. No. L-2821 (1949)], one Senator
was out of the Philippines which is not within
the “jurisdiction” of the Senate, so that the
working majority was 23 Senators. There is a
difference between a majority of "all members
of the House" and a majority of "the House",
the latter requiring less number than the first.
Therefore, an absolute majority (12) of all
members of the Senate less one (23)
constitutes a constitutional majority of the
Senate for the purpose of the quorum.
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2. Voting Majorities
in case of Art.
Doctrine of Shifting Majority: For each tie VII
House of Congress to pass a bill, only the votes
of the majority of those present in the session, Confirm Majority Separately Sec.
there being a quorum, is required. appointme 9,
nt of VP Art.
Exceptions to Doctrine of Shifting Majority: VII
A. Votes where requirement is based on “ALL
THE MEMBERS OF CONGRESS”: Congress 2/3 Congress
requirement is based on the entire affirming
composition of a House or Congress (in that the
its entirety), regardless of the number of President
Members present or absent is unable to
discharge
powers and
ACTION VOTES HOUSE BASI
duties
REQUI VOTING S
RED Revoke or Majority Jointly Sec.
(ALL extend (a) 18,
MEMB Martial Law Art.
ERS) or (b) the VII
suspension
Senate Majority Separately; Sec.
of the
shall elect All 16
respective privilege of
its (1),
members the writ of
President Art.
Habeas
and the VI
Corpus
Speaker of
the House Amnesty Majority Silent Sec.
Grant 19(2)
Punish for 2/3 Separately; Sec.
All , Art.
disorderly 16
respective VII
behavior (3),
and may members Art. Submit a Majority (Silent) Sec.
SUSPEND VI question of 3,
or EXPEL calling a Prevailing Art.
Const. view: by XVII
Override 2/3 Separately Sec.
(House
Convention default,
Presidentia 27
where the to the houses
l Veto (1),
bill electorate vote
Art.
originated separately
VI Call for 2/3 Sec.
votes first) (because
Constitutio Congress is 3,
Grant Tax Majority Silent Sec. nal bicameral) Art.
Exemption 28 Convention XVII
s (4),
Art. Propose 3/4 Sec.
VII amendmen 1(1),
ts as Art.
Elect Majority Separately Sec. Constitutio XVII
President 4 (5),

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The suspension contemplated in the

nal
Constitution is different from the suspension
Assembly
prescribed in the Anti-Graft and Corrupt
B. Other Cases (NOT out of all members) Practices Act (R.A. No. 3019). The former is
ACTION VOTES BASIS punitive in nature while the latter is preventive.
[Defensor-Santiago v. Sandiganbayan, G.R.
REQUIRED
(ALL No. 118364, (1995)].
MEMBERS)
The determination of Congress when it comes
Determine ⅔ of both Sec. to disciplining its members is respected by the
President’s houses, 11(4), court. As such, the Supreme Court does not
disability voting Art. VII have the power to compel congress to reinstate
separately a member who has been expelled by it
[Alejandrino v. Quezon, G.R. No. 22041
Declaring a State of ⅔ of both Sec. (1924)].
War houses (in 23(1),
joint Art. VI The immunity for speech given to a member of
session) Congress is not a bar to the power of Congress
voting to discipline its members [Osmeña v.
separately Pendatun, G.R. No. L-17144 (1960)].

Validity of ⅔ members Sec. F. PROCESS OF LAW-

Treaty/International of SENATE 21, Art.
Agreement VII MAKING
Requirements as to bills
E. DISCIPLINE OF
MEMBERS 1. As to titles of bills

Each House may determine the rules of its
proceedings, punish its Members for disorderly
behavior, and, with the concurrence of two-
thirds of all its Members, suspend or expel a
Member. A penalty of suspension, when
imposed, shall not exceed sixty days [Sec. 16
(3), Art. VI].
Each house may punish its members for
disorderly behavior, and with the concurrence
of 2/3 of ALL its members, with: [SED-FIC]
• Suspension
• Expulsion
Other measures:
• Deletion of unparliamentary remarks from
the record
• Fine
• Imprisonment
• Censure
Sec. 26, Art. VI.
(1) Every bill passed by the Congress shall
embrace only one subject which shall be
expressed in the title thereof. xxx
One Subject One Title Rule
1. To prevent hodge-podge, "log-rolling", or
the smuggling in of "riders", that is, "any act
containing several subjects dealing with
unrelated matters representing diverse
interests.
2. To prevent surprise or fraud upon the
legislature
3. To fairly apprise the people of the subjects
of legislation that are being considered in
order that they may have the opportunity of
being heard thereon, by petition or
otherwise, if they should so desire.
4. But the title need not be a complete
catalogue of a bill. In any case, a title must
not be "so uncertain that the average

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U.P. LAW BOC CONSTITUTIONAL LAW I
person reading it would not be informed of
the purpose of the enactment.
5. The title of the bill is controlling over the
text. [Dela Cruz v. Paras, G.R. No. L-
42571-72(1983)].
2. Requirements as to Certain
Laws
Appropriations Laws – created to regulate
spending
Sec. 22, Art. VII. The President shall submit
to the Congress within thirty days from the
opening of every regular session, as the
basis of the general appropriations bill, a
budget of expenditures and sources of
financing, including receipts from existing
and proposed revenue measures.
Sec. 24, Art. VI. All appropriation, revenue
or tariff bills, bills authorizing increase of
the public debt, bills of local application,
and private bills shall originate exclusively
in the House of Representatives, but the
Senate may propose or concur with
amendments.
Sec. 25, Art. VI.
(1) The Congress may not increase the
appropriations recommended by the
President for the operation of the
Government as specified in the budget. The
Procedure for Passage of Bills
form, content, and manner of preparation of
the budget shall be prescribed by law.
(2) No provision or enactment shall be
embraced in the general appropriations bill
unless it relates specifically to some
particular appropriation therein. Any such
provision or enactment shall be limited in its
operation to the appropriation to which it
relates. (3) The procedure in approving
appropriations for the Congress shall strictly
follow the procedure for approving
appropriations for other departments and
agencies.
(4) A special appropriations bill shall
specify the purpose for which it is intended,
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and shall be supported by funds actually
available as certified by the National
Treasurer, or to be raised by a
corresponding revenue proposed therein.
(5) No law shall be passed authorizing
any transfer of appropriations; however,
the President, the President of the Senate,
the Speaker of the House of
Representatives, the Chief Justice of the
Supreme Court, and the heads of
Constitutional Commissions may, by law, be
authorized to augment any item in the
general appropriations law for their
respective offices from savings in other items
of their respective appropriations.
(6) Discretionary funds appropriated for
particular officials shall be disbursed
only for public purposes to be supported
by appropriate vouchers and subject to such
guidelines as may be prescribed by law.
(7) If, by the end of any fiscal year, the
Congress shall have failed to pass the
general appropriations bill for the ensuing
fiscal year, the general appropriations law
for the preceding fiscal year shall be
deemed reenacted and shall remain in force
and effect until the general appropriations bill
is passed by the Congress.
Sec. 29, Art. VI. (1) No money shall be paid
out of the Treasury except in pursuance of
an appropriation made by law.
Sec. 27, Art. VI
(1) Every bill passed by the Congress shall,
before it becomes a law, be presented to the
President. If he approves the same, he shall
sign it; otherwise,he shall veto it and return
the same with his objections to the House
where it originated, which shall enter the
objections at large in its Journal and proceed
to reconsider it. If, after such
reconsideration, two-thirds of all the
Members of such House shall agree to pass
the bill, it shall be sent, together with the
objections, to the other House by which it
shall likewise be reconsidered, and if
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that no public hearing is needed, it

approved by two-thirds of all the Members of
schedules the bill for Committee
that House, it shall become a law. In all such
discussion/s.
cases, the votes of each House shall be
○ Based on the result of the public
determined by yeas or nays, and the names
hearings or Committee
of the Members voting for or against shall be
discussions, the Committee may
entered in its Journal. The President shall
introduce amendments,
communicate his veto of any bill to the House
consolidate bills on the same
where it originated within thirty days after the
subject matter, or propose a
date of receipt thereof; otherwise, it shall
become a law as if he had signed it. substitute bill. It then prepares the
corresponding committee report.
○ The Committee approves the
Generally, there are 3 ways for the bill to Committee Report and formally
become a law: transmits the same to the Plenary
(1) When it is approved by the President; Affairs Bureau.
(2) When the vote of the President is 4. Second reading
overridden by a two-thirds vote of all the ○ The Committee Report is
members of both houses; registered and numbered by the
(3) Upon failure of the President to veto the bill Bills and Index Service. It is
and to return it with his objections, to the included in the Order of Business
House where it originated, within 30 days and referred to the Committee on
after the date of receipt Rules.
○ The Committee on Rules
House Rules schedules the bill for consideration
1. Preparation of the bill on Second Reading.
○ The Member or the Bill Drafting ○ On Second Reading, the Secretary
Division of the Reference and General reads the number, title and
Research Bureau prepares and text of the bill and the following
drafts the bill upon the Member's takes place:
request. ■ Period of Sponsorship and
2. First reading Debate
○ The bill is filed with the Bills and ■ Period of Amendments
Index Service and the same is ■ Voting which may be done
numbered and reproduced. by:
○ Three days after its filing, the same 1. viva voce
is included in the Order of Business 2. count by tellers
for First Reading. 3. division of the
○ On First Reading, the Secretary House; or
General reads the title and number 4. nominal voting
of the bill. The Speaker refers the 5. Third reading
bill to the appropriate Committee/s. ○ The amendments, if any, are
3. Committee consideration / action engrossed and printed copies of
○ The Committee where the bill was the bill are reproduced for Third
referred to evaluates it to Reading.
determine the necessity of ○ The engrossed bill is included in
conducting public hearings. If the the Calendar of Bills for Third
Committee finds it necessary to Reading and copies of the same
conduct public hearings, it are distributed to all the Members
schedules the time thereof, issues three days before its Third
public notice and invites resource Reading.
persons. If the Committee finds

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○ On
Third Reading, the Secretary
General reads only the number and
title of the bill.
○ A roll call or nominal voting is called
and a Member, if he desires, is
given three minutes to explain his
vote. No amendment on the bill is
allowed at this stage.
■ The bill is approved by an
affirmative vote of a
majority of the Members
present.
■ If the bill is disapproved,
the same is transmitted to
the Archives.
6. Transmittal of the approved bill to the
Senate
○ The approved bill is transmitted to
the Senate for its concurrence.
7. Senate action on approved bill of the
House
○ The bill undergoes the same
legislative process in the Senate.
8. Conference committee (Bicameral)
○ A Conference Committee is
constituted and is composed of
Members from each House of
Congress to settle, reconcile or
thresh out differences or
disagreements on any provision of
the bill.
○ The conferees are not limited to
reconciling the differences in the
bill but may introduce new
provisions germane to the subject
matter or may report out an entirely
new bill on the subject.
○ The Conference Committee
prepares a report to be signed by
all the conferees and the
Chairman.
○ The Conference Committee Report
is submitted for
consideration/approval of both
Houses. No amendment is
allowed.
9. Transmittal of the bill to the President
○ Copies of the bill, signed by the
Senate President and the Speaker
of the House of Representatives
and certified by both the Secretary
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of the Senate and the Secretary
General of the House, are
transmitted to the President.
10. Presidential action on the bill
○ If the bill is approved by the
President, the same is assigned an
RA number and transmitted to the
House where it originated.
○ If the bill is vetoed, the same,
together with a message citing the
reason for the veto, is transmitted
to the House where the bill
originated.
11. Action on approved bill
○ The bill is reproduced and copies
are sent to the Official Gazette
Office for publication and
distribution to the implementing
agencies. It is then included in the
annual compilation of Acts and
Resolutions.
12. Action on vetoed bill
○ The message is included in the
Order of Business. If the Congress
decides to override the veto, the
House and the Senate shall
proceed separately to reconsider
the bill or the vetoed items of the
bill. If the bill or its vetoed items is
passed by a vote of two-thirds of
the Members of each House, such
bill or items shall become a law.
A joint resolution is not a bill, and its passage
does not enact the joint resolution into a law
even if it follows the requirements expressly
prescribed in the Constitution for enacting a bill
into law. However, a joint resolution can be part
of the implementation of a law as provided in
the law itself. A joint resolution can also be
treated as a recommendation to the Executive
on how the law can be implemented. Further,
neither the Rules of the Senate nor the Rules
of the House of Representatives can amend
the Constitution which recognizes only a bill
can become law. [Ang Nars Party-List v.
Executive Secretary, G.R. No. 215746 (2019)]

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Sec. 26, Art. VI
(2) No bill passed by either House shall
become a law unless it has passed three
readings on separate days, and printed
copies thereof in its final form have been
distributed to its Members three days before
its passage, except when the President
certifies to the necessity of its immediate
enactment to meet a public calamity or
emergency. Upon the last reading of a bill,
no amendment thereto shall be allowed, and
the vote thereon shall be taken immediately
thereafter, and the yeas and nays entered in
the Journal.
The President’s Veto Power
Section 27, Article VI defines the only way for
the President to veto a bill.
When the President vetoes a measure, he
should return the measure to the House of
origin, indicating his objections thereto in what
is commonly known as a veto message so that
the same may be studied by the members for
possible overriding of his veto.
General rule: The President must approve a
bill in its entirety or disapprove it in toto.
Exception: The exception applies to
appropriation, revenue and tariff bills, any
particular item or items of which may be
disapproved without affecting the item or items
to which he does not object.
To override the President’s veto, at least ⅔ of
ALL members of each house must agree to
pass the bill. In such case, the veto is
overridden and the bill becomes law without
need of presidential approval.
Doctrine of inappropriate provision
A provision that is constitutionally inappropriate
for an appropriation bill may be singled out for
veto even if it is not an appropriation or revenue
item.
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Effectivity of Laws
Art. 2, Civil Code. Laws shall take effect
after fifteen days following the completion of
their publication in the Official Gazette,
unless it is otherwise provided. This Code
shall take effect one year after such
publication.
Tanada v. Tuvera [G.R. No. L-63915 (1985)]:
Even when the law provides its own date of
effectivity, the publication requirement is
mandatory, in order that a law may become
effective. The object of the publication
requirement is to give the general public
adequate notice of the various laws which are
to regulate their actions and conduct—without
publication, there would be no basis for the
application of the maxim, “ignorantia legis non
excusat.” The publication requirement is a
requirement of due process.
Limitations on Legislative Power
Formal/Procedural Limitations
1. Prescribes the manner of passing bills and
the form they should take.
Rider clause: Every bill passed by the
Congress shall embrace only one subject,
which shall be expressed in the title [Sec.
26(1), Art. VI].
2. The title is not required to be an index of
the contents of the bill. It is sufficient
compliance if the title expresses: (1) the
general subject; and (2) all the provisions
of the statute are germane to that subject
[Tio v. Videogram Regulatory Commission,
151 SCRA 208 (1987)].
3. No bill passed by either house shall
become law unless it has passed three (3)
readings on separate days [Sec. 26(2), Art.
VI].
4. Printed copies in its final form must have
been distributed
Exception: When the President certifies to the
necessity of its immediate enactment to meet a
public calamity or emergency.
Presidential certification dispenses with (1) the
printing requirement; and (2) the requirement

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for readings on separate days [Kida v. Senate,
G.R. No. 196271 (2011), citing Tolentino v.
Secretary of Finance, supra].
Substantive Limitations
Circumscribe both the exercise of the power
itself and the allowable subject of legislation.
G. ELECTORAL TRIBUNALS AND
THE COMMISSION ON
APPOINTMENTS
Electoral Tribunals
Sec. 17, Art. VI. The Senate and the House
of Representatives shall each have an
Electoral Tribunal which shall be the sole
judge of all contests relating to the election,
returns, and qualifications of their respective
Members. Each Electoral Tribunal shall be
composed of nine Members, three of whom
shall be Justices of the Supreme Court to be
designated by the Chief Justice, and the
remaining six shall be Members of the
Senate or the House of Representatives, as
the case may be, who shall be chosen on the
basis of proportional representation from the
political parties and the parties or
organizations registered under the party-list
system represented therein. The senior
Justice in the Electoral Tribunal shall be its
Chairman.
Two Types
1. Senate Electoral Tribunal (SET)
2. House Electoral Tribunal (HRET)
Note: There is a Presidential Electoral Tribunal
(PET), but it is governed by different
provisions.
The tribunals which have jurisdiction over the
question of the qualifications of the President,
the Vice-President, Senators and the Members
of the House of Representatives was made
clear by the Constitution. [Poe-Llamanzares v.
COMELEC, G.R. No. 221697 (2016)].
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Composition
1. 3 Supreme Court justices, designated by
Chief Justice; Senior Justice in the
Electoral Tribunal shall be its Chairman
2. 6 members of the Senate or House, as the
case may be, chosen on the basis of
proportional representation from parties
Composition Rules
1. The ET shall be constituted within 30 days
after the Senate and the House shall have
been organized with the election of the
President and the Speaker [Sec. 19, Art.
VI].
2. Members chosen enjoy security of tenure
and cannot be removed by mere temporary
change of party affiliation [Bondoc v.
Pineda, G.R. No. 97710 (1991)].
Valid grounds/just cause for termination of
membership to the tribunal:
1. Expiration of Congressional term of office;
2. Death or permanent disability;
3. Resignation from political party which one
represents in the tribunal;
4. Removal from office for other valid
reasons.
Note: Disloyalty to party and breach of party
discipline are not valid grounds for the
expulsion of a member of the tribunal [Bondoc
v. Pineda, supra].
1. Nature
Jurisdiction: Sole judge of all contests relating
to the election, returns, and qualifications of
their respective members.
When does it acquire jurisdiction:
● ET has jurisdiction only (1) when there is
an election contest, and (2) only after the
proclamation of a candidate [Lazatin v.
HRET, G.R. No. 84297(1988)].
● In the absence of an election contest, and
before proclamation, jurisdiction remains
with COMELEC [Id.]. But the proclamation
of a congressional candidate following the
election divests the COMELEC of
jurisdiction over the proclaimed
representative in favor of the HRET

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[Tañada v. COMELEC, G.R. No. 207199
(2013)].
● But see Ongsiako-Reyes v. COMELEC
[G.R. No. 207264 (2013)] where the Court
held that an Electoral Tribunal acquires
jurisdiction only after (1) a petition is filed
before it, and (2) a candidate is already
considered a member of the House.
● To be considered a member, in turn, there
must be a concurrence of the following: (1)
a valid proclamation; (2) a proper oath (a)
before the Speaker and (b) in open
session; and (3) assumption of office [Id.].
○ The Court in Ongsiako-Reyes
clarified the doctrine that once a
proclamation has been made,
COMELEC’s jurisdiction is already
lost and the HRET’s own
jurisdiction begins only applies in
the context of a candidate who has
not only been proclaimed and
sworn in, but has also assumed
office [Id.].
Election Contest
One where a defeated candidate challenges
the qualification and claims for himself the seat
of a proclaimed winner.
Independence of the Electoral Tribunals
● Since the ET’s are independent
constitutional bodies, independent even of
the respective House, neither Congress
nor the Courts may interfere with
procedural matters relating to the functions
of the ET’s. [Macalintal v. Presidential
Electoral Tribunal, G.R. No. 191618, Nov.
23, 2010]
2. Powers
The power granted to HRET by the
Constitution is intended to be as complete and
unimpaired as if it had remained originally in
the legislature [Co v. HRET, G.R. Nos. 92191-
92(1991), citing Angara v. Electoral
Commission, supra].
The Constitution mandates that the HRET
“shall be the sole judge of all contests relating
to the election, returns and qualifications” of its
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members. By employing the word “sole,” the
Constitution is emphatic that the jurisdiction of
the HRET in the adjudication of election
contests involving its members is exclusive and
exhaustive. Its exercise of power is intended to
be its own — full, complete and unimpaired
[Duenas, Jr. v. HRET, G.R. No. 185401
(2009)].
Commission On Appointments
Sec. 18, Art. VI. There shall be a
Commission on Appointments consisting of
the President of the Senate, as ex officio
Chairman, twelve Senators, and twelve
Members of the House of Representatives,
elected by each House on the basis of
proportional representation from the political
parties and parties or organizations
registered under the party-list system
represented therein. The chairman of the
Commission shall not vote, except in case of
a tie. The Commission shall act on all
appointments submitted to it within thirty
session days of the Congress from their
submission. The Commission shall rule by a
majority vote of all the Members.
Composition
a. Senate President as ex-officio chairman
(shall not vote except in case of a tie)
b. 12 Senators
c. 12 Members of the HOR
Rule on Proportional Representation
The 12 Senators and 12 Representatives are
elected on the basis of proportional
representation from the political parties and
party-list organizations.
The HOR has authority to change its
representation in the Commission on
Appointments to reflect at any time the
changes that may transpire in the political
alignments of its membership. It is understood
that such changes in membership must be
permanent xxx [Daza v. Singson, G.R. No.
86344(1989)].
By requiring proportional representation in the
Commission on Appointments, Sec. 18 in
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effect works as a check on the majority party in
the Senate and helps to maintain the balance
of power. No party can claim more than what it
is entitled to under such rule [Guingona, Jr. v.
Gonzales, G.R. No. 106971(1993)].
1. Nature
The CA shall be constituted within 30 days after
the Senate and the House of Representatives
shall have been organized with the election of
the President and the Speaker [Art. VI, Sec
19.].
It is NOT mandatory to elect 12 Senators to the
Commission before it can discharge its
functions. What the Constitution requires is at
least a majority of the membership [Guingona
v. Gonzales, G.R. No. 106971 (1992)].
The CA shall act on all appointments within 30
session days from their submission to
Congress and shall rule by a majority vote of all
its members.
Audit; Members of the Regional and
Consultative Commissions); [Sarmiento v.
Mison, G.R. No. 79974 (1987)]
Congress cannot require that the appointment
of a person to an office created by law shall be
subject to CA confirmation [Calderon v. Carale,
G.R. No. 91636 (1992)].
Appointments extended by the President to the
above-mentioned positions while Congress is
not in session (ad-interim appointments) shall
only be effective:
a. Until disapproval by the Commission on
Appointments; or
b. Until the next adjournment of Congress.
H. POWERS OF
CONGRESS
1. Legislative Inquiries and
Oversight Functions

The power to approve or disapprove Requisites of Legislative Inquiries:

appointments is conferred on the CA as a body 1. Must be in aid of legislation;
and not on the individual members [Pacete v. 2. Is in accordance with duly published rules
Secretary of the Commission on Appointments, of procedure;
G.R. No. L-25895(1971)]. 3. Right of persons appearing in or affected
by such inquiries shall be respected
[Bengson v. Senate Blue Ribbon
2. Jurisdiction Committee, G.R. No. 89914 (1991)]
CA shall confirm the appointments by the Comparison Between Legislative Inquiries and
President with respect to the following Question Hour [See also Senate v. Ermita,
positions: G.R. No. 169777 (2006)]
● Heads of Executive departments (except if
it is the Vice-President who is appointed to
a cabinet position, as this needs no
confirmation);
● Ambassadors, other public ministers or
consuls;
● Officers of the AFP from the rank of Colonel
or Naval Captain;
● Other officers whose appointments are
vested in him by the Constitution (e.g.
Regular Members of the Judicial and Bar
Council; Chairman and Commissioners of
the Civil Service Commission, Commission
on Elections, and the Commission on

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President’s constitutional authority over the

Legislative
Question Hour military. The Supreme Court held that
Inquiries
obedience and deference to the military chain
of command and the President as commander-
Constitutional Provision in-chief are the cornerstones of a professional
military in the firm cusp of civilian control. In the
Sec. 21, Art. VI Sec. 22, Art. VI same case, the Supreme Court also ruled that
any chamber of Congress which seeks the
Topic appearance before it of a military officer
against the consent of the President has
On any matter adequate remedies under the law to compel
In aid of legislation pertaining to the such attendance. Final judicial orders have the
subject’s department force of the law of the land which the President
has the duty to faithfully execute. If the courts
Persons Subjected so rule, the duty falls on the shoulder of the
President, as Commander in Chief, to
Any person upon Heads of authorize the appearance of military officials
subpoena departments only before Congress.

Appearance of Executive Officials Additional Limitation: Executive Privilege

Appearance of
executive officials
Appearance of 1. Via request
executive officials 2. Upon executive
generally mandatory official’s volition
with the consent
of the President
The mere filing of a criminal or an
administrative complaint before a court or
quasi-judicial body should not automatically
bar the conduct of a legislative inquiry
[Standard Chartered Bank v. Senate
Committee on Banks, G.R. No. 167173 (2007)]
The requirement of securing prior consent of
the President prior to appearing before either
House of Congress applies only to Cabinet
Members and not to other public officials and
only when either House of Congress conducts
a Question Hour and not in cases of inquiries
in aid of legislation as the latter should be
untrammelled because it is co-extensive with
the power to legislate [Senate of the
Philippines v. Ermita, G.R. No. 169777 (2006)].
However, in Gudani v. Senga, G.R. No.
170165 (2006), the Supreme Court en banc
clarified the above ruling and upheld the
Executive privilege is the right of the President
and high level officials authorized by her to
withhold information from Congress, from the
courts, and ultimately from the public. Among
the types of information which have been
judicially recognized as privileged are state
secrets regarding military, diplomatic and other
national security matters. Certain information in
the possession of the executive may validly be
claimed as privileged even against Congress,
such as Presidential conversations,
correspondences, or discussions during
closed-door Cabinet meetings. [Chavez v.
PEA, G.R. No. 133250 (2003)].
Since the privilege belongs to the President,
only the President can invoke it. She may also
authorize the Executive Secretary to invoke the
privilege on her behalf, in which case, the
Executive Secretary must state that the Act is
“By order of the President,” which means that
he personally consulted with the President on
such matters of concern. [Senate of the
Philippines v. Ermita, supra].
The claim of privilege must be specific, e.g.,
whether the information sought to be withheld
involves military or diplomatic secrets, closed-
door Cabinet meetings, etc. A claim of
privilege, being a claim of exemption from an
obligation to disclose information must be

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clearly asserted. Congress has the right to
know why the executive considers the
requested information privileged. It does not
suffice to merely declare that the President, or
an authorized head of office, has determined
that it is so. If the President and Congress
cannot agree on whether the matter is
privileged or not, then the Court must come in
to determine the validity of the claim of privilege
[Senate of the Philippines v. Ermita, supra].
Elements of Presidential Communications
Privilege
In Neri v. Senate Committees, G.R. No.
180643 (2008), the Court ruled that the claim
of executive privilege was properly invoked by
Secretary Neri, specifically under what is called
“presidential communication privilege.” The
elements of presidential communications
privilege are:
(1) The protected communication must relate
to a “quintessential and non-delegable
presidential power.”
(2) The communication must be authored or
“solicited and received” by a close advisor
of the President or by the President
himself. The judicial test is that an advisor
must be in “operational proximity” with the
President.
(3) The presidential communications privilege
remains a qualified privilege that may be
overcome by a showing of adequate need,
such that information sought “likely
contains important evidence” and by the
unavailability of the information elsewhere
by an appropriate investigating authority.
Contempt Power
As long as there is legitimate inquiry, then the
inherent power of contempt by the Senate may
be properly exercised. Conversely, once the
legislative inquiry concludes, the exercise of
the inherent power of contempt ceases and
there is no more genuine necessity to penalize
the detained witness. [Balag v. Senate of the
Philippines, G.R. No. 234608 (2018)].
Concept of Congressional Oversight
Broadly defined, the power of oversight
embraces all activities undertaken by
Congress to enhance its understanding of and
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influence over the implementation of legislation
it has enacted. Clearly, oversight concerns
post-enactment measures undertaken by
Congress: (a) to monitor bureaucratic
compliance with program objectives, (b) to
determine whether agencies are properly
administered, (c) to eliminate executive waste
and dishonesty, (d) to prevent executive
usurpation of legislative authority, and (d) to
assess executive conformity with the
congressional perception of public interest.
Categories of Congressional Oversight
Functions
The acts done by Congress purportedly in the
exercise of its oversight powers may be divided
into three categories, namely: scrutiny,
investigation and supervision.
1. Scrutiny
a. Passive inquiry, the primary purpose of
which is to determine economy and
efficiency of the operation of
government activities.
b. In the exercise of legislative scrutiny,
Congress may request information and
report from the other branches of
government. It can give
recommendations or pass resolutions
for consideration of the agency
involved.
c. Legislative scrutiny is based primarily
on the power of appropriation of
Congress. Under the Constitution, the
"power of the purse" belongs to
Congress.
d. Legislative scrutiny does not end in
budget hearings. Congress can ask the
heads of departments to appear before
and be heard by either House of
Congress on any matter pertaining to
their departments, pursuant to Section
22, Article VI of the 1987 Constitution
2. Congressional Investigation
a. More intense digging of facts,
compared to scrutiny. Power of
investigation recognized by Sec.
21, Art. VI.

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↓
3. Legislative supervision (legislative
veto)
a. Connotes a continuing and
informed awareness on the part of
a congressional committee
regarding executive operations in a
given administrative area.
b. Allows Congress to scrutinize the
exercise of delegated law-making
authority, and permits Congress to
retain part of that delegated
authority. Through this, Congress
exercises supervision over the
executive agencies.
Note: Legislative supervision is NOT allowed
under the Constitution [Abakada Guro Partylist
v. Purisima, G.R. No. 166715 (2008)]. See also
discussion under Checks and Balances, supra.
2. Non-legislative
a. Informing function
Via legislative inquiries: The conduct of
legislative inquiries is intended to benefit not
only Congress but the citizenry, who are
equally concerned with the proceedings [Sabio
v. Gordon, G.R. No. 174340(2006)].
b. Power of impeachment
The House of Representatives shall have the
exclusive power to initiate all cases of
impeachment [Sec. 3(1), Art. XI].
Initiation: Regular Procedure [Sec. 3(2)(3),
Art. XI]
FILING by (a) any member of the HOR or (b)
any citizen upon endorsement by a member
of the HOR; followed by REFERRAL to the
proper HOR Committee (i.e. HOR
Committee on Justice)
↓ impeachment proceedings [Francisco v. House
COMMITTEE REPORT by proper
committee, which either favorably or
unfavorably resolves the complaint
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Above resolution is AFFIRMED (if favorable)
or OVERRIDDEN (if unfavorable) by vote of
⅓ of ALL the members of the HOR
Verified complaint or resolution [Sec. 3(4), Art.
XI] FILED by 1/3 of all the members of the
HOR; trial by Senate forthwith proceeds.
Notes on Initiation [Gutierrez v. HOR
Committee on Justice, G.R. No. 193459
(2011)]:
- No impeachment proceeding shall be
initiated against the same official more
than once within a period of one year
[Sec. 2(5), Art. XI]
- Initiation means filing coupled with
referral to the Committee on Justice
- Court cannot make a determination of
what constitutes an impeachable
offense; it is a purely political question
[Francisco v. House of
Representatives, G.R. No.
160261(2003)].
- On motion to inhibit: Impeachment is
a political exercise. The Court cannot
apply (to Congressmen) the stringent
standards it asks of justices and judges
when it comes to inhibition from
hearing cases.
- Constitutional requirement that HOR
shall promulgate its rules on
impeachment [Sec. 3(8), Art. XI] is
different from the publication
requirement in Tañada v. Tuvera [G.R.
No. L- 63915 (1985)]
Trial
The Senate shall have the sole power to try and
decide all cases of impeachment [Sec. 3(6),
Art. XI].
By virtue of the expanded judicial review (Sec.
1[2], Art. VIII), the Court’s power of judicial
review extends over justiciable issues arising in
of Representatives, supra]. BUT the question
of whether or not Senate Impeachment Rules
were followed is a political question [Corona v.
Senate, G.R. No. 200242 (2012)].

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10-3-60-10 Rule
○ 10 days: a verified complaint for
impeachment must be included in the
Order of Business within 10 session days;
○ 3 days: after the lapse of the 10 days, the
complaint must be referred to a Committee
within 3 session days;
○ 60 days: The Committee, after hearing,
and by a majority vote of all its Members,
shall submit its report to the House within
sixty session days from such referral;
○ 10 days: The resolution shall be
calendared for consideration by the House
within ten session days from receipt
thereof.
I. INITIATIVE AND
REFERENDUM
INITIATIVE
Local initiative; voter requirements
Region Not less than x
registered voters
Autonomous regions 2000
Provinces 1000
Municipalities 100
Batangays 50
Where to file: Regional Assembly or local
legislative body, as the case may be [Sec. 13,
RA 6735].
Limitations on local initiative
Cannot be exercised more than once a year;
extends only to subjects or matters which are
within the legal powers of the local legislative
bodies to enact; and if at any time before the
initiative is held, the local legislative body
should adopt in toto the proposition presented,
the initiative shall be cancelled [Sec. 15, RA
6735].
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REFERENDUM
This refers to the power of the electorate to
approve or reject legislation through an
election called for that purpose [Sec. 3(c), RA
6735].
Classes of Referendum
a. Referendum on statutes: petition to
approve or reject an act or law, or part thereof,
passed by Congress;
b. Referendum on local laws: legal process
whereby the registered voters of the LGUs may
approve, amend, or reject any ordinance
enacted by the Sanggunian [Sec. 126, LGC]
Is the power to hold a referendum plenary?
No, such power is circumscribed by the
following limitations:
a. No petition embracing more than one subject
shall be submitted to the electorate; and
b. Statutes involving emergency measures, the
enactment of which is specifically vested in
Congress by the Constitution, cannot be
subject to referendum until 90 days after their
effectivity [Sec. 10, RA 6735].
EXECUTIVE
DEPARTMENT
A. QUALIFICATIONS, ELECTION, AND
TERM OF THE PRESIDENT AND VICE-
PRESIDENT
Qualifications
1. Natural-born citizen of the Philippines;
2. A registered voter;
3. Able to read and write;
4. At least 40 years of age on the day of the
election; and
5. A resident of the Philippines for at least 10
years immediately preceding such election
[Sec. 2, Art. VII].
Election
1. Regular Election: Second Monday of May
2. National Board of Canvassers (President
and Vice-President): Congress

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a. Returns shall be transmitted to
Congress, directed to the Senate
President
b. Joint public session: not later than
30 days after election date; returns
to be opened in the presence of the
Senate and HOR in joint session
3. Congress, upon determination of the
authenticity and due execution, shall
canvass the votes
4. Person having the highest number of votes
shall be proclaimed elected
5. In case of tie, one will be chosen by the
vote of majority of all the Members of both
Houses of Congress, voting separately
Jurisprudence on Canvassing
Congress may validly delegate the initial
determination of the authenticity and due
execution of the certificates of canvass to a
Joint Congressional Committee, composed of
members of both houses [Lopez v. Senate,
G.R. No. 163556(2004)].
Even after Congress has adjourned its regular
session, it may continue to perform this
constitutional duty of canvassing the
presidential and vice-presidential election
results without need of any call for a special
session by the President. Only when the board
of canvassers has completed its functions is it
rendered functus officio [Pimentel, Jr. v. Joint
Committee of Congress, G.R. No.
163783(2004)].
The Supreme Court as Presidential
Electoral Tribunal
The Supreme Court, sitting en banc, shall be
the sole judge of all contests relating to the
election, returns and qualifications of the
President or Vice-President, and may
promulgate its rules for the purpose.
Term of Office
6 years, which shall begin at noon on the 30th
day of June next following the day of the
election and shall end at noon of the same day
6 years thereafter [Sec. 4, Art. VII].
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Note:
● The President is not eligible for any
reelection.
● No person who has succeeded as
President and has served as such for more
than four years shall be qualified for
election to the same office at any time [Sec.
4, Art. VII].
o “Succeeded as President” — refers
to Vice President as automatic
successor or elected President by
virtue of special election, and
serves the unexpired term;
ineligible to run for President if he
has served for more than four years
o Acting President is not included. So
even if he served for more than 4
years, he can be elected as the
President.
B. PRIVILEGES, INHIBITIONS,
AND DISQUALIFICATIONS
Official residence
The president shall have an official residence
[Sec. 6, Art. VII].
Salary
This shall be determined by law. It shall not be
decreased during tenure. No increase shall
take effect until after the expiration of the term
of the incumbent during which such increase
was approved [Sec. 6, Art. VII].
1. Presidential Immunity
The President as such cannot be sued,
enjoying as he does immunity from suit. But the
validity of his acts can be tested by an action
against other executive officials [Carillo v.
Marcos, G.R. No. L-21015(1981)].
The privilege may be invoked only by the
President.
— Immunity from suit pertains to the President
by virtue of the office and may be invoked only
by the holder of the office; not by any other
person in the President's behalf. The President
may waive the protection afforded by the
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privilege and submit to the court's jurisdiction confirmation by the Commission of

[Soliven v. Makasiar, G.R. No. 82585, and Appointments.
Beltran v. Makasiar, G.R. No. 82827(1988)].
Prohibitions on The Executive Department
But presidential decisions may be questioned The following prohibitions apply to:
before the courts where there is grave abuse of a. President
discretion or that the President acted without or b. Vice-President,
in excess of jurisdiction [Gloria v. CA, G.R. No. c. The members of the Cabinet, and their
119903(2000)]. deputies or assistants

Immunity co-extensive with tenure and covers Prohibited Acts

only official duties. After tenure, the Chief
Executive cannot invoke immunity from suit for
civil damages arising out of acts done by him
while he was President which were not
performed in the exercise of official duties
[Estrada v. Desierto, G.R. Nos. 146710-
15(2001)].
a. Shall not receive any other
emoluments from the government or
any other source [For President and
Vice-President, Sec. 6, Art. VII].
b. Unless otherwise provided in the
constitution, shall not hold any other
office or employment [Sec. 13, Art. VII].

This presidential privilege of immunity cannot Exceptions

be invoked by a non-sitting president even for 1. The prohibition does not include
acts committed during his or her tenure. [Saez posts occupied by executive
v. Macapagal-Arroyo, G.R. No. 183533(2012)]. officials without additional
compensation in an ex-officio
Exception: The president may be sued if the act capacity, as provided by law or as
is one not arising from official conduct [See required by the primary functions of
Estrada v. Desierto, supra]. the said official’s office. [National
Amnesty Commission v. COA,
2. Presidential Privilege G.R. No. 156982(2004)].
2. The Vice-President being
It is "the right of the President and high-level appointed as a member of the
executive branch officers to withhold cabinet.
information from Congress, the courts, and 3. The Vice-President acting as
ultimately the public" [ROZELL]. president when one has not yet
been chosen or qualified [Sec.
N.B. Case law uses the term presidential 7(2)(3), Art. VII].
privilege to refer to either (1) immunity from suit 4. The Secretary of Justice sitting as
(i.e. immunity from judicial processes, see Neri ex-officio member of the Judicial
v. Senate, infra, and Saez v. Macapagal- and Bar Council [Sec. 8(1), Art.
Arroyo, supra); or (2) executive privilege VIII; Civil Liberties Union v.
[Akbayan v. Aquino, infra]. Executive Secretary, supra].

THE VICE-PRESIDENT c. Shall not directly or indirectly

Qualifications, election and term of office and
removal are the same as the President, except
that no Vice-President shall serve for more
than 2 successive terms.
The Vice-President may be appointed as a
member of the Cabinet; such requires no
1. practice any other profession;
2. participate in any business; or
3. be financially interested in any
contract with, or in any franchise or
special privilege granted by the
government or any subdivision,
agency, or instrumentality thereof,
including government-owned or

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controlled corporations or their
subsidiaries [Sec. 13, Art. VII].
d. Strictly avoid conflict of interest in the
conduct of their office [Sec. 13, Art.
VII].
e. May not appoint (a) spouse; or (b)
relatives by consanguinity or affinity
within the fourth civil degree as
members of Constitutional
Commissions, or the Office of the
Ombudsman, or as Secretaries,
Undersecretaries, chairmen or heads
of bureaus or offices, including
government-owned or controlled
corporation and their subsidiaries.
Prohibitions
(OEPBCF - "Only Eccentric People Believe
Cockatoos Find Soulmates")
a. Hold any other office or employment
b. Practice any other profession
c. Participate in any business
d. Be financially interested in any contract
with, or in any franchise, or special privilege
granted by the Government or any of its
subdivision, agency, or instrumentality
President's spouse and relatives by
consanguinity or affinity within the fourth civil
degree cannot be appointed during his tenure
as: (COSUCH)
a. Members of the Constitutional
Commissions
b. Members of the Office of the Ombudsman
c. Secretaries, Undersecretaries, chairmen or
heads of bureaus or offices (including
GOCCs and subsidiaries)
The stricter prohibition applied to the President
and his official family under Art. VII, Sec. 13, as
compared to the prohibition applicable to
appointive officials in general under Art. IX-B,
Sec. 7, par. 2, is proof of the intent of the 1987
Constitution to treat them as a class by itself
and to impose upon said class stricter
prohibitions [Civil Liberties Union v. Executive
Secretary, G.R. No. 83896(1991)].
Exceptions to rule prohibiting executive
officials from holding additional positions:
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a. President
1. The President can assume any or all
Cabinet posts (because the
departments are mere extensions of
his personality, according to the
Doctrine of Qualified Political Agency,
hence no objection can be validly
raised based on Sec. 13, Art. VII).
2. The President can assume ex officio
positions (e.g. The President is the
Chairman of NEDA) [Sec. 9, Art. XII].
b. Vice-President: “The Vice-President may
be appointed as a member of the Cabinet.
Such appointment requires no
confirmation” [Sec. 3, Art. VII].
c. Cabinet
The Constitution allows a Cabinet member to
hold another office provided:
1. It is in an ex-officio capacity and without
additional compensation;
2. Such is necessitated by the primary
functions of his position (e.g. Secretary
of Trade and Industry as Chairman of
NDC; Secretary of Agrarian Reform as
Chairman of the Land Bank); AND
3. Such is allowed by law [Civil Liberties
Union v. Executive Secretary, supra].
Note: Sec. 7, Art. IX-B is the general rule for
appointed officials. It is not an exception to Sec.
13, Art. VII, which is a specific rule for members
of the Cabinet, their deputies and assistants
inter alia [See Civil Liberties Union v. Executive
Secretary, supra].
De facto officer doctrine: In cases where there
is no de jure officer, a de facto officer, who in
good faith has had possession of the office and
has discharged the duties pertaining thereto, is
legally entitled to the emoluments of the office,
and may in an appropriate action to recover the
salary, fees and other compensations attached
to the office [Funa v. Agra, G.R. No.
191644(2013)]
A de facto officer’s acts enjoy the presumption
of regularity and are valid as far as the public
or 3rd parties are concerned [Espiritu v. del
Rosario, G.R. No. 204964(2014)]

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C. POWERS OF THE
PRESIDENT
1. General Executive And
Ministrative Powers
Executive power
This refers to the President’s power to enforce,
implement, and administer laws. The President
shall ensure that the laws be faithfully executed
[Sec. 17, Art. VII].
The President’s power to conduct
investigations to aid him in ensuring the faithful
execution of laws is inherent in the President’s
powers as the Chief Executive. [T]he purpose
of allowing ad hoc investigating bodies to exist
is to allow an inquiry into matters which the
President is entitled to know so that he can be
properly advised and guided in the
performance of his duties relative to the
execution and enforcement of the laws of the
land [Biraogo v. Philippine Truth Commission,
G.R. Nos. 192935- 36(2010)].
Summary of Presidential Powers
1. Executive Power: This is the power to
enforce and administer laws.
2. Power of Appointment: The Legislative
can create office, but only the Executive
can fill it; Congress cannot circumvent this
by setting very narrow qualifications, such
that only one person is qualified to hold
office [Flores v. Drilon, G.R. No.
104732(1993)].
3. Power of Control: The President may(a)
nullify, modify judgments of subordinates
[See Sec. 17, Art. VII]; (b) undo or redo
actions of subordinates; and (c) lay down
rules for the performance of subordinates’
duties.
4. Power of Supervision: This refers to the
oversight function. The Executive must see
to it that rules, which it did not make, are
followed.
5. Commander-in-Chief Powers [Sec. 18,
Art. VII]:
a. Call Out Power: Armed forces to
suppress lawless violence
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b. Suspension of the privilege of the Writ
of Habeas Corpus: Only (a) in times of
rebellion or invasion; AND (b) when
required by public safety
c. Martial law: Does not suspend the
Constitution
6. Power of Legislation
a. Veto Power
b. Power to Declare Emergency: Declare
only; exercise of emergency power
vested in Congress, but may be
delegated by it to the President
c. Integrative Power: powers shared with
legislative (e.g. appointments requiring
confirmation, rule-making); legislation
during times of emergency
7. Diplomatic Powers: Including Power to
Enter into Treaties
8. Residual Power: To protect the general
welfare of people; founded on duty of
President as steward of the people;
includes powers unrelated to execution of
any provision of law [See Marcos v.
Manglapus, G.R. No. 88211(1989)]
9. Other Powers
a. Power to Pardon: Reprieve, commute,
pardon, remit fines and forfeitures after
final judgment [Sec. 19(1), Art. VII]
b. Power to Grant Amnesty: With
concurrence of majority of all members
of Congress
c. Borrowing Power: Contract or
guarantee foreign loans with
concurrence of Monetary Board [Sec.
20, Art. VII]
d. Budgetary Power: Submit to congress
budget of bills and expenditures [Sec.
22, Art. VII]
10. Informing Power: Address Congress
during opening of session, or at any other
time [Sec. 23, Art. VII]
Note: The presidential power of control over
the Executive Branch of Government is a self-
executing provision of the Constitution and
does not require statutory implementation, nor
may its exercise be limited, much less
withdrawn, by the legislature. [Ocampo v.
Enriquez, G.R. No. 225973(2016)].

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2. Power Of Appointment
a. In General
Sec. 16, Art. VII. The President shall
nominate and, with the consent of the
Commission on Appointments, appoint the
heads of the executive departments,
ambassadors, other public ministers and
consuls, or officers of the armed forces from
the rank of colonel or naval captain, and
other officers whose appointments are
vested in him in this Constitution. He shall
also appoint all other officers of the
Government whose appointments are not
otherwise provided for by law, and those
whom he may be authorized by law to
appoint. The Congress may, by law, vest the
appointment of other officers lower in rank in
the President alone, in the courts, or in the
heads of departments, agencies,
commissions, or boards. [...]
1. Appointment: Selection by the proper
authority of an individual who is to exercise
the powers and functions of a given office.
Appointee has a right to claim
compensation as stated in the
appointment.
2. Designation: Imposition of additional
duties, usually by law, upon a person
already in the public service by virtue of an
earlier appointment. Does not entail
payment of additional benefits or grants
upon the person so designated [National
Amnesty Commission v. COA, G.R. No.
156982(2004)]
3. Commission: Written Evidence of the
appointment
Elements of a valid appointment:
1. Authority to appoint and evidence of the
exercise of authority;
2. Transmittal of the appointment paper and
evidence of the transmittal (preferably
through the Malacañang Records Office);
3. Vacant position at the time of appointment;
4. Receipt of the appointment papers and
acceptance of the appointment by the
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appointee who possesses all qualifications
and none of the disqualifications [Velicaria-
Garafil v. Office of the President, G.R. No.
203372(2015)].
Four Groups of Officers whom the
President may appoint:
1. With Consent of the Commission on
Appointments:
● Heads of the executive departments
● Ambassadors, other public ministers
and consuls
● Officers of the armed forces from the
rank of colonel or naval captain
● Other officers whose appointments are
vested in him by the Constitution:
● Regular Members of the JBC
(ex-officio members do not
need the confirmation of the
CA)
● Chairman and Commissioners
of the CSC, COMELEC, and
COA.
● Members of the Regional and
Consultative Commissions
2. All other officers of the government whose
appointments are not otherwise provided
by law;
3. Those whom the President may be
authorized by law to appoint; and (e.g.
Chairman and Members of the
Commission on Human Rights [Bautista v.
Salonga, G.R. No. 86439(1989)])
4. Officers lower in rank whose appointments
Congress may by law vest in the President
alone [Sarmiento III v. Mison, G.R. No.
79974(1987)]
Consent of the Commission on Appointments
is not required for 2, 3, and 4 as these are not
positions whose appointments are granted by
the Constitution
Note: Appointments to the Philippine Coast
Guard, which is no longer under the AFP, need
not undergo confirmation [Soriano v. Lista,
G.R. No. 153881 (2003)].
The Philippine National Police (PNP, Sec. 4,
Art. XVI, PC) is separate and distinct from the
Armed Forces of the Philippines. (AFP, Sec. 6,

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Art. XVI, PC). The police force is different from
and independent of the armed forces and that
the ranks in the military are not similar to those
in the PNP. Thus, directors and chief
superintendents of the PNO do not fall under
the first category of presidential appointees
requiring confirmation by the COA [Manalo v.
Sistoza, G.R. No. 107369(1999)].
Note: “Congress may by law vest in the
appointment of other officers lower in rank in
the President alone.”
● The inclusion of the word “alone” was
an oversight. The Constitution should
read: “The Congress may, by law, vest
the appointment of other officers lower
in rank in the President.” [Sarmiento v.
Mison, supra]
Other cases where confirmation is not
required:
1. When Congress creates inferior officers
but omits to provide for appointment
thereto, or provides in an unconstitutional
manner for such appointments
2. Appointment of the Vice-President as
member of the Cabinet [Sec 3, Art. VII]
3. Appointments upon recommendation of the
Judicial Bar Council
4. Appointments solely by the President.
Appointments upon recommendation of the
Judicial and Bar Council (does not require
confirmation by the Commission on
Appointments)
1. Members of the Supreme Court and all
other courts [Sec 9, Art. VIII] (Note: the
appointment must be made 90 days
from when the vacancy occurs [Sec
4(1), Art. VIII])
For lower courts, appointments shall be
issued within 90 days from submission
of the list.
2. Ombudsman and his 5 deputies (for
Luzon, Visayas, Mindanao, general
and military) [Sec 9, Art. XI]
Clustering
In Aguinaldo v. Aquino, G.R. No. 224302
(2017), the Court ruled that clustering impinged
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upon the President’s appointment power in
appointing the Associate Justices in the
Sandiganbayan.
The President’s option for every vacancy was
limited to the 5 to 7 nominees in each cluster.
Once the President chose an appointee from
one cluster, he was proscribed from
considering other nominees in the same cluster
for the other vacancies. All the nominees
applied for and were qualified for appointment
to any of the vacant Associate Justice positions
in the Sandiganbayan, however, the JBC did
not explain why one nominee should be
considered for appointment to the position
assigned to one specific cluster only.
The nominees' chance for appointment was
restricted to the consideration of the one
cluster in which they were included, even
though they applied for and were qualified for
all vacancies.
Clustering is valid only when:
(1) there are multiple vacancies;
(2) vacancies refer to the same position;
(3) vacancies occur at the same time.
Steps in the appointing process:
Nomination by the President
Confirmation by the Commission on
Appointments
Issuance of the Commission
Acceptance by the Appointee
Note: In the case of ad interim appointments,
steps 1, 3 and 4 precede step 2.
An appointment is deemed complete only upon
acceptance [Lacson v. Romero, G.R. No. L-
3081(1949)].
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Appointment is essentially a discretionary withdrawn by the President once the

power, the only condition being that the appointee has qualified into office. The fact
appointee, if issued a permanent appointment, that it is subject to the confirmation of the
should possess the minimum qualification CA does not alter its permanent character
requirements, including the Civil Service [Matibag v. Benipayo, G.R. No.
eligibility prescribed by law for the position. 149036(2002)].
Discretion also includes the determination of
the nature or character of the appointment. Acting/Temporary Appointment
Can be withdrawn or revoked at the pleasure
b. Types of Appointment of the appointing power. The appointee does
not enjoy security of tenure.
Regular and Recess (Ad Interim)
Appointments Note: The President cannot designate an
acting chair in a Constitutional Commission (in
Two Kinds of Appointments Requiring order to preserve the latter’s independence).
Confirmation: However, he may designate an ad interim
1. Regular: If the CA (Congress) is in appointee as chair in the Constitutional
session; and Commission [See Brillantes v. Yorac, G.R. No.
2. Ad Interim: during the recess of Congress 93867(1990)].
(because the CA shall meet only while
Congress is in session [Sec. 19, Art VI]
APPOINTMENTS
AD INTERIM
Regular Appointment IN ACTING
APPOINTMENTS
1. Made by the President while Congress is in CAPACITIES
session Valid upon Valid upon
2. Takes effect only after confirmation by the acceptance acceptance
Commission on Appointments (CA) Temporary
3. Once approved, continues until the end of (cannot exceed one Permanent
the term. year)
Made when
Made any time
Note: The mere filing of a motion for Congress
there is a vacancy
reconsideration of the confirmation of an is not in session
appointment cannot have the effect of recalling Does not require CA Requires CA
or setting aside said appointment The confirmation confirmation
Constitution is clear — there must be a
rejection by the Commission on Appointments Temporary Designations
or non-action on its part for the confirmation to The President may designate an officer already
be recalled. in the gov’t service or any other competent
person to perform the functions of any office in
Ad Interim Appointment the executive branch, appointment to which is
1. Made by the President while Congress is vested in him by law, when:
not in session 1. The officer regularly appointed to the office
2. Takes effect immediately, BUT ceases to is unable to perform his duties by reason of
be valid (1) if disapproved by the CA or (2) illness, absence or any other cause; or
upon the next adjournment of Congress 2. There exists a vacancy.
[Sec. 16 (2), Art. VII]
3. Ad Interim appointments are permanent In no case shall a temporary designation
appointments. Ad Interim appointments to exceed 1 year [Sec. 17, Book III, Admin Code
the Constitutional Commissions (e.g. of 1987].
COMELEC) are permanent as these take
effect immediately and can no longer be

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Congress cannot impose on the President the
obligation to appoint an Undersecretary as [the
President’s] Acting Secretary. The President
shall have the freedom to choose who shall be
his temporary alter ego [Pimentel v. Ermita,
G.R. No. 164978(2005)].
c. Limitations on the Exercise
1. Sec. 13, par. 2, Art. VII: The spouse
and relatives by consanguinity or
affinity within the 4th civil degree of the
President shall not, during his “tenure”,
be appointed as
a. Members of the Constitutional
Commissions;
b. Member of the Office of the
Ombudsman;
c. Secretaries;
d. Undersecretaries;
e. Chairman or heads of bureaus
or offices, including GOCCs
and their subsidiaries.
2. Recess (Ad Interim) appointments:
The President shall have the power to
make appointments during the recess
of the Congress, whether voluntary or
compulsory, but such appointments
shall be effective only until disapproval
by the Commission on Appointments or
until the next adjournment of the
Congress [Sec 16(2), Art VII].
Rule on Midnight Appointments Ban
General Rule: 2 months immediately before
the next presidential elections (2nd Monday of
March), and up to the end of his “term” (June
30), a President (or Acting President) shall not
make appointments [Sec 15, Art. VII].
Exception: Temporary appointments to
executive positions, when continued vacancies
will: (a) Prejudice public service; or (b)
endanger public safety.
Limited to Executive Departments: The
prohibition against midnight appointment
applies only to positions in the executive
department [De Castro v. JBC, G.R.
191002(2010)].
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Limited to Caretaker Capacity: While
“midnight appointments” (i.e. made by outgoing
President near the end of his term) are not
illegal, they should be made in the capacity of
a “caretaker” [a new president being elected],
doubly careful and prudent in making the
selection, so as not to defeat the policies of the
incoming administration. Hence, the issuance
of 350 appointments in one night and planned
induction of almost all of them a few hours
before the inauguration of the new President
may be regarded as abuse of presidential
prerogatives [Aytona v. Castillo, G.R. No. L-
19313 1962)]. It must be shown that there is
regard for the fitness of appointees and the
filling up must be few and so spaced which
indicates there was a deliberate action taken
by the appointing power.
Applies only to the President: Ban does not
extend to appointments made by local elective
officials. There is no law that prohibits local
elective officials from making appointments
during the last day of his/her tenure [De Rama
v. CA, G.R. No. 131136(2001)].
Appointing power of the ACTING
PRESIDENT.
a. Appointments extended by an Acting
President shall remain effective unless
revoked by the elected President within 90
days from his assumption or re-assumption
of office [Sec. 14, Art. VII].
b. Midnight appointments ban applies to the
acting President.
Power of Removal
General Rule: Power of removal may be
implied from the power of appointment.
Exception: The President cannot remove
officials appointed by him where the
Constitution prescribes certain methods for
separation of such officers from public service,
e.g. Chairman and Commissioners of
Constitutional Commissions who can be
removed only by impeachment, or judges who
are subject to the disciplinary authority of the
Supreme Court.

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Career Civil Service: Members of the career
civil service who are appointed by the
President may be directly disciplined by him
[Villaluz v. Zaldivar, G.R. No. L-22754(1964)].
Serve at the pleasure of the President:
Cabinet members and such officers whose
continuity in office depends upon the pleasure
of the president may be replaced at any time,
but legally speaking, their separation is
effected not by removal but by expiration of
their term of the appointee.
3. Power Of Control And
Supervision
Sec. 17, Art. VII. The President shall have
control of all the executive departments,
bureaus, and offices. He shall ensure that the
laws be faithfully executed.
Control is essentially the power to [1] alter or
modify or nullify or set aside what a subordinate
officer had done in the performance of his
duties; and to [2] substitute the judgement of
the former with that of the latter [Biraogo v.
Philippine Truth Commission, G.R. No. 192935
(2010)].
The power of control includes:
• Act directly whenever a specific function is
entrusted by law or regulation to a
subordinate
• Direct the performance of duty
• Restrain the commission of acts
• Review, approve, reverse, modify acts and
decisions of subordinate officials or units
• Determine priorities in the execution of
plans and programs
• Prescribe guidelines, plans and programs
• Reorganization (transfer of unit, transfer of
functions, abolish, consolidate, or merge
units)
Supervision is the overseeing or the power of
the officer to see that subordinate officers
perform their duties, and if the latter fail or
neglect to fulfill them, then the former may take
such action or steps as prescribed by law to
make them perform these duties. This does not
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include the power to overrule their acts, if these
acts are within their discretion. In relation to
local government units (LGUs), supervision
includes the authority to ensure that LGUs are
operating and acting in accordance with law
and not ultra vires.
Note: The President's power of control only
extends to administrative functions. If it is
performing quasi-judicial functions, the Office
of the President has no jurisdiction [See Cruz
v. Sec of Environment & Natural Resources,
G.R. No. 135385 (2000)].
a. Doctrine of Qualified Political
Agency
All the different executive and administrative
organizations are mere adjuncts of the
Executive Department. This is an adjunct of the
Doctrine of One Executive.
The heads of the various executive
departments are assistants and agents of the
Chief Executive [Villena v. Secretary of Interior,
G.R. No. L-45670 (1939)]. In the regular course
of business, acts of executive departments,
unless disapproved or reprobated by the Chief
Executive, are presumptively acts of the Chief
Executive [Free Telephone Workers Union v.
Minister of Labor and Employment, G.R. No. L-
581184 (1981)].
There is a special class of powers which the
President cannot delegate (e.g. declaration of
martial law, suspension of the privilege of the
writ of habeas corpus, executive clemency,
among others). However, the power of review
does not fall under these exceptional
circumstances. Thus, the President can
choose not to review the decision of the DOJ
and delegate such power to the Secretary by
virtue of the Qualified Agency Doctrine [See
Angeles v. Gaite, G.R. 165276 (2009)].
b. Executive Departments and
Offices
General Rule: The multifarious executive and
administrative functions of the Chief Executive

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are performed by and through the executive
departments.
Exceptions:
1. Cases where the Chief Executive is
required by the Constitution or by law to act
in person; or
2. The exigencies of the situation demand
that he acts personally.
The President may, by executive or
administrative order, direct the reorganization
of government entities under the Executive
Department. This is also sanctioned under the
Constitution, as well as the Admin Code. This
recognizes the recurring need of every
President to reorganize his or her office "to
achieve simplicity, economy and efficiency," in
the manner the Chief Executive deems fit to
carry out presidential directives and policies
[Tondo Medical Employees v. CA, G.R. No.
167324 (2007)].
Power to Abolish Offices
Generally, the power to abolish a public office
is legislative. However, as far as bureaus,
offices or agencies of the executive department
are concerned, power of control may justify him
to inactive functions of a particular office [See
Buklod ng Kawaning EIIB v. Zamora, G.R. No.
142801-802 (2001)].
In establishing an executive department,
bureau, or office, the legislature necessarily
ordains an executive agency's position in the
scheme of administrative structure. Such
determination is primary, but subject to the
President's continuing authority to reorganize
the administrative structure [Anak Mindanao v.
Executive Secretary, G.R. No. 166052 (2007)].
Note: A distinction is made between the Office
of the President Proper and the Office of the
President. The President has the power to
abolish, consolidate, merge units of the Office
of the President Proper. On the other hand, the
President's power to reorganize offices outside
the Office of the President Proper but still within
the Office of the President is limited to merely
transferring functions [Pichay v. Office of the
Deputy Executive Secretary, G.R. No. 196425
(2012)].
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c. General Supervision over Local
Government Units and the
Autonomous Regions
The President shall exercise general
supervision over local governments [Sec 4, Art
X].
The President shall exercise general
supervision over autonomous regions to
ensure that laws are faithfully executed [Sec
16, Art X].
The President may suspend or remove local
officials by virtue of the power delegated to him
by Congress through the Local Government
Code. The Constitution also places local
governments under the general supervision of
the President, and also allows Congress to
include in the local government code
provisions for removal of local officials [See
Sec 3, Art X and Ganzon v. CA, G.R. No.
93252 (1991)].
4. Emergency Powers
Emergency Powers are delegated by the
Congress which covers such power necessary
to carry out a declared national policy (declared
by Congress).
Nature of Grant.
Generally, Congress is the repository of
emergency powers. This is evident in the tenor
of Section 23 (2), Article VI authorizing it to
delegate such powers to the President.
Certainly, a body cannot delegate a power not
reposed upon it.
1. Limited period — ceases upon
withdrawal by Congress through a
resolution, or failing to adopt it upon
next voluntary adjournment.
2. Subject to restrictions from Congress.
[See Rodriguez v. Gella, G.R. No. L-6266
(1953) for Nature of Emergency Power]
Requisites for Grant of Emergency Powers
Knowing that during grave emergencies, it may
not be possible or practicable for Congress to
meet and exercise its powers, the Framers of

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our Constitution deemed it wise to allow
Congress to grant emergency powers to the
President, subject to certain conditions, thus:
a. There must be a war or other
emergency;
b. The delegation must be for a limited
period only;
c. The delegation must be subject to such
restrictions as the Congress may
prescribe; and
d. The emergency powers must be
exercised to carry out a national policy
declared by Congress.
Concept of Emergency
Emergency, as a generic term, connotes the
existence of conditions suddenly intensifying
the degree of existing danger to life or well-
being beyond that which is accepted as
normal. Implicit in these definitions are the
elements of intensity, variety, and perception.
Emergencies, as perceived by legislature or
executive in the United Sates have been
occasioned by a wide range of situations,
classifiable under three principal heads: (a)
economic, (b) natural disaster, and (c) national
security. Emergency as contemplated in the
1987 Constitution, is of the same breadth. It
may include rebellion, economic crisis,
pestilence or epidemic, typhoon, flood, or other
similar catastrophe of nationwide proportions
or effect.
In David v. Macapagal-Arroyo, G.R. No.
171396(2006), the Court made it clear that
Presidential Proclamation 1017 (Declaring a
State of National Emergency) was woven out
of the “calling out” and “take care” powers of
the President joined with the “temporary
takeover” provision under Sec 17, Art XII.
PP1017 purports to grant the President,
without delegation from Congress, to take over
or direct operation of any privately-owned
public utility or business affected with public
interest.
The President may declare the existence of a
state of national emergency without
Congressional enactment however the
exercise of emergency powers requires a
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delegation from Congress which is the
repository of emergency powers.
5. Commander-In-Chief Powers
Sec. 18, Art. VII. The President shall be the
Commander-in-Chief of all armed forces of
the Philippines and whenever it becomes
necessary, he may call out such armed
forces to prevent or suppress lawless
violence, invasion or rebellion. In case of
invasion or rebellion, when the public safety
requires it, he may, for a period not
exceeding sixty days, suspend the privilege
of the writ of habeas corpus or place the
Philippines or any part thereof under martial
law. Within forty-eight hours from the
proclamation of martial law or the
suspension of the privilege of the writ of
habeas corpus, the President shall submit a
report in person or in writing to the Congress.
The Congress, voting jointly, by a vote of at
least a majority of all its Members in regular
or special session, may revoke such
proclamation or suspension, which
revocation shall not be set aside by the
President. Upon the initiative of the
President, the Congress may, in the same
manner, extend such proclamation or
suspension for a period to be determined by
the Congress, if the invasion or rebellion
shall persist and public safety requires it.
The Congress, if not in session, shall, within
twenty-four hours following such
proclamation or suspension, convene in
accordance with its rules without any need of
a call.
The Supreme Court may review, in an
appropriate proceeding filed by any citizen,
the sufficiency of the factual basis of the
proclamation of martial law or the
suspension of the privilege of the writ or the
extension thereof, and must promulgate its
decision thereon within thirty days from its
filing.
A state of martial law does not suspend the
operation of the Constitution, nor supplant

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the functioning of the civil courts or
legislative assemblies, nor authorize the
conferment of jurisdiction on military courts
and agencies over civilians where civil courts
are able to function, nor automatically
suspend the privilege of the writ.
The suspension of the privilege of the writ
shall apply only to persons judicially charged
for rebellion or offenses inherent in or directly
connected with the invasion.
During the suspension of the privilege of the
writ, any person thus arrested or detained
shall be judicially charged within three days,
otherwise he shall be released.
Commander-in-Chief Powers
a. He may call out such armed forces to
prevent or suppress lawless violence,
invasion, or rebellion.
b. He may suspend the privilege of the writ of
habeas corpus.
c. He may proclaim martial law over the entire
Philippines or any part thereof.
The President is the commander-in-chief of all
armed forces of the Philippines. The ability of
the President to require a military official to
secure prior consent before appearing before
Congress pertains to a wholly different and
independent specie of presidential authority —
the commander-in-chief powers of the
President. By tradition and jurisprudence, the
commander-in-chief powers of the President
are not encumbered by the same degree of
restriction as that which may attach to
executive privilege or executive control.
Outside explicit constitutional limitations, the
commander-in-chief clause vests in the
President, as commander-in-chief, absolute
authority over the persons and actions of the
members of the armed forces. Such authority
includes the ability of the President to restrict
the travel, movement and speech of military
officers, activities which may otherwise be
sanctioned under civilian law [Gudani v.
Senga, G.R. No. 170165(2006)].
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Graduated Powers
Sec. 18, Art. VII grants the President, as
Commander-in-Chief, a “sequence” of
“graduated power[s].” From the most to the
least benign, these are: (1) the calling out
power, (2) the power to suspend the privilege
of the writ of habeas corpus, and the (3) power
to declare martial law. In the exercise of the
latter two powers, the Constitution requires the
concurrence of two conditions, namely, an
actual invasion or rebellion, and that public
safety requires the exercise of such power.
However, these conditions are not required in
the exercise of the calling out power. The only
criterion is that ‘whenever it becomes
necessary,’ the President may call the armed
forces ‘to prevent or suppress lawless violence,
invasion or rebellion.’ [Sanlakas v. Executive
Secretary, G.R. No. 159085(2004)].
a. Calling Out Powers
This is merely a police measure meant to quell
disorder. As such, the Constitution does not
regulate its exercise radically.
State of Rebellion
Since the Constitution did not define the term
"rebellion," it must be understood to have the
same meaning as the crime of "rebellion" in the
Revised Penal Code (RPC).
In determining the existence of rebellion, the
President only needs to convince himself that
there is probable cause or evidence showing
that more likely than not a rebellion was
committed or is being committed. To require
him to satisfy a higher standard of proof would
restrict the exercise of his emergency powers
[Lagman v. Medialdea, G.R. No.
231658(2017)].
Suspension of the Privilege of the Writ of
Habeas Corpus:
The requisites for suspension of the privilege of
the writ of habeas corpus:
1. There must be an actual invasion or
rebellion; and
2. Public safety requires it.

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Note that the privilege of the writ is suspended,
not the writ itself. The writ is an order from the
court commanding a detaining officer to inform
the court:
1. If he has the person in custody; and
2. His basis for detaining that person
Effects of the Suspension of the Privilege:
a. The suspension of the privilege of the writ
applies only to persons “judicially charged”
(should be read as one who is suspected
of complicity in) for rebellion or offenses
inherent in or directly connected with
invasion [Sec. 18, par. 5, Art. VII].
i. Such persons suspected of the
above can be arrested and
detained without warrant of arrest.
ii. The suspension of the privilege
does not make the arrest without
warrant legal. But the military is, in
effect, enabled to make the arrest
anyway since, with the suspension
of the privilege, there is no remedy
available against such unlawful
arrest (arbitrary detention).
iii. The arrest without warrant is
justified by the emergency situation
and the difficulty in applying for a
warrant considering the time and
the number of persons to be
arrested.
iv. The crime for which he is arrested
must be one related to rebellion or
invasion. As to others, the
suspension of the privilege does
not apply.
b. During the suspension of the privilege of
the writ, any person thus arrested or
detained shall be judicially charged within
3 days, or otherwise he shall be released
[Sec. 18(6), Art. VII].
i. The effect therefore is only to
extend the periods during which he
can be detained without a warrant.
When the privilege is suspended,
the period is extended to 72 hours.
ii. What happens if he is not judicially
charged nor released after 72
hours? The public officer becomes
liable under RPC Art. 125 for "delay
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in the delivery of detained
persons."
iii. The right to bail shall not be
impaired even when the privilege of
the writ of habeas corpus is
suspended. Excessive bail shall
not be required [Art. III, Section 13].
The suspension of the privilege does not
destroy petitioners' right and cause of action for
damages for illegal arrest and detention and
other violations of their constitutional rights.
[Aberca v. Ver, G.R. No. L-69866(1988)].
The President may exercise the power to call
out the Armed Forces independently of the
power to suspend the privilege of the writ of
habeas corpus and to declare martial law,
although, of course, it may also be a prelude to
a possible future exercise of the latter powers,
as in this case [Lagman v. Medialdea, G.R. No.
231658 (2017)].
Four (4) ways for the Proclamation of Martial
Law or the Suspension of the Privilege of the
Writ of Habeas Corpus to be Lifted:
1. Lifting by the President himself
2. Revocation by Congress
3. Nullification by the Supreme Court
4. Operation of law after 60 days
b. Declaration of Martial Law and
Suspension of the Privilege of the
Writ of Habeas Corpus; Extension
Requisites in proclaiming Martial Law:
1. There must be an in invasion or rebellion
2. Public safety requires the proclamation of
martial law all over the Philippines or in any
part thereof
The power to declare martial law and to
suspend the privilege of the writ of habeas
corpus involve curtailment and suppression of
civil rights and individual freedom. Thus, the
declaration of martial law serves as a warning
to citizens that the Executive Department has
called upon the military assist in the
maintenance of law and order, and while the
emergency remains, the citizens must, under

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pain of arrest and punishment, not act in a
manner that will render it more difficult to
restore order and enforce the law. [Lagman v.
Medialdea, G.R. No. 231658(2017)].
The following cannot be done by a
proclamation of Martial Law [Sec. 18, Art. VII]:
a. Suspend the operation of the Constitution;
b. Supplant the functioning of the civil courts
and legislative assemblies
c. Confer jurisdiction upon military courts and
agencies over civilians, where civil courts
are able to function
Open Court Doctrine: Civilians cannot be
tried by military courts if the civil courts are
open and functioning. Martial law usually
contemplates a case where the courts are
already closed and the civil institutions
have already crumbled, i.e. a "theater of
war." [Olaguer v. Military Commission No.
34, 150 SCRA 144(1987)].
d. Automatically suspend the privilege of the
writ of habeas corpus. The President must
expressly suspend the privilege.
The Role of Congress [See Sec. 18, par. 1, 2,
Art. VII]
a. Congress may revoke the proclamation of
martial law or suspension of the privilege of
the writ of habeas corpus before the lapse
of 60 days from the date of suspension or
proclamation.
b. Upon such proclamation or suspension,
Congress shall convene at once. If it is not
in session, it shall convene in accordance
with its rules without need of a call within
24 hours following the proclamation or
suspension.
c. Within 48 hours from the proclamation or
the suspension, the President shall submit
a report, in person or in writing, to the
Congress (meeting in joint session of the
action he has taken).
d. The Congress shall then vote jointly, by a
majority of all its members. It has two
options:
1. To revoke such proclamation or
suspension. When it is so revoked, the
President cannot set aside (or veto) the
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revocation as he normally would do in
the case of bills.
2. To extend it beyond the 60-day period
of its validity.
Congress can only so extend the proclamation
or suspension upon the initiative of the
President. The period need not be 60 days; it
could be more, as Congress would determine,
based on the persistence of the emergency.
Note: If Congress fails to act before the
measure expires, it can no longer extend it until
the President again re-declares the measure.
If Congress extends the measure, but before
the period of extension lapses the
requirements for the proclamation or
suspension no longer exist, Congress can lift
the extension, since the power to confer
implies the power to take back.
The Role of the Supreme Court [See Sec. 18,
par. 3, Art. VII]
a. The Supreme Court may review, in an
appropriate proceeding filed by any citizen,
the sufficiency of the factual basis of:
i. The proclamation of martial law or
the suspension of the privilege of
the writ, or
ii. The extension thereof. It must
promulgate its decision thereon
within 30 days from its filing.
In reviewing the sufficiency of the factual basis
of the proclamation or suspension, the Court
considers only the information and data
available to the President prior to or at the time
of the declaration; it is not allowed to
"undertake an independent investigation
beyond the pleadings." On the other hand,
Congress may take into consideration not only
data available prior to, but likewise events
supervening the declaration.
Thus, the power to review by the Court and the
power to revoke by Congress are not only
totally different but likewise independent from
each other although concededly, they have the
same trajectory, which is, the nullification of the
presidential proclamation. Needless to say, the

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power of the Court to review can be exercised
independently from the power of revocation of
Congress [Lagman v. Medialdea, G.R. No.
231658(2017)].
b. Petition for Habeas Corpus
i. When a person is arrested without a
warrant for complicity in the rebellion or
invasion, he or someone else on his
behalf has the standing to question the
validity of the proclamation or
suspension.
ii. Before the SC can decide on the
legality of his detention, it must first
pass upon the validity of the
proclamation or suspension.
Cf. RA 7055 (1991) "An Act Strengthening
Civilian Supremacy over the Military by
Returning to the Civil Courts the
Jurisdiction over Certain Offenses
involving Members of the Armed Forces of
the Philippines, other Persons Subject to
Military Law, and the Members of the
Philippine National Police, Repealing for
the Purpose Certain Presidential Decrees"
RA 7055 provides that when these individuals
commit crimes or offenses penalized under the
RPC, other special penal laws, or local
government ordinances, regardless of whether
civilians are co-accused, victims, or offended
parties which may be natural or juridical
persons, they shall be tried by the proper civil
court, except when the offense, as determined
before arraignment by the civil court, is service-
connected in which case it shall be tried by
court-martial.
The assertion of military authority over civilians
cannot rest on the President's power as
Commander in Chief or on any theory of martial
law. As long as civil courts remain open and are
regularly functioning, military tribunals cannot
try and exercise jurisdiction over civilians for
offenses committed by them and which are
properly cognizable by civil courts. [Olaguer v.
Military Commission No. 34, G.R. No. L-
54558(1987)].
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Do Letters of Instruction (LOI) and Presidential
Decrees issued by the President under the
1973 Constitution during Martial Law form part
of the laws of the land?
LOIs are presumed to be mere administrative
issuances except when the conditions set out
in Garcia-Padilla v. Enrile exist.
To form part of the law of the land, the decree,
order or LOI must be
(1) Issued by the President in the exercise
of his extraordinary power of legislation
as contemplated in Section 6 of the
1976 Amendments to the Constitution
(2) Whenever either
(a) In his judgment there exists a
grave emergency or a threat or
imminent thereof,
(b) The interim Batasang
Pambansa or the regular
National Assembly fails or is
unable to act adequately on
any matter for any reason that
in his judgment requires
immediate action. [PASEI v.
Torres, G.R. No.
101279(1993)].
6. Executive Clemency
a. Nature and Limitations
Sec. 19, Art. VII. Except in cases of
impeachment, or as otherwise provided in
this Constitution, the President may grant
reprieves, commutations and pardons, and
remit fines and forfeitures, after conviction by
final judgment.
General Exceptions to Executive
Clemencies
1. In case of impeachment; and
2. As otherwise provided in this Constitution,
e.g. for election offenses: No pardon,
amnesty, parole, or suspension of
sentence for violation of election laws,
rules, and regulations shall be granted by
the President without the favorable
recommendation by the Commission on
Election [Sec. 5, Art. IX].

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3. In cases of legislative and civil contempt
4. Before conviction by final judgment (except
amnesty)
5. Without concurrence of a majority of all
members of Congress (in case of amnesty)
[Sec. 5, Art. IX]
b. Forms of Executive Clemency
1. Reprieves: A temporary relief from or
postponement of execution of criminal
penalty or sentence or a stay of
execution [Black’s Law Dictionary]. It is
the withholding of a sentence for an
interval of time, a postponement of
execution, a temporary suspension of
execution [People v. Vera, G.R. No. L-
45685(1937)].
2. Commutations: Reduction of
sentence [Black’s Law Dictionary]. It is
a remission of a part of the punishment;
a substitution of a lesser penalty for the
one originally imposed [People v. Vera,
supra].
3. Amnesty: A sovereign act of oblivion
for past acts, granted by government
generally to a class of persons who
have been guilty usually of political
offenses and who are subject to trial
but have not yet been convicted, and
often conditioned upon their return to
obedience and duty within a prescribed
time [Black’s Law Dictionary; Brown v.
Walker, 161 US 602].
a. Requires concurrence of
majority of all members of
Congress [Sec. 19, Art. VII]
4. Remit fines and forfeitures after
conviction by final judgment
5. Pardons: Permanent cancellation of
sentence [Black’s Law Dictionary]. It is
an act of grace proceeding from the
power entrusted with the execution of
the laws, which exempts the individual
on whom it is bestowed, from the
punishment the law inflicts for the crime
he has committed. It is a remission of
guilt, a forgiveness of the offense
[People v. Vera, supra].
6. Parole: The suspension of the
sentence of a convict granted by a
Parole Board after serving the
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minimum term of the indeterminate
sentence penalty, without granting a
pardon, prescribing the terms upon
which the sentence shall be
suspended.
Pardon
Plenary or Partial
1. Plenary: Extinguishes all the penalties
imposed upon the offender, including
accessory disabilities.
2. Partial: Does not extinguish all penalties
imposed
Conditional or Absolute
1. Conditional: The offender has the right to
reject the same since he may feel that the
condition imposed is more onerous than
the penalty sought to be remitted.
The determination of whether the
conditions had been breached rests
exclusively in the sound judgment of the
Chief Executive. [Torres v. Gonzales, G.R.
No. 76872(1987)].
2. Absolute: Pardonee has no option at all
and must accept it whether he likes it or
not. In this sense, an absolute pardon is
similar to commutation, which is also not
subject to acceptance by the offender.
Limitations on Pardon
1. Cannot be granted for impeachment [Sec.
19, Art. VII]
2. Cannot be granted in cases of violation of
election laws without the favorable
recommendation of the COMELEC [Sec. 5,
Art. IX-C]
3. Can be granted only after conviction by
final judgment [People v. Salle, G.R. No.
103567 (1995)].
Sec. 19, Art. VII prohibits the grant of
pardon whether full or conditional, to an
accused during the pendency of his appeal
from his conviction by the trial court. Any
application therefore should not be acted
upon or the process toward its grant should
not be begun unless the appeal is
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withdrawn. [People v. Bacang, G.R. No.

116512(1996)].
4. Cannot absolve the convict of civil liability
[People v. Nacional, G.R. Nos. 111294-
95(1995)]
5. Cannot be granted to cases of legislative
contempt or civil contempt
6. Cannot restore public offices forfeited,
even if pardon restores the eligibility for
said offices [Monsanto v. Factoran, G.R.
No. 78239(1989)].
However, if a pardon is given because he
did not commit the crime, reinstatement
and back wages would be due [Garcia v.
COA, G.R. No. L-75025(1993)].
The right to seek public elective office is
unequivocally considered as a political
right. Hence, upon acceptance of the
pardon, the pardonee regained his full civil
and political rights – including the right to
seek elective office, even though that right
is not expressly mentioned as provided
under Article 36 of the Revised Penal Code
[Risos-Vidal v. COMELEC, G.R. No.
206666 (2015)].
Pardon v. Amnesty
Pardon Amnesty
Infractions of peace Addressed to
of the state political offenses
Extended after final May be extended at
judgment any stage
Differentiated from
1. Probation: Disposition where a defendant
after conviction and sentence is released
subject to (1) conditions imposed by the
court and (2) supervision of a probation
officer [PD No. 968, Sec. 3(a)].
2. Parole: Suspension of the sentence of a
convict granted by a Parole Board after
serving the minimum term of the
indeterminate sentence penalty, without
granting a pardon, prescribing the terms
upon which the sentence shall be
suspended [REYES].
Application of Pardoning Powers to Admin.
Cases
1. If the President can grant reprieves,
commutations and pardons, and remit fines
and forfeitures in criminal cases, with much
more reason can she grant executive
clemency in administrative cases, which
are clearly less serious than criminal
offenses.
2. However, the power of the President to
grant executive clemency in administrative
cases refers only to administrative cases in
the Executive branch [Llamas v. Executive
Secretary, G.R. No. 99031(1991)].

Granted to To classes of Denial of Commission of Offenses

individuals persons Persons invoking the benefit of amnesty must
first admit to their complicity in the crimes
Exercised solely by Requires charged. Amnesty presupposes the
the executive concurrence of commission of a crime, and when the accused
Congress maintains that he has not committed the crime,
he cannot have any use for amnesty [Vera v.
Private act which Public act which the People, G.R. No. L-1814(1963)].
must be pleaded and courts could take
proved judicial notice Amnesty
Who May Avail
Looks forward and Looks backward and Generally: Individuals who form part of the
relieves the puts into oblivion the class of persons covered by an amnesty
pardonee of the offense itself proclamation whose acts constitute the political
consequences of the offenses covered by the same.
offense

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Jurisprudence
Amnesty Proclamation No. 76 applies even to
Hukbalahaps already undergoing sentence
upon the date of its promulgation. The majority
of the Court believes that by its context and
pervading spirit the proclamation extends to all
members of the Hukbalahap [Tolentino v.
Catoy, G.R. No. L-2503(1948)].
The SC agreed with the Sandiganbayan that in
fact the petitioners were expressly disqualified
from amnesty. The acts for which they were
convicted were ordinary crimes without any
political complexion and consisting only of
diversion of public funds to private profit. The
amnesty proclamation covered only acts in the
furtherance of resistance to duly constituted
authorities of the Republic and applies only to
members of the MNLF, or other anti-
government groups [Macagaan v. People, G.R.
No. 77317-50(1987)].
7. Diplomatic Power
Note: It is the President who ratifies a treaty
(not the Senate), the Senate merely concurs
[Bayan v. Executive Secretary, supra]. Thus,
the President cannot be compelled to submit a
treaty to the Senate for concurrence; he has
the sole power to submit it to the Senate and/or
to ratify it [Bayan Muna v. Romulo, G.R. No.
159618(2011)].
Military Bases Treaty
Sec. 25, Art. XVIII. After the expiration in
1991 of the Agreement between the
Philippines and the United States of America
concerning Military Bases, foreign military
bases, troops, or facilities shall not be
allowed in the Philippines except under a
treaty duly concurred in by the Senate and,
when the Congress so requires, ratified by a
majority of the votes cast by the people in a
national referendum held for that purpose,
and recognized as a treaty by the other
contracting State.

Scope of Diplomatic Power

The President, however, may enter into an
The President, being the head of state, is
executive agreement on foreign military bases,
regarded as the sole organ and authority in
troops, or facilities, if:
external relations and is the country’s sole
a. It is not the instrument that allows the
representative with foreign nations. As the
presence of foreign military bases, troops,
chief architect of foreign policy, the President
or facilities; or
acts as the country’s mouthpiece with respect
b. It merely aims to implement an existing law
to international affairs.
or treaty.
The President is vested with the authority to:
Section 25 refers solely to the initial entry of the
a. Deal with foreign states and governments;
foreign military bases, troops, or facilities.
b. Extend or withhold recognition;
c. Maintain diplomatic relations;
To determine whether a military base or facility
d. Enter into treaties; and
in the Philippines, which houses or is accessed
e. Transact the business of foreign relations
by foreign military troops, is foreign or remains
[Pimentel v. Executive Secretary, G.R. No.
a Philippine military base or facility, the legal
158088(2005)].
standards are:
a. Independence from foreign control;
Treaty-Making Power
b. Sovereignty and applicable law; and
Treaty: As defined by the Vienna Convention
c. National security and territorial integrity
on the Law of Treaties, “an international
[Saguisag v. Executive Secretary, G.R. No.
instrument concluded between States in
212426(2016)].
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” [Bayan v. Executive
Secretary, G.R. No. 138570(2000)].

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Visiting Forces Agreement (VFA)
The VFA, which is the instrument agreed upon
to provide for the joint RP-US military
exercises, is simply an implementing
agreement to the main RP-US Military Defense
Treaty. The VFA is therefore valid for it is a
presence “allowed under” the RP-US Mutual
Defense Treaty. Since the RP-US Mutual
Defense Treaty itself has been ratified and
concurred in by both the Philippine Senate and
the US Senate, there is no violation of the
Constitutional provision resulting from such
presence [Nicolas v. Romulo, G.R. No.
175888(2009)].
Executive Agreements
a. Entered into by the President
b. May be entered into without the
concurrence of the Senate.
c. Distinguished from treaties — International
agreements involving political issues or
changes in national policy and those
involving international agreements of
permanent character usually take the form
of treaties. But the international
agreements involving adjustments in detail
carrying out well-established national
policies and traditions and those involving
a more or less temporary character usually
take the form of executive agreements
[Commissioner of Customs v. Eastern Sea
Trading, G.R. No. L-14279(1961)].
However, from the point of view of
international law, there is no difference
between treaties and executive
agreements in their binding effect upon
states concerned as long as the
negotiating functionaries have remained
within their powers. [USAFFE Veterans
Assn. v. Treasurer, G.R. No. L-10500
(1959)].
Note: An executive agreement that does
not require the concurrence of the Senate
for its ratification may not be used to amend
a treaty that, under the Constitution, is the
product of the ratifying acts of the
Executive and the Senate [Bayan Muna v.
Romulo, supra].
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Two (2) Classes of Executive Agreements
1. Agreements made purely as executive acts
affecting external relations and
independent of or without legislative
authorization, which may be termed as
presidential agreements; and
2. Agreements entered into in pursuance of
acts of Congress, or congressional-
executive agreements.
Although the President may, under the
American constitutional system, enter into
executive agreements without previous
legislative authority, he may not, by executive
agreement, enter into a transaction which is
prohibited by statutes enacted prior thereto. He
may not defeat legislative enactments that
have acquired the status of law by indirectly
repealing the same through an executive
agreement providing for the performance of the
very act prohibited by said laws. [Gonzales v.
Hechanova, G.R. No. L-21897(1963)].
Deportation of Undesirable Aliens
The President may deport only according to
grounds enumerated by law, otherwise it would
be unreasonable and undemocratic [Qua Chee
Gan v. Deportation Board, G.R. No. L-
10280(1963)].
Two (2) Ways of Deporting an Undesirable
Alien
1. By order of the President after due
investigation [Ch. 3, Bk. III of the Admin.
Code of 1987];
2. By the Commissioner of Immigration under
Section 37 of the Immigration Law [Qua
Chee Gan v. Deportation Board, supra]
Scope of the Power
a. The President’s power to deport aliens and
to investigate them subject to deportation
are provided in Chapter 3, Book III, of the
Admin. Code of 1987.
b. There is no legal or constitutional provision
defining the power to deport aliens
because the intention of the law is to grant
the Chief Executive the full discretion to
determine whether an alien’s residence in
the country is so undesirable as to affect
the security, welfare or interest of the state.

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c. The Chief Executive is the sole and
exclusive judge of the existence of facts
which would warrant the deportation of
aliens [Go Tek v. Deportation Board, G.R.
No. L-23846(1977)].
8. Powers Relative to
Appropriation Measures
Contracting and guaranteeing foreign loans
Requisites for contracting and guaranteeing
foreign loans:
a. With the concurrence of the monetary
board [Sec. 20, Art. VIII]
b. Subject to limitations as may be
provided by law [Sec. 2, Art. XII]
c. Information on foreign loans obtained
or guaranteed shall be made available
to the public [Sec. 2, Art. XII]
Cf. R.A. 4860
Role of Congress in such Foreign Loans:
The President does not need prior approval by
Congress
a. Because the Constitution places the
power to check the President’s power
on the Monetary Board;
b. BUT Congress may provide guidelines
and have them enforced through the
Monetary Board
Preparing and Submitting the Budget
Sec. 22, Art. VII. The President shall submit
to the Congress within thirty (30) days from
the opening of every regular session, as the
basis of the general appropriations bill, a
budget of expenditures and sources of
financing, including receipts from existing
and proposed revenue measures.
The budget is the plan indicating:
a. Expenditures of the government;
b. Sources of financing; and
c. Receipts from revenue-raising measures
The budget is the upper limit of the
appropriations bill to be passed by Congress.
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Through the budget, therefore, the President
reveals the priorities of the government.
Program of Expenditure
Even upon the enactment of the General
Appropriations Act, the release of funds from
the Treasury is still subject to a Program of
Expenditure, proposed by the Secretary of
Budget, to be approved by the President, and
such approved program of expenditure is to be
the basis for the release of funds [TESDA v.
COA, G.R. No. 204869(2014); Section 34,
Chapter 5, Book VI of the Administrative Code].
Fixing of Tariff Rates [Sec. 28, Art. VI]
The Congress may, by law, authorize the
President to fix (1) within specified limits, and
(2) subject to such limitations and restrictions
as it may impose:
a. Tariff rates;
b. Import and export quotas;
c. Tonnage and wharfage dues;
d. Other duties or imposts within the
framework of the national development
program of the government
Rationale for delegation: Highly technical
nature of international commerce, and the
need to constantly and with relative ease adapt
the rates to prevailing commercial standards.
9. Delegated powers
Principle: The President, under martial rule or
in a revolutionary government, may exercise
delegated legislative powers [See Sec. 23(2),
Art. VI]. Congress may delegate legislative
powers to the president in times of war or in
other national emergencies [BERNAS].
Emergency powers [Sec. 23, Art. VI]
a. In times of war or other national
emergency, the Congress, may, by law,
authorize the President, for a limited
period, and subject to such restrictions as
it may prescribe, to exercise powers
necessary and proper to carry out a
declared national policy

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b. Unless sooner withdrawn by resolution of
the Congress, such powers shall cease
upon the next adjournment thereof
Different from the Commander-in-Chief
clause:
a. When the President acts under the
Commander-in-Chief clause, he acts under
a constitutional grant of military power,
which may include the law- making power.
b. When the President acts under the
emergency power, he acts under a
Congressional delegation of law-making
power.
Meaning of “power necessary and proper”:
Power to issue rules and regulations
This power is:
a. For a limited period; and
b. Subject to such restrictions as Congress
may provide.
When Emergency Powers Cease
a. According to the text of the Constitution:
The power ceases:
1. Upon being withdrawn by resolution of
the Congress; or
2. If Congress fails to adopt such
resolution, upon the next (voluntary)
adjournment of Congress.
b. According to Cases:
i. The fact that Congress is able to
meet in session uninterruptedly
and adjourn of its own will prove
that the emergency no longer
exists to justify the delegation [See
Araneta v. Dinglasan, G.R. No. L-
2044(1949)]
ii. The specific power to continue in
force laws and appropriations
which would lapse or otherwise
become inoperative is a limitation
on the general power to exercise
such other powers as the executive
may deem necessary to enable the
government to fulfill its
responsibilities and to maintain and
enforce its authority [Rodriguez v.
Gella, G.R. No. L- 6266(1953)].
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Inconsistency between the Constitution
and the cases [BARLONGAY]:
a. The Constitution states that the emergency
powers shall cease upon the next
adjournment of Congress unless sooner
withdrawn by resolution of Congress
b. Cases tell us that the emergency powers
shall cease upon resumption of session.
c. Reconciling the two: it would not be enough
for Congress to just resume session in
order that the emergency powers shall
cease. It has to pass a resolution
withdrawing such emergency powers,
otherwise such powers shall cease. If no
resolution withdrawing such emergency
powers is passed, such powers shall cease
upon the next adjournment of Congress.
10. Residual Powers
Residual powers are unstated powers
possessed by the President which are 1) not
enumerated in the Constitution, 2) implied with
the grant of executive power, and 3) not
possessed by the legislative and judiciary. It
includes powers unrelated to the execution of
any provision of law [See Marcos v.
Manglapus, G.R. No. 88211(1988)].
In Marcos v. Manglapus, the Court held that
then-President Corazon Aquino had the power
to prevent the Marcoses from returning to the
Philippines on account of the volatile national
security situation. [Note: The decision was pro
hac vice.]
In MEWAP v. Romulo, the court upheld the
reorganization of the DOH through EOs 102
and 1165, as it was within the President’s
residual power to restructure the executive
departments since he has the power of control
over executive departments granted by the
Constitution [G.R. No. 160093, July 31, 2007].
The power to create ad hoc bodies is a residual
power vested in the President in accordance
with faithful execution clause [Biraogo v. Phil.
Truth Commission of 2010, G.R. Nos. 192935,
193036(2010)].

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11. Veto Powers
Sec. 27, Art. VI. (1) Every bill passed by the
Congress shall, before it becomes a law, be
presented to the President. If he approves
the same, he shall sign it; otherwise, he shall
veto it and return the same with his
objections to the House where it originated,
which shall enter the objections at large in its
Journal and proceed to reconsider it. If, after
such reconsideration, two-thirds of all the
Members of such House shall agree to pass
the bill, it shall be sent, together with the
objections, to the other House by which it
shall likewise be reconsidered, and if
approved by two-thirds of all the Members of
that House, it shall become a law. In all such
cases, the votes of each House shall be
determined by yeas or nays, and the names
of the Members voting for or against shall be
entered in its Journal. The President shall
communicate his veto of any bill to the House
where it originated within thirty days after the
date of receipt thereof, otherwise, it shall
become a law as if he had signed it.
(2) The President shall have the power to
veto any particular item or items in an
appropriation, revenue, or tariff bill, but the
veto shall not affect the item or items to
which he does not object.
General Rule: All bills must be approved by
the President before they become law.
Exceptions
a. The veto of the President is overridden by
2/3 vote of all the Members of Congress
[President returns bill with his veto
message to House where bill originated,
which shall then enter the objections at
large in its Journal and proceed to
reconsider it. If, after such reconsideration,
two-thirds of all the Members of such
House shall agree to pass the bill, it shall
be sent, together with the objections, to the
other House by which it shall likewise be
reconsidered, and if approved by two-thirds
of all the Members of that House, it shall
become a law.];
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b. The bill lapsed into law because of the
President’s failure to act on the bill within
thirty (30) days; and
c. The bill passed is the special law to elect
the President and Vice-President.
Limitations to the Veto Power:
The President may only veto bills as a whole.
(See Legislative Power of Congress)
12. Executive Privilege
2 Kinds of Executive Privilege in Neri v.
Senate Committee [G.R. No. 180643 (2008)]:
a. Presidential Communications Privilege
(President): communications are
presumptively privileged; president must
be given freedom to explore alternatives in
policy-making.
b. Deliberative Process Privilege (Executive
Officials): refer to materials that comprise
part of a process by which governmental
decisions and policies are formulated. This
includes diplomatic processes [See
Akbayan v. Aquino, G.R. No.
170516(2008)].
Varieties of Executive Privilege (US):
a. State secrets privilege: Invoked by U.S.
Presidents, beginning with Washington, on
the ground that the information is of such
nature that its disclosure would subvert
crucial military or diplomatic objectives.
b. Informer’s privilege: The privilege of the
Government not to disclose the identity of
persons who furnish information of
violations of law to officers charged with the
enforcement of that law.
c. Generic privilege for internal deliberations:
Has been said to attach to
intragovernmental documents reflecting
advisory opinions, recommendations and
deliberations comprising part of a process
by which governmental decisions and
policies are formulated [Senate v. Ermita,
G.R. No. 163783 (2004)].
Scope: This jurisdiction recognizes the
common law holding that there is a
"governmental privilege against public

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disclosure with respect to state secrets
regarding military, diplomatic and other
national security matters." Closed-door
Cabinet meetings are also a recognized
limitation on the right to information.
Note: Executive privilege is properly invoked in
relation to specific categories of information
and not to categories of persons—it attaches to
the information and not the person. only the [1]
President (and the [2] Executive Secretary, by
order of the President) can invoke the privilege
[Senate v. Ermita, supra].
The following are the requisites for
invoking presidential privilege:
a. Formal claim of privilege: For the privilege
to apply there must be a formal claim of the
privilege. Only the President or the
Executive Secretary (by authority of the
President) can invoke the privilege; and
b. Specificity requirement: A formal and
proper claim of executive privilege requires
a specific designation and description of
the documents within its scope as well as
precise and certain reasons for preserving
confidentiality. Without this specificity, it is
impossible for a court to analyze the claim
short of disclosure of the very thing sought
to be protected. [Senate v. Ermita, supra]
Once properly invoked, a presumption arises
that it is privileged. If what is involved is the
presumptive privilege of presidential
communications when invoked by the
President on a matter clearly within the domain
of the Executive, the said presumption dictates
that the same be recognized and be given
preference or priority, in the absence of proof
of a compelling or critical need for disclosure
by the one assailing such presumption [Neri v.
Senate, supra].
Requisites for validity of claim of privilege:
a. Quintessential and non-delegable
presidential power: Power subject of the
legislative inquiry must be expressly
granted by the Constitution to the
President, e.g. commander-in-chief,
appointing, pardoning, and diplomatic
powers;
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b. Operational Proximity Test: It must be
authored, solicited, and received by a
close advisor of the President or the
President himself. The judicial test is that
an advisor must be in “operational
proximity” with the President (i.e. officials
who stand proximate to the President, not
only by reason of their function, but also by
reason of their positions in the Executive’s
organizational structure)
c. No adequate need to limit privilege: The
privilege may be overcome by a showing of
adequate need, such that the information
sought “likely contains important
evidence,” and by the unavailability of the
information elsewhere by an appropriate
investigating authority [Neri v. Senate,
supra; see Akbayan v. Aquino, supra, for
application of this principle].
Diplomatic Negotiations Privilege
While the final text of the Japan-Philippines
Economic Partnership Agreement (JPEPA)
may not be kept perpetually confidential, the
offers exchanged by the parties during the
negotiations continue to be privileged even
after the JPEPA is published. The Japanese
representatives submitted their offers with the
understanding that “historic confidentiality”
would govern the same. Disclosing these offers
could impair the ability of the Philippines to deal
not only with Japan but with other foreign
governments in future negotiations. The
objective of the privilege is to enhance the
quality of agency decisions. In assessing
claims of privilege for diplomatic negotiations,
the test is whether the privilege being claimed
is indeed supported by public policy. This
privilege may be overcome upon “sufficient
showing of need” [Akbayan v. Aquino, supra].
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Voluntary written
D. RULES OF declaration of the
Vice-President as
Acting President
SUCCESSION President
First written
declaration by Vice-President as
majority of the Acting President
Situation Who shall act as
Cabinet
President
Determination by
BEFORE THE/ AT THE BEGINNING OF 2/3 vote: Vice-
Congress by 2/3
THE TERM President as Acting
vote of all members,
Vice-President-elect President
voting separately,
President-elect fails (until the President- Otherwise: President
acting on the second
to qualify elect shall have continues exercising
written declaration
qualified) his powers and
by majority of the
Vice-President-elect duties
Cabinet
(until a President
President shall not
shall have been
have been chosen What if the Senate President and Speaker
chosen and
are also not capable to act as President?
qualified)
Vacancy before the term: Congress shall, by
Beginning of the
law, provide the manner of selecting the one
term:
Vice-President-elect who will act as President until President or Vice
President-elect died
shall become President have either been chosen and
or became
President qualified pursuant to special elections.
permanently
disabled
Vacancy during the term: Congress shall, by
No President and Senate President or,
law, provide who will be acting President until
Vice-President have in case of his
President or Vice President have either been
been chosen or shall inability, the Speaker
elected and qualified pursuant to special
have qualified of the House shall elections.
Both President and act as President
Vice President died (until a President or a
or became Vice-President shall
a. Vacancy in the Office of the
permanently have been chosen President
disabled and qualified)
DURING THE TERM 1. At the Beginning of Term
Death, permanent
disability, removal Vice-President to Sec. 7, Art. VII. The President-elect and the
from office, or serve the unexpired Vice-President-elect shall assume office at
resignation of the term the beginning of their terms. [...]
President
Senate President or,
Temporary or Permanent Vacancy in the
in case of his
Death, permanent Presidency before the Term
inability, the Speaker
disability, removal No hold-over capacity for President.
of the House shall
from office, or
act as President
resignation of both Hold-over capacity - official remains in office
(until a President or a
the President and until a successor shall have been elected and
Vice-President shall
Vice-President qualified to preserve continuity in the
have been chosen
transaction of official business and prevent a
and qualified)
hiatus in government pending the assumption
TEMPORARY DISABILITY RESULTING of a successor into office.
TO VACANCY

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Note: Where there is a constitutional limit to the

the time of such call. The bill calling such
term of office in question, hold-over is not
special election shall be deemed certified
allowed. But where there is no limit to the term
under paragraph 2, Section 26, Article VI of
of office expressly provided in the Constitution,
this Constitution and shall become law upon
such hold-over is permitted [Abas Kida v.
its approval on third reading by the
Senate, G.R. No. 196271(2011)].
Congress. Appropriations for the special
election shall be charged against any current
Sec. 7, Par. 2-6, Art. VII. If the President- appropriations and shall be exempt from the
elect fails to qualify, the Vice-President-elect requirements of paragraph 4, Section 25,
shall act as President until the President- Article VI of this Constitution. The convening
elect shall have qualified. of the Congress cannot be suspended nor
the special election postponed. No special
If a President shall not have been chosen, election shall be called if the vacancy occurs
the Vice-President-elect shall act as within eighteen months before the date of the
President until a president shall have been next presidential election.
chosen and qualified.
If at the beginning of the term of the
2. During Term
President, the President-elect shall have
died or shall have become permanently
Permanent Vacancy in the Presidency
disabled, the Vice-President-elect shall
during the Term
become President.
Sec. 8, Art. VII. In case of death, permanent
Where no President and Vice-President shall disability, removal from office, or resignation
have been chosen or shall have qualified, or of the President, the Vice-President shall
where both shall have died or become become the President to serve the unexpired
permanently disabled, the President of the term. In case of death, permanent disability,
Senate or, in case of his inability, the removal from office, or resignation of both
Speaker of the House of Representatives the President and Vice-President, the
shall act as President until a President or a President of the Senate or, in case of his
Vice-President shall have been chosen and inability, the Speaker of the House of
qualified. Representatives, shall then act as President
until the President or Vice-President shall
The Congress shall, by law, provide for the have been elected and qualified.
manner in which one who is to act as
President shall be selected until a President The Congress shall, by law, provide who
or a Vice-President shall have qualified, in shall serve as President in case of death,
case of death, permanent disability, or permanent disability, or resignation of the
inability of the officials mentioned in the next Acting President. He shall serve until the
preceding paragraph. President or the Vice-President shall have
been elected and qualified, and be subject to
the same restrictions of powers and
Sec. 10, Art. VII. The Congress shall, at ten disqualifications as the Acting President.
o’clock in the morning of the third day after
the vacancy in the offices of the President
3. In case of Temporary Disability
and Vice-President occurs, convene in
accordance with its rules without need of a
Temporary Vacancy in the Presidency
call and within seven days enact a law calling
during the Term
for a special election to elect a President and
A vacancy in the Presidency arising from his
a Vice-President to be held not earlier than
disability can occur in any of the following
forty-five days nor later than sixty days from
ways:

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• Voluntary written declaration of the
President
• First written declaration by majority of the
Cabinet
• Determination by Congress by 2/3 vote of
all members, voting separately, acting on
the second written declaration by majority
of the Cabinet
In all these cases, the Vice-President
assumes the powers and duties of the
office as Acting President.
Sec. 11, Art. VII
1. Voluntary written declaration of the
President
Whenever the President transmits to the
President of the Senate and the Speaker of
the House of Representatives his written
declaration that he is unable to discharge
the powers and duties of his office
2. First written declaration by majority of the
Cabinet
Whenever a majority of all the Members of
the Cabinet transmit to the President of the
Senate and to the Speaker of the House of
Representatives their written declaration
that the President is unable to discharge
the powers and duties of his office.
3. Determination by Congress by 2/3 vote of
all members, voting separately, acting on
the second written declaration by majority
of the Cabinet
Thereafter, when the President transmits to
the President of the Senate and to the
Speaker of the House of Representatives
his written declaration that no inability
exists, he shall reassume the powers and
duties of his office. Meanwhile, should a
majority of all the Members of the Cabinet
transmit within five days to the President of
the Senate and to the Speaker of the
House of Representatives their written
declaration that the President is unable to
discharge the powers and duties of his
office, the Congress shall decide the issue.
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For that purpose, the Congress shall
convene, if it is not in session, within forty-
eight hours, in accordance with its rules
and without need of call.
If the Congress, within ten days after
receipt of the last written declaration, or, if
not in session, within twelve days after it is
required to assemble, determines by a two-
thirds vote of both Houses, voting
separately, that the President is unable to
discharge the powers and duties of his
office, the Vice-President shall act as the
President; otherwise, the President shall
continue exercising the powers and duties
of his office.
Constitutional Duty of Congress in Case of
Vacancy in the Offices of the President and
the Vice- President
Sec. 10, Art. VII. The Congress shall, at
10AM of the 3rd day after the vacancy in the
offices of the President and Vice-President
occurs:
1. Convene in accordance with its rules
without need of a call; and
2. Within seven days, enact a law
calling for a special election to elect
a President and a Vice- President to
be held not earlier than forty-five
days nor later than sixty days from
the time of such call.
The bill calling such special election shall be
deemed certified under paragraph 2, Section
26, Article VI of this Constitution and shall
become law upon its approval on third
reading by the Congress. Appropriations for
the special election shall be charged against
any current appropriations and shall be
exempt from the requirements of paragraph
4, Section 25, Article V1 of this Constitution.
The convening of the Congress cannot be
suspended nor the special election
postponed. No special election shall be
called if the vacancy occurs within eighteen
months before the date of the next
presidential election.
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Vacancy timetable: Vested in: (a) Supreme Court and (b) such
a. 0 days – vacancy occurs lower courts as may be established by law.
b. 3 days – Congress convenes
c. 10 days – Law providing for special
elections should be enacted 2. Judicial Review
d. 55 – 70 days – Elections should be held
within this period Judicial Power Judicial Review
e. 85 – 100 days – Canvassing by Congress
should be done within this period Where vested

b. Vacancy in the Office of the Vice Supreme Court Supreme Court

President Lower Courts Lower Courts

Definition
Sec. 9, Art. VII. The President shall
nominate a Vice-President from among the
members of the Senate and the House of Duty to settle actual Power of the courts
Representatives who shall assume office controversies to test the validity of
upon confirmation by a majority vote of all the involving rights which executive and
members of both houses of Congress voting are legally legislative acts in
separately. demandable and light of their
enforceable, and to conformity with the
determine whether or Constitution [Angara
not there has been a v. Electoral
JUDICIAL DEPARTMENT grave abuse of Commission, G.R.
discretion amounting No. L-45081 (1936)]
to lack or excess of
jurisdiction on the
A. CONCEPTS part of any branch or
instrumentality of the
government [Sec.
1(2), Art. VIII,
Constitution]
1. Judicial Power
Requisites for exercise
Judicial power includes the duty of the courts
to:
a. Settle actual controversies involving rights Jurisdiction — Power Acting on cases
which are legally demandable and to decide and hear a within the court's
enforceable; and case and execute a subject matter
b. To determine whether or not there has decision thereof jurisdiction:
been a grave abuse of discretion (1) There must be an
amounting to lack or excess of jurisdiction actual case or
on the part of any branch or instrumentality controversy;
of the Government. (2) The person
challenging the act
The second clause effectively limits the must have locus
doctrine of “political question” [See Francisco standi;
v. House of Representatives, G.R. No. 160261 (3) The question of
(2003)]. constitutionality must
be raised at the

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earliest opportunity;
and
(4) The issue of
constitutionality must
be the very lis mota
of the case.
Judicial Supremacy
When the judiciary mediates to allocate
constitutional boundaries, it does not assert
any superiority over the other departments; it
does not in reality nullify or invalidate an act of
the legislature, but only asserts the solemn and
sacred obligation assigned to it by the
Constitution to determine conflicting claims of
authority under the Constitution and to
establish for the parties in an actual
controversy the rights which that instrument
secures and guarantees to them. [Angara v.
Electoral Commission, G.R. No. L-45081
(1936)].
a. Requisites
i. Actual case or controversy
This means that there must be a genuine
conflict of legal rights and interests which can
be resolved through judicial determination
[John Hay v. Lim, G.R. No. 119775 (2003)].
This precludes the courts from entertaining the
following:
1. Request for an advisory opinion [Guingona
v. CA, G.R. No. 125532 (1998)];
2. Cases that are or have become moot and
academic, i.e. cease to present a justiciable
controversy due to supervening events [David
v. Macapagal-Arroyo, G.R. No. 171396
(2006)].
ii. ii. Locus standi
Legal standing or locus standi refers to a
party’s personal and substantial interest in a
case, arising from the direct injury it has
sustained or will sustain as a result of the
challenged governmental action. Legal
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standing calls for more than just a generalized
grievance. The term “interest” means a
material interest, an interest in an issue
affected by the governmental action, as
distinguished from mere interest in the
question involved, or a mere incidental interest.
The general requirement is also referred to as
the direct and substantial injury test. [CREBA
v. Energy Regulatory Commission, G.R. No.
174697 (2010)].
May be set aside by the court as a mere
procedural technicality in view of paramount
public interest or transcendental importance of
the issues involved [Kilosbayan v. Guingona
G.R. No. 113375 (1994); Tatad v. DOE, G.R.
No. 114222 (1995); Mamba v. Lara, G.R. No.
165109 (2009)].
Forms of locus standi
Taxpayers, voters, concerned citizens, and
legislators may be accorded locus standi or
standing to sue, provided that the following
requirements are met:
1. the cases involve constitutional issues;
2. for taxpayers, there must be a claim of
illegal disbursement of public funds or that
the tax measure is unconstitutional;
3. for voters, there must be a showing of
obvious interest in the validity of the
election law in question;
4. for concerned citizens, there must be a
showing that the issues raised are of
transcendental importance which must be
settled early; and
5. for legislators, there must be a claim that
the official action complained of infringes
upon their prerogatives as legislators.
Ordinary citizens are also recognized to have
locus standi in the following circumstances: (i)
when a public right is involved, such as the right
to information and (ii) as expressly provided in
Article VII, Section 18 of the 1987 Constitution
granting recognizing the suit filed by any citizen
challenging the sufficiency of the factual basis
of the proclamation of martial law or the
suspension of the privilege of the writ of habeas
corpus or the extension thereof.

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Special Rules on Standing (Requisites):
Taxpayer
1. Appropriation;
2. Disbursement
Citizen
1. Transcendental importance;
2. Public right; OR
3. Sec. 18, Art. VII (on the sufficiency of the
factual basis for martial law or suspension
of the privilege of the writ of Habeas
Corpus)
Voter
Right of suffrage is involved
Legislator
1. Authorized;
2. Affects legislative prerogatives (i.e. a
derivative suit)
Third-Party Standing
1. Litigants must have injury in-fact;
2. Litigants must have close relation to the
third-party; and
3. There is an existing hindrance to the third
party’s ability to protect its own interest
[White Light Corp. v. City of Manila, G.R.
No. 122846 (2009)]
Enforcement of Environmental Laws
1. Any Filipino citizen;
2. In representation of others, including
minors or generations yet unborn [Resident
Marine Mammals of the Protected
Seascape Tanon Strait v. Reyes, G.R. No.
180771 (2015)]
Note: Despite its lack of interest, an
association has the legal personality to file
a suit and represent its members if the
outcome of the case will affect their vital
interests. Similarly, an organization has the
standing to assert the concern of its
constituents [Bayan Muna v. Mendoza,
G.R. No. 190431 (2017)].
iii. Constitutional question must be
raised at the earliest possible
opportunity
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Exceptions
1. In criminal cases, at the discretion of the
court;
2. In civil cases, if necessary for the
determination of the case itself; and
3. When the jurisdiction of the court is involved.
Note: The reckoning point is the first competent
court. The question must be raised at the first
court with judicial review powers. Hence, the
failure to raise the constitutional question
before the NLRC is not fatal to the case [See
Serrano v. Gallant Maritime Services, G.R. No.
167614, (2009)].
iv. Lis Mota
The decision on the constitutional question
must be determinative of the case itself. Its
constitutionality must be "the cause of the suit
or action.”
The constitutionality of an act of the legislature
will not be determined by the courts unless that
question is properly raised and is necessary to
the determination of the case; i.e., the issue of
constitutionality must be the very lis mota
presented.
b. Operative Fact Doctrine
The doctrine is applicable when a declaration
of unconstitutionality will impose an undue
burden on those who have relied on the invalid
law, but it can never be invoked to validate as
a constitutional, an unconstitutional act
[Municipality of Malabang v. Benito, G.R. No.
L-28113 (1969)].
General Rule: The interpretation (or
declaration) of unconstitutionality is retroactive
in that it applies from the law’s effectivity.
Exception: Operative Fact Doctrine
Subsequent declaration of unconstitutionality
does not nullify all acts exercised in line with
[the law]. [Municipality of Malabang v. Benito,
G.R. No. L-28113, (1969)].
Note: Only projects, activities, and programs
that can no longer be undone and whose

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U.P. LAW BOC CONSTITUTIONAL LAW I
beneficiaries relied in good faith on the
unconstitutional activity’s validity are objects of
the Operative Fact Doctrine. The doctrine
cannot be applied to the co-authors and co-
actors of an unconstitutional act [Araullo v.
Aquino III, G.R. No. 209287 (2014)].
Moot Questions
A case becomes moot and academic when
there is no more actual controversy between
the parties or no useful purpose can be served
in passing upon the merits [Quino v.
COMELEC, G.R. No. 197466 (2012)]
When a case is moot, it becomes non-
justiciable [Pormento v Estrada, G.R. No.
191988 (2010)].
Ripeness of the controversy
The suit must be raised not too early that it is
conjectural or anticipatory, nor too late that it
becomes moot.
General Rule: Courts will not decide questions
that have become moot and academic.
Exception:
Courts will still decide if:
1. There is a grave violation of the
Constitution;
2. The situation is of exceptional character
and paramount public interest is involved;
3. The constitutional issue raised requires
formulation of controlling principles to
guide the bench, the bar and the public;
and
4. The case is capable of repetition yet
evading review [David v. Macapagal-
Arroyo, G.R. No. 171396 (2006)].
c. Political Question Doctrine
The term “political question” refers to: (1)
matters to be exercised by the people in their
primary political capacity; or (2) those
specifically delegated to some other
department or particular office of the
government, with discretionary power to act. It
is concerned with issues dependent upon the
wisdom, not legality, of a particular measure
[Tañada v. Cuenco, G.R. No. L-10520 (1957)].
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In recent years, the Court has set aside this
doctrine and assumed jurisdiction whenever it
found constitutionally-imposed limits on the
exercise of powers conferred upon the
Legislative and Executive branches
[BERNAS].
Note: In Javellana v. Executive Secretary [L-
36142 (1973)], the Court ruled that the issue
of validity of the proclamation is a justiciable
question considering that Article XV of the
1935 Constitution prescribes the methods or
procedures for its amendment; the question of
WON the revised constitution has been validly
ratified in accordance with Article XV is not only
subject to judicial inquiry, but is the duty of the
Court to decide such question. However, on
deciding WON the proposed Constitution was
in force, the Court did not give a ruling on this
matter granted that it was a political question.
In 2016, the SC ruled that President Duterte's
decision to have the remains of Marcos
interred at the Libingan Ng Mga Bayani
(LNMB) involves a political question that is not
a justiciable controversy. The president
decided a question of policy based on his
wisdom that it shall promote national healing
and forgiveness. There being no taint of grave
abuse in the exercise of such discretion, his
decision on that political question is outside the
ambit of judicial review [Ocampo v. Enriquez,
G.R. No. 225973 (2016)].

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B. JUDICIAL INDEPENDENCE
AND AUTONOMY
1. The SC is a constitutional body. It cannot
be abolished nor may its membership or
the manner of its meetings be changed by
mere legislation. [Sec. 4 (1), Art. VIII]
2. The members of the judiciary are not
subject to confirmation by the CA. [Sec. 9,
Art. VIII]
3. The members of the SC may not be
removed from office except by
impeachment. [Sec. 2, Art. XI]
4. The SC may not be deprived of its
minimum original and appellate jurisdiction
as prescribed in Sec. 5, Art. VIII of the
Constitution. [Sec. 2, Art. VIII]
5. The appellate jurisdiction of the SC may
not be increased by law without its advice
and concurrence. [Sec. 30, Art. VI; Fabian
v. Desierto, G.R. No. 129742 (1988)]
6. The SC has administrative supervision
over all lower courts and their personnel.
[Sec. 6, Art. VIII]
The rule prohibiting the institution of
disbarment proceedings against an
impeachable officer who is required by the
Constitution to be a member of the bar as
a qualification in office, applies only during
his or her tenure and does not create
immunity from liability for possibly criminal
acts or for alleged violations of the Code of
Judicial Conduct or other supposed
violations. [In Re: Biraogo, A.M. No. 09-2-
19-SC (2009)].
7. The SC has exclusive power to discipline
judges of lower courts. [Sec. 11, Art. VIII]
The Ombudsman is duty bound to refer to
the SC all cases against judges and court
personnel, so the SC can determine first
whether an administrative aspect is
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involved. The Ombudsman cannot bind the
Court that a case before it does or does not
have administrative implications [Caoibes
v. Ombudsman, G.R. No. 132177 (2001)].
8. The members of the SC and all lower
courts have security of tenure, which
cannot be undermined by a law
reorganizing the judiciary. [Sec. 2, Art. VIII]
9. They shall not be designated to any agency
performing quasi-judicial or administrative
functions. [Sec. 12, Art. VIII]
Administrative functions are those that
involve regulation of conduct of individuals
or promulgation of rules to carry out
legislative policy. Judges should render
assistance to a provincial committee of
justice (which is under DOJ supervision)
only when it is reasonably incidental to their
duties [In Re: Manzano, A.M. No. 88-7-
1861-RTC, (1988)].
10. The salaries of judges may not be reduced
during their continuance in office. [Sec. 10,
Art. VIII]
11. The judiciary shall enjoy fiscal autonomy.
[Sec. 3, Art. VIII]
Fiscal autonomy means freedom from
outside control.
As envisioned in the Constitution, the fiscal
autonomy enjoyed by the Judiciary xxx
contemplates a guarantee of full flexibility
to allocate and utilize their resources with
the wisdom and dispatch that their needs
require [Bengzon v. Drilon, G.R. No.
103524 (1992)].
It recognizes the power and authority to
levy, assess and collect fees, fix rates of
compensation not exceeding the highest
rates authorized by law for compensation
and pay plans of the government and
allocate and disburse such sums as may
be provided by law or prescribed by them
in the course of the discharge of their
functions [In re: Clarifying and
Strengthening the Organizational Structure

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U.P. LAW BOC CONSTITUTIONAL LAW I
and Set-up of the Philippine Judicial
Academy, A.M. No. 01-1-04-SC (2006)].
The provision in the Charter of the GSIS,
i.e., Section 39 of RA No. 8291, which
exempts it from “all taxes, assessments,
fees, charges or duties of all kinds,” cannot
operate to exempt it from the payment of
legal fees. Unlike the 1935 and 1973
Constitutions, which empowered Congress
to repeal, alter or supplement the rules of
the Supreme Court concerning pleading,
practice and procedure, the 1987
Constitution removed this power from
Congress. Hence, the Supreme Court now
has the sole authority to promulgate rules
concerning pleading, practice and
procedure in all courts [GSIS v. Caballero
G.R. No. 158090 (2010)].
12. The SC alone may initiate rules of court.
[Sec. 5 (5), Art. VIII]
The separation of powers among the three
co-equal branches of our government has
erected an impregnable wall that keeps the
power to promulgate rules of pleading,
practice and procedure within the sole
province of the Supreme Court. The other
branches trespass upon this prerogative if
they enact laws or issue orders that
effectively repeal, alter or modify any of the
procedural rules promulgated by the
Supreme Court. [Estipona Jr. v. Lobrigo,
G.R. No. 226679 (2017)].
13. Only the SC may order the temporary detail
of judges. [Sec. 5(3), Art. VIII]
14. The SC can appoint all officials and
employees of the judiciary. [Sec. 5(6), Art.
VIII]
Judicial Restraint
The judiciary will not interfere with its co-equal
branches when:
1. There is no showing of grave abuse of
discretion.
PPA v. Court of Appeals: If there is no showing
of grave abuse of discretion on the part of a
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branch or instrumentality of the government,
the court will decline exercising its power of
judicial review [G.R. No. 115786-87 (1996)].
Chavez v. COMELEC: Judicial review shall
involve only those resulting in grave abuse of
discretion by virtue of an agency’s quasi-
judicial powers, and not those arising from its
administrative functions [G.R. No. 105323
(1992)]
2. The issue is a political question.
Even when all requisites for justiciability have
been met, judicial review will not be exercised
when the issue involves a political question.
But see Francisco v. House of
Representatives, G.R. No. 160261 (2004): At
the same time, the Court has the duty to
determine whether or not there has been grave
abuse of discretion by any instrumentality of
government under its expanded judicial review
powers. This allowed the SC to interfere in a
traditionally purely political process, i.e.
impeachment, when questions on compliance
with Constitutional processes were involved.
Guidelines for determining whether or not a
question is political [Baker v. Carr (369 US
186), as cited in Estrada v. Desierto, G.R. Nos.
146710-15 (2001)]:
1. There is a textually demonstrable
constitutional commitment of the issue to a
political department;
2. Lack of judicially discoverable and
manageable standards for resolving it;
3. The impossibility of deciding without an initial
policy determination of a kind clearly for
nonjudicial discretion;
4. Impossibility of a court’s undertaking
independent resolution without expressing lack
of the respect due coordinate branches of
government;
5. An unusual need for unquestioning
adherence to a political decision already made;
6. Potentiality of embarrassment from
multifarious pronouncements by various
departments on one question.
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experience [Cayetano v. Monsod, G.R. No.

C. APPOINTMENTS TO 100113 (1991)].
THE JUDICIARY Note: In the case of judges of the lower courts,
the Congress may prescribe other
qualifications. [Sec. 7(2), Art. VIII]
1. Qualifications of Members of
the Judiciary Disqualification from Other Positions or
Offices
Justices RTC Judge MTC/MCTC
of the SC (Sec. 15, Judge (Sec. Sec. 12, Art. VIII. The Members of the
and the B.P. 129) 26, B.P. 129) Supreme Court and of other courts
Collegiate established by law shall not be designated to
Courts any agency performing quasi-judicial or
Citizenship administrative functions.

Natural-born citizen
The SC and its members should not and
Age cannot be required to exercise any power or to
perform any trust or to assume any duty not
At least 40 At least 35 At least 30 pertaining to or connected with the
years of years of age years of age administering of judicial functions [Meralco v.
age Pasay Transportation Co., G.R. No. L-37838
Experience (1932)].
15 years or Has been Has been
more as a engaged for engaged for 2. Judicial and Bar Council
judge of a at least 10 at least 5
lower court years in the years in the a. Composition
OR has practice of practice of
been law OR has law OR has Ex-officio members [Sec. 8(1), Art. VIII]
engaged in held public held public a. Chief Justice as ex-officio Chairman
the office in the office in the b. Secretary of Justice
practice of PH requiring PH requiring c. One representative of Congress
law in the admission to admission to
PH for the the practice the practice Regular members [Sec. 8(1), Art. VIII]
same of law as an of law as an a. Representative of the Integrated Bar
period indispensable indispensable b. Professor of law
requisite requisite c. Retired member of the SC
Tenure [Sec. 11, Art. VIII] d. Representative of private sector
Hold office during good behavior until they
Secretary ex-officio [Sec. 8(3), Art. VIII,
reach the age of 70 OR become
Const.]: Clerk of Court of the SC, who shall
incapacitated to discharge their duties
keep a record of its proceedings; not a member
Qualifications [Sec. 7(3), Art. VIII]
of the JBC.
Person of proven competence, integrity,
probity, and independence In the absence of the Chief Justice because of
his impeachment, the most Senior Justice of
Note: “Practice of law” is not confined to the Supreme Court, who is not an applicant for
litigation. It means any activity in and out of Chief Justice, should participate in the
court, which requires the application of law, deliberations for the selection of nominees for
legal procedure, knowledge, training and the said vacant post and preside over the
proceedings, pursuant to Section 12 of

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Republic Act No. 296, or the Judiciary Act of Supervisory authority of SC over JBC
1948 [Famela Dulay v. Judicial and Bar The supervisory authority of the Court over the
Council, G.R. No. 202143 (2012)]. JBC covers the overseeing of compliance with
its rules [Jardeleza v. Judicial and Bar Council,
Appointment, Tenure, Salary of JBC G.R. No. 213181 (2014)].
Members
Ex-officio members: the position in the Council Supervisory power, when contrasted with
is good only while the person is the occupant control, is the power of mere oversight over an
of the office. inferior body; it does not include any restraining
authority over such body. [Aguinaldo v. Aquino,
Only ONE representative from Congress: G.R. No. 224302 (2016)].
Former practices of giving ½ vote or 1 full vote
each for the Chairmen of the House and Procedure of Appointment
Senate Committees on Justice is invalid. Any
The JBC shall submit a list of three (3)
member of Congress, whether from the upper
nominees for every vacancy to the President
or lower house, is constitutionally empowered
[Sec. 9, Art. VIII]
to represent the entire Congress.
↓
The framers intended the JBC to be composed
Any vacancy in the Supreme Court shall be
of 7 members only. Intent is for each co-equal
filed within ninety (90) days from the
branch of government to have one
occurrence thereof [Sec. 4(1), Art. VIII]
representative. There is no dichotomy between
the Senate and HOR when Congress interacts
For lower courts, the President shall issue
with other branches. The lone representative
the appointment within ninety (90) days from
from Congress is entitled to one full vote
the submission by the JBC of such list [Sec.
[Chavez v. JBC, G.R. No. 202242 (2012)].
9, Art. VIII]
Regular Members [Sec. 8(2), Art. VIII]: The
regular members shall be appointed by the Note: The prohibition against midnight
President with the consent of the Commission appointments does not apply to the judiciary
on Appointments. [See De Castro v. JBC, G.R. No. 191002
(2010)].
The term of the regular members is 4 years.
But the term of those initially appointed shall be
staggered in the following way so as to create
continuity in the council: D. THE SUPREME COURT
1. IBP representative: 4 years
2. Law professor: 3 years
3. Retired justice: 2 years
4. Private sector: 1 year 1. Composition
a. Chief Justice and 14 Associate Justices
b. Powers
b. May sit en banc or in divisions of three, five,
or seven members
Primary Function: Recommend appointees to
c. Vacancy shall be filled within 90 days from
the judiciary; may exercise such other
the occurrence thereof
functions and duties as the SC may assign to
d. Strict Composition: There is but one
it. [Sec. 8(5), Art. VIII]
Supreme Court whose membership
appointments are permanent [Vargas v.
Note: Judges may not be appointed in any
Rilloraza, G.R No. L-1612 (1948)]
acting or temporary capacity as this would
undermine the independence of the judiciary.

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How many divisions can it have?
2 divisions 7 members
3 divisions 5 members
5 divisions 3 members
En banc
Note: They have full discretion on the number
of divisions. Right now, they sit in 3 Divisions.
En Banc and Division Cases
En banc: Cases decided with the concurrence
of a majority of the Members who actually took
part in the deliberations and voted.
Instances when the SC Sits En Banc
a. Those involving the constitutionality,
application, or operation of:
1. Treaty
2. Orders
3. International or executive agreement
4. Law
5. Presidential decrees
6. Instructions
7. Proclamations
8. Ordinances
9. Other regulations
b. Exercise of the power to discipline judges
of lower courts, or order their dismissal
[Sec. 11, Art. VIII]
c. Discipline of judges can be done by a
division, BUT En Banc decides cases for
dismissal, disbarment, suspension for
more than 1 year, or fine of more than
P10,000 [People v. Gacott, G.R. No.
116049 (1995)]
d. Cases or matters heard by a Division
where the required number of votes to
decide or resolve these is not met [Sec.
4(3), Art. VIII]
e. Modifying or reversing a doctrine or
principle of law laid down by the court in a
decision rendered en banc or in division
[Sec. 4(3), Art. VIII]
f. Actions instituted by citizens to test the
validity of a proclamation of Martial law or
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suspension of the privilege of the writ [Sec.
18, Art. VII]
g. When sitting as Presidential Electoral
Tribunal [Sec. 4(7), Art. VII]
h. All other cases which under the Rules of
Court are required to be heard by the SC
en banc. [Sec. 4(2), Art. VIII]
Requirements and Procedures in Divisions
a. Cases decided with the concurrence of a
majority of the Members who actually took
part in the deliberations and voted
b. In no case without the concurrence of at
least three (3) of such Members
c. When a required number is not obtained,
the case shall be decided en banc.
i. Cases v. Matters. Only cases are
referred to En Banc for decision
when required votes are not
obtained.
ii. Cases are of first instance; matters
are those after the first instance,
e.g. MRs and post-decision
motions.
iii. Failure to resolve a motion
because of a tie does not leave the
case undecided. MR is merely lost
[See Fortrich v. Corona, G.R. No.
131457 (1998)].
The SC En Banc is not an appellate court vis-
à-vis its Divisions. The only constraint is that
any doctrine or principle of law laid down by the
Court, either rendered en banc or in division,
may be overturned or reversed only by the
Court sitting en banc [PUP v. Firestone
Ceramics, G.R. No. 143513 (2001)].
There is but one Supreme Court of the
Philippine Islands. It is the jurisdiction of this
Supreme Court, which cannot be diminished.
The Supreme Court remains a unit
notwithstanding it works in divisions. Although
it may have two divisions, it is but a single
court. Actions considered in any one of these
divisions and decisions rendered therein are, in
effect, by the same Tribunal. The two divisions
of this court are not to be considered as two
separate and distinct courts but as divisions of
one and the same court [US v. Limsiongco, G.
R. No. 16217 (1920)].

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2. Powers and Functions
Procedural Rule-Making
Sec. 5, Art. VIII. The Supreme Court shall
have the following powers: […]
Promulgate rules concerning the protection
and enforcement of constitutional rights,
pleading, practice, and procedure in all
courts, the admission to the practice of law,
the integrated bar, and legal assistance to
the under-privileged.
The 1987 Constitution took away the power of
Congress to repeal, alter, or supplement rules
concerning pleading, practice and procedure.
The power to promulgate rules of pleading,
practice and procedure is no longer shared by
the Court with Congress, more so with the
Executive [Echegar#ay v. Secretary of Justice,
G.R. No. 132601 (1999)].
Limitations
a. Shall provide a simplified and inexpensive
procedure for speedy disposition of cases
b. Uniform for all courts in the same grade
c. Shall not diminish, increase or modify
substantive rights
Administrative Supervision Over Lower
Courts
Administrative Powers of the Supreme Court
a. Assign temporarily judges of lower courts
to other stations as public interest may
require;
b. Shall not exceed 6 months without the
consent of the judge concerned;
c. Order a change of venue or place of trial to
avoid a miscarriage of justice;
d. Appoint all officials and employees of the
Judiciary in accordance with the Civil
Service Law;
e. Supervision over all courts and the
personnel thereof;
f. Discipline judges of lower courts or order
their dismissal.
Note: The qualifications of judges of lower
courts as stated by the Constitution are
minimum requirements. The JBC may
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determine or add more qualifications when
such policies are necessary and incidental to
the function conferred in the Constitution
[Villanueva v. JBC, G.R. No. 211833 (2015)].
Period for Deciding Cases [Sec. 15(1), Art.
VIII]
Supreme Lower Other Lower
Court Collegiate Courts
Courts
24 months 12 months, 3 months,
unless unless
reduced by reduced by
the SC the SC
Notes:
a. Period counted from date of submission.
b. Case deemed submitted upon filing of the
last pleading, brief or memorandum required
by the Rules or the court [Sec. 15(2), Art. VIII].
Upon expiration of the period, the Chief Justice
or presiding judge shall issue a certification
stating why the decision or resolution has not
been rendered within the period [Sec. 15(3),
Art. VIII].
This provision is merely directory and failure to
decide on time would not deprive the
corresponding courts of jurisdiction or render
their decisions invalid [De Roma v. CA, G.R.
No. L-46903 (1987)].
The failure to decide cases within the 90-day
period required by law constitutes a ground for
administrative liability against the defaulting
judge. [People v. Mendoza, G.R. No. 143702
(2001)].
The Sandiganbayan, while of the same level as
the Court of Appeals, functions as a trial court.
Therefore, the period for deciding cases which
applies to the Sandiganbayan is the three (3)
month period, not the twelve (12) month period
[In Re: Problems of Delays in Cases before the
Sandiganbayan, A. M. No. 00-8-05- SC
(2001)].

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Original and Appellate Jurisdiction
Jurisdiction is the authority to hear and
determine a case [US v. Limsiongco, G. R. No.
16217 (1920)].
Original Jurisdiction [Sec. 5(1), Art. VIII]
a. Cases affecting ambassadors, other public
ministers and consuls
b. Petition for certiorari
c. Petition for prohibition
d. Petition for mandamus
e. Petition for quo warranto
f. Petition for habeas corpus
Note: Original jurisdiction also extends to writs
of amparo, habeas data, and the
environmental writ of kalikasan.
The Supreme Court’s original jurisdiction to
issue writs of certiorari (as well as prohibition,
mandamus, quo warranto, habeas corpus and
injunction) is not exclusive. Its jurisdiction is
concurrent with the CA, and with the RTC in
proper cases [Cruz v. Judge Gingoyon, G.R.
No. 170404 (2011)].
Appellate Jurisdiction [Sec. 5(2), Art. VIII]: on
appeal or certiorari (as the Rules of Court
provide), SC may review, revise, reverse,
modify, or affirm final judgments and orders of
lower courts in:
a. Cases involving the constitutionality or
validity of any treaty, international or
executive agreement, law, presidential
decree, proclamation, order, instruction,
ordinance, or regulation, except in
circumstances where the Court believes
that resolving the issue of constitutionality
of a law or regulation at the first instance is
of paramount importance and immediately
affects the social, economic and moral
well-being of the people [Moldex Realty v.
HLURB, G.R. No. 149719 (2007)];
b. Cases involving the legality of any tax,
impost, assessment, or toll, or any penalty
imposed in relation thereto;
c. Cases in which the jurisdiction of any lower
court is in issue;
d. Criminal cases where the penalty imposed
is reclusion perpetua or higher;
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e. Cases where only a question of law is
involved;
Note: A party who has not appealed from a
decision may not obtain any affirmative relief
from the appellate court other than what he had
obtained from the lower court, if any, whose
decision is brought up on appeal [Daabay v.
Coca-Cola Bottlers, G.R. No. 199890 (2013)].
Doctrine of judicial stability or non-
interference: No court can interfere by
injunction with the judgments or orders of
another court of concurrent jurisdiction having
the power to grant the relief sought by
injunction. The rationale for the rule is founded
on the concept of jurisdiction: a court that
acquires jurisdiction over the case and renders
judgment therein has jurisdiction over its
judgment, to the exclusion of all other
coordinate courts, for its execution and over all
its incidents, and to control, in furtherance of
justice, the conduct of ministerial officers acting
in connection with this judgment [United Alloy
Philippines v. UCPB, G.R. No. 179257 (2015)].
Finality of Judgments: A decision that has
acquired finality becomes immutable and
unalterable and may no longer be modified in
any respect even if the modification is meant to
correct erroneous conclusions of fact or law
and whether it was made by the court that
rendered it or by the highest court of the land
[Genato v. Viola, G.R. No. 169706 (2010)].
Exceptions
a. The correction of clerical errors;
b. Nunc pro tunc entries which cause no
prejudice to any party;
c. Void judgments;
d. Whenever circumstances transpire after
the finality of the decision rendering its
execution unjust and inequitable.
Note: “Finality of Judgment” means that while
the court loses jurisdiction to amend, alter, and
modify the decision, it does not lose its power
over the case with respect to enforcement and
execution. The Court can suspend the
enforcement of a sentence. Presidential
reprieve does not preclude Court control over

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the enforcement of decisions after finality. This
is in the Court’s exercise of its judicial power
[Echegaray v. Secretary of Justice, G.R. No.
132601 (1999)].
Judicial Privilege: A form of deliberative
process privilege; Court records which are pre-
decisional and deliberative in nature are thus
protected and cannot be the subject of a
subpoena.
A document is pre-decisional if it precedes, in
temporal sequence, the decision to which it
relates.
A material is deliberative on the other hand, if it
reflects the give-and-take of the consultative
process. The key question is whether
disclosure of the information would discourage
candid discussion within the agency.
Judicial Privilege is an exception to the general
rule of transparency as regards access to court
records. Court deliberations are traditionally
considered privileged communication.
SUMMARY OF RULES
The following are privileged documents or
communications, and are not subject to
disclosure:
a. Court actions such as the result of the
raffle of cases and the actions taken by the
Court on each case included in the agenda
of the Court’s session on acts done
material to pending cases, except where a
party litigant requests information on the
result of the raffle of the case, pursuant to
Rule 7, Section 3 of the Internal Rules of
the Supreme Court (IRSC);
b. Court deliberations or the deliberations of
the Members in court sessions on cases
and matters pending before the Court;
c. Court records which are “pre-decisional”
and “deliberative” in nature, in particular,
documents and other communications
which are part of or related to the
deliberative process, i.e., notes, drafts,
research papers, internal discussions,
internal memoranda, records of internal
deliberations, and similar papers.
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Additional Rules:
a. Confidential Information secured by
justices, judges, court officials and
employees in the course of their official
functions, mentioned in (2) and (3) above,
is privileged even after their term of office.
b. Records of cases that are still pending for
decision are privileged materials that
cannot be disclosed, except only for
pleadings, orders and resolutions that
have been made available by the court to
the general public.
c. 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.
d. 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.
Requirements for Decisions and
Resolutions
Sec. 13, Art. VIII. The conclusions of the
Supreme Court in any case submitted to it for
decision en banc or in division shall be
reached in consultation before the case is
assigned to a Member for the writing of the
opinion of the Court. A certification to this
effect signed by the Chief Justice shall be
issued and a copy thereof attached to the
record of the case and served upon the
parties. Any Member who took no part, or
dissented, or abstained from a decision or
resolution must state the reason therefor.
The same requirements shall be observed
by all lower collegiate courts.
Sec. 14, Art. VIII. No decision shall be
rendered by any court without expressing
therein clearly and distinctly the facts and the
law on which it is based.
No petition for review or motion for
reconsideration of a decision of the court

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shall be refused due course or denied
without stating the legal basis therefor.
A "Resolution" is not a "Decision" within the
meaning of Sec. 14 of Art. VIII. This mandate
applies only in cases "submitted for decision,"
i.e., given due course and after the filing of
Briefs or Memoranda and/or other pleadings,
as the case may be. It does not apply to an
Order or Resolution refusing due course to a
Petition for Certiorari [Nunal v. COA, G.R. No.
78648 (1989)].
CONSTITUTIONAL
COMMISSIONS
1. The Commission on Elections,
2. Commission on Audit, and
3. Civil Service Commission
The grant of a constitutional commission’s
rulemaking power is untouchable by Congress,
absent a constitutional amendment or revision.
The laws that the Commission interprets and
enforces fall within the prerogative of
Congress. As an administrative agency, its
quasi-legislative power is subject to the same
limitations applicable to other administrative
bodies [Trade and Investment Development
Corporation of the Philippines v. Civil Service
Commission, G.R. No. 182249 (2013)].
A. CONSTITUTIONAL SAFEGUARDS TO
ENSURE INDEPENDENCE OF
COMMISSIONS
1. They are constitutionally created, hence
may not be abolished by statute.
2. Each commission is vested with powers
and functions which cannot be reduced by
statute.
3. Expressly defined in the Constitution as
independent constitutional bodies.
4. The Chairmen and members may not be
removed except by impeachment.
5. Fixed term of office of 7 years.
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6. The Chairmen and members may not be
appointed in an acting capacity.
7. The salaries of the Chairmen and members
may not be decreased during their tenure.
8. The Commissions enjoy fiscal autonomy.
9. Each Commission may promulgate its own
procedural rules, provided they do not
diminish, increase or modify substantive
rights (though subject to disapproval by
the Supreme Court).
10. The Commission may appoint their own
officials and employees in accordance
with Civil Service Law.
Promotional Appointment of Commissioner
to Chairman
Sec. 1(2), Article IX-D of the Constitution does
not prohibit a promotional appointment from
commissioner to chairman as long as:
1. The commissioner has not served the
full term of 7 years; and
2. The appointment to any vacancy shall
be only for the unexpired portion of the
term of the predecessor. [Sec. 1(2),
Article IX-D]
3. The promotional appointment must
conform to the rotational plan or the
staggering of terms in the commission
membership [Funa v. Commission on
Audit, G.R. No. 192791 (2012)].
Jurisprudence on Sec. 1(2), Art. IX-D
1. The appointment of members of any of the
three (3) constitutional commissions, after
the expiration of the uneven terms of office
of the first set of commissioners, shall
always be for a fixed term of seven (7)
years; an appointment for a lesser period
is void and unconstitutional. The
appointing authority cannot validly shorten
the full term of seven (7) years in case of
the expiration of the term as this will result
in the distortion of the rotational system
prescribed by the Constitution.
2. Appointments to vacancies resulting from
certain causes (death, resignation,
disability or impeachment) shall only be for
the unexpired portion of the term of the
predecessor; such appointments cannot
be less than the unexpired portion (as it will
disrupt the staggering).

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3. Members of the Commission who were
appointed for a full term of seven (7) years
and who served the entire period, are
barred from reappointment to any position
in the Commission. The first appointees in
the Commission under the Constitution are
also covered by the prohibition against
reappointment.
4. A commissioner who resigns after serving
in the Commission for less than seven (7)
years is eligible for an appointment as
Chairman for the unexpired portion of the
term of the departing chairman. Such
appointment is not covered by the ban on
reappointment, provided that the
aggregate period of the length of service
will not exceed seven (7) years and
provided further that the vacancy in the
position of Chairman resulted from death,
resignation, disability or removal by
impeachment. This is not a reappointment,
but effectively a new appointment
(considered a promotion).
5. Any member of the Commission cannot be
appointed or designated in a temporary or
acting capacity [Funa v. Commission on
Audit, G.R. No. 192791 (2012)].
Term of Office of each Commission Member
The terms of the first Chairman and
Commissioners of the Constitutional
Commissions under the 1987 Constitution
must start on a common date, irrespective of
the variations in the dates of appointments and
qualifications of the appointees, in order that
the expiration of the first terms of seven (7), five
(5), and three (3) years should lead to the
regular recurrence of the two (2) year interval
between the expiration of the terms. This
common appropriate starting point must be on
February 2, 1987, the date of the adoption of
the 1987 Constitution [Gaminde v. Commission
on Audit, G. R. No. 140335 (2000)].
Term – the time during which the officer may
claim to hold office as of right, and fixes the
interval after which the several incumbents
shall succeed one another.
Tenure – term during which the incumbent
actually holds the office. The term of office is
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not affected by the hold-over. The tenure may
be shorter than the term for reasons within or
beyond the power of the incumbent.
B. POWERS AND FUNCTIONS;
COMPOSITION AND
QUALIFICATIONS OF MEMBERS
CIVIL SERVICE COMMISSION
Sec. 3, Art. IX-B. The Civil Service
Commission, as the central personnel
agency of the Government, shall establish a
career service and adopt measures to
promote morale, efficiency, integrity,
responsiveness, progressiveness, and
courtesy in the civil service. It shall
strengthen the merit and rewards system,
integrate all human resources development
programs for all levels and ranks, and
institutionalize a management climate
conducive to public accountability. It shall
submit to the President and the Congress an
annual report on its personnel programs.
Functions
a. In the exercise of its powers to implement
R.A. No. 6850, the CSC enjoys a wide
latitude of discretion, and may not be
compelled by mandamus [Torregoza v.
Civil Service Commission, G.R. No.
101526 (1992)].
b. Under the Administrative Code of 1987,
the Civil Service Commission has the
power to hear and decide administrative
cases instituted before it directly or on
appeal, including contested appointments.
c. The Commission has original jurisdiction
to hear and decide a complaint for
cheating in the Civil Service examinations
committed by government employees
[Cruz v. CSC, G.R. No. 144464 (2001)].
d. It is the intent of the Civil Service Law, in
requiring the establishment of a grievance
procedure, that decisions of lower level
officials (in cases involving personnel
actions) be appealed to the agency head,
then to the Civil Service Commission
[Olanda v. Bugayong, G.R. No. 140917
(2003)].

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As the central personnel agency of the
government, the CSC has broad authority to
pass upon all civil service matters. The
mandate of the CSC should therefore be read
as the comprehensive authority to perform all
functions necessary to ensure the efficient
administration of the entire civil service,
including the Central Executive Service (CES).
[Career Executive Service Board v. Civil
Service Commission, G.R. No. 197762 (2017)].
Scope of the Civil Service
Embraces all branches, subdivisions,
instrumentalities and agencies of the
Government, including GOCCs with original
charters [Sec. 2(1), Art. IX-B, Constitution].
The Civil Service does not include government-
owned or controlled corporations which are
organized as subsidiaries of government-
owned or controlled corporations under the
general corporation law [National Service
Corp. v. NLRC, G.R. No. L-69870 (1988)].
Composition
A Chairman and two (2) Commissioners
Qualifications: [Sec. 1(1), Art. IX-B]
a. Natural-born citizens of the Philippines;
b. At the time of their appointment, at least 35
years of age;
c. With proven capacity for public
administration; and
d. Must not have been candidates for any
elective position in the election
immediately preceding their appointment.
Term of office
Seven (7) years (except those first appointed)
Classes of Service: [CSC v. Sojor, G.R. No.
168766 (2008)]
a. Career Service: Characterized by entrance
(a) based on merit and fitness to be
determined, as far as practicable, by
competitive examinations, OR (b) based
on highly technical qualifications; with
opportunity for advancement to higher
career positions and security of tenure.
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1. Open career positions: Where prior
qualification in an appropriate
examination is required.
2. Closed career positions: e.g. scientific
or highly technical in nature;
3. Career Executive Service: e.g.
undersecretaries, bureau directors
4. Career Officers: Other than those
belonging to the Career Executive
Service who are appointed by the
President, e.g. those in the foreign
service
5. Positions in the AFP, although
governed by a different merit system
6. Personnel of GOCCs with original
charters
7. Permanent laborers, whether skilled,
semiskilled or unskilled
b. Non-career Service: Characterized by
entrance on bases other than those of the
usual tests utilized for the career service;
tenure limited to a period specified by law,
or which is co-terminus with that of the
appointing authority or subject to his
pleasure, or which is limited to the duration
1. Elective officials, and their personal
and confidential staff;
2. Department heads and officials of
Cabinet rank who hold office at the
pleasure of the President, and their
personal and confidential staff;
3. Chairmen and members of
commissions and bureaus with fixed
terms;
4. Contractual personnel;
5. Emergency and seasonal personnel.
Note: Except as otherwise provided by the
Constitution or by law, the Civil Service
Commission shall have the final authority to
pass upon the removal, separation and
suspension of all officers and employees in the
civil service and upon all matters relating to the
conduct, discipline and efficiency of such
officers and employees [CSC v. Sojor, supra].
Appointments in the Civil Service
The role of the CSC in the appointing process
is limited to the determination of qualifications
of the candidates for appointments and plays

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no role in the choice of the person to be
appointed [BERNAS at 1052]
General Rule: Made only according to merit
and fitness to be determined, as far as
practicable, by competitive examination
Exceptions
a. Policy determining: Where the officer lays
down principal or fundamental guidelines
or rules; or formulates a method of action
for government or any of its subdivisions;
e.g. department head.
b. Primarily confidential: Denoting not only
confidence in the aptitude of the appointee
for the duties of the office but primarily
close intimacy which ensures freedom of
intercourse without embarrassment or
freedom from misgivings or betrayals on
confidential matters of state [De los Santos
v. Mallare, G.R. No. L-3881 (1950)]; OR one
declared to be so by the President of the
Philippines upon the recommendation of
the CSC, subject to judicial review [Salazar
v. Mathay, G.R. No. L-44061 (1976)].
c. Highly technical: Requires possession of
technical skill or training in supreme
degree [De los Santos v. Mallare, supra].
Disqualifications [Art. IX-B]:
1. No candidate who has lost in any election
shall within one (1) year after such election,
be appointed to any office in the
Government or any GOCC or in any of its
subsidiaries. [Sec. 6]
2. No elective official shall be eligible for
appointment or designation in any
capacity to any public office or position
during his tenure. [Sec. 7[1]]
3. Unless otherwise allowed by law OR by the
primary functions of his position, no
appointive official shall hold any other
office or employment in the Government or
any subdivision, agency or instrumentality
thereof including GOCCs or their
subsidiaries. [Sec. 7(2)]
4. No officer or employee in the civil service
shall engage directly or indirectly, in any
electioneering or partisan political activity.
[Sec. 2(4)]
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Removal or Suspension only for Cause
No officer or employee of the civil service shall
be removed or suspended except for cause
provided by law. [Sec. 2 (2)]
COMMISSION ON ELECTIONS
Powers and functions
a. Enforce all laws relating to the conduct of
election, plebiscite, initiative, referendum
and recall
Initiative: The power of the people to
propose amendments to the Constitution or
to propose and enact legislation through an
election called for that purpose. There are
3 systems of initiative: Initiative on the
Constitution, initiative on statutes, and
initiative on local legislation [Sec. 3(a), R.A.
6735].
Referendum: The power of the electorate
to approve or reject legislation through an
election called for that purpose. There are
2 classes: referendum on statutes or
referendum on local laws [Sec. 3(c), R.A.
6735].
Recall: The termination of official
relationship of a local elective official for
loss of confidence prior to the expiration of
his term through the will of the electorate.
Plebiscite: The submission of constitutional
amendments or important legislative
measures to the people for ratification.
b. Recommend to the Congress effective
measures to minimize election spending,
and to prevent and penalize all forms of
election frauds, offenses, malpractices,
and nuisance candidacies
c. Submit to the President and the Congress,
a comprehensive report on the conduct of
each election, plebiscite, initiative,
referendum, or recall
d. Decide administrative questions pertaining
to election except the right to vote (the
jurisdiction of which is with the judiciary)

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Power to declare failure of election: The
COMELEC may exercise such power motu
proprio or upon a verified petition, and the
hearing of the case shall be summary in
nature [Sison v. COMELEC, G.R. No.
134096 (1998)].
e. File petitions in court for inclusion or
exclusion of voters
f. Investigate and prosecute cases of
violations of election laws
Note: RA 9369 (Sec. 43) of the Automated
Election System Law of January, 2007
grants to the Department of Justice
concurrent jurisdiction to investigate and
prosecute violations of election law.
However, the COMELEC may validly
delegate this power to the Provincial Fiscal
[People v. Judge Basilia, G.R. No. 83938-
40 (1989)].
g. Recommend pardon, amnesty, parole or
suspension of sentence of election law
violators
h. Deputize law enforcement agencies and
instrumentalities of the Government for the
exclusive purpose of ensuring free,
orderly, honest, peaceful, and credible
elections
i. Recommend to the President the removal
of any officer or employee it has deputized
for violation or disregard of, or
disobedience to its directive
j. Registration of political parties,
organizations and coalitions and
accreditation of citizens’ arms
k. Regulation of public utilities and media of
information
While respondent COMELEC cited the
Constitution, laws and jurisprudence to
support their position that they had the
power to regulate the tarpaulin, however,
all these provisions pertain to candidates
and political parties. xxx COMELEC does
not have the authority to regulate the
enjoyment of the preferred right to freedom
of expression exercised by a non-
candidate. Regulation of election
paraphernalia will still be constitutionally
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valid if it reaches into speech of persons
who are not candidates or who do not
speak as members of a political party if
they are not candidates, only if what is
regulated is declarative speech that, taken
as a whole, has for its principal object the
endorsement of a candidate only.
The regulation (a) should be provided by
law, (b) reasonable, (c) narrowly tailored to
meet the objective of enhancing the
opportunity of all candidates to be heard
and considering the primacy of the
guarantee of free expression, and (d)
demonstrably the least restrictive means to
achieve that object. The regulation must
only be with respect to the time, place and
manner of the rendition of the message. In
no situation may the speech be prohibited
or censored on the basis of its content.
[The Diocese of Bacolod v. COMELEC, GR
No. 205728, January 21, 2015].
Note: This power may be exercised only
over the media, not over practitioners of
media. Thus, a COMELEC resolution
prohibiting radio and TV commentators and
newspaper columnists from commenting
on the issues involved in the forthcoming
plebiscite for the ratification of the organic
law establishing the CAR was held invalid
[Sanidad v. COMELEC, G.R. No. L-44640
(1976)].
l. Decide election cases
The Commission on Elections may sit en
banc or in two divisions and shall
promulgate its rules of procedure in order
to expedite disposition of election cases.
[Sec. 3, Art. IX-C].
Cases which must be heard by division
a. All election cases, including pre-
proclamation contests originally
cognizable by the Commission in the
exercise of its powers under Sec. 2(2), Art
IX-C.
Pre-proclamation contests or controversies
are election cases which are instituted prior
to the proclamation of the winning

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candidate. They are deemed to be still in
the administrative stage.
It includes the questions of:
1. The legality of the composition of
the Board of Canvassers, and
2. Questions of fraudulent election
returns.
a. An election contest, on the
other hand, only occurs
after the proclamation of a
winner. Only after a winner
has been proclaimed can
there be an actual
"contest", with a contestant
who seeks not only to oust
the intruder but also to
have himself installed into
office.
b. Jurisdiction over a petition
to cancel a certificate of
candidacy.
c. Even cases appealed from
the RTC or MTC have to be
heard and decided in
division before they may be
heard en banc.
If the COMELEC exercises its quasi-judicial
functions then the case must be heard through
a division. Upon motion for reconsideration of
a decision, the case is heard en banc [Manzala
v. COMELEC, G.R. No. 176211 (2007)].
If the COMELEC exercises its administrative
functions then it must act en banc [Bautista v.
COMELEC, G.R. No. 15496-97 (2003)].
A motion for reconsideration of a decision or
resolution of the Comelec En Banc or of a
division may be granted upon vote of a majority
of the members of the en banc or of a division,
as the case may be, who actually took part in
the deliberation of the motion. If the voting
results in a tie, the motion, the motion for
reconsideration is deemed denied. [Legaspi v.
COMELEC, G.R. No. 21657 (2016)].
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Composition
A Chairman and six (6) Commissioners.
Qualifications
a. Must be natural-born citizens;
b. At least 35 years of age;
c. Holders of a college degree;
d. Have not been candidates in the
immediately preceding election;
e. Majority, including the Chairman, must be
members of the Philippine Bar who have
been engaged in the practice of law for at
least ten (10) years. [Sec. 1, Art. IX-C,
Constitution]
COMMISSION ON AUDIT
Powers and Functions
Examine, audit, and settle accounts pertaining
to government funds or property: its revenue,
receipts, expenditures, and uses
Post-audit basis:
● Constitutional bodies, commissions, and
offices;
● Autonomous state colleges and
universities;
● GOCCs with no original charters and their
subsidiaries;
● Non-governmental entities receiving
subsidy or equity, directly or indirectly, from
or through the Government, which are
required by law or the granting institution to
submit such an audit as a condition of
subsidy or equity.
Complementing the constitutional power of the
COA to audit accounts of “non–governmental
entities receiving subsidy or equity, directly or
indirectly, from or through the government” is
Section 11(1), Book V of the Administrative
Code, which authorizes the COA to audit
accounts of non–governmental entities
“required to pay xxx or have government
share” but only with respect to “funds xxx
coming from or through the government.”
COA does not have the exclusive power to
examine and audit government agencies. The
framers of the Constitution were fully aware of
the need to allow independent private audit of

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certain government agencies in addition to the
COA audit [DBP v. COA, G.R. No. 88435
(2002)].
The COA has the exclusive authority to
• Define the scope of its audit and
examination;
• Establish techniques and methods
required;
• Promulgate accounting and auditing rules
and regulations.
This includes giving the COA Assistant
Commissioner and General Counsel the
authority to deputize a special audit team [The
Special Audit Team, Commission on Audit v.
Court of Appeals, G.R. No. 174788 (2013)].
Note: No law shall be passed exempting any
entity of the Government or its subsidiaries in
any guise whatever, or any investment of
public funds, from the jurisdiction of the
Commission on Audit [Sec. 3, Art. IX-D,
Constitution].
Congress cannot exempt foreign grants from
the jurisdiction of the Commission on Audit. Its
jurisdiction extends to all government-owned or
controlled corporations, including those funded
by donations through the Government
[Petitioner Corporations v. Executive
Secretary, G.R. Nos. 147036-37 & 147811
(2012)].
Composition
A Chairman and two (2) Commissioners
Qualifications
a. Natural born Filipino citizens
b. At least thirty-five (35) years of age
c. CPAs with not less than ten (10) years of
auditing experience OR members of the
Philippine bar with at least ten (10) years
practice of law
Note: At no time shall all members belong to
the same profession.
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C. PROHIBITED OFFICES
AND INTERESTS
No member of the Constitutional Commissions
shall, during their tenure:
1. Hold any other office or employment. This
is similar to the prohibition against
executive officers. It applies to both public
and private offices and employment;
2. Engage in the practice of any profession;
3. Engage in the active management or
control of any business which in any way
may be affected by the functions of his
office; or
4. Be financially interested, directly or
indirectly, in any contract with, or in any
franchise or privilege granted by, the
Government, its subdivisions, agencies or
instrumentalities, including GOCCs or their
subsidiaries [Sec. 2, Art. IX-A].
The CSC Chairman cannot be a member of a
government entity that is under the control of
the President without impairing the
independence vested in the CSC by the 1987
Constitution [Funa v. Civil Service
Commission, G.R. No. 191672 (2014)].
D. JURISDICTION
CIVIL SERVICE COMMISSION
The CSC has been granted by the Constitution
and the Administrative Code jurisdiction over
all civil service positions in the government
service, whether career or non-career. [Civil
Service Commission v. Sojor, G.R. No. 168766
(2008)]; see CSC Resolution No. 991936
detailing the disciplinary and non-disciplinary
jurisdiction].
The Board of Regents (BOR) of a state
university has the sole power of administration
over the university. But xxx there is no showing
that such power is exclusive. The CSC has
concurrent jurisdiction over a president of a
state university [CSC v. Sojor, supra].

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Appellate Jurisdiction
The appellate power of the CSC will only apply
when the subject of the administrative cases
filed against erring employees is in connection
with the duties and functions of their office, and
not in cases where the acts of the complainant
arose from cheating in the civil service
examinations [Cruz v. CSC, G.R. No. 144464,
(2001)].
In administrative disciplinary cases decided by
the COA, the proper remedy in case of an
adverse decision is an appeal to the Civil
Service Commission and not a petition for
certiorari before SC under Rule 64 [Galindo v.
Commission on Audit, G.R. No. 210788
(2017)].
The Philippine National Red Cross, although
not a GOCC, is sui generis in character. The
sui generis character of PNRC requires the
court to approach controversies involving the
PNRC on a case-to-case basis. Since the issue
involves the enforcement of labor laws and
penal statutes, PNRC can be treated as a
GOCC. Thus, the CSC has jurisdiction.
Moreover, the CSC has appellate jurisdiction
on administrative disciplinary cases involving
the imposition of a penalty of suspension of
more than 30 days or fine in an amount
exceeding 30 days’ salary [Torres v. De Leon,
G.R. No. 199440 (2016)].
COMMISSION ON ELECTIONS
The Constitution vested upon the COMELEC
judicial powers to decide all contests relating to
elective local officials as therein provided
[Garcia v. De Jesus, G.R. No. 97108-09
(1992)].
Exclusive Jurisdiction
All contests relating to the elections, returns
and qualifications of all elective regional,
provincial, and city officials.
Jurisdiction over intra-party disputes
The COMELEC’s powers and functions under
the Constitution, "include the ascertainment of
the identity of the political party and its
legitimate officers responsible for its acts." The
power to register political parties necessarily
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involves the determination of the persons who
must act on its behalf. Thus, the COMELEC
may resolve an intra-party leadership dispute,
in a proper case brought before it, as an
incident of its power to register political parties
[Lokin v. COMELEC, G.R. No. 193808 (2012)].
Appellate Jurisdiction
All contests involving elected municipal officials
decided by trial courts of general jurisdiction or
involving elective barangay officials decided by
a court of limited jurisdiction [Garcia v. De
Jesus, supra].
Jurisdiction to issue writs of certiorari
Interpreting the phrase "in aid of its appellate
jurisdiction,” if a case may be appealed to a
particular court or judicial tribunal or body, then
said court or judicial tribunal or body has
jurisdiction to issue the extraordinary writ of
certiorari, in aid of its appellate jurisdiction
[Bulilis v. Nuez, G.R. No. 195953 (2011)].
COMMISSION ON AUDIT
LGUs, though granted local fiscal autonomy,
are still within the audit jurisdiction of the COA
[Veloso v. COA, G.R. No. 193677 (2011)].
The Boy Scouts of the Philippines (BSP) is a
public corporation and its funds are subject to
the COA’s audit jurisdiction [Boy Scouts of the
Philippines v. COA, G.R. No. 177131 (2011)].
The Constitution formally embodies the long-
established rule that private entities who
handle government funds or subsidies in trust
may be examined or audited in their handling
of said funds by government auditors [Blue Bar
Coconut Philippines, Inc. v. Tantuico, G.R. No.
L-47051 (1988)].
Primary jurisdiction over money claims
Limited to liquidated claims: The COA has
primary jurisdiction to pass upon a private
entity’s money claims against a provincial
gov’t. However, the scope of the COA’s
authority to take cognizance of claims is
circumscribed by cases holding statutes of
similar import to mean only liquidated claims,
or those determined or readily determinable
from vouchers, invoices, and such other

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U.P. LAW BOC CONSTITUTIONAL LAW I
papers within reach of accounting officers.
[Euro-Med Laboratories, Phil. Inc. v. Province
of Batangas, G.R. No. 148106 (2006)]
No jurisdiction over their validity or
constitutionality: The jurisdiction of the COA
over money claims against the government
does not include the power to rule on the
constitutionality or validity.
E. REVIEW OF FINAL ORDERS,
RESOLUTIONS, AND
DECISIONS
Rendered in Exercise of Quasi-Judicial
Functions
Decisions
Each Commission shall decide by a majority
vote of all its members (NOT only those who
participated in the deliberations) any case or
matter brought before it within 60 days from the
date of its submission for decision or resolution
[Sec. 7, Art. IX-A].
Any decision, order or ruling of each
Commission may be brought to the SC on
certiorari by the aggrieved party within thirty
(30) days from receipt of the copy thereof.
In resolving cases brought before it on appeal,
respondent COA is not required to limit its
review only to the grounds relied upon by a
government agency’s auditor with respect to
disallowing certain disbursements of public
funds. Such would render COA’s vital
constitutional power unduly limited and thereby
useless and ineffective [Yap v. COA, G.R. No
158562 (2010)].
Certiorari jurisdiction of the Supreme Court
Limited to decisions rendered in actions or
proceedings taken cognizance of by the
Commissions in the exercise of their quasi-
judicial powers.
The Court exercises extraordinary jurisdiction,
thus, the proceeding is limited only to issues
involving grave abuse of discretion resulting in
lack or excess of jurisdiction, and does not
ordinarily empower the Court to review the
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factual findings of the Commission [Aratuc v.
COMELEC, G.R. No. L-49705-09 (1999)].
Synthesis on the Rules of Modes of Review
1. Decisions, order or ruling of the
Commissions in the exercise of their quasi-
judicial functions may be reviewed by the
Supreme Court.
2. The mode of review is a petition for
certiorari under Rule 64 (not Rule 65).
3. Exception: The Rules of Civil Procedure,
however, provides for a different legal route
in the case of the Civil Service
Commission. In the case of CSC, Rule 43
will be applied, and the case will be brought
to the Court of Appeals.
Rendered in the Exercise of Administrative
Functions
Sec. 4, Art. IX-A. The Constitutional
Commissions shall appoint its own officials in
accordance with law.
Sec. 6, Art. IX-A. Each Commission en banc
may promulgate its own rules concerning
pleadings and practice before it or before
any of its offices. Such rules however shall
not diminish, increase, or modify substantive
rights
Sec. 8, Art. IX-A. Each Commission shall
perform such other functions as may be
provided by law.
Note: Parts IX.-XIII. of the bar syllabus are
contained in succeeding parts of the reviewer.
NATIONAL ECONOMY AND
PATRIMONY
Goals [Sec. 1, Art. XII]
1. More equitable distribution of opportunities,
income and wealth;
2. Sustained increase in amount of goods and
services produced by the nation for the
benefit of the people; and
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3. Expanding production as the key to raising

Rules on Educational
the quality of life for all, especially the
agricultural Institutions
underprivileged.
lands [Sec. [Sec. 4(2),
3, Art. XII] Art. XIV]
Regalian Doctrine
(1) Citizens Congress
Sec. 2, Art. XII. All lands of the public may lease may
domain, waters, minerals, coal, petroleum, only < 500 increase
and other mineral oils, all forces of potential ha. (2) Filipino
energy, fisheries, forests or timber, wildlife, Citizens may equity
flora and fauna, and other natural resources acquire by participation.
are owned by the State. With the exception purchase,
of agricultural lands, all other natural homestead
resources shall not be alienated. [...] or grant only
< 12 ha.
Nationality and Citizenship Requirement
Practice of Areas of
Provisions
professions, Investment
Filipino Filipino Filipino save in as Congress
Citizens, or Citizens, or Citizens, or cases may
100% 60-40 70-30 provided by prescribe
Filipino Filipino Filipino law [Sec. (Congress
Corporation Corporation Corporation 14(2), Art. may
s s s XII] prescribe a
higher
Use and Co- Engagement percentage)
enjoyment of production, in advertising [Sec. 10, Art.
marine Joint Industry XII]
wealth, venture, and [Sec. 11, Art.
exclusive to Production XVI] Small-scale Operation of
Filipino sharing utilization of public
citizens [Sec. agreements natural utilities [Sec.
2, par. 2, Art. over natural resources, 11, Art. XII]
XII] resources as may be
[Sec. 2(1), provided by Cannot be
Art. XII] law [Sec. for longer
Agreements 2(3), Art. XII] period than
shall not 50 years
exceed a
period of 25 Executive
years and
renewable managing
for another officers must
25 years be Filipino

Note: The Constitution holds that private

corporations or associations may not hold
alienable lands of the public domain except by
lease, for a period not exceeding 25 years,
renewable for not more than 25 years, and not
to exceed 1000 ha. in area, [Sec. 3, Art. XII] but

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the Constitution does not specify the capital
requirements for such corporations.
A joint venture falls within the purview of an
“association” pursuant to Sec. 11, Art. XII and
must comply with the 60-40% Filipino foreign
capitalization requirement [JG Summit
Holdings v. CA, G.R. No. 124293 (2000)].
What “capital” is covered – The 60%
requirement applies to both the voting control
and the beneficial ownership of the public
utility. Therefore, it shall apply uniformly,
separately, and across the board to all classes
of shares, regardless of nomenclature or
category, comprising the capital of the
corporation (e.g. 60% of common stock, 60%
of preferred voting stock, and 60% of preferred
non-voting stock) [Gamboa v. Teves, G.R. No.
176579 (2012)].
Two tests are employed to determine whether
the Nationality Requirement was met:
1. Control Test - Filipinos must own at least
60% of the corporation’s capital. This test
is generally used, however when there is
doubt as to the “beneficial ownership” and
“control” of the corporation, it must be
subject to the grandfather test.
2. Grandfather Test - Where percentage of
Filipino equity in a corporation is computed
by attributing the nationality of the second
or even subsequent tier of ownership to
determine the nationality of the corporate
shareholder [Narra Nickel Mining Dev’t
Corp. v. Redmont Consolidated Mines
Corp., G.R. No. 195580 (2015)].
Note: If the Filipino has the voting power of the
"specific stock", or the Filipino has the
investment power over the "specific stock", or
both, then such Filipino is the "beneficial
owner" of that "specific stock." Being
considered Filipino, that "specific stock" is then
to be counted as part of the 60% Filipino
ownership requirement under the Constitution.
The right to the dividends, jus fruendi - a right
emanating from ownership of that "specific
stock" necessarily accrues to its Filipino
"beneficial owner" [Roy III v. Herbosa, G.R. No.
207246 (2016)].
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Filipino First
Sec. 10, Art. XII. In the grant of rights,
privileges, and concessions covering the
national economy and patrimony, the State
shall give preference to qualified Filipinos.
The State shall regulate and exercise
authority over foreign investments within its
national jurisdiction and in accordance with
its national goals and priorities.
Such provision is per se enforceable and
requires no further guidelines or implementing
rules or laws for its operation [Manila Prince
Hotel v. GSIS, G.R. No. 122156 (1997)].
The Constitution does not impose a policy of
Filipino monopoly of the economic
environment. It does not rule out the entry of
foreign investments, goods, and services.
While it does not encourage their unlimited
entry into the country, it does not prohibit them
either. In fact, it allows an exchange on the
basis of equality and reciprocity, frowning only
on foreign competition that is unfair. [Tañada v.
Angara, G.R. No. 118295 (1997)].
Sec. 12, Art. XII. The State shall promote the
preferential use of Filipino labor, domestic
materials and locally produced goods, and
adopt measures that help make them
competitive.
A. EXPLORATION AND
DEVELOPMENT, AND
UTILIZATION OF NATURAL
RESOURCES
The State, being the owner of the natural
resources, is accorded the primary power and
responsibility in the exploration, development
and utilization thereof. As such it may
undertake these activities through four modes:
1. The State may directly undertake such
activities;
2. The State may enter into co-production,
joint venture or production-sharing
agreements with Filipino citizens or
qualified corporations;
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3. Congress may, by law, allow small-scale

FTAA (1987 Service Contract
utilization of natural resources by Filipino
Constitution) (1973 Constitution)
citizens; or
4. For the large-scale exploration, Parties
development and utilization of minerals,
petroleum and other mineral oils, the
President may enter into agreements with Only the President A Filipino citizen,
foreign-owned corporations involving (in behalf of the corporation or
technical or financial assistance subject to State), and only with association with a
the following limitations: corporations “foreign person or
a. As to Parties. Only the President, in entity”
behalf of the State, may enter into
these agreements, and only with Size of Activities
corporations.
b. As to Size of the Activities. Only Only large-scale Contractor provides
large-scale exploration, exploration, all necessary
development and utilization is development and services and
allowed, i.e., very capital-intensive utilization technology and the
activities. requisite financing,
c. The natural resources subject of performs the
the activities is restricted to exploration work
minerals, petroleum and other obligations, and
mineral oils, the intent being to limit assumes all
service contracts to those areas exploration risks
where Filipino capital may not be
sufficient. Natural Resources Covered
d. Consistency with the Provisions of
Statute. The FTAA must be in Minerals, petroleum Virtually the entire
accordance with the terms and and other mineral range of the
conditions provided by law. oils country’s natural
e. The FTAA must be based on real resources
contributions to economic growth
and general welfare of the country. Scope of Agreements
f. The FTAA must contain
rudimentary stipulations for the
Involving either Contractor provides
promotions of the development and
financial or technical financial or technical
use of local scientific and technical resources,
assistance
resources. undertakes the
g. Notification Requirement. The exploitation or
President shall notify Congress of production of a given
every FTAA entered into within 30 resource, or directly
days from its execution. manages the
h. Scope of the FTAA. Only for productive enterprise,
agreements involving either operations of the
financial or technical assistance exploration and
and does not include “service exploitation of the
contracts” and “management or resources or the
other forms of assistance” [La disposition of
Bugal-B’Laan Tribal Assn. v. marketing or
Ramos, G.R. No. 127882 (2004)]. resources

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Service Contracts Not Prohibited
The following are valid:
1. Financial and Technical Assistance
Agreements (FTAA): even supposing they
are service contracts, these are not
prohibited agreements in the
contemplation of the Constitution
2. Philippine Mining Law (RA 7942)
3. Its Implementing Rules and Regulations,
insofar as they relate to financial and
technical agreements
The Constitution should be construed to grant
the President and Congress sufficient
discretion and reasonable leeway to enable
them to attract foreign investments and
expertise, as well as to secure for our people
and our posterity the blessings of prosperity
and peace.
It is not unconstitutional to allow a wide degree
of discretion to the Chief Executive, given the
nature and complexity of such agreements, the
humongous amounts of capital and financing
required for large-scale mining operations, the
complicated technology needed, and the
intricacies of international trade, coupled with
the State’s need to maintain flexibility in its
dealings, in order to preserve and enhance our
country’s competitiveness in world markets [La
Bugal-B’laan Tribal Assn. v. Ramos, supra].
Requisites for a valid service contract
under the Constitution
1. A general law that will set standards or
uniform terms, conditions, and
requirements
2. The president shall be the signatory for the
government
3. Within thirty (30) days of the executed
agreement, the President shall report it to
Congress
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B. FRANCHISES, AUTHORITY, AND
CERTIFICATES FOR PUBLIC
UTILITIES
No franchise, certificate, or any other form of
authorization for the operation of a public utility
shall be granted except to citizens of the
Philippines or to corporations or
associations organized under the laws of
the Philippines at least 60% of whose
capital is owned by such citizens, nor shall
such franchise, certificate, or authorization be
exclusive in character or for a longer period
than fifty years [xxx] [Sec. 11, Art. XII].
Nature of a Franchise
1. It is a privilege not a right
2. Shall NOT be exclusive;
3. Shall NOT be for a period of more than 50
years;
4. Shall be subject to amendment, alteration
or repeal by Congress [Id.].
Congress does not have the exclusive power
to issue franchises. Administrative bodies (i.e.
LTFRB, Energy Regulatory Board) may be
empowered by law to do so. [Albano v. Reyes,
G.R. No. 83551 (1989)].
What constitutes a public utility is not the
ownership but the use to the public. The
Constitution requires a franchise for the
operation of public utilities. However, it does
not require a franchise before one can own the
facilities needed to operate a public utility so
long as it does not operate them to serve the
public [Tatad v. Garcia, G.R. No. 114222
(1995)], e.g. X Company may own an airline
without the need of a franchise. But in
operating an air transport business, franchise
is required.
A franchise partakes the nature of a grant
which is beyond the purview of the non-
impairment clause of the Constitution. Under
Section 11, Article XII of the Constitution,
PAGCOR’s franchise is subject to amendment,
alteration or repeal by Congress [PAGCOR v
BIR, G.R. No. 172087 (2011)].
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Exceptions
C. ACQUISITION, OWNERSHIP, AND 1. Hereditary succession [Sec. 7, Art. XII]
TRANSFER OF PUBLIC AND
2. A natural-born citizen of the Philippines who
PRIVATE LANDS
has lost his Philippine citizenship may be a
transferee of private lands, subject to
Lands of the Public Domain are classified into:
limitations provided by law. [Sec. 8, Art. XII]
1. Agricultural Lands
2. Forest or Timber Lands
3. Mineral Lands
The primary purpose of the constitutional
4. National Park [Sec. 3, Art. XII]
prohibition disqualifying aliens from acquiring
lands of the public domain and private lands is
Note: The classification of public lands is a
the conservation of the national economy and
function of the executive branch, specifically
patrimony. [Muller v. Muller, G.R. 149615
the Director of the Land Management Bureau
(2006)].
(formerly Director of Lands). The decision of
the Director, when approved by the Secretary
Consequence of sale to non-citizens: Any sale
of the DENR, as to questions of fact, is
or transfer in violation of the prohibition is null
conclusive upon the courts [Republic v.
and void [Ong Ching Po v. CA, G.R. No.
Imperial, G.R. No. 130906, (1999)].
113472-73 (1994)]. When a disqualified
foreigner later sells it to a qualified owner (e.g.
Alienable lands of the public domain shall be
Filipino citizen), the defect is cured. The
limited to agricultural lands [Sec. 3, Art. XII].
qualified buyer owns the land [See Godinez v.
Pak Luen, G.R. No L-36731 (1983)].
To prove that the land subject of an application
for registration is alienable, an applicant must
Can a former owner file an action to recover the
conclusively establish the existence of a
property? Yes. The Court in Philippine Banking
positive act of the government such as a
Corp. v. Lui She [G.R. No. L-17587 (1967)]
presidential proclamation or an executive order
provided an exception to the application of the
or a legislative act or statute [Republic v.
principle of in pari delicto. Thus, the action will
Candymaker, Inc., G.R. No. 163766 (2006)].
lie.
Foreshore land is that part of the land which is
However, land sold to an alien which was later
between the high and low water, and left dry by
transferred to a Filipino citizen OR when the
the flux and reflux of the tides. It is part of the
alien later becomes a Filipino citizen can no
alienable land of the public domain and may be
longer be recovered by the vendor, because
disposed of only by lease and not otherwise
there is no longer any public policy involved
[Republic v. Imperial, supra].
[Sarsosa vda. de Barsobia v. Cuenco, G.R. No.
L-33048 (1982); Republic v. IAC, G.R. No.
Citizens of the Philippines may lease not more
74170 (1989].
than 500 ha. or acquire not more than 12
hectares thereof by purchase, homestead, or
Foreigners are allowed to own condominium
grant [Sec. 3, Art. XII].
units and shares in condominium corporations
up to not more than 40% of the total and
Private Lands
outstanding capital stock of a Filipino-owned or
General Rule: No private lands shall be
controlled corporation. Under this set up, the
transferred or conveyed except to individuals,
ownership of the land is legally separated from
corporations, or associations qualified to
the unit itself. The land is owned by a
acquire or hold lands of the public domain [Sec.
Condominium Corporation and the unit owner
7, Art. XII].
is simply a member in this Condominium
Corporation. As long as 60% of the members
of this Condominium Corporation are Filipinos,

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the remaining members can be foreigners
[Hulst v. PR Builders, G.R. No. 156364 (2008)].
In Matthews v. Taylor, the Court upheld the
validity of an Agreement of Lease of a parcel of
land entered into by a Filipino wife without the
consent of her British husband. Being an alien,
the husband is absolutely prohibited from
acquiring private and public lands in the
Philippines even if he claims that he provided
funds for such acquisition. [G.R. No. 164584
(2009)].
D. PRACTICE OF
PROFESSIONS
Sec. 14, Art. XII. The practice of all
professions in the Philippines shall be limited
to Filipino citizens, save in the case
prescribed by law.
Like the legal profession, the practice of
medicine is not a right but a privilege burdened
with conditions as it directly involves the very
lives of the people. A fortiori, this power
includes the power of Congress to prescribe
the qualifications for the practice of professions
or trades which affect the public welfare, the
public health, the public morals, and the public
safety; and to regulate or control such
professions or trades, even to the point of
revoking such right altogether [Imbong v.
Ochoa, supra].
The Philippines allows Japanese nationals to
practice the medical profession, provided he
has taken and passed the medical board
examination and upon submission of a proof of
reciprocity between Japan and the Philippines
in admitting foreigners into the practice of
medicine. It is enough that the laws in the
foreign country permit a Filipino to get license
and practice therein. xxx However, the power
to regulate the exercise of a profession or
pursuit of an occupation cannot be exercised
by the State or its agents in an arbitrary,
despotic or oppressive manner [Board of
Medicine v. Ota, G.R. No. 166097 (2008)].
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E. ORGANIZATION AND REGULATION
OF CORPORATIONS, PRIVATE AND
PUBLIC
Sec. 6, Art. XII. The use of property bears a
social function, and all economic agents
shall contribute to the common good.
Individuals and private groups, including
corporations, cooperatives, and similar
collective organizations, shall have the right
to own, establish, and operate economic
enterprises, subject to the duty of the State
to promote distributive justice and to
intervene when the common good so
demands.
Sec. 18, Art. XII. The State may, in the
interest of national welfare or defense,
establish and operate vital industries and,
upon payment of just compensation, transfer
to public ownership utilities and other private
enterprises to be operated by the
Government.
F. MONOPOLIES, RESTRAINT OF
TRADE AND UNFAIR
COMPETITION
Sec. 19, Art. XII. The State shall regulate or
prohibit monopolies when the public interest
so requires. No combinations in restraint of
trade or unfair competition shall be allowed.
The Constitution does not totally prohibit the
operation of monopolies. It mandates the State
to regulate them when public interest so
requires [Eastern Assurance & Surety
Corporation v. LTFRB, G.R. No. 149717
(2003)].
Monopolies are not per se prohibited by the
Constitution but may be permitted to exist to aid
the government in carrying on an enterprise or
to aid in the performance of various services
and functions in the interest of the public.
Nonetheless, a determination must first be
made as to whether public interest requires a

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monopoly. [Agan, Jr. v. PIATCO, G.R. No.
155001 (2003)].
Despite the fact that our present Constitution
enshrines free enterprise as a policy,
nonetheless, the Government reserves the
power to intervene to promote the general
welfare. Free enterprise does not call for
removal of protective regulations. It must be
clearly explained and proven by competent
evidence just exactly how such protective
regulation would result in the restraint of trade
[Pest Management Association of the
Philippines v. Fertilizer and Pesticide Authority
cited in Pharmaceutical and Health Care
Association of the Philippines v. Duque, G.R.
173034 (2007)].
SOCIAL JUSTICE AND
HUMAN RIGHTS
A. CONCEPT OF SOCIAL
JUSTICE
Sec. 10, Art. II. The State shall promote
social justice in all phases of national
development.
Sec. 1, Art. XIII. The Congress shall give
highest priority to the enactment of measures
that protect and enhance the right of all the
people to human dignity, reduce social,
economic, and political inequalities, and
remove cultural inequities by equitably
diffusing wealth and political power for the
common good. To this end, the State shall
regulate the acquisition, ownership, use, and
disposition of property and its increments.
Sec. 2, Art. XIII. The promotion of social
justice shall include the commitment to
create economic opportunities based on
freedom of initiative and self-reliance.
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Social justice means the promotion of the
welfare of all the people, the adoption by the
Government of measures calculated to insure
economic stability of all the competent
elements of society, through the maintenance
of a proper economic and social equilibrium in
the interrelations of the members of the
community, constitutionally, through the
adoption of measures legally justifiable, or
extra-constitutionally, through the exercise of
powers underlying the existence of all
governments on the time-honored principle of
salus populi est suprema lex.
Social justice, therefore, must be founded on
the recognition of the necessity of
interdependence among divers and diverse
units of a society and of the protection that
should be equally and evenly extended to all
groups as a combined force in our social and
economic life, consistent with the fundamental
and paramount objective of the state of
promoting the health, comfort, and quiet of all
persons, and of bringing about "the greatest
good to the greatest number" [Calalang v.
Williams, G.R. 47800 (1940)].
B. ECONOMIC, SOCIAL, AND
CULTURAL RIGHTS
Economic and Social
Sec. 18, Art. II. The State affirms labor as a
primary social economic force. It shall
protect the rights of workers and promote
their welfare.
Sec. 3, Art. XIII. The State shall afford full
protection to labor, local and overseas,
organized and unorganized, and promote full
employment and equality of employment
opportunities for all.
It shall guarantee the rights of all workers to
self-organization, collective bargaining and
negotiations, and peaceful concerted
activities, including the right to strike in
accordance with law. They shall be entitled
to security of tenure, humane conditions of

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work, and a living wage. They shall also
participate in policy and decision-making
processes affecting their rights and benefits
as may be provided by law. [xxx]
Agrarian And Natural Resources Reform
Sec. 4, Art. XIII. The State shall, by law,
undertake an agrarian reform program
founded on the right of farmers and regular
farmworkers, who are landless, to own
directly or collectively the lands they till or, in
the case of other farmworkers, to receive a
just share of the fruits thereof. [xxx]
Sec. 5, Art. XIII. The State shall recognize
the right of farmers, farmworkers, and
landowners, as well as cooperatives, and
other independent farmers’ organizations to
participate in the planning, organization, and
management of the program, and shall
provide support to agriculture through
appropriate technology and research, and
adequate financial, production, marketing,
and other support services.
Sec. 7, Art. XIII. The State shall protect the
rights of subsistence fishermen, especially of
local communities, to the preferential use of
local marine and fishing resources, both
inland and offshore. It shall provide support
to such fishermen through appropriate
technology and research, adequate
financial, production, and marketing
assistance, and other services. [xxx]
Urban Land Reform And Housing
Sec. 9, Art. XIII. The State shall, by law, and
for the common good, undertake, in
cooperation with the public sector, a
continuing program of urban land reform and
housing which will make available at
affordable cost decent housing and basic
services to underprivileged and homeless
citizens in urban centers and resettlements
areas. It shall also promote adequate
employment opportunities to such citizens.
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In the implementation of such program the
State shall respect the rights of small
property owners.
Sec. 10, Art. XIII. Urban or rural poor
dwellers shall not be evicted nor their
dwellings demolished, except in accordance
with law and in a just and humane manner.
[xxx]
The constitutional requirement (under Sec 10,
Art XIII) that the eviction and demolition be in
accordance with law and conducted in a just
and humane manner does not mean that the
validity or legality of the demolition or eviction
is hinged on the existence of a resettlement
area designated or earmarked by the
government. What is meant by "in
accordance with law" and "just and humane
manner" is that the person to be evicted be
accorded due process or an opportunity to
controvert the allegation that his or her
occupation or possession of the property
involved is unlawful or against the will of
the landowner; that should the illegal or
unlawful occupation be proven, the
occupant be sufficiently notified before
actual eviction or demolition is done; and
that there be no loss of lives, physical
injuries or unnecessary loss of or damage
to properties. Precisely, the enactment of an
anti-squatting law affords the alleged
"squatters" the opportunity to present their
case before a competent court where their
rights will be amply protected and due process
strictly observed [People v. Leachon, G.R. No.
108725-26 (1998)].
To ensure that evictions and demolitions
are conducted in a just and human manner,
Sec. 28, Par. 2 of RA 7279 commands
officials to comply with the prescribed
procedure in executing eviction and/or
demolition orders:
i. Notice upon the effected persons or entities
at least thirty (30) days prior to the date of
eviction or demolition;
ii. Adequate consultations on the matter of
settlement with the duly designated

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representatives of the families to be resettled
and the affected communities in the areas
where they are to be relocated;
iii. Presence of local government officials or
their representatives during eviction or
demolition;
iv. Proper identification of all persons taking part
in the demolition;
v. Execution of eviction or demolition only
during regular office hours from Mondays to
Fridays and during good weather, unless the
affected families consent otherwise;
vi. No use of heavy equipment for demolition
except for structures that are permanent and
of concrete materials;
vii. Proper uniforms for members of the
Philippine National Police who shall occupy
the first line of law enforcement and observe
proper disturbance control procedures; and
viii. Adequate relocation, whether temporary or
permanent: Provided, however, That in
cases of eviction and demolition pursuant to
a court order involving underprivileged and
homeless citizens, relocation shall be
undertaken by the local government unit
concerned and the National Housing
Authority with the assistance of other
government agencies within forty-five (45)
days from service of notice of final judgment
by the court, after which period the said order
shall be executed: Provided, further, That
should relocation not be possible within the
said period, financial assistance in the
amount equivalent to the prevailing minimum
daily wage multiplied by sixty (60) days shall
be extended to the affected families by the
local government unit concerned [Kalipunan
ng Damayang Mahihirap v. Robredo, G.R.
No. 200903 (2014)].
Health
Sec. 11, Art. XIII. The State shall adopt an
integrated and comprehensive approach to
health development which shall endeavor to
make essential goods, health and other
social services available to all the people at
affordable cost. There shall be priority for the
needs of the underprivileged sick, elderly,
disabled, women, and children. The State
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shall endeavor to provide free medical care
to paupers.
Women
Sec. 14, Art. XIII. The State shall protect
working women by providing safe and
healthful working conditions, taking into
account their maternal functions, and such
facilities and opportunities that will enhance
their welfare and enable them to realize their
full potential in the service of the nation.
In Saudia v. Rebesencio [G.R. No. 198587
(2015)], Rebesencio et. al. were not granted
with their maternity leaves and were
subsequently terminated by Saudia due to their
pregnancy. The Court ruled that Saudia's
policy is discriminatory.
There is the glaringly discriminatory nature of
Saudia's policy since it entails the termination
of employment of flight attendants who become
pregnant. At the risk of stating the obvious,
pregnancy is an occurrence that pertains
specifically to women. Saudia's policy excludes
from and restricts employment on the basis of
no other consideration but sex.
It would be the height of iniquity to view
pregnancy as a disability so permanent and
immutable that it must entail the termination of
one's employment. The respondents were
illegally terminated.
Role And Rights Of Peoples Organizations
Sec. 15, Art. XIII. The State shall respect the
role of independent people’s organizations to
enable the people to pursue and protect,
within the democratic framework, their
legitimate and collective interests and
aspirations through peaceful and lawful
means. [xxx]
Cultural
Sec. 22, Art. II. The State recognizes and
promotes the rights of indigenous cultural
communities within the framework of
national unity and development.

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Sec. 5, Art. XII. The State, subject to the
provisions of this Constitution and national
development policies and programs, shall
protect the rights of indigenous cultural
communities to their ancestral lands to
ensure their economic, social, and cultural
well-being.
Sec. 15, Art. XIV. Arts and letters shall enjoy
the patronage of the State. The State shall
conserve, promote, and popularize the
nation’s historical and cultural heritage and
resources, as well as artistic creations.
Sec. 17, Art. XIV. 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.
VII. Monitor the Philippine Government's
C. COMMISSION ON
HUMAN RIGHTS
VIII. Grant immunity from prosecution to any
Sec. 17, Art. XIII. (1) There is hereby created
an independent office called the Commission
on Human Rights.
xxx
(3) Until this Commission is constituted, the
existing Presidential Committee on Human
Rights shall continue to exercise its present
functions and powers.
xxx
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1. Powers
I. Investigate, on its own or on complaint by any
party, all forms of human rights violations
involving civil and political rights;
II. Adopt its operational guidelines and rules of
procedure, and cite for contempt for
violations thereof in accordance with the
Rules of Court;
III. Provide appropriate legal measures for the
protection of human rights of all persons
within the Philippines, as well as Filipinos
residing abroad, and provide for preventive
measures and legal aid services to the
underprivileged whose human rights have
been violated or need protection;
IV. Exercise visitorial powers over jails, prisons,
or detention facilities;
V. Establish a continuing program of research,
education, and information to enhance
respect for the primacy of human rights;
VI. Recommend to Congress effective
measures to promote human rights and to
provide for compensation to victims of
violations of human rights, or their families;
compliance with international treaty
obligations on human rights;
person whose testimony or whose
possession of documents or other evidence
is necessary or convenient to determine the
truth in any investigation conducted by it or
under its authority;
IX. Request the assistance of any department,
bureau, office, or agency in the performance
of its functions;
X. Appoint its officers and employees in
accordance with law; and
XI. Perform such other duties and functions as
may be provided by law. [Sec. 18, Art. XIII]
The Constitution clearly and categorically
grants to the Commission the power to
investigate all forms of human rights violations
involving civil and political rights. But it cannot
try and decide cases (or hear and determine
causes) as courts of justice, or even quasi-
judicial bodies do. To investigate is not to
adjudicate or adjudge. [Cariño v. CHR, G.R.
No. 96681 (1991)].
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The Commission is not a court of justice or a

quasi-judicial body. The Commission cannot
try and resolve cases on merits as it is not
within its power to investigate. Its power to
investigate is only fact-finding. When providing
preventive measures, it can file a case before
a court to represent victims [EPZA v. CHR,
G.R. No. 101476 (1992)].

2. Composition and
Qualification of Members

Sec. 17, Art. XIII.

xxx (2) The Commission shall be composed
of a Chairman and four Members who must
be natural-born citizens of the Philippines and
a majority of whom shall be members of the
Bar. The term of office and other
qualifications and disabilities of the Members
of the Commission shall be provided by law.

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A. CONCEPT OF BILL OF
RIGHTS
1. Privacy and Autonomy
The Bill of Rights, in General
It is a declaration and enumeration of a
person's fundamental civil and political rights. It
also imposes safeguards against violations by
the government, by individuals, or by groups of
individuals.
The Bill of rights governs the relationship
between the individual and the state. Its
concern is not the relation between individuals,
between a private 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 (1991)].
In a democracy, the preservation and
enhancement of the dignity and worth of the
human personality is the central core as well as
the cardinal article of faith of our civilization.
The inviolable character of man as an
individual must be "protected to the largest
possible extent in his thoughts and in his beliefs
as the citadel of his person."
The Bill of Rights is designed to preserve the
ideals of liberty, equality and security "against
the assaults of opportunism, the expediency of
the passing hour, the erosion of small
encroachments, and the scorn and derision of
those who have no patience with general
principles [Philippine Blooming Mills
Employment Organization v. Philippine
Blooming Mills, Co., G.R. No. L-31195 (1973)].
It is self-executing. XXX It is recognized that
legislation is unnecessary to enable courts to
effectuate constitutional provisions
guaranteeing the fundamental rights of life,
liberty and the protection of property. [Gamboa
v. Teves, G.R. No. 176579 (2011)].
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Article III contains the chief protection for
human rights but the body of the Constitution
guarantees other rights as well.
1. Civil rights - rights that belong to an
individual by virtue of his citizenship in a
state or community (e.g. rights to property,
marriage, freedom to contract, equal
protection, etc.)
2. Political rights - rights that pertain to an
individual’s citizenship vis-à-vis the
management of the government (e.g. right
of suffrage, right to petition government for
redress, right to hold public office, etc.)
3. Social and economic rights – rights
which are intended to insure the well-being
and economic security of the individual
4. Rights of the accused – civil rights
intended for the protection of a person
accused of any crime
Application to Private Individuals
The Bill of Rights cannot be invoked against
acts of private individuals. The equal protection
erects no shield against private conduct,
however discriminatory or wrongful [Yrasuegui
v. PAL, G.R. No. 168081 (2008)].
Constitutional protection applies to government
action and is meant as a restraint against
sovereign authority. The Bill of Rights is not
meant to be invoked against private
individuals, and governs relations between
individuals and the state [People v. Marti,
supra].
Private Acts
The principle that the Bill of Rights applies only
to actions taken by state officials does not
necessarily mean that a private individual
cannot violate the liberty of another. Violation
of the Bill of Rights precisely as a constitutional
guarantee can be done only by public officials.
But almost all these liberties are also
guaranteed by Art. 32 of the Civil Code, thus
making private violations actionable even if the
violation does not have a constitutional
consequence [BERNAS, the 1987 Constitution
of the Republic of the Philippines: A
Commentary, 2009].
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2. Relation to Human Rights diffusing wealth and political power for the
common good.
Primacy of human rights (doctrine of
hierarchy of rights or doctrine of preferred Due process is a guaranty against any
freedoms) arbitrariness on the part of the government,
While the Bill of Rights also protects property whether committed by the legislature, the
rights, the primacy of human rights over executive or the judiciary. [Cruz, p. 205]
property rights is recognized. In the hierarchy
of civil liberties, the rights of free expression The due process clause has to do with the
and of assembly occupy a preferred position as reasonableness of legislation enacted in
they are essential to the preservation and pursuance of the police power. xxx The test or
vitality of civil institutions [Philippine Blooming standard, as always, is reason. The police
Mills Employment Organization v. Philippine power legislation must be firmly grounded on
Blooming Mills, Co., supra] public interest and welfare, and a reasonable
relation must exist between purposes and
General Purpose means. [Ichong v. Hernandez, supra].
The purpose of the Bill of Rights is to withdraw
"certain subjects from the vicissitudes of Definition
political controversy, to place them beyond the Due process furnishes a standard to which the
reach of majorities and officials, and to governmental action should conform in order
establish them as legal principles to be applied that deprivation of life, liberty or property, in
by the courts. One's rights to life, liberty and each appropriate case, be valid. The standard
property, to free speech, or free press, freedom is responsiveness to the supremacy of reason,
of worship and assembly, and other obedience to the dictates of justice. It has been
fundamental rights may not be submitted to a identified as freedom from arbitrariness.
vote; they depend on the outcome of no [Ermita-Malate Hotel and Motel Operators
elections" [West Virginia State Board of Association v. City of Manila, supra]
Education v. Barnette, 319 U.S. 624, 638
(1943)]. Constitutional Due Statutory Due
Process Process
SPECIFIC PURPOSES Protects the individual Found in the Labor
from the government Code and Implementing
1. To preserve democratic ideals and assures him of his Rules protects
2. To safeguard fundamental rights rights in criminal, civil, or employees from being
3. To promote the happiness of an individual administrative unjustly terminated
proceedings. without just cause after
notice and hearing.
Lack or deficiency in Lack or deficiency in
B. DUE PROCESS OF LAW constitutional procedural statutory procedural due
due process voids the process does NOT void
decision made by the the decision of the
Section 1, Article III. – No person shall be State. corporation or company,
if the dismissal is found
deprived of life, liberty, or property without
to have been made with
due process of law, nor shall any person be just cause. It would only
denied the equal protection of the laws. give rise to claims for
nominal damages.
[Agabon v. NLRC, G.R. No. 158693, (2004)]
Sec. 1, Art. XIII. – The Congress shall give
highest priority to the enactment of measures
Scope
that protect and enhance the right of all the
Universal in application to all persons without
people to human dignity, reduce social,
regard to any difference in race, color or
economic, and political inequalities, and
nationality. Artificial persons are covered by the
remove cultural inequities by equitably

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protection but only insofar as their property is
concerned [Smith Bell and Co. v. Natividad,
G.R. No. 15574 (1919)].
The guarantee extends to aliens and includes
the means of livelihood [Villegas v. Hiu Chiong,
G.R. No. L-29646 (1978)].
1. Concept of Right to Life,
Liberty and Property
Right to Life
It includes the right of an individual to his body
in its completeness, free from dismemberment,
and extends to the use of God-given faculties
which make life enjoyable [MALCOLM].
It is understood to include quality of life – which
is entitlement to a life lived with assurance that
the government he established and consented
to will protect the security of person means:
freedom from fear;
 guarantee of bodily and
psychological integrity, and
 guarantee of
protection of one‘s rights by the government
[Secretary of National Defense v Manalo, G.R.
No. 180906 (2008)].
Right to Liberty
Liberty - the right to exist and the right to be
free from arbitrary personal restraint or
servitude. It includes the right of the citizen to
be free to use his faculties in all lawful ways.
[Rubi v. Provincial Board of Mindoro, G.R. No.
L-14078 (1919)]
"Liberty" as understood in democracies, is not
license; it is "liberty regulated by law." Implied
in the term is restraint by law for the good of the
individual and for the greater good of the peace
and order of society and the general well-
being.
It cannot be taken away except by due process
of law.
Civil Liberty - that measure of freedom which
may be enjoyed in a civilized community,
consistently with the peaceful enjoyment of like
freedom in others. [Id.]
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The term cannot be dwarfed into mere freedom
from physical restraint of the person of the
citizen, but is deemed to embrace the right of
man to enjoy the faculties with which he has
been endowed by his Creator, subject only to
such restraints as are necessary for the
common welfare. [Id.]
Chief elements of the guaranty:
Right to contract 

Right to choose one’s employment 

Right to labor 

Right to locomotion [Id.]
Right to Property
Property - anything that can come under the
right of ownership and be the subject of
contract. It represents more than the things a
person owns; it includes the right to secure, use
and dispose of them [Torraco v. Thompson,
263 US 197 (1923)].
Property and property rights can be lost
through prescription. [Philippine Blooming Mills
Employees Organization v. Phil. Blooming Mills
Co. Inc., supra]
A mere reasonable or rational relation between
the means employed by the law and its object
or purpose — that the law is neither arbitrary
nor discriminatory nor oppressive — would
suffice to validate a law which restricts or
impairs property rights. [Id.]
2. Kinds of Due Process
Due process consists of two broad aspects:
the procedural and the substantive.
Substantive Due Procedural Due
Process Process
Nature
It requires that the It refers to the
law must be fair, method or manner
reasonable, just. by which a law is
enforced.
Essence
Fairness and justice Notice and hearing
Who should comply
Lawmakers The adjudicating
body or officer

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a. Substantive
Substantive due process inquires whether
the government has sufficient justification for
depriving a person of life, liberty, or property.
[White Light Corporation v. City of Manila, G.R.
No. 122846 (2009)].
Substantive due process "requires that the law
itself, not merely the procedures by which the
law would be enforced, is fair, reasonable, and
just." It requires the intrinsic validity of the law
in interfering with life, liberty, and property and
a guarantee against exercise of arbitrary
power. [Rama v. Moises, G.R. 197146, (2016)].
Requisites of substantive due process
Due process of law simply means that:
That there shall be a law prescribed in harmony
with the general powers of the legislative
department of the Government; That this law
shall be reasonable in its operation; That it
shall be enforced according to the regular
methods of procedure prescribed; That it shall
be applicable alike to all the citizens of the state
or to all of a class." [Rubi v. Provincial Board
of Mindoro, supra]
Expanded test of substantive due process
1. Is there public interest, public purpose,
public welfare involved?
 procedures that the government must follow
2. Is the act reasonably necessary for the
accomplishment of the legislature‘s
purpose?
3. Is it not unreasonable, arbitrary, or
oppressive?
 sphere. [White Light Corporation v. City of
4. Is there sufficient foundation or reason in
connection with the manner involved or
has there been capricious use of legislative
power?
5. Can the aims conceived be achieved by
the means used, or is it not merely and
unjustified interference? [Ichong v.
Hernandez, supra]
Substantive due process requires that the
means employed in depriving persons of
property must not be unduly oppressive. [SJS
v. Atienza Jr., G.R. No. 156052 (2007)]
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Lawful subject i.e. the interests of the public
in general (as distinguished from those of a
particular class) require the intervention of the
State, and
Lawful means i.e. means employed are
reasonably necessary for the accomplishment
of the purpose and not unduly oppressive on
individuals.
Due process must be a guarantee against the
exercise of arbitrary power even when the
power is exercised according to proper forms
and procedures. [BERNAS]
Publication of laws
Before a person may be bound by law, he must
be officially and specifically informed of its
contents. For the publication requirement,
“laws” refer to all statutes, including those of
local application and private laws. This does
not cover internal regulations issued by
administrative agencies, which are governed
by the Local Government Code. Publication
must be full, or there is none at all [Tañada v.
Tuvera, G.R. No. L-63915 (1986)].
b. Procedural
Procedural due process refers to the
before it deprives a person of life, liberty, or
property. It concerns itself with government
action adhering to the established process
when it makes an intrusion into the private
Manila, supra]
Procedural due process is that aspect of due
process which serves as a restriction on
actions of judicial and quasi-judicial agencies
of the government. It refers to the method or
manner by which a law is enforced. [BERNAS]
General Rule: The minimum requirements of
due process are notice and hearing.
Exceptions: However, notice and hearing are
not required in every case, for there are an
admitted number of exceptions in view of the
nature of the property involved or the urgency

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of the need to protect the general welfare from
a clear and present danger.
The conclusive presumption bars the
admission of contrary evidence as long as such
presumption is based on human experience or
there is a rational connection between the fact
proved and the fact ultimately presumed
therefrom.
Instances when the need for expeditious
action will justify omission of these
requisites, (e.g. summary abatement of a
nuisance per se like a mad dog on the loose,
which may be killed on sight) because of the
immediate danger it poses to the safety and
lives of the people.
Pornographic materials, contaminated
meat and narcotic drugs are inherently
pernicious and may be summarily destroyed.
The passport of a person sought for a
criminal offense may be cancelled without
hearing, to compel his return to the country he
has fled
Filthy restaurants may be summarily
padlocked in the interest of the public health
and bawdy houses to protect the public morals.
[Ynot v. IAC, G.R. No. 74457. March 20, 1987]
i. Due Process in Judicial
Proceedings
Requisites of due process in civil
proceedings: [Banco Español v. Palanca,
G.R. No. L-11390 (1918)]
1. There must be a court or tribunal clothed
with judicial power to hear and determine
the matter before it
2. Jurisdiction must be lawfully acquired over
the person of the defendant or over
property which is the subject of the
proceeding
Service of summons is not only required to
give the court jurisdiction over the person
of the defendant but also to afford the latter
the opportunity to be heard on the claim
made against him. Thus, compliance with
the rules regarding the service of summons
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is as much an issue of due process as of
jurisdiction [Sarmiento v. Raon, G.R. No.
131482 (2002)].
3. The defendant must be given an
opportunity to be heard; and
4. Judgment must be rendered upon lawful
hearing.
5. No decision shall be rendered by any court
without expressing therein clearly and
distinctly the facts and the law on which it
is based. No petition for review or motion
for reconsideration of a decision of the
court shall be refused due course or
denied without stating the legal basis
therefor. [Sec. 14, Art. VIII]
Note: The SC reiterated that the right to appeal
is not a natural right nor part of due process; it
is merely a statutory privilege, and may be
exercised only in the manner and in
accordance with the provisions of law [Alba v.
Nitorreda, G.R. No. 120223 (1996)].
Note: The allowance or denial of motions for
extension rests principally on the sound
discretion of the court to which it is addressed,
but such discretion must be exercised wisely
and prudently, with a view to substantial
justice. Poverty is recognized as a sufficient
ground for extending the existing period for
filing. The right to appeal is part of due process
of law [Reyes v. CA, G.R. No. L-41680 (1977)].
In Criminal Proceedings
Sec. 14, Art. III. (1) No person shall be held
to answer for a criminal offense without due
process of law. xxx
Art. III, Sec. 14[1] refers to procedural due
process which refers to a law which hears
before it condemns— proceeds upon inquiry,
and renders judgment only after trial.
Requisites of criminal due process [Sec.
14(2), Art. III, 1987 Constitution]
Accused is heard by a court of competent
jurisdiction; 

Accused is proceeded against under the
orderly process of law; 

Accused is given notice and opportunity to be
heard; 


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Judgment rendered is within the authority of a
constitutional law [Mejia v. Pamaran, G.R. No.
L- 56741-42 (1988)]. 
 quasi-judicial tribunals should render its
ii. Due Process in Administrative
Proceedings
Seven Cardinal Rights in Administrative
Proceedings [Ang Tibay v. CIR, G.R. No.
46496 (1940)]:
The right to a hearing which includes the right
of the party interested or affected to present his
own case and submit evidence in support
thereof.
Not only must the party be given an opportunity
to present his case and to adduce evidence
tending to establish the rights which he asserts,
but the tribunal MUST consider the evidence
presented.
The decision of the tribunal should be
supported by something. Must be based on
evidence. A decision with absolutely nothing to
support it is a nullity xxx.
The evidence supporting the finding or
conclusion must be substantial (such relevant
evidence as a reasonable mind might accept
as adequate to support a conclusion. This does
not include uncorroborated hearsay or rumors.
The decision must be rendered on the
evidence presented at the hearing, or at least
contained in the record and disclosed to the
parties affected. Only by confining the
administrative tribunal to the evidence
disclosed to the parties can the latter be
protected in their right to know and meet the
case against them.
The body must act on its or his own
independent consideration of the law and facts
of the controversy, and not simply accept the
views of a subordinate in arriving at a decision
Render its decision in such a manner that the
parties to the proceeding can know the various
issues involved, and the reasons for the
decisions rendered.
Note: The constitutional requirement on the
judgment being in writing and promulgated is
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NOT APPLICABLE to administrative decisions.
Ang Tibay is used as basis for stating that
decision in such a manner that parties to the
proceeding know the various issues involved
and reasons for the decision. [Serrano v. PSC,
G.R. No. 24165, Aug. 30, 1968]
QUANTUM OF EVIDENCE: Substantial
evidence.
More than a mere scintilla of evidence. Such
relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.
ESSENCE OF DUE PROCESS IN
ADMINISTRATIVE PROCEEDINGS:
Opportunity to be heard.
An actual hearing is not always an
indispensable aspect of due process as long as
the party was given the opportunity to defend
his interests in due course. [Lumiqued v.
Estrada, G.R. No. 154243 (1997)]
The requirements for due process in
administrative proceedings depend on whether
it is rendered by the tribunal in its quasi-judicial
or quasi-legislative capacity.
As a general rule, notice and hearing are not
essential to the validity of administrative action
where the administrative body acts in the
exercise of executive, administrative, or
legislative functions; but where a public
administrative body acts in a judicial or quasi-
judicial matter, and its acts are particular and
immediate rather than general and
prospective, the person whose rights or
property may be affected by the action is
entitled to notice and hearing. [Philippine
Communications Satellite v. Alcuaz, G.R. No.
84818, (1989)]
Administrative issuances which implement or
enforce existing laws pursuant to a valid
delegation of legislative power must be
published to be effective. [Republic v. Pilipinas
Shell, G.R. No. 173918, (2008)
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Labor Cases Academic Disciplinary Proceedings

Twin requirements which constitute the The students must be informed in writing of the
essential elements of due process: [Perez v. nature and cause of any accusation against them; 

Philippine Telegraph and Telephone They shall have the right to answer the charges
Company, G.R. No. 152048, (2009)] against them, with the assistance of counsel, if
Notice desired; 

The employer must furnish the employee They shall be informed of the evidence against
with two written notices before the them; 

termination of employment can be They shall have the right to adduce evidence in their
effected: own behalf; 

The first is to apprise the employee of the The evidence must be duly considered by the
particular acts or omissions for which his investigating committee or official designated by the
dismissal is sought; and school authorities to hear and decide the case. [Non
The second informs the employee of the v. Dames, G.R. No. 89317 (1990)]
employer's decision to dismiss him.
Hearing [The] proceedings may be summary. [C]ross-
Due process of law simply means giving examination is not an essential part of the
opportunity to be heard before judgment is investigation or hearing. The required proof in a
rendered. student disciplinary action is substantial evidence.
What is crucial is that official action must meet
This “procedural due process” requirement is minimum standards of fairness to the individual,
not constitutional but merely statutory, which generally encompass the right of adequate
hence, a violation of such requirement does notice and a meaningful opportunity to be heard.
not render the dismissal void. the employer [Id.]
must be sanctioned for non-compliance with
the requirements of, or for failure to observe,
due process [Serrano v. NLRC, G.R. No.
117040. January 27, 2000]

RATIONALE:
The Due Process Clause of the Constitution
is a limitation on governmental powers. It
does not apply to the exercise of private
power, such as the termination of
employment under the Labor Code. 

Notice and hearing are required under the
Due Process Clause before the power of
organized society are brought to bear upon
the individual. This is obviously not the case
of termination of employment under Art. 283.


The employer cannot really be expected to
be entirely an impartial judge of his own
cause. 


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Levels of Scrutiny
There are three levels of scrutiny at which the Court reviews the constitutionality of a classification
embodied in a law.

RATIONAL BASIS INTERMEDIATE STRICT SCRUTINY

TEST SCRUTINY TEST TEST
Nature The challenged The government must show As the most demanding
[Serrano v. classification needs that the challenged law or test, it requires the
Gallant only be shown to be classification serves an government to show that
Maritime rationally related to important state interest and the challenged
Services Inc., serving a legitimate that the classification is at classification serves a
G.R. No. state interest least substantially related to compelling state interest
167614. serving that interest and that the classification
(2009)] is necessary to serve that
interest.
Requisites for Legitimate 1. Substantial government The law is necessary to
validity government 
interest 
 i
 nterest 
 achieve a:
Purpose and m 
 eans 2. Availability of l
 ess Compelling state
correspondence 
 restrictive means 
 interest and
It is the least restrictive
means to protect such
interest. [Serrano v.
Gallant, supra.]
Legislative Must be legitimate Must be important or Must be compelling.
purpose substantial
Rights Economic, property, Gender or illegitimacy Fundamental rights or
involved commercial legislation suspect classes.
which do not affect
fundamental rights or
suspect classes.
Who has the The person who Government [Biraogo v. Government
burden of challenges the Philippine Truth
proof constitutionality Commission, G.R. No.
192935, (2010)]

Void for Vagueness Doctrine A statute establishing a criminal offense must

An act is vague when it lacks comprehensible
standards that men of common intelligence
must necessarily guess at its common
meaning and differ as to its application. A
statute or act may be said to be vague when it
lacks comprehensible standards that men of
common intelligence must necessarily guess at
its meaning and differ in its application.
define the offense with sufficient definiteness
that persons of ordinary intelligence can
understand what conduct is prohibited by the
statute
When is a statute vague?
A vague statute is repugnant to the
Constitution in two respects [Southern

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Hemisphere v. Anti-Terrorism Council, G.R. Vague laws violate Overbroad laws

No. 178552 (2010)]:
 due process 
 invade protected
It violates due process for failure to accord freedoms 

persons, especially the parties targeted by it,
fair notice of what conduct to avoid; and
 The void for vagueness doctrine is subject to
It leaves law enforcers an unbridled discretion the same principles governing overbreadth
in carrying out its provisions and becomes an doctrine. For one, it is also an analytical tool for
arbitrary flexing of the government muscle. a “facial” challenge of statutes in free speech
cases. Like overbreadth, it is said that a litigant
may challenge a statute on its face only if it is
vague in all its possible applications.
TEST: Facial invalidity
Whether the language conveys a sufficiently Applicability to penal statutes
definite warning as to the proscribed conduct General rule: Void for vagueness and
when measured by common understanding overbreadth are inapplicable to penal statutes.
and practice. [Estrada v Sandiganbayan, G.R.
148560, (2001)] Rationale: Statutes have a general in terrorem
effect, which is to discourage citizens from
Overbreadth Doctrine committing the prohibited acts.
The overbreadth doctrine decrees that "a
governmental purpose may not be achieved by Exception:
means which sweep unnecessarily broadly and The statute is challenged as applied; or 

thereby invade the area of protected freedoms" The statute involves free speech 

[Southern Hemisphere v. Anti-Terrorism
Council, supra]. Rationale: Statute may be facially challenged
in order to counter the “chilling effect” of the
Facial challenge is allowed because of same. [Disini v. Sec. of Justice, G.R. No.
possible chilling effect upon protected speech. 203335 (2014), on the constitutionality of the
Cybercrime Law].
OVERBREADTH VOID FOR
VAGUENESS As-Applied vs Facial Challenges
Both are unconstitutional. Distinguished from an as-applied challenge
A law is A law is which considers only extant facts affecting real
unconstitutional unconstitutional litigants, a facial invalidation is an examination
because a because it fails to of the entire law, pinpointing its flaws and
government purpose accord persons fair defects, not only on the basis of its actual
may not be achieved notice of the conduct operation to the parties, but also on the
by means which to avoid. Law assumption or prediction that its very existence
sweep unnecessarily enforcers have may cause others not before the court to refrain
broadly and thereby unbridled discretion from constitutionally protected speech or
invade the area of in carrying out its activities [Disini v. Sec. of Justice, supra].
protected freedoms. provisions 

An overbroad law A vague law must An accused is denied the right to be informed
need not. lack clarity and of the charge against him and to due process
p

 recision 
 where the statute itself is couched in such
Basis for overbroad Basis for void for indefinite language that it is not possible for
law is the means vagueness is the men of ordinary intelligence to determine
sweep unnecessarily lack of therefrom what acts/omissions are punished
broadly comprehensible [People v. Nazario, G.R. No. L-44143 (1988)].
standard

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[This doctrine] can only be invoked against that
species of legislation that is utterly vague on its
face, i.e., that which cannot be clarified either
by a saving clause or by construction. The test
in determining whether a criminal statute is
void for uncertainty is whether the language
conveys a sufficiently definite warning as to the
proscribed conduct. It must be stressed,
however, that the vagueness doctrine merely
requires a reasonable degree of certainty for
the statute to be upheld – not absolute
precision or mathematical exactitude [Estrada
v. Sandiganbayan, G.R. No. 148560 (2001)].
C. EQUAL PROTECTION
OF LAWS
1. Concept
All persons or things similarly situated must be
similarly treated both as to rights conferred and
responsibilities imposed.
Similar subjects, in other words, should not be
treated differently, so as to give undue favor to
some and unjustly discriminate against others
[Ichong v. Hernandez, supra].
The equal protection clause does not require
the universal application of the laws on all
persons or things without distinction. What the
clause requires is equality among equals as
determined according to a valid classification.
By classification is meant the grouping of
persons or things similar to each other in
certain particulars and different from all others
in these same particulars [The Philippine
Judges Association v. Prado, G.R. No. 105371,
(1993)].
Scope
Natural and juridical persons (the equal
protection clause extends to artificial persons
but only insofar as their property is concerned.)
a. A corporation as an artificial person is
protected under the Bill of Rights against
denial of due process, and it enjoys the
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equal protection of the law [Smith, Bell and
Co., v. Natividad, supra].
b. A corporation is also protected against
unreasonable searches and seizures
[Stonehill v. Diokno, G.R. No. L-19550
(1967)].
c. It can only be proceeded against by due
process of law, and is protected against
unlawful discrimination [Bache and Co. v.
Ruiz, G.R. No. L- 32409 (1971)].
2. Requisites for Valid
Classification
1. It must rest on substantial distinctions
which make for real differences;
2. It must be germane to the purpose of the
law;
3. It must not be limited to existing conditions
only
4. It must apply equally to all members of the
same class
Presumption of Validity
All classifications made by law are generally
presumed to be valid unless shown otherwise
by petitioner [Lacson v. Executive Secretary,
G.R. No. 128096 (1999)].
Rule on Aliens
General Rule: A legislative act may not validly
classify the citizens of the State on the basis of
their origin, race or parentage.
Exceptions
a. In times of great and imminent danger,
such as a threatened invasion or war, such
a classification is permitted by the
Constitution when the facts so warrant
(e.g. discriminatory legislation against
Japanese citizens during WWII).
b. The political rights of aliens do not enjoy
the same protection as that of citizens.
c. Statutes may validly limit to citizens
exclusively the enjoyment of rights or
privileges connected with the public
domain, the public works, or the natural
resources of the State. The rights and

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interests of the state in these things are not
simply political but also proprietary in
nature; and so the citizens may lawfully be.
3. Levels of Scrutiny
Serrano v. Gallant Maritime [G.R. No. 167614
(2009)] introduced a modification in equal
protection jurisprudence by using the three-
level review used in due process cases.
In effect, the level of review when it comes to
equal protection challenges may follow the
following format:
a. Rational Basis Test
The classification should bear a reasonable
relation to the government’s purpose or
legitimate state interest.
Note: This test is important when there is no
plausible difference between the
disadvantaged class and those not
disadvantaged, and when the government
attaches a morally irrelevant and negative
significance to a difference between the
advantaged and the disadvantaged.
b. Intermediate Scrutiny Test
The Court accepts the articulated purpose of
the legislation, but it closely scrutinizes the
relationship between the classification and the
purpose based on a spectrum of standards, by
gauging the extent to which constitutionally
guaranteed rights depend upon the affected
individual interest.
Government must show that the challenged
classification serves an important state interest
and that the classification is at least
substantially related to serving that interest.
Applicable to certain sensitive but not suspect
classes; certain important but not fundamental
interest.
c. Strict Scrutiny Test
Example:
In Central Bank Employees Association v.
BSP, the challenged proviso operates on the
basis of the salary grade or officer-employee
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status. It is akin to a distinction based on
economic class and status, with the higher
grades as recipients of a benefit specifically
withheld from the lower grades. Officers of the
BSP now receive higher compensation
packages that are competitive with the
industry, while the poorer, low-salaried
employees are limited to the rates prescribed
by the SSL. The implications are quite
disturbing: BSP rank-and-file employees are
paid the strictly regimented rates of the SSL
while employees higher in rank — possessing
higher and better education and opportunities
for career advancement — are given higher
compensation packages to entice them to stay.
Considering that majority, if not all, the rank-
and-file employees consist of people whose
status and rank in life are less and limited,
especially in terms of job marketability, it is they
— and not the officers — who have the real
economic and financial need for the
adjustment. This is in accord with the policy of
the Constitution "to free the people from
poverty, provide adequate social services,
extend to them a decent standard of living, and
improve the quality of life for all." Any act of
Congress that runs counter to this
constitutional desideratum deserves strict
scrutiny by this Court before it can pass muster
[Central Bank Employees Association v. BSP,
G.R. No. 148208 (2004)].
In upholding the constitutionality of an
ordinance imposing curfew upon minors in
Quezon City, the Supreme Court resorted to
the strict scrutiny test and ruled that under our
legal system's own recognition of a minor's
inherent lack of full rational capacity, and
balancing the same against the State's
compelling interest to promote juvenile safety
and prevent juvenile crime, it finds that the
curfew imposed is reasonably justified with its
narrowly drawn exceptions and hence, not
constitutionally infirm [SPARK v. Quezon City,
G.R. No. 225442 (2017)].
Suspect classes
A classification that violates a fundamental
right, or prejudices a person accorded special
protection by the Constitution [Serrano v.

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Gallant, supra]. May therefore include a
classification based on income.
This test is usually applied to cases involving
classifications based on race, national origin,
religion, alienage, denial of the right to vote,
migration, access to courts, and other rights
recognized as fundamental.
See Table at page 12 for comparison between
levels of scrutiny
Examples of Valid Classification
Filipino Female Domestics Working Abroad
They are a class by themselves because of the
special risks to which their class was exposed
[Phil. Association of Service Exporters v.
Drilon, G.R. No. 81958 (1988)].
Land-Based v. Sea-Based Filipino Overseas
Workers
There is dissimilarity as to work environment,
safety, danger to life and limb, and accessibility
to social, civil and spiritual activities
[Conference of Maritime Manning Agencies v.
POEA, G.R. No. 114714 (1995)].
Office of the Ombudsman
Allowing the Ombudsman to start an
investigation based on an anonymous letter
does not violate the equal protection clause.
The Office of the Ombudsman is different from
other investigatory and prosecutory agencies
of government because those subject to its
jurisdiction are public officials who, through
official pressure and influence, can quash,
delay or dismiss investigations against them.
[Almonte v. Vasquez, G.R. No. 95367 (1995)]
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D. RIGHT AGAINST
UNREASONABLE SEARCHES
AND SEIZURES
Sec. 2, Art III. The right of the people to be
secure in their persons, houses, papers, and
effects against unreasonable searches and
seizures of whatever nature and for any
purpose shall be inviolable, and no search
warrant or warrant of arrest shall issue
except upon probable cause to be
determined personally by the judge after
examination under oath or affirmation of the
complainant and the witnesses he may
produce, and particularly describing the
place to be searched and the persons or
things to be seized.
To whom is it directed
Against the State; the right cannot be invoked
against a private individual.
[The] protection against unlawful searches and
seizures…applies to governmental action. Its
origin and history clearly show that it was
intended as a restraint upon the activities of
sovereign authority, and was not intended to be
a limitation upon other than governmental
agencies; as against such authority it was the
purpose of the Fourth Amendment to secure
the citizen in the right of unmolested
occupation of his dwelling and the possession
of his property, subject to the right of seizure by
process duly served [People v. Marti, supra]
Who may invoke
The constitutional right against unreasonable
searches
and seizures is a personal right, invocable
only by those whose rights have been
infringed.
It protects all persons, including aliens [Qua
Chee Gan v. Deportation Board, G.R. No. L-
10280 (1963)].

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A corporation is entitled to immunity, under the
4th Amendment, against unreasonable
searches and seizures. A corporation is, after
all, an association of individuals under an
assumed name and with a distinct legal entity.
In organizing itself as a collective body it
waives no constitutional immunities
appropriate to such body. [Bache and Co. v.
Ruiz, G.R. No. L-32409 (1971)].
1. Concept of Privacy
Zones of privacy are recognized and
protected in our laws. Within these zones, any
form of intrusion is impermissible unless
excused by law and in accordance with
customary legal process.
The Constitution does not have a specific
provision protecting the right to privacy. It is a
penumbral right formed from the shadows
created by several constitutional provisions.
That is to say, the right to privacy is located
within the zones created by various provisions
of the Constitution and various statutes which
protect aspects of privacy. [Ople v. Torres,
G.R. No. 127685 (1998)]
2. Concept of a Search
The constitutional right against unreasonable
searches and seizures is a personal right
invocable only by those whose rights have
been infringed or threatened to be infringed
[Valmonte v. General De Villa, G.R. No. 83988
(1989)].
What constitutes a reasonable or
unreasonable search and seizure in any
particular case is purely a judicial question,
determinable from a consideration of the
circumstances involved [Id].
Types of Warrants
1. A Search Warrant is an order in writing,
issued in the name of the People of the
Philippines, signed by a judge and directed
to a peace officer, commanding him to
search for personal property described
therein and bring it before the court [Sec.
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1, Rule 126, Rules of Criminal Procedure,
Rules of Court]
Purpose: to gain evidence to convict
2. A Warrant of Arrest is a written order
issued and signed by a magistrate (judge
in our jurisdiction) directed to a peace
officer or some other person specially
named, commanding him to arrest the
body of a person named in it, who is
accused of an offense [Brown v. State, 109
Ala. 70, 20 South 103]
Purpose: to acquire jurisdiction over the
person of the accused
3. Requisites of a Valid Warrant
a. Existence of Probable Cause
b. Probable cause must be personally
determined by the Judge
c. After personal examination under oath or
affirmation of the complainant and the
witnesses he may produce
d. On the basis of their personal knowledge
of the facts they are testifying to
e. There must be particularity in the
description of the places to searched and
the persons or things to be seized
f. The warrant must refer to one specific
offense (Requisite added by jurisprudence)
a. Existence of Probable Cause
Probable Cause for Search Warrant:
Such facts and circumstances which would
lead a reasonably discreet and prudent man to
believe that an offense has been committed
AND the objects sought in connection with the
offense are in the place sought to be searched
[Burgos v. Chief of Staff, G.R. No. L-64261
(1984)].
Probable Cause for Warrant of Arrest:
Such facts and circumstances which would
lead a reasonably discreet and prudent man to
believe that the person to be arrested is
probably guilty thereof [Allado v. Diokno, G.R.
No. 113630 (1994)].

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b. Probable cause must be personally
determined by the Judge
The judge must make an exhaustive and
probing examination of witnesses and the
applicant, and not merely routine or pro forma
examination [Nala v. Barroso, Jr., G.R. No.
153087 (2003)].
The determination of probable cause calls for
an exercise of judgment after a judicial
appraisal of the facts and should not be allowed
to be delegated in the absence of any rule to
the contrary.
How it is done:
In the form of searching questions and
answers, in writing and under oath. [Sec. 6,
Rule 126, ROC]
Mere affidavits of the complainant and his
witnesses are thus not sufficient. The
examining Judge has to take depositions in
writing of the complainant and the witnesses he
may produce and attach them to the record.
The examining magistrate must not simply
rehash the contents of the affidavit but must
make his own inquiry on the intent and
justification of the application. [Roan v.
Gonzales, G.R. No. 71410 (1984)]
Such written deposition is necessary in order
that the Judge may be able to properly
determine the existence or non-existence of
the probable cause, to hold liable for perjury the
person giving it if it will be found later that his
declarations are false [Mata v. Bayona, G.R.
No. 50720 (1984)].
c. After personal examination under
oath or affirmation of the
complainant and the witnesses he
may produce
Oath
Any form of attestation that he is bound in
conscience to perform an act faithfully or
truthfully; an outward pledge given by the
person taking it that his attestation or promise
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is made under an immediate sense of his
responsibility to God
Requisites
• Must refer to facts
• Such facts are of personal knowledge of
the petitioner or applicant or witnesses.
Not hearsay.
Test of sufficiency of an oath
Whether or not it was drawn in a manner that
perjury could be charged against the affiant
and he be held liable for damages.
On the basis of their personal knowledge of
the facts they are testifying to. [Nala v.
Barroso, Jr., supra]
The purpose of having personal knowledge by
the complainant and witnesses and the
sufficiency of the warrant is to convince the
magistrate seeking the issuance of the warrant
that there is probable cause.
Personal knowledge is not the same as
personal belief [Nala v. Barroso, Jr., supra].
The testimony must be based on the own
personal knowledge of the complainant and of
the witnesses, not mere hearsay or information
from a “reliable source” [Alvarez v. CFI, G.R.
No. L-45358 (1937)].
d. There must be particularity in the
description of the places to
searched and the persons or things
to be seized
General Rule: The warrant must indicate the
particular place to be searched and person or
thing to be seized.
Exception
If the nature of the goods to be seized cannot
be particularly determined:
● the nature of the thing is general in
description
● the thing is not required of a very technical
description [Alvarez v. CFI, supra]

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Requirement is primarily meant to enable the
law enforcers serving the warrant to:
● readily identify the properties to be seized
and thus prevent them from seizing the
wrong items;
● leave said peace officers with no discretion
regarding the articles to be seized and thus
prevent unreasonable searches and
seizures [People v. Tee, G.R. Nos. 140546-
47 (2003)].
The search warrant issued to search
petitioner’s compound for unlicensed firearms
was held invalid for failing to describe the place
with particularity, considering that the
compound was made up of 200 buildings, 15
plants, 84 staff houses, one airstrip etc. spread
out over 155 hectares [PICOP v. Asuncion,
G.R. No. 122092 (1999)].
The description of the property to be seized
need not be technically accurate or precise. Its
nature will vary according to whether the
identity of the property is a matter of concern.
The description is required to be specific only
insofar as the circumstances will allow [Kho v.
Judge Makalintal, G.R. Nos. 94902-06 (1999)].
A search warrant may be said to particularly
describe the things to be seized when the:
Description therein is as specific as the
circumstances will ordinarily allow [People v.
Rubio, G.R. No. L- 35500 (1932)]; or
Description expresses a conclusion of fact, not
of law, by which the warrant officer may be
guided in making the search and seizure; or
Things described are limited to those which
bear direct relation to the offense for which the
warrant is being issued [Bache and Co. v. Ruiz,
supra].
Description of Persons
An error in the name of the person in the search
warrant does not invalidate the warrant, as long
as it contains a description personae [including
additional descriptions] that will enable the
officer to identify the accused without difficulty
[Nala v. Barroso, Jr., supra].
Search warrant is valid despite the mistake in
the name of the persons to be searched. The
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authorities conducted surveillance and test-buy
operations before obtaining the search warrant
and subsequently implementing it. They had
personal knowledge of the identity of the
persons and the place to be searched,
although they did not specifically know the
names of the accused [People v. Tiu Won
Chua, G.R. No. 149878 (2003)].
A John Doe search warrant is valid. There is
nothing to prevent issue and service of warrant
against a party whose name is unknown
[People v. Veloso, G.R. No. L-23051 (1925)].
e. The warrant must refer to one
specific offense.
However, the rule is not violated if the offenses
are closely related or under the same category.
For example, in People v. Dichoso [Gr. Nos.
10126-18 (1993)] which involves the violation
of the Dangerous Drugs Act, the defense
theorized that 3 separate search warrants
should have been issued instead of one (the
first for illegal possession of shabu, the second
for the illegal possession of marijuana and the
third for illegal possession of paraphernalia).
The Court ruled that the Dangerous Drugs Act
of 1972 is a special law that deals specifically
with dangerous drugs which are subsumed into
"prohibited" and "regulated" drugs and defines
and penalizes categories of offenses which are
closely related or which belong to the same
class or species. Accordingly, one (1) search
warrant may thus be validly issued for the said
violations of the Dangerous Drugs Act.
What may be searched
A search warrant may be issued for the search
and seizure of personal property:
Subject of the offense
Stolen or embezzled and other proceeds, or
fruits of the offense; or
Used or intended to be used as the means of
committing an offense [Sec. 3, Rule 126,
ROC].
The officers of the law are to seize only those
things particularly described in the search

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warrant. A search warrant is not a sweeping
authority empowering a raiding party to
undertake a fishing expedition to seize and
confiscate any and all kinds of evidence or
articles relating to a crime. The search is limited
in scope so as not to be general or explanatory.
Nothing is left to the discretion of the officer
executing the warrant [UNILAB v. Isip, G.R.
No. 163858 (2005)].
Where the warrant authorized only the seizure
of shabu, and not marijuana, the seizure of the
latter was held unlawful [People v. Salanguit,
G.R. Nos. 133254-55
(2001)].
It is not necessary that the property to be
searched or seized should be owned by the
person against whom the warrant is issued; it
is sufficient that the property is within his
control or possession [Burgos v. Chief of Staff,
supra].
General Warrant
A general warrant is one that:
Does not describe with particularity the things
subject of the search and seizure; or
Where probable cause has not been properly
established.
Effects of a General Warrant
It is a void warrant [Nolasco v. Paño, G.R. No.
L-69803 (1985)].
Any evidence obtained in violation [of this or
the preceding section] shall be inadmissible for
any purpose in any proceeding [Art. III, Sec. 3].
The unconstitutionality of the search and the
seizure or the use of a void search warrant,
renders the items seized inadmissible in
evidence.
Exception: General descriptions will not
invalidate the entire warrant if other items have
been particularly described [Uy v. BIR, G.R.
No. 129651 (2000)].
Effect of a void arrest warrant
A void arrest warrant would render the arrest
invalid and illegal.
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The illegality of an arrest does not bar the state
from the prosecution of the accused. Despite
illegality of both search and arrest thus
inadmissibility of evidence acquired, guilt may
still be established through eyewitness
testimony [People v. Manlulu, G.R. No.
102140].
4. Warrantless Searches
Probable cause (warrantless searches) must
be “based on reasonable ground of suspicion
or belief that a crime has been committed or is
about to be committed” [People v. Aruta, G.R.
No. 120915 (1998)].
Exceptions to the warrant requirement;
valid warrantless searches
Warrantless search incidental to a lawful arrest
Seizure of evidence in plain view
Search of a moving vehicle
Consented warrantless search
Customs search
Stop and Frisk
Exigent and Emergency Circumstances
a. Warrantless Search Incidental to
Lawful Arrest
A person lawfully arrested may be searched for
dangerous weapons or anything which may be
used as proof of the commission of an offense,
without a search warrant [Sec. 12, Rule 126,
ROC].
Absent a valid search warrant, the search is
confined to the person being lawfully arrested.
It is also a general rule that, as an incident of
an arrest, the place or premises where the
arrest was made can also be searched without
a search warrant. In this case, the extent and
reasonableness of the search must be decided
on its own facts and circumstances.
What must be considered is the balancing of
the individual’s right to privacy and the public’s
interest in the prevention of crime and the
apprehension of criminals [Nolasco v. Paño,
supra].

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Test for validity
Item to be searched was within the arrester’s
custody;
Search was contemporaneous with the arrest
An “arrest being incipiently illegal, it logically
follows that the subsequent search was
similarly illegal” [People v. Aruta, supra].
Arresting officer may search
The arrestee’s person:
to discover and remove weapons and
to seize evidence to concealment or
destruction; and
The area within the immediate control of the
arrestee, i.e. area from which he might gain
possession of a weapon or destructible
evidence [Chimel v. California, 395 U.S. 752
(1969)].
Immediate control
Immediate area to the defendant’s person
where there are nearby weapons he could grab
to attack the officer or what he has in his
pocket.
Purpose of this exception
The purpose of the exception is to protect the
arresting officer from being harmed by the
person arrested, who might be armed with a
concealed weapon, and to prevent the latter
from destroying evidence within reach
[Valeroso v. CA, G.R. No. 164815, (2009)].
b. Plain View Doctrine
Things seized are within plain view of a
searching party.
Requisites
1. Prior valid intrusion based on valid
warrantless arrest in which the police are
legally present in the pursuit of their official
duties
2. Evidence was inadvertently discovered by
the police who had the right to be where
they are
3. Evidence must be immediately apparent
4. “Plain view” justified mere seizure of
evidence without further search [People v.
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Aruta, supra; N.B. substantially the same
as Nala v. Barroso requirements]
An object is in “plain view” if the object itself is
plainly exposed to sight. Where the seized
object is inside a closed package, the object is
not in plain view and, therefore, cannot be
seized without a warrant. However, if the
package proclaims its contents, whether by its
distinctive configuration, its transparency, or if
its contents are obvious to an observer, then
the contents are in plain view, and may be
seized [Caballes v. CA, G.R. No. 136292
(2002)].
If the package is such that an experienced
observer could infer from its appearance that it
contains the prohibited article, then the article
is deemed in plain view. It must be immediately
apparent to the police that the items that they
observe may be evidence of a crime,
contraband or otherwise subject to seizure.
[People v. Nuevas, G.R. No. 170233 (2007)].
The plain view doctrine only applies where a
police officer is not searching for evidence
against the accused but inadvertently comes
across an incriminating object [People v. Musa,
G.R. No. 96177 (1993)].
c. Search of Moving Vehicles
Securing a search warrant is not practicable
since the vehicle can be quickly moved out of
the locality or jurisdiction in which the warrant
must be sought [Papa v. Mago, G.R. No. L-
27360, (1968)].
A variant of searching moving vehicles without
a warrant may entail the setup of military or
police checkpoints [People v. Manago, G.R.
No. 212340, (2016)].
“Stop and search” without a warrant at military
or police checkpoints has been declared not to
be illegal per se so long as it is required by
exigencies of public order and conducted in a
way least intrusive to motorists [Valmonte v. de
Villa, G.R. No. 83988 (1989)].

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These are permissible if limited to the following:
• where the officer merely draws aside the
curtain of a vacant vehicle which is parked
on the public fair grounds;
• simply looks into a vehicle;
• flashes a light therein without opening the
car's doors;
• where the occupants are not subjected to a
physical or body search;
• where the inspection of the vehicles is
limited to a visual search or visual
inspection; and
• where the routine check is conducted in a
fixed area.
It is well to clarify, however, that routine
inspections do not give police officers carte
blanche discretion to conduct warrantless
searches in the absence of probable cause.
When a vehicle is stopped and subjected to an
extensive search - as opposed to a mere
routine inspection - such a warrantless search
has been held to be valid only as long as the
officers conducting the search have
reasonable or probable cause to believe before
the search that they will find the instrumentality
or evidence pertaining to a crime, in the vehicle
to be searched [People v. Manago, supra].
d. Consented search
Requisites
1. Must appear that right exists;
2. Person involved had actual or constructive
knowledge of the existence of such right;
3. Said person had an actual intent to
relinquish the right. [People v. Aruta,
supra]
Mere failure to object to the search and seizure
does not constitute a waiver.
The right to be secure from unreasonable
search may be waived. Waiver may be express
or implied. When one voluntarily submits to a
search or consents to have it made of his
person/premises, he is precluded from later
complaining. [People v. Kagui Malasugui, G.R.
No. L-44335 (1936)]
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There is presumption against waiver by the
courts. It is the State that has the burden of
proving, by clear and convincing evidence, that
the necessary consent was obtained and that it
was voluntarily and freely given. [Caballes v.
CA, supra)]
Voluntariness is a question of fact to be
determined from the totality of all the
circumstances, and that the state of a
defendant's knowledge is only one factor to be
taken into account in assessing the
voluntariness of a consent.
While knowledge of the right to refuse consent
is one factor to be taken into account, the
government need not establish such
knowledge as the sine qua non of an effective
consent [Schneckloth v. Bustamonte, 412 U.S.
218 (1973)].
e. Enforcement of Fishing, Customs,
and Immigration Law
The police are allowed to conduct warrantless
searches on behalf of the Department of
Customs.
They are authorized to open and examine any
box, trunk, or other containers where he has
reasonable cause to believe that such items
were hidden from customs search [Papa v.
Mago, supra].
Sec. 219 of the Customs Modernization and
Tariff Act states that no warrant is required for
police or authorized persons to pass, enter,
search any land, enclosure, building,
warehouse, vessels, aircrafts, vehicles but not
dwelling.
Purpose of customs search
To verify whether or not custom duties and
taxes were paid for their importation.
f. Stop and Frisk
There is a justifiable cause to stop and frisk
persons who flee upon seeing law enforcement
[People v. Solayao, G.R. No. 119220 (1996)].

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Test
Whether or not a reasonably prudent man in
the circumstances would be warranted in the
belief that his safety or that of others was in
danger [Terry v. Ohio, 392 U.S. 1 (1968)].
Test for validity of a stop-and-frisk search as
established by jurisprudence:
● There must be specific and articulable
facts which, taken together with rational
inferences, reasonably warrant the
intrusion.
● The officer must identify himself and make
reasonable inquiries.
● The “frisk” is permitted to search for
weapons for the protection of the police
officer, where he has reason to believe that
he is dealing with an armed and dangerous
individual, regardless of probable cause
for a crime.
● The scope of the search is limited to the
outer surface of the subject’s clothing.
Police officer has a right to stop a citizen on the
street and pat him for a weapon in the interest
of protecting himself from the person with
whom he was dealing by making sure that he
is not armed.
g. Exigent and Emergency
Circumstances
The raid and seizure of firearms and
ammunition at the height of the 1989 coup
d’état, was held valid, considering the exigent
and emergency situation. The military
operatives had reasonable ground to believe
that a crime was being committed, and they
had no opportunity to apply for a search
warrant from the courts because the latter were
closed. Under such urgency and exigency, a
search warrant could be validly dispensed with
[People v. de Gracia, G.R. Nos. 102009-10
(1994)].
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5. Warrantless Arrests and
Detentions
Valid Warrantless Arrests [Rule 113, Sec. 5,
Rules on Criminal Procedure]
a. In flagrante delicto
When in his presence, the person to be
arrested has committed, is actually committing,
or is attempting to commit an offense. The
person must be arrested after the offense has
been committed and in the presence of a police
officer [People v. Mengote, G.R. No. 87059
(1992)].
Rebellion is a continuing offense. Therefore, a
rebel may be arrested without a warrant at any
time of the day or the night as he is deemed to
be in the act of committing rebellion. [Umil v.
Ramos, G.R. No. 81567 (1991)]
Though kidnapping with serious illegal
detention is deemed a continuing crime, it can
be considered as such only when the
deprivation of liberty is persistent and
continuing from one place to another [Parulan
v. Dir. of Prisons, G.R. No. L-28519 (1968)].
Buy-Bust
A buy-bust operation is a valid in flagrante
arrest. The subsequent search of the person
arrested and the premises within his immediate
control is valid as an incident to a lawful arrest
[People v. Hindoy, G.R. No. 132662 (2001)].
When buy-bust not proper
Instead of arresting the suspect after the sale
in a buy-bust operation, the officer returned to
the police headquarters and filed his report. It
was only in the evening that he, without
warrant, arrested the suspect at his house
where dried marijuana leaves were found and
seized. This is unlawful arrest [People v.
Rodriguez, G.R. No. 138987 (1992)].

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b. Hot Pursuit
When an offense has just been committed and
he has probable cause to believe based on
personal knowledge of facts or circumstances
that the person to be arrested has committed it
Requisites
1. Offense had just been committed; The
person must be immediately arrested after
the commission of the offense [People v.
Manlulu, supra].
2. Person making the arrest has probable
cause to believe based on personal
knowledge of the facts and
circumstances.
Personal knowledge
Experience of an officer which gives the idea
that there is probable cause that the person
caught is responsible. It has been ruled that
“personal knowledge of facts” in arrests without
a warrant must be based on probable cause,
which means an actual belief or reasonable
grounds of suspicion [Cadua v. CA, G.R. No.
123123 (1999)].
Note: There must be a large measure of
immediacy between the time the offense is
committed and the time of the arrest. If there
was an appreciable lapse of time between
arrest and commission of crime, warrant of
arrest must be secured [NACHURA].
Warrantless arrest of accused for selling
marijuana 2 days after he escaped is invalid
[People v. Kimura, G.R. No. 130805 (2004)].
The warrantless arrest only 3 hours after the
killing was held valid since personal knowledge
was established as to the fact of death and
facts indicating that the accused killed the
victim [People v. Gerente, G.R. Nos. 95847-48
(1993)]
There is no personal knowledge when the
commission of a crime and identity of the
accused were merely furnished by an
informant, or when the location of the firearm
was given by the wife of the accused. It is not
enough that there is reasonable ground to
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believe that the person to be arrested has
committed a crime. That a crime has actually
been committed is an essential precondition
[People v. Burgos, G.R. No. L-68955 (1986)].
c. Escaped Prisoners
When the person to be arrested is a prisoner
who has escaped from a penal establishment
or place where he is serving final judgment or
is temporarily confined while his case is
pending, or has escaped while being
transferred from one confinement to another.
ADDITIONAL EXCEPTIONS
a. When the right is voluntarily waived
(estoppel)
Appellant is estopped from questioning the
illegality of the arrest when he voluntarily
submitted himself to the jurisdiction of the court
by entering a plea of not guilty and by
participating in the trial [People v. Salvatierra,
G.R. No. 104663 (1997)].
Failure to raise the question of admissibility
during the trial is waiver of the right to assert
inadmissibility on appeal [Manalili v. CA,
supra].
Scope of Waiver
Waiver is limited to the illegal arrest. It does not
extend to the search made as an incident
thereto, or the subsequent seizure of evidence
allegedly found during the search [People v.
Peralta, G.R. No. L-19069 (2004)].
Drug, Alcohol, and Blood Tests
The Court held that Randomized Drug Testing
(RDT) for students and employees does not
violate the right to privacy in the Constitution.
Students do not have rational expectation of
privacy since they are minors and the school is
in loco parentis. Employees and students in
universities, on the other hand, voluntarily
subject themselves to the intrusion because of
their contractual relation to the company or
university.

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But it is unconstitutional to subject criminals to
RDT. Subjecting criminals to RDT would
violate their right against self-incrimination.
It is also unconstitutional to subject public
officials whose qualifications are provided for in
the Constitution (e.g. members of Congress) to
RDT. Subjecting them to RDT would amount to
imposing an additional qualification not
provided for in the Constitution [SJS v.
Dangerous Drugs Board, G.R. No. 157870
(2008)].
Routine Security Checks
The Court held that the search and seizure of
an illegal drug during a routine airport
inspection made pursuant to the aviation
security procedures as a constitutionally
reasonable administrative search.
Persons may lose the protection of the search
and seizure clause by exposure of their
persons or property to the public in a manner
reflecting a lack of subjective expectation of
privacy, which expectation society is prepared
to recognize as reasonable. Thus, while the
right of the people to be secure in their persons,
houses, papers, and effects against
unreasonable searches and seizures is
guaranteed by Section 2, Article III of the 1987
Constitution, a routine security check being
conducted in air and sea ports has been a
recognized exception. [People v O’Cochlain,
G.R. No. 229071 (2018)]
6. Exclusionary Rule
All evidence obtained in violation of Sec. 2, Art.
III shall be inadmissible for any purpose in any
proceeding [Stonehill v. Diokno, G.R. No. L-
19550 (1967)].
The exclusionary rule extends to evidence
obtained through uncounseled confession
[People v. Alicando, G.R. No. 117487 (1995)].
The Fruit of the Poisonous Tree
The Exclusionary Rule is also extended to
exclude evidence which is derived or directly
obtained from that which was illegally seized
[BAUTISTA].
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Once the primary source (tree) is shown to
have been unlawfully obtained, any secondary
or derivative evidence (fruit) derived from it is
also inadmissible.
7. Effects of Unreasonable
Searches and Seizures
Unlawful search
Police officers arrived at appellant’s residence
and “side-swiped” appellant’s car (which was
parked outside) to gain entry into the house.
Appellant’s son, who is the only one present in
the house, opened the door and was
immediately handcuffed to a chair after being
informed that they are policemen with a
warrant to search the premises [People v.
Benny Go, G.R. No. 144639 (2003)].
Consequences of an unlawful search
An unlawful search will result in the exclusion
from admission as evidence of that which was
obtained from such unlawful search and
seizure.
Further, an unlawful search and seizure may
justify:
the use of self-help in the form of resistance to
such unlawful search and seizure;
the criminal prosecution of the searching
officer;
civil damages against such officer; and
disciplinary action against the officer by his
administrative officers [BAUTISTA, Basic
Criminal Procedure (2010), hereinafter
BAUTISTA].
E. PRIVACY OF COMMUNICATIONS
AND CORRESPONDENCE
Sec. 3, Art. III. (1) The privacy of
communication and correspondence shall be
inviolable except upon lawful order of the
court, or when public safety or order requires
otherwise as prescribed by law.
(2) Any evidence obtained in violation of this
or the preceding section shall be
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inadmissible for any purpose in any as that which may be violated by trespass
or unwarranted searches and seizure
proceeding.
[Vivares v. St. Therese College, G.R. No.
202666 (2014)]
1. Concept of communications,
Zones of privacy are recognized and
correspondence protected in our laws. Within these zones, any
form of intrusion is impermissible unless
Our Bill of Rights, enshrined in Article III of the
excused by law and in accordance with
Constitution, provides at least two guarantees
customary legal process. The meticulous
that explicitly create zones of privacy. It
regard we accord to these zones arises not
highlights a person's "right to be let alone" or
only from the Constitution but also from our
the "right to determine what, how much, to
adherence to the Universal Declaration on
whom and when information about himself
Human Rights.
shall be disclosed."
“…[S]pecific guarantees in the Bill of Rights
Section 2 guarantees "the right of the people
have penumbras, formed by emanations from
to be secure in their persons, houses, papers
those guarantees that help give them life and
and effects against unreasonable searches
substance. xxx Various guarantees create
and seizures of whatever nature and for any
zones of privacy.” [Grisworld v. Connecticut,
purpose."
381 U.S. 479 (1965)]
Section 3 renders inviolable the "privacy of
The Constitution does not have a specific
communication and correspondence" and
provision protecting the right to privacy. It is a
further cautions that "any evidence obtained in
penumbral right formed from the shadows
violation of this or the preceding section shall
created by several constitutional provisions.
be inadmissible for any purpose in any
That is to say, the right to privacy is located
proceeding." [Sabio v. Gordon, G.R. No.
within the zones created by various provisions
174340, October 17, 2006]
of the Constitution and various statutes which
protect aspects of privacy [Ople v. Torres,
Three Strands of the Right to Privacy
supra].
1. Decisional privacy - Liberty in the
constitutional sense must mean more than In Ople v. Torres, different provisions in the
freedom from unlawful governmental 1987 Constitution also constitute zones of
restraint; it must include privacy as well, if privacy:
it is to be a repository of freedom. The right
a. Sec. 3 – Privacy of communication 

to be let alone is indeed the beginning of
b. Sec. 1 – Life, liberty, and property 

all freedom...The concept of liberty would
c. Sec. 2 – Unreasonable searches and
be emasculated if it does not likewise
seizures 

compel respect for his personality as a
d. Sec. 6 – Liberty of abode 

unique individual whose claim to privacy
e. Sec. 8 – Right to form associations 

and interference demands respect [Morfe
f. Sec. 17 – Right against self-incrimination 

v. Mutuc, supra]
2. Informational privacy - right of an
Other laws also recognize zones of privacy:
individual not to have private information
a. Civil Code
about himself disclosed; and the right of an
b. Revised Penal Code
individual to live freely without surveillance
c. Anti-Wiretapping Law (RA 4200)
and intrusion [Whalen v. Roe, 429 US 589,
d. Law on Secrecy of Bank Deposits (RA
(1977)]
1405)
3. Locational or situational privacy -
e. Intellectual Property Code of the Philippines
privacy that is felt in physical space, such
(RA 8293)

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Requisites of the existence of the right to public concern. The data treated as “strictly
privacy: confidential” under EO 420 being matters of
public concern, these data cannot be released
Subjective: A person has exhibited an actual to the public or the press.
expectation of privacy; and

2. Intrusion, when and how
Objective: The expectation be one that
society is prepared to recognize as allowed
reasonable [Pollo v. Constantino-David, G.R.
No. 181881 (2011)]. General rule: An encroachment on the right to
privacy is invalid when:
Forms of correspondence and communication There is a reasonable expectation of privacy;
covered: and if there is no compelling state interest. 

1. Letters
2. Messages When Allowed [Section 3, Article III of the
3. Telephone calls 1987 Constitution]
4. Telegrams
5. Others analogous to the foregoing By lawful order of the court
[BERNAS] Probable cause in Sec. 2, Art. III should be
followed for the court to allow intrusion.
Right of privacy vs. Freedom of Speech and Particularity of description is needed for written
Communication correspondence, but if the intrusion is done
through wire-taps and the like, there is no need
to describe the content. However, identity of
RIGHT OF FREEDOM OF the person or persons whose communication is
PRIVACY SPEECH AND to be intercepted, and the offense or offenses
COMMUNICATION sought to be prevented, and the period of the
authorization given should be specified.
It is not a preferred Because of the
When public safety or public order requires
right, thus there is no preferred character
otherwise as may be provided by law
presumption of of the constitutional
In Ayer Productions Pty. Ltd. v. Capulong
invalidity on rights of the freedom
[supra] it was held that the right to be let alone
encroachments of of speech and of
is not an absolute right. A limited intrusion to a
right to privacy. expression, a
person’s privacy has long been regarded as
weighty presumption
permissible where that person is a public figure
of invalidity vitiates
and the information sought to be elicited from
measures of prior
him or to be published about him constitute
restraint upon the
matters of public character. The interest sought
exercise of such
to be protected by the right to privacy is the
freedoms [Ayer
right to be free from unwarranted publicity, from
Productions Pty. Ltd.
the wrongful publicizing of the private affairs
v. Capulong [G.R.
and activities of an individual which are outside
No. 82380 (1988)]
the realm of legitimate public concern.

Right of privacy vs. Freedom of Access to
Information
Kilusang Mayo Uno v. Director-General, NEDA
[G.R. No. 167798 (2006)] stated that personal
matters are exempt or outside the coverage of
the people’s right to information on matters of
Intrusion has to be based upon a non-judicial
government official’s assessment that public
safety and order demands such intrusion,
limited to the provisions of law. To hold
otherwise would be to opt for a government of
men, and not of laws.

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E.O. 424 (s. 2005), adopting a unified multi-
purpose ID system for government, does not
violate the right to privacy because it (1)
narrowly limits the data that can be collected,
recorded, and released compared to existing
ID systems, and (2) provides safeguards to
protect the confidentiality of the data collected
[KMU v. Director-General, G.R. No. 167798
(2006)]. 
 grant or deny access to his or her post or profile
An intrusion into the privacy of workplaces is
valid if it conforms to the standard of
reasonableness. Under this standard, both
inception and scope of intrusion must be
reasonable. It is justified at inception if there
are reasonable grounds for suspecting that it
will turn up evidence that the employee is guilty
of work- related misconduct. 
Scope of intrusion
is reasonable if measures used in the search
are reasonably related to the search’s
objectives, and it is not highly intrusive [Pollo v.
Constantino-David, supra]. 
 will not only strip these privacy tools of their
Right may be invoked against the wife who
went to the clinic of her husband and there took
documents consisting of private
communications between her husband and his
alleged paramour [Zulueta v. CA, G.R. No.
107383 (1996)].
Public Figure
A limited intrusion into a person’s privacy is
permissible where that person is a public figure
and the information sought to be elicited from
him or to be published about him constitute
matters of a public character.
A public figure is a person who, by his
accomplishments, fame, or mode of living, or
by adopting a profession or calling which gives
the public a legitimate interest in his doing, his
affairs and his character, has become public
personage.
But as held in Lagunzad v. Soto [G.R. No. L-
32066 (1979)], being a public figure does not
automatically destroy in toto a person’s right to
privacy.
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Online Privacy
Before one can have an expectation of privacy
in his or her online social networking activity, it
is first necessary that said user, manifest the
intention to keep certain posts private, through
the employment of measures to prevent
access thereto or to limit its visibility (This case;
OSN Privacy Tools). Therefore, a Facebook
user who opts to make use of a privacy tool to
detail should not be denied the informational
privacy right which necessarily accompanies
said choice.
Otherwise, using these privacy tools would be
a feckless exercise, such that if, for instance, a
user uploads a photo or any personal
information to his or her Facebook page, and
sets its privacy level at “Only Me” or a custom
list, such photo would still be deemed public by
the courts as if the user never chose to limit the
photos accessibility. Such position, if adopted,
function but it would also disregard the very
intention of the user to keep said photo or
information within the confines of his or her
private space [Vivares v. St. Theresa’s
College, G.R. No. 202666 (2014)].
3. Exclusionary Rule
Any evidence obtained in violation of Secs. 2
or 3, Art. III 
shall be inadmissible for any
purpose in any proceeding. [Section 3(2),
Article III].
This applies not only to testimonial evidence
but also to documentary and object evidence. 

Anti-Wire Tapping Act (RA 4200), clearly and
unequivocally makes it illegal for any person,
not authorized by all the parties to any private
communication, to secretly record such
communications by means of a tape recorder.
The law does not make any distinction
[Ramirez v. CA, G.R. No. 93833 (1995)]. An
extension telephone is not among the devices
enumerated in Sec.1 of RA 4200. There must
be either a physical interruption through a
wiretap or the deliberate installation of a device
or arrangement in order to overhear, intercept,

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or record the spoken words. The telephone
extension in this case was not installed for that
purpose. It just happened to be there for
ordinary office use [Ganaan v. IAC, G.R. No. L-
69809 (1986)].
Effect of violation: The communication shall not
be admissible in evidence in any judicial, quasi-
judicial, legislative, or administrative hearing or
investigation. [Section 4, RA 4200]
Generally, the provisions in the Bill of Rights
are protections against the government.

However, In the case of Zulueta v. CA the
Court has recognized an instance where it may
also be applied as against a private individual.
N.B. While Zulueta seems to be an exception
to the State Action Requirement, Zulueta’s
application of the exclusionary rule has only
been cited once but to a state action.
In that case, the wife took her husband‘s
private documents and papers to be used as
evidence in the case, without the husband’s
knowledge and consent, the Court held that the
intimacies between husband and wife do not
justify any one of them in breaking the drawers
and cabinets of the other and in ransacking
them for any telltale evidence of marital
infidelity. A person, by contracting marriage,
does not shed his/her integrity or his right to
privacy as an individual and the constitutional
protection is ever available to him or to her. 
 and (2) the audience so takes the actions."
F. FREEDOM OF SPEECH
AND EXPRESSION
Sec. 4, Art. III. No law shall be passed
abridging the freedom of speech, of
expression, or of the press, or the right of the
people peaceably to assemble and petition
the government for redress of grievances.
1. Concept
Free speech and free press may be identified
with the liberty to discuss publicly and truthfully
any matter of public interest without censorship
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and punishment [Newsounds Broadcasting v.
Dy, G.R. No. 170270 (2009)].
In the Philippines, the primacy and high esteem
accorded freedom of expression is a
fundamental postulate of our constitutional
system.
The scope of freedom of expression is so broad
that it extends protection to nearly all forms of
communication. It protects speech, print and
assembly regarding secular as well as political
causes, and is not confined to any particular
field of human interest. [Chavez v. Gonzales,
G.R. No. 16338 (2008)].
a. Continuum of thought, speech,
expression, and speech acts
The right to freedom of expression applies to
the entire continuum of speech from
utterances made to conduct enacted, and even
to inaction itself as a symbolic
manner of communication. [The Diocese of
Bacolod v. Commission on Elections, G.R. No.
205728, (2015)]
Communication is an essential outcome of
protected speech. Communication exists when
"(1) a speaker, seeking to signal others, uses
conventional actions because he or she
reasonably believes that such actions will be
taken by the audience in the manner intended;
[Diocese of Bacolod v. COMELEC, supra]
The right is not limited to vocal communication.
CONDUCT IS ALSO INCLUDED.
Conduct - sometimes referred to as ‘symbolic
speech[,]’" such that "‘when ‘speech’ and
‘non-speech’ elements are combined in the
same course of conduct,’ the ‘communicative
element’ of the conduct may be ‘sufficient to
bring into play the [right to freedom of
expression].
Scope
Expression and speech include:
1. Written or spoken words (recorded or not

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2. Symbolic speech (e.g. wearing of
armbands as a 
symbol of protest)

However, in NUWHRAIN-APL-IUF Dusit
Hotel Nikko Chapter v. CA [G.R. No.
163942 (2008)], it was held that the labor
union members’ violation of the hotel’s
grooming standards constitutes an illegal
strike, which is not protected by the right to
freedom of expression. 

3. Films and television programs [Iglesia ni
Cristo v. CA, G.R. No. 119673 (1996)] 
 punishment
While the right has a widespread scope, it is
not absolute. Examples of unprotected
speech are obscenity, child pornography,
and libel.
b. Balance between unbridled
expression and liberty 
 Not all prior restraint is invalid. But all prior
"Liberty" as understood in democracies, is not
a license; it is "liberty regulated by law." Implied
in the term is restraint by law for the good of the
individual and for the greater good of the peace
and order of society and the general well-
being. No man can do exactly as he pleases.
Every man must renounce his unbridled
license. [Rubi v. Provincial Board of Mindoro,
G.R. No. 14078, (1919)]
Freedom of Expression and the Right to
Privacy
Being a public figure does not automatically
destroy in toto a person’s right to privacy.
Invading a person’s privacy to disseminate
public information does not extend to a fictional
representation of a person, no matter how
public a figure he or she may be [Lagunzad v.
Soto, G.R. No. L-32066 (1979)].
Freedom of speech and expression includes
freedom to film and produce motion pictures
and to exhibit them. The fact that such film
production is a commercial activity is not a
disqualification for availing of freedom of
speech and expression.
The right to privacy cannot be invoked to resist
publication and dissemination of matters of
public interest. The intrusion is no more than
necessary to keep the film a truthful historical
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account. Enrile is a public figure because of his
participation as a principal actor in the
culminating events of the EDSA revolution
[Ayer Prod. PTY. LTD. v. Judge Capulong,
supra].
2. Types of Regulation
a. Prior restraint and subsequent
Prior Restraint
Refers to official governmental restrictions on
the press or other forms of expression in
advance of actual publication or dissemination.
[Newsounds Broadcasting Network v. Dy,
supra].
restraints are presumed invalid (“any act that
restrains speech is hobbled by the presumption
of invalidity and should be greeted with
furrowed brows”).
Every man shall have a right to speak, write,
and print his opinions upon any subject
whatsoever, without any prior restraint, so
always that he does not injure any other person
in his rights, person, property, or reputation,
and so always that he does not thereby disturb
the public peace or attempt to subvert the
government [Near v. Minnesota, 283 U.S. 697
(1931)].
Examples
● Censorship: Censorship conditions the
exercise of freedom of expression upon
the prior approval of the government. The
censor serves therefore as the political,
moral, social and artistic arbiter for the
people, usually applying only their own
subjective standards in determining what
is good and what is not. 

● Permits 

● Business closure 

General Rules
1. Any system of prior restraints of expression
comes to the Court bearing a heavy
presumption against its constitutionality,
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giving the government a heavy burden to G.R. No. 102653 (1992); Osmeña v.
show justification for the imposition of such COMELEC, G.R. No. 132231 (1998)] 

restraint [New York Times Co. v. US, 403 ● Film censorship: The power of the MTRCB
U.S. 713 (1971)]. can be exercised only for purposes of
2. There need not be total suppression. Even reasonable classification, not censorship.
restriction of circulation constitutes [NACHURA, citing Gonzalez v. Katigbak,
censorship [Grosjean v. American Press G.R. No. L-69500 (1985) and Ayer Prod.
Co., Inc., 297 U.S. 233 (1936)]. PTY. LTD. v. Judge Capulong, G.R. No.
82380 (1988)] 

Examples of Unconstitutional Prior Restraint
● COMELEC prohibition against radio Subsequent Punishment
commentators and newspaper columnists Freedom of speech includes freedom after
from commenting on the issues involved in speech. Without this assurance, citizens would
a scheduled plebiscite. [Sanidad v. hesitate to speak for fear that they might be
COMELEC, G.R. No. 90878 (1990)] 
 provoking the vengeance of the officials they
● Arbitrary closure of a radio station [Eastern criticized (chilling effect).
Broadcasting v. Dans, Jr., G.R. No. L-
59329 (1985)]; or even when there is legal Examples of Valid Subsequent Punishment
justification, such as lack of mayor’s ● Libel – Every defamatory imputation is
permit [Newsounds Broadcasting Network presumed to be malicious, even if it be
v. Dy, supra] 
 true. [Alonzo v. CA, G.R. No. 110088
● COMELEC resolution prohibiting the (1995)]
posting of decals and stickers in mobile
units such as cars and other vehicles. Exceptions to the Presumption [Art. 354,
[Adiong v. COMELEC, G.R. No. 103956 Revised Penal Code]

(1992)] 
 ● Private communication in the performance
● Searching, padlocking, and sealing of the of any legal, moral, or social duty
offices of newspaper publishers by military ● Fair and true report of any judicial,
authorities. [Burgos v. Chief of Staff, G.R. legislative, or other official proceedings
No. L-64261 (1984)
 ● Obscenity – Determination of what is
● An announcement by a public official obscene is a judicial function. [Pita v. CA,
prohibiting the media from airing or G.R. No. 80806 (1989)]
broadcasting the Garci tapes. [Chavez v. ● Contempt for criticism or publications
Gonzales, supra] 
 tending to impede, obstruct, embarrass, or
influence the courts in administering
Examples of Constitutional Prior Restraint justice in a pending suit or proceeding
● Law which prohibits, except during the (subjudice) [People v. Alarcon, G.R. No.
prescribed election period, making 46551 (1939)] 

speeches, announcements, or ● Right of students to free speech on school
commentaries for or against the election of premises must not infringe on the school’s
any candidate for office. [Gonzales v. right to discipline its students. [Miriam
COMELEC, G.R. No. L-27833 (1969)] 
 College Foundation v. CA, G.R. No.
● Prohibiting any person making use of the 127930 (2000)] 

media from selling or giving print space or
air time free of charge for campaign or Exceptions
other political purposes. Ratio: Police 1. Fair comment on matters of public
power of the State to regulate media for interest – Fair comment is that which is
the purpose of ensuring equal opportunity, true or, if false, expresses the real opinion
time, and space for political campaigns, of the author based upon reasonable
which COMELEC is authorized to carry degree of care and on reasonable grounds
out. [National Press Club v. COMELEC, 


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2. Criticism of official conduct is given the
widest latitude [US v. Bustos, G.R. No. L-
12592 (1918)] 
 (1995)], the SC held that obstructing, by means
b. Content based and content neutral
Content Based Regulations
A governmental action that restricts freedom of
speech or of the press based on content is
given the strictest scrutiny in light of its inherent
and invasive impact [Chavez v. Gonzales,
supra].
Subject to the clear and present danger
test: There is to be then no previous restraint
on the communication of views or subsequent
liability [...] unless there be a clear and
present danger of a substantive evil that the
State has a right to prevent [Reyes v.
Bagatsing, G.R. No. L- 65366 (1983)].
Freedom of Expression and National
Security
When a fictitious suicide photo and letter were
published in newspapers of general circulation
expressing disappointment in the Roxas
administration and instructing a fictitious wife to
teach their children to burn photos of the
President, the SC held that such act constitutes
inciting to sedition.
It suggests or incites rebellious conspiracies or
riots and tends to turn the people against the
constituted authorities, or to provoke violence
from opposition groups who may seek to
silence the writer, which is the sum and
substance of the offense under consideration
[Espuelas v. People, G.R. No. L-2990 (1951)].
Freedom of Expression and the
Administration of Justice
 rationality that is required of any other law and
The administration of justice and the freedom
of the press, though separate and distinct, are
equally sacred, and neither should be violated
by the other. The press and the courts have
correlative rights and duties and should
cooperate to uphold the principles of the
Constitution and laws, from which the former
receives its prerogative and the latter its
jurisdiction [In Re: Macasaet, A.M. No. 07-09-
13-SC (2008)].
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In People v. Godoy [G.R. Nos. 115908-09
of spoken or written word, the administration of
justice by the courts is an abuse of the liberty
of speech or press such as will subject the
abuser to punishment for contempt of court.
What criticisms are allowed by the court?
Criticisms made in good faith. Courts and
judges are not sacrosanct. They should and
expect critical evaluation of their performance.
For like the executive and the legislative
branches, the judiciary is rooted in the soil of
democratic society, nourished by the periodic
appraisal of the citizen whom it is expected to
serve.
But it is the cardinal condition of all such
criticism that it shall be bona fide and shall not
spill over the walls of decency and propriety. A
wide chasm exists between fair criticism, on
the one hand, and abuse and slander of courts
and the judges thereof, on the other. [In Re:
Almacen, G.R. No. 27654 (1970)].
Content-Neutral Regulations
Regulations on the incidents of speech — time,
place, and manner — under well-defined
standards [Newsounds Broadcasting Network
v. Dy, supra].
When the speech restraints take the form of a
content-neutral regulation, only a substantial
governmental interest is required for its
validity. Because regulations of this type are
not designed to suppress any particular
message, they are not subject to the strictest
form of judicial scrutiny but an intermediate
approach — somewhere between the mere
the compelling interest standard applied to
content- based restrictions [Chavez v.
Gonzales, supra].
A government regulation is sufficiently
justified if:
1. It is within the constitutional power; 

2. It furthers an important or substantial

government interest; 

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3. The government interest is unrelated to [Salonga v. Cruz Paño, G.R. No. L-59524
the 
suppression of free expression; 
 (1985)].
4. The incident restriction is no greater
than 
essential to the furtherance of that d. Specificity of regulation and
interest. [US v. O’Brien, 391 U.S. 367 overbreadth doctrine
(1968)] 

General Rule: A party can question the validity
CONTENT-BASED CONTENT- of a statute only if, as applied to him, it is
NEUTRAL unconstitutional. [Southern Hemisphere v.
Object of restraint Anti-Terrorism Council, G.R. No. 178552
The content: The Incidents of (2010)].
message or idea of speech: the time,
the expression. manner, place of the Exception: Facial challenges

expression in public
places, not the A facial challenge may be directed against a
content. vague statute or to one which is overbroad
Test because of the possible “chilling effect” the
a. Clear and Only a substantial statute will have on protected speech. The
present danger governmental theory is that “[w]hen statutes regulate or
test: There must be interest is required proscribe speech and no readily apparent
a clear and present for its validity. construction suggests itself as a vehicle for
danger of a rehabilitating the statutes in a single
substantive evil that Intermediate prosecution, the transcendent value to all
the State has a right approach: society of constitutionally protected expression
to prevent [Reyes v. Somewhere is deemed to justify allowing attacks on
Bagatsing, supra]. between the mere overly broad statutes with no requirement
b. Balancing of rationality that is that the person making the attack
interests required of any other demonstrate that his own conduct could
c. Dangerous law and the not be regulated by a statute drawn with
Tendency compelling interest narrow specificity” [Gooding v. Wilson, 405
d. Direct Incitement standard applied to U.S. 518 (1972)].
content- based
restrictions [Chavez The possible harm to society in permitting
v. Gonzales, supra]. some unprotected speech to go unpunished is
outweighed by the possibility that the
c. Incitement and advocacy protected speech of others may be
deterred, and perceived grievances left to
Criticism of the government, no matter how fester because of possible inhibitory effects of
severe, is within the range of liberty of speech, overly broad statutes.
unless the intention and effect be seditious
[People v. Perez, G.R. No. 21049 (1923)]. This rationale does not apply to penal statutes
without a free speech aspect. Criminal statutes
Direct Incitement Test have general in terrorem effect resulting from
Political discussion even among those their very existence and, if facial challenges
opposed to the present administration is within were allowed for this reason alone, the State
the protective clause of freedom of speech and may well be prevented from enacting laws
expression. The same cannot be construed as against socially harmful conduct. In the area of
subversive activities per se or as evidence of criminal law, the law cannot take chances as in
membership in a subversive organization the area of free speech [Southern Hemisphere
v. Anti- Terrorism Council, supra].

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However, said doctrine applies to penal
statutes when:
a. The statute is challenged as applied; or
 candidates or who do not speak as members
b. The statute involves free speech [Disini v.
Sec. of Justice, supra].
Overbreadth Doctrine
The statute must be carefully drawn or be
authoritatively construed to punish only
unprotected speech and not be susceptible of
application to protected expression [Gooding v.
Wilson, supra].
A law may be invalidated as overbroad if a
substantial number of its applications are
unconstitutional, judged in relation to the
statute’s plainly legitimate sweep [US v.
Stevens, 559 U.S. 460 (2010)].
A governmental purpose may not be achieved
through means which sweep too broadly and
thereby invade the area of protected freedoms.
Void For Vagueness Doctrine
A statute establishing a criminal offense must
define the offense with sufficient definiteness
that persons of ordinary intelligence can
understand what conduct is prohibited by the
statute. It can only be invoked against that
specie of legislation that is utterly vague on its
face, i.e. that which cannot be clarified either
by a saving clause or by construction.
A statute or act may be said to be vague when
it lacks comprehensible standards that men of
common intelligence must necessarily guess at
its meaning and differ in its application [Estrada
v. Sandiganbayan, G.R. No. 148560 (2001)].
e. Speech regulation in relation to
election
The regulation must only be with respect to
the time, place, and manner of the rendition
of the message. In no situation may the
speech be prohibited or censored on the basis
of its content. For this purpose, it will not matter
whether the speech is made with or on private
property.
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Regulation of speech in the context of electoral
campaigns made by persons who are not
of a political party which are, taken as a whole,
principally advocacies of a social issue that the
public must consider during elections is
unconstitutional.
Regulation of election paraphernalia will still be
constitutionally valid if it reaches into speech of
persons who are not candidates or who do not
speak as members of a political party if they are
not candidates, only if what is regulated is
declarative speech that, taken as a whole, has
for its principal object the endorsement of a
candidate only.
The regulation should be:
1. provided by law,
2. reasonable,
3. narrowly tailored to meet the objective of
enhancing the opportunity of all candidates
to be heard and considering the primacy of
the guarantee of free expression, and
4. demonstrably the least restrictive means to
achieve that object. [Diocese of Bacolod v.
COMELEC, supra.]
f. Speech regulation in relation to
media
Sec. 11(1), Art. XVI. xxx The advertising
industry is impressed with public interest,
and shall be regulated by law for the
protection of consumers and the promotion
of the general welfare. xxx
The Court pronounced that the freedom of
broadcast media is lesser than that of the press
because of its pervasive presence in the lives
of people and because of their accessibility to
children.
The interest of society and the maintenance of
good government demand a full discussion of
public affairs. Complete liberty to comment on
the conduct of public men is a scalpel in the
case of free speech. The sharp incision of its
probe relieves the abscesses of officialdom.
Men in public life may suffer under a hostile and
unjust accusation; the wound can be assuaged
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with the balm of clear conscience [US v.
Bustos, supra].
Four Aspects of Freedom of the Press
1. Freedom from prior restraint; 

2. Freedom from punishment subsequent to

publication; 
 permissible when that person is a public figure
3. Freedom of access to information; and
4. Freedom of circulation [Chavez v.
Gonzales, supra] 

Print vs. Broadcast Media
While all forms of communication are entitled
to the broad protection of freedom of
expression clause, the freedom of film,
television, and radio broadcasting is somewhat
lesser than the freedom accorded to
newspapers and other print media [Chavez v.
Gonzales, supra].
Radio and television are accorded less
protection because of:
a. The scarcity of the frequencies by
which the medium operates, i.e.,
airwaves are physically limited while
print medium may be limitless; 
 television programs.” The law also directs
b. Its pervasiveness as a medium; and 
 the Board to apply contemporary Filipino
c. Its unique accessibility to children [FCC
v. Pacifica 
Foundation, 438 U.S. 726
(1978)]. 
 immoral, indecent, contrary to law and/or good
But all forms of media, whether print or
broadcast, are entitled to the broad protection
of the freedom of expression clause. The test
for limitations on freedom of expression
continues to be the clear and present danger
test [Eastern Broadcasting v. Dans, Jr., supra].
Movie Censorship
When the MTRCB rated the movie “Kapit sa
Patalim” as fit “for adults only”, the SC ruled
that there was no grave abuse of discretion.
Censorship is allowable only under the
clearest proof of a clear and present danger
of a substantive evil to public safety,
morals, health, or any other legitimate
public interest:
a. There should be no doubt that what is
feared may be traced to the expression
complained of; 
 Inside Story” which [...] is protected by the
b. Also, there must be reasonable
apprehension about its imminence. It does
not suffice that the danger is only probable
[Gonzalez v. Katigbak, supra]. 

Limited intrusion into a person’s privacy is
and the information sought to be published is
of a public character.
What is protected is the right to be free from
unwarranted publicity, from the wrongful
publicizing of the private affairs of an individual
which are outside the realm of public concern
[Ayer Prod. PTY. LTD. v. Judge Capulong,
supra].
Television Censorship
P.D. No. 1986 gave the MTRCB the power to
screen, review, and examine all television
programs.
By the clear terms of the law, the Board has the
power to “approve, delete, or prohibit the
exhibition and/or television broadcasts of
culture values as the standard to determine
those which are objectionable for being
customs, injurious to the prestige of the
Republic of the Philippines and its people, or
with a dangerous tendency to encourage the
commission of a violence or of a wrong or a
crime.
The law gives the Board the power to screen,
review and examine all “television programs”,
whether religious, public affairs, news
documentary, etc. [Iglesia ni Cristo v. CA,
supra].
Notwithstanding the fact that freedom of
religion has been accorded a preferred status,
the television program of Iglesia ni Cristo is still
not exempt from the MTRCB’s power to review.
If the Court [...] did not exempt religious
programs from the jurisdiction and review
power of the MTRCB, with more reason, there
is no justification to exempt ABS-CBN’s “The

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constitutional provision on freedom of
expression and of the press, a freedom bearing
no preferred status [MTRCB v. ABS-CBN, G.R.
No. 155282 (2005)].
The television camera is a powerful weapon
which intentionally or inadvertently can destroy
an accused and his case in the eyes of the
public.
Considering the prejudice it poses to the
defendant’s right to due process as well as to
the fair and orderly administration of justice,
and considering further that the freedom of the
press and the right of the people to information
may be served and satisfied by less distracting,
degrading, and prejudicial means, live radio
and television coverage of the court
proceedings shall not be allowed. Video
footages of court hearings for news purposes
shall be limited and restricted [Sec. of Justice
v. Sandiganbayan, A.M. No. 01-4-03-SC
(2001)].
Regardless of the regulatory schemes that
broadcast media is subjected to, the SC has
consistently held that the clear and present
danger test applies to content-based
restrictions on media, without making a
distinction as to traditional print or broadcast
media [Chavez v. Gonzales, supra].
Radio Censorship
In Santiago v. Far Eastern Broadcasting [G.R.
No. L- 48683 (1941)], the SC did not uphold the
claim that Far Eastern Broadcasting had no
right to require the submission of the
manuscript. It is the duty of Far Eastern
Broadcasting to require the submission of a
manuscript as a requirement in broadcasting
speeches. [Santiago v. Far Eastern
Broadcasting, supra].
Strict rules have also been allowed for radio
because of its pervasive quality and because
of the interest in the protection of children [FCC
v. Pacifica Foundation, supra (1978)].
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3. Judicial analysis,
presumptions and levels and
types of scrutiny
Clear And Present Danger Test
There is to be then no previous restraint on the
communication of views or subsequent liability
[...] unless there be a clear and present danger
of a substantive evil that the State has a right
to prevent [Reyes v. Bagatsing, supra].
The question in every case is whether the
words used are used in such circumstances
and are of such a nature as to create a clear
and present danger that they will bring about
the substantive evils that Congress has a right
to prevent. It is a question of proximity and
degree [Schenck v. US, supra].
Burden of proof: With the government.
This rule also requires that “the danger created
must not only be clear and present but also
traceable to the ideas expressed”
1. CLEAR – there must be a connection with
the danger of the substantive evil arising
from the utterance questioned.

2. PRESENT - involves the time element,
identified with imminent and immediate
danger. The danger must not only be
probable but very likely inevitable.
[Gonzales v. COMELEC, supra].
The evil consequence of the comment or
utterance must be “extremely serious and the
degree of imminence extremely high” before
the utterance can be punished. The danger to
be guarded against is the “substantive evil”
sought to be prevented. And this evil is
primarily the “disorderly and unfair
administration of justice.” [...] Under this rule,
the advocacy of ideas cannot constitutionally
be abridged unless there is a clear and present
danger that such advocacy will harm the
administration of justice [Cabansag v.
Fernandez, supra].
Note: This test has been adopted by SC and is
the test most applied to cases re: freedom of
expression.
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Balancing Of Interests Test
When a particular conduct is regulated in the
interest of public order, and the regulation
results in an indirect, conditional and partial
abridgement of speech, the duty of the courts
is to determine which of the two conflicting
interests demands greater protection
[American Communications v. Douds, 339 U.S.
282 (1950)].
The test is applied when two legitimate values
not involving national security crimes compete
[Gonzales v. COMELEC, supra].
O’brien Test
A government regulation is sufficiently justified
if:
1. It is within the constitutional power; 

2. It furthers an important or substantial

government interest; 

3. The government interest is unrelated to the

suppression of free expression; 

4. The incident restriction is no greater than
essential to the furtherance of that interest
[US v. O’Brien, supra]

Factors to consider [Soriano v. Laguardia,

supra]
1. Social value of the freedom restricted
2. Specific thrust of the restriction, i.e. direct
or indirect, affects many or few

3. Value of the public interest sought to be
secured by the regulation

4. Whether the restriction is reasonably
appropriate and necessary for the
protection of the public interest

5. Whether the necessary safeguarding of the
public interest may be achieved by a
measure less restrictive of the protected
freedom.

Dangerous Tendency Test

In each case, courts must ask whether the
gravity of the “evil”, discounted by its
improbability, justifies such invasion of free
speech as is necessary to avoid the danger
[Dennis v. US, 341 U.S. 494 (1951)].

Under this test, the question is whether the

words will create a dangerous tendency that
the state has a right to prevent. It looks at the
probability that a substantive evil will result,
and it is not necessary that some definite or
immediate acts of force, violence, or
unlawfulness be advocated [Cabansag v.
Fernandez, supra].

It is sufficient if the natural tendency and the

probable effect of the utterance were to bring
about the substantive evil that the legislative
body seeks to prevent [People v. Perez, supra].

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Clear and Present Danger
Test
The question in every case is
whether the words are used
in such circumstances and
are of such a nature as to
create a clear and present
danger that they will bring
about the substantive evils
that Congress has a right to
prevent. It is a question of
proximity and degree.
[Schenck v. US, supra]
Whether the words used in
such circumstances are of
such a nature as to create a
clear and present danger that
they will bring about the
substantive evils that
Congress has a right to
prevent. It is a question of
proximity and degree
[Schenck v. US, supra].
This rule also requires that
“the danger created must not
only be clear and present but
also traceable to the ideas
expressed” [Gonzales v.
COMELEC, supra].
Liberty
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Dangerous Tendency Test Balancing of Interests
Test
Definition
A person could be punished for It is the standard when
words uttered or for ideas courts need to balance
expressed which create a conflicting social values
dangerous tendency. and individual interests.
Requires a conscious and
detailed consideration of
the interplay of interests
observable in a given
situation. [Chavez v.
Gonzales, supra]
Question
Whether the words will create a The court needs to
dangerous tendency that the balance conflicting social
state has a right to prevent. It values and individual
looks at the probability that a interests and requires a
substantive evil will result, and it conscious and detailed
is not necessary that some consideration of the
definite or immediate acts of interplay of interests
force, violence, or unlawfulness observable in a given
be advocated [Cabansag v. situation [Chavez v.
Fernandez, supra]. Gonzales, supra].
As to preference
Authority It depends on the
circumstances of the case.
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4. Special topics in Free
Expression Cases
a. Hate Speech
Hate Speech
Speech designed to promote hatred on the
basis of race, religion, ethnicity or national
origin. [Rosenfield, Hate Speech in
Constitutional Jurisprudence]
International Covenant on Civil and Political
Rights
The Covenant mandates State Parties to
prohibit by law “[a]ny advocacy of national,
racial or religious hatred that constitutes
incitement to discrimination, hostility or
violence.” [Article 20]
In Philippine jurisdiction, it is arguable that
“hate speech” is not protected speech. In
Diocese of Bacolod v. COMELEC, the Court
recognized that [t]he right to freedom of
expression is not absolute [and that] some
forms of speech are still subject to some
restrictions.
b. Defamation and Libel
Libel
Libel is not constitutionally protected speech.
The government has an obligation to protect
individuals from defamation [Disini v. Sec. of
Justice, G.R. No. 203335 (2014)].
The onus of proving malice shifts to the plaintiff,
who must prove that the defendants were
actuated by ill will in what they caused to be
published, with a design to injure the plaintiff.
In US v. Bustos, supra, a criminal action was
instituted against defendants for allegedly
publishing writings which were libelous against
a justice of the peace. The SC held that the
said writings constitute qualifiedly privileged
matter as public opinion, therefore, they cannot
be presumed malicious.
In In Re: Jurado, supra, the SC held that false
reports about a public official or other person
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are not shielded from sanction by the right to
free speech. Free speech has never
countenanced the publication of falsehoods,
especially the persistent and unmitigated
dissemination of patent lies.
Group Libel
Where the defamation is alleged to have been
directed at a group or class, it is essential that
the statement must be so sweeping or all-
embracing as to apply to every individual in that
group or class, or sufficiently specific so that
each individual in the class or group can prove
that the defamatory statement specifically
pointed to him, so that he can bring the action
separately, if need be [Newsweek Inc. v. IAC,
G.R. No. L-63559 (1986)].
As the size of these groups increases, the
chances for members of such groups to
recover damages for tortious libel become
elusive. This principle is said to embrace two
important public policies:
(1) Where the group referred to is large, the
courts presume that no reasonable reader
would take the statements as so literally
applying to each individual member; and 

(2) The limitation on liability would
satisfactorily safeguard freedom of speech
and expression, as well as of the press,
effecting a sound compromise between the
conflicting fundamental interests involved
in libel cases [MVRS v. Islamic Da’wah
Council of the Philippines, G.R. No.
135306 (2003)]. 

c. Sedition and Speech in Relation to
Rebellion
Heckler’s Veto
Heckler’s veto is an attempt to limit unpopular
speech. This occurs when an acting party’s
right to freedom of speech is curtailed or
restricted by the government in order to
prevent a reacting party’s behavior.
For example, an unpopular group wants to hold
a rally and asks for a permit. The government
is not allowed to refuse the permit based on the
beliefs of the applicants, but the government
may deny the permit on the ground of fear that
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many people will be outraged and cause Various tests previously developed to
violent protests, not because the government determine obscenity
disapproves of the group’s message. Roth v. US Memoirs v. Miller v.
Massachuset California
Under the free speech clause, the government ts (Most
may not silence speech based on the reaction recent)
(or anticipated reaction) of a hostile audience, Whether, to A work is A work is
unless there is a clear and present danger of the average obscene if: obscene if:
grave and imminent harm, which is not easy to person,
prove. applying (1) The (1) Whether
contempora dominant the average
[Also refer to F.2.c. Incitement and Advocacy] ry theme of the person,
community material taken applying
d. Obscenity/Pornography standards, as a whole contempora
the appeals to ry
Obscenity dominant prurient community
The State in pursuing its mandate to protect, as theme of the interest in sex; standards,
parens patriae, the public from obscene, material, (2) Material is would find
immoral and indecent materials must justify the taken as a patently that the
regulation or limitation. whole, offensive work, taken
appeals to because it as a whole,
One such regulation is Article 201 of the prurient affronts appeals to
Revised Penal Code. To be held liable, the interest. contemporary the prurient
prosecution must prove that (a) the materials, [354 U.S. community interest;
publication, picture or literature are obscene; 476 (1957)] standards (2) Whether
and (b) the offender sold, exhibited, published relating to the the work
or gave away such materials. Necessarily, that description or depicts or
the confiscated materials are obscene must be representation describes,
proved. 
 of sexual in an
matters; offensive
No one will be subject to prosecution for the (3) Material is way, sexual
sale or exposure of obscene materials utterly without conduct or
unless these materials depict or describe redeeming excretory
patently offensive hard core sexual social value functions,
conduct. Examples included (a) patently [383 U.S. 413 specifically
offensive representations or descriptions of (1966)] defined by
ultimate sexual acts, normal or perverted, applicable
actual or simulated; 
and (b) patently offensive state law;
representations or descriptions of and
masturbation, excretory functions, and lewd (3) Whether
exhibition of the genitals. [Miller v. California, the work,
413 U.S. 15, (1973)] taken as a
whole, lacks
What remains clear is that obscenity is an issue serious
proper for judicial determination and should be literary,
treated on a case to case basis and on the artistic,
judge’s sound discretion. political, or
scientific
value [413
U.S. 15
(1973)]

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Freedom of Expression and Obscenity
Determination: Community Standard
 Comm’n [447 U.S. 557 (1980)] established the
Pictures depicting inhabitants of the country in
their native dress as they appear and can be
seen in the regions in which they live are not
obscene or indecent. The pictures in question
merely depict persons as they actually live,
without attempted presentation of persons in
unusual postures or dress. [People v.
Kottinger, supra].
A dance portraying the life of a widow who lost
her husband cannot be considered protected
speech if the audience, about a hundred
customers, was howling and shouting, “sige
muna, sige nakakalibog” (go ahead, go ahead,
it is erotic), during the performance [People v.
Aparici, supra].
Central Hudson Gas & Elec. v. Public Svc.
test to be applied to regulations on commercial
speech:
(1) Speech must not be false, misleading,
or 
proposing an illegal activity; 

(2) Government interest sought to be
served by 
regulation must be
substantial; 

(3) The regulation must advance
government 
interest; and 

(4) The regulation must not be overbroad. 

Political Speech
Political speech is pure and protected speech.
The government is required to prove a “true
threat”, it cannot punish mere political
hyperbole [Watts v. US, 394 U.S. 705 (1969)].

Child Pornography A tarpaulin that expresses a political opinion

The State is entitled to greater leeway in the constitutes political speech. Speech that
regulation of pornographic depictions of promotes dialogue on public affairs, or airs out
children because:
 grievances and political discontent, should be
a. A state’s interest in safeguarding the protected and encouraged [Diocese of Bacolod
physical and psychological well-being of a v. COMELEC, G.R. No. 205728 (2015)].
minor is compelling. The prevention of
sexual exploitation and abuse of children Political Speech Commercial
constitutes a government objective of Speech
surpassing importance. Speech "both Speech that does
b. Distribution of photographs and films intended and "no more than
depicting sexual activity by juveniles is received as a propose a
intrinsically related to the sexual abuse of contribution to public commercial
children. 
 deliberation about transaction."
c. Advertising and selling of child some issue,"
pornography provide an economic motive "foster[ing] informed
for, and are thus an integral part of, the and civic minded
production of such materials. deliberation."
d. Value of permitting live performances and
photographic reproductions of children f. National Emergencies
engaged in lewd sexual conduct is
exceedingly modest. 
 One of the misfortunes of an emergency,
particularly, that which pertains to security, is
e. Commercial Speech that military necessity and the guaranteed
rights of the individual are often not compatible.
Commercial speech is a separate category of The right against unreasonable search and
speech which is not accorded the same level of seizure; the right against warrantless arrest;
protection as that given to other constitutionally and the freedom of speech, of expression, of
guaranteed forms of expression but is the press, and of assembly under the Bill of
nonetheless entitled to protection. Rights suffered the greatest blow. [David v.
Macapagal-Arroyo, supra.]

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g. Speech of Public Officers
Parliamentary immunity guarantees the
members of Congress the freedom of
expression without fear of being held
responsible in criminal or civil actions before
courts or fora outside of Congress, but this
does not protect them from being held
responsible by the legislative body. The
members may nevertheless be questioned in
Congress itself.
For unparliamentary conduct, members of the
Congress have been or could be censured,
committed to prison, or even expelled by the
votes of their colleagues [Osmeña v.
Pendatun, G.R. No. L-17144 (1960)].
A libelous letter of a congressman, published in
a newspaper, does not fall under “speech or
debate” protected by the Constitution. Speech
or debate refers to speeches, statements, or
votes made within Congress while it is in
session, or duly authorized actions of
congressmen in the discharge of their duties
[Jimenez v. Cabangbang, G.R. No. L-15905
(1966)].
False reports about a public official or other
person are not shielded by the right to free
speech enshrined in the Constitution. Making
knowingly false statements made with reckless
disregard of the truth does not enjoy
constitutional protection. The guaranty of free
speech cannot be considered as according
protection to the disclosure of lies, gossip or
rumor [In Re: Jurado, supra].
5. Cognate rights
a. Freedom of assembly
The right to peaceably assemble and petition
for redress of grievances is, together with
freedom of speech, of expression, and of the
press, a right that 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
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rights would be meaningless and unprotected
[Bayan v. Ermita, G.R. No. 169838 (2006)].
City or town mayors are not conferred the
power to refuse to grant the permit, but only the
discretion in issuing the permit to determine or
specify the streets or public places where the
parade may pass or the meeting may be held
[Primicias v. Fugoso, G.R. No. L-1800 (1948)].
Absent any clear and present danger of a
substantive evil that the State has a right to
prevent, the right to peaceable assembly in
public places like streets and parks cannot be
denied [Reyes v. Bagatsing, supra].
B.P. Blg. 880 Is Not Unconstitutional
B.P. Blg. 880 is not an absolute ban on public
assemblies but a restriction that merely
regulates the time, place, and manner of the
assemblies. A fair and impartial reading of B.P.
Blg. 880 readily shows that it refers to all kinds
of public assemblies that would use public
places [Bayan v. Ermita, supra].
Freedom Parks: B.P. Blg. 880 provides that
every city and municipality must set aside a
freedom park within six months from the law’s
effectivity in 1985. Sec. 15 of the law provides
for an alternative forum through the creation of
freedom parks where no prior permit will be
needed for peaceful assembly and petition at
any time. Without such alternative forum, to
deny the permit would in effect be to deny the
right to peaceably assemble [Bayan v. Ermita,
supra].
The Calibrated Preemptive Response (CPR)
Insofar as it would purport to differ from or be
in lieu of maximum tolerance, it is null and void.
CPR serves no valid purpose if it means the
same thing as maximum tolerance [Sec. 3(c),
B.P. Blg. 880], and is illegal if it means
something else. Accordingly, what must be
followed is maximum tolerance, which is
mandated by the law itself [Bayan v. Ermita,
supra].
As a necessary consequence and a part of
maximum tolerance, rallyists who are able to
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given date can, after two (2) days from said
date, rally in accordance with their application
without the need to show a permit, the grant of
the permit being then presumed under the law.
It will be the burden of the authorities to show
that there has been a denial of the application,
in which case the rally may be peacefully
dispersed following the procedure of maximum
tolerance provided by the law [Bayan v. Ermita,
supra].
b. Freedom of Association
Sec. 8, Art. III. The right of the people,
including those employed in the public and
private sectors, to form unions, association,
or societies for purposes not contrary to law
shall not be abridged.
Sec. 3, Art. XIII. The State shall afford full
protection to labor, local and overseas,
organized and unorganized, and promote
full employment and equality of employment
opportunities for all.
It shall guarantee the rights of all workers to
self organization, collective bargaining and
negotiations, and peaceful concerted
activities, including the right to strike in
accordance with law. They shall be entitled
to security of tenure, humane conditions of
work, and a living wage. They shall also
participate in policy and decision-making
processes affecting their rights and benefits
as may be provided by law. xxx
Sec. 2(5), Art. IX-B. The right to self-
organization shall not be denied to
government employees.
Our Constitution likewise recognizes the
freedom to form associations for purposes not
contrary to law. [Gonzales v. COMELEC, G.R.
No. L-27833 (1969)].
How should the limitation “for purposes not
contrary to law” be interpreted? Unless an
association or society could be shown to create
an imminent danger to public safety, there is no
justification for abridging the right to form
associations.
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The government must comply with the heavy
burden of showing that the organization in fact
presents a clear and present danger of
substantive evil which the State has the right to
protect [BERNAS].
Scope
The right is recognized as belonging to people
whether employed or unemployed, and
whether in the government or in the private
sector. It includes the right to unionize.
The State does not infringe on the fundamental
right to form lawful associations when it leaves
to citizens the power and liberty to affiliate or
not affiliate with labor unions [Victoriano v.
Elizalde Rope Workers Union, G.R. No. L-
25246 (1974)].
Every group has a right to join the democratic
process, association itself being an act of
expression of the member’s belief, even if the
group offends the sensibilities of the majority.
Any restriction to such requires a compelling
state interest to be proven by the State [Ang
Ladlad LGBT Party v. COMELEC, G.R. No.
190582 (2010)].
Political parties may freely be formed although
there is a restriction on their activities [...] but
the ban is narrow, not total. It operates only on
concerted or group action of political parties.
A political group should not be hindered solely
because it seeks to publicly debate
controversial political issues in order to find
solutions capable of satisfying everyone
concerned. Only if a political party incites
violence or puts forward policies that are
incompatible with democracy does it fall
outside the protection of the freedom of
association guarantee [Ang Ladlad LGBT Party
v. COMELEC, supra].
Freedom not to associate
Freedom of association presupposes freedom
not to associate [Roberts v. United States
Jaycees, supra].
Government actions that unconstitutionally
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which is intrusion into a group’s internal affairs
by forcing it to accept a member it does not
desire. Such forced membership is
unconstitutional if the person’s presence
affects in a significant way the group’s ability to
advocate public or private viewpoints [Boy
Scouts of America v. Dale, 530 U.S. 640
(2000)].
Land Ownership
There may be situations in which, by entering
into a contract, one may also be agreeing to
join an association [BERNAS].
If one buys a lot with a title that states that the
lot owner automatically becomes a member of
a homeowners’ association, then they are
considered to have voluntarily joined the
association.
The essence of community life is association
and cooperation for without these such broader
welfare goals cannot be attained. It is for these
reasons that modem subdivisions are imposing
encumbrance upon titles of prospective lot
buyers a limitation upon ownership of the said
buyers that they automatically become
members of homeowners' association living
within the community of the subdivision [Bel-Air
Village Association v. Dionisio, G.R. No. L-
38354 (1989)].
Upon acceptance by the Board [...] all real
estate owners, or long-term lessees of lots
within the boundaries of the Association as
defined in the Articles of Incorporation become
regular members. No application for
membership is necessary. The automatic
membership clause is not a violation of the right
to freedom of association. PADCOM was never
forced to join the association. [...] PADCOM
voluntarily agreed to be bound by and respect
the condition, and thus to join the Association
[Padcom Condominium Corporation v. Ortigas
Center Association, Inc., G.R. No. 146807
(2002)].
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Labor
It is the policy of the State to promote unionism
to enable the workers to negotiate with
management on the same level and with more
persuasiveness than if they were to individually
and independently bargain for the
improvement of their respective conditions.
To this end, the Constitution guarantees to
them the rights “to self-organization, collective
bargaining and negotiations and peaceful
concerted actions including the right to strike in
accordance with law” [Liberty Flour Mills
Employees v. Liberty Flour Mills, G.R. No.
58768-70 (1989)].
The right to association and the right to
unionize do not include the right to conduct
strikes, walkouts, and other temporary work
stoppages [SSS Employees Association v. CA,
G.R. No. 85279 (1989); Manila Public School
Teachers Assoc. v. Laguio Jr., G.R. No. 95445
(1991)].
Integrated Bar of the Philippines
To compel a lawyer to be a member of an
integrated Bar is not violative of his
constitutional freedom to associate (or the
corollary right not to associate).
Integration does not make a lawyer a member
of any group of which he is not already a
member. He became a member of the Bar
when he passed the Bar examinations. All that
integration actually does is to provide an official
national organization for the well-defined but
unorganized and incohesive group of which
every lawyer is already a member.
Bar integration does not compel the lawyer to
associate with anyone. He is free to attend or
not attend the meetings of his Integrated Bar
Chapter or vote or refuse to vote in its elections
as he chooses. The body compulsion to which
he is subjected is the payment of annual dues
[In Re Integration of the Bar of the Philippines
(1973)].

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c. Freedom of Information
Sec. 7, Art. III: The right of the people to
information on matters of public concern
shall be recognized. Access to official
records, and to documents and papers
pertaining to official acts, transactions, or
decisions, as well as to government research
data used as basis for policy development,
shall be afforded the citizen, subject to such
limitations as may be provided by law.
Sec. 28, Art. II: Subject to reasonable
conditions prescribed by law, the State
adopts and implements a policy of full public
disclosure of all its transactions involving
public interest.
Sec. 10, Art. XVI:
The State shall provide the policy
environment for the full development of
Filipino capability and the emergence of
communication structures suitable to
the needs and aspirations of the nation
and the balanced flow of information
into, out of, and across the country, in
accordance with a policy that respects
the freedom of speech and of the press.
POLICY OF FULL PUBLIC DISCLOSURE Vs.
RIGHT TO INFORMATION [IDEALS v.
PSALM, G.R. No. 192088 (2012)]
Policy of Full Public Disclosure [Sec. 28, Art.
II]
● Covers all transactions involving public
interest, including any matter contained in
official communications and public
documents of the government agency.
● Does not require demand
● Pertains to duty to disclose of the
government, pursuant to the policy of full
public disclosure.
Right to Information on Matters of Public
Concern [Art. III, Sec. 7, Art. III]
● Covers matters of public concern.
Public Concern
No exact definition and adjudicated by the
courts on a case-by-case basis, but examples
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abound in jurisprudence (e.g. peace
negotiations, board exams, PCGG
compromise agreements, civil service
matters).
● Requires demand or request required
to gain access.
● Pertains to duty to permit access to
information on matters of public
concern.
These twin provisions of the Constitution seek
to promote transparency in policy-making and
in the operation of the government, as well as
provide the people sufficient information to
exercise effectively other constitutional rights.
These twin provisions are also essential to hold
public officials “at all times accountable to the
people”, for unless the citizens have the proper
information, they cannot hold public officials
accountable for anything [Chavez v. PEA and
Amari, G.R. No. 133250 (2002)].
“Public concern” like “public interest” embrace
a broad spectrum of subjects which the public
may want to know, either because these
directly affect their lives, or simply because
such matters naturally arouse the interest of an
ordinary citizen [Legazpi v. CSC, G.R. No. L-
72119 (1987)].
Right to Information covers matters of
public concern, e.g.,
1. Official records
2. Documents pertaining to official acts
3. Government research date used as basis for
policy development
Matters of public concern in jurisprudence
● Loanable funds of GSIS [Valmonte v.
Belmonte, G.R. No. 74930 (1989)]
● Civil service eligibility of sanitarian
employees [Legazpi v. CSC, supra]
● Appointments made to public offices and
the utilization of public property [Gonzales
v. Narvasa, G. R. No. 140835 (2000)]
● National board examinations such as the
CPA Board Exams [Antolin v. Domondon,
G.R. No.165036 (2010)]

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● Names of nominees of partylists [Bantay
Republic v. COMELEC, G.R. No. 177271
(2007)]
● Negotiations leading to the consummation
of the transaction [Chavez v. PEA and
Amari, supra]
COURT HEARINGS
Right of accused over right to public
information
With the possibility of losing not only the
precious liberty but also the very life of an
accused, it behooves all to make absolutely
certain that an accused receives a verdict
solely on the basis of a just and dispassionate
judgment. [Re: Request for Live Radio-TV
Coverage of the Trial in the Sandiganbayan of
the Plunder Cases against former President
Joseph Ejercito Estrada, A.M. No. 00-1-4-03-
SC (2001)]
Limitations
The right of the people to information must be
balanced against other genuine interests
necessary for the proper functioning of the
government [BERNAS].
Restrictions to the right to information may
be:
a. Based on kinds of information
b. Based on access
c. Based on reasonable regulation for the
convenience of and for order in the office
that has custody of the documents
[Baldoza v. Dimaano, A.M. No. 1120-MJ
(1976)]
d. Based on availability.
a. Restrictions to the Right to Information
Based on Kinds of Information
Exempted information
1. Privileged information rooted in separation of
powers
2. Information of military and diplomatic secrets
3. Information affecting national and economic
security
4. Information on investigations of crimes by
law enforcers before prosecution [Chavez v.
PEA and Amari, supra]
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5. Trade secrets and banking transactions
[Chavez v. PCGG, G.R. No. 130716 (1998)]
6. Offers exchanged during diplomatic
negotiations [Akbayan v. Aquino, G.R. No.
170516 (2008)]
7. Other confidential matters (i.e. RA 6713,
closed door Cabinet meetings, executive
sessions, or internal deliberations in the
Supreme Court) [Chavez v. PCGG, supra]
b. Restrictions to the Right to Information
Based on Access
1. Opportunity to inspect and copy records
at his expense [Chavez v. PEA and Amari,
supra]
2. Not the right to compel custodians of
official records to prepare lists, abstracts,
summaries and the like [Valmonte v.
Belmonte, supra]
c. Restrictions to the Right to Information
Based on Reasonable Regulation for
the Convenience of and for Order in the
Office That has Custody of the
Documents
Discretion does not carry with it the authority to
prohibit access, inspection, examination, or
copying [Lantaco v. Llamas, A.M. No. 1037-CJ
(1981)].
The authority to regulate the manner of
examining public records does not carry with it
the power to prohibit; thus, while the manner of
examining public records may be subject to
reasonable regulation by the government
agency in custody thereof, the duty to disclose
the information of public concern, and to afford
access to public records cannot be
discretionary on the part of said agencies
[Legaspi v. CSC, G.R. No. L-72119 (1987)].
d. Restrictions to the Right to Information
Based on Availability
The right is available only to citizens.
In case of denial of access, the government
agency has the burden of showing that the
information requested is not of public concern,

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or if it is of public concern, that the same has
been exempted by law from the operation of
the guarantee [Legaspi v. CSC, supra].
Access to Court Records
Court personnel shall not disclose to any
unauthorized person any confidential
information acquired by them while employed
in the judiciary, whether such information came
from authorized or unauthorized sources.
Confidential information means information not
yet made a matter of public record relating to
pending cases, as well as information not yet
made public concerning the work of any justice
or judge relating to pending cases, including
notes, drafts, research papers, internal
discussions, internal memoranda, records of
internal deliberations and similar papers.
The notes, drafts, research papers, internal
discussions, internal memoranda, records of
internal deliberations and similar papers that a
justice or judge uses in preparing a decision,
resolution or order shall remain confidential
even after the decision, resolution or order is
made public [Sec. 1, Canon II, Confidentiality
Code of Conduct for Court Personnel, A.M. No.
03-06-13-SC].
Decisions are matters of public concern and
interest.
Pleadings and other documents filed by parties
to a case need not be matters of public concern
or interest. They are filed for the purpose of
establishing the basis upon which the court
may issue an order or a judgment affecting
their rights and interest.
Access to court records may be permitted at
the discretion and subject to the supervisory
and protective powers of the court, after
considering the actual use or purpose for which
the request for access is based and the
obvious prejudice to any of the parties [Hilado,
et al v. Judge, G.R. No. 163155 (2006)].
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Right to Information Relative to
Government Contract Negotiations
The constitutional right to information includes
official information on on-going negotiations
before a final contract. The information,
however, must constitute definite propositions
by the government, and should not cover
recognized exceptions [Chavez v. PEA and
Amari, supra].
While evaluation of bids or proposals is on-
going, there are no “official acts, transactions,
or decisions.” However, once the committee
makes an official recommendation, there
arises a definite proposition. From this
moment, the public’s right to information
attaches, and any citizen can assail the
nonproprietary information leading to such
definite propositions [Chavez v. PEA and
Amari, supra].
Right to Information Relative to Diplomatic
Negotiations
Diplomatic secrets (Diplomatic Negotiations
Privilege) Secrecy of negotiations with foreign
countries is not violative of the right to
information. Diplomacy has a confidential
nature. While the full text [of the JPEPA] may
not be kept perpetually confidential, it is in line
with the public interest that the offers
exchanged during negotiations continue to be
privileged information. Furthermore, the
information sought includes docs produced
and communicated by a party external to the
Philippine government. However, such
privilege is merely presumptive, and will not
apply to all cases [Akbayan v. Aquino, supra].
Presidential Communications Privilege V.
Deliberative Process Privilege [Neri v.
Senate Committee, G.R. No. 180643 (2008)]
Presidential Communications Privilege
It applies to decision-making of the President;
rooted in the constitutional principle of
separation of power and the President's unique
constitutional role; applies to documents in
their entirety, and covers final and post-
decisional materials as well as pre-deliberative
ones; meant to encompass only those

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functions that form the core of presidential
authority.
Requisites
a. The communications relate to a
"quintessential and non-delegable power"
of the President
b. The communications are "received" by a
close advisor of the President.
c. There is no adequate showing of a
compelling need that would justify the
limitation of the privilege and of the
unavailability of the information elsewhere
by an appropriate investigating authority.
Deliberative Process Privilege
Applied to decision-making of executive
officials; rooted in common law privilege; that
there is a “governmental privilege against
public disclosure with respect to state secrets
regarding military, diplomatic and other
security matters.
G. FREEDOM OF RELIGION
Sec. 5, Art. III. No law shall be made
respecting an establishment of religion; or
prohibiting the free exercise thereof. The
free exercise and enjoyment of religious
profession and worship, without
discrimination or preference, shall forever be
allowed. No religious test shall be required
for the exercise of civil or political rights.
1. Basic Principles
a. Purpose
The twin clauses of free exercise and non-
establishment express an underlying relational
concept of separation between religion and
secular government. [BERNAS, supra].
The constitutional inhibition on legislation on
the subject of religion has a double aspect. On
the one hand, it forestalls compulsion by law of
the acceptance of any creed or the practice of
any form of worship. Freedom of conscience
and freedom to adhere to such religious
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organization or form of worship as the
individual may choose cannot be restricted by
law. On the other hand, it safeguards the free
exercise of the chosen form of religion. Thus,
the Amendment embraces two concepts –
freedom to believe and freedom to act. The first
is absolute, but in the nature of things, the
second cannot be. [Cantwell v. Connecticut,
310 U.S. 296, 303-4 (1940)].
b. Concept of Religion
“In Philippine jurisprudence, religion, for
purposes of the religion clauses, has thus far
been interpreted as theistic. In 1937, the
Philippine case of Aglipay v. Ruiz involving the
Establishment Clause, defined religion as a
profession of faith to an active power that binds
and elevates man to his Creator. Twenty years
later, the Court cited the Aglipay definition in
American Bible Society v. City of Manila, a
case involving the Free Exercise clause. The
latter also cited the American case of Davis in
defining religion, viz: “(i)t has reference to one’s
views of his relations to His Creator and to the
obligations they impose of reverence to His
being and character and obedience to His Will”
[Estrada v. Escritor, A.M. No. P-02-1651
(2003)].
Note: The Davis definition has been expanded
to include non-theistic beliefs, but only in U.S.
jurisprudence [Estrada v. Escritor, supra].
2. Principle of Separation of
Church and State
Standards used in Deciding Religion Clause
Cases:
Separation
Protects the principle of church-separation with
a rigid reading of the principle
Strict Separation
● The wall of separation is meant to protect
the state from the church
● There is an absolute barrier to formal
interdependence of religion and state
● There is hostility between the two

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Strict Neutrality or tamer separation
● Requires the state to be neutral in its
relation with groups of religious believers;
the relationship is not necessarily
adversarial
● Allow for interaction between church and
state, but is strict with regard to state action
which would threaten the integrity of
religious commitment
● The basis of government action has a
secular criteria and religion may not be
used as a basis for classification of
purposes
● Public policy and the constitution require
the government to avoid religion-specific
policy
Benevolent Neutrality and the Doctrine of
Accommodation
● It protects religious realities, tradition, and
established practice with a flexible reading
of the principle of separation of church and
state.
● The Doctrine of Accommodation allows the
government to take religion into account
when creating government policies to allow
people to exercise their religion without
hindrance. The government may take
religion into account to exempt, when
possible, from generally applicable
governmental regulation individuals whose
religious beliefs and practices would be
infringed, or to create without state
involvement, an atmosphere in which
voluntary religious exercise may flourish.
● The breach in the wall between church and
state is allowed in order to uphold religious
liberty, which is the integral purpose of the
religion clauses. The purpose of
accommodation is to remove the burden on
a person’s exercise of his religion.
● Although morality contemplated in laws is
secular, benevolent neutrality could allow
for accommodation of morality based on
religion, provided it does not offend
compelling state interests [Estrada v.
Escritor, supra].
The use of Benevolent Neutrality as a
standard could result in three situations of
accommodation:
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Mandatory Accommodation
Those where the accommodation is required to
preserve free exercise protections and not
unconstitutionally infringe on religious liberty or
create penalties for religious freedom.
Permissive Accommodation
The state may, but is not required to,
accommodate religious interests.
Prohibited Accommodation
It is when establishment concerns prevail over
potential accommodation interests [Estrada v.
Escritor, supra].
Note: In Estrada v. Escritor, the petitioner filed
a complaint against the respondent, who was a
court employee, praying for her dismissal on
account of immorality for cohabiting with a man
not her husband. The respondent claims that
their arrangement is permitted by her religion.
Estrada is a carefully crafted doctrine, the use
of which is limited for the protection of religious
minorities.
3. Non-establishment Clause
Concept
“From the religious perspective, religion
requires voluntarism because compulsory faith
lacks religious efficacy. Compelled religion is a
contradiction in terms … Such voluntarism
cannot be achieved unless the political process
is insulated from religion and unless religion is
insulated from politics. Non-establishment thus
calls for government neutrality in religious
matters to uphold voluntarism and avoid
breeding interfaith dissension” [Estrada v.
Escritor, supra].
The clause prohibits excessive government
entanglement with, endorsement or
disapproval of religion [Victoriano v. Elizalde
Rope Workers Union, supra].
Basis
“[T]he principle of separation of Church and
State is based on mutual respect. Generally,
the State cannot meddle in the internal affairs

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of the church, much less question its faith and
dogmas or dictate upon it. It cannot favor one
religion and discriminate against another. On
the other hand, the church cannot impose its
beliefs and convictions on the State and the
rest of the citizenry. It cannot demand that the
nation follow its beliefs, even if it sincerely
believes that they are good for the country”
[Imbong v. Ochoa, G.R. No. 204819 (2014), on
the constitutionality of the RH Law].
Rooted in the separation of Church and State.
Relevant provisions of the Constitution
● Sec. 6, Art. II: “The separation of Church
and State shall be inviolable.”
● Sec. 2(5), Art. IX-C: “Religious
denominations and sects shall not be
registered [as political parties].”
● Sec. 5(2), Art. VI: “For three consecutive
terms after the ratification of this
Constitution, one-half of the seats
allocated to party-list representatives shall
be filled, as provided by law, by selection
or election from […] sectors as may be
provided by law, except the religious
sector.”
Acts not Permitted by Non- Establishment
Clause
● Prayer and Bible-reading in public schools
[Abington School District v. Schemp, 374
U.S. 203 (1963)]
● Financial subsidy for parochial schools
[Lemon v. Kurtzman, 403 U.S. 602 (1971)]
● Religious displays in public spaces:
Display of granite monument of 10
commandments in front of a courthouse is
unconstitutional for being unmistakably
non-secular [Glassroth v. Moore, 335 F.3d
1282 (2003)]
● Mandatory religious subjects or prohibition
of secular subjects (evolution) in schools
[Epperson v. Arkansas, 393 U.S. 97
(1968)]
● Mandatory bible reading in school (a form
of preference for belief over non-belief)
[School District v. Schempp, 374 U.S. 203
(1963)]
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Acts Permitted by Non-Establishment
Clause
CONSTITUTIONALLY CREATED
1. Tax exemption
Sec. 28 (3), Art. VI. Charitable institutions,
churches and personages or convents
appurtenant thereto, mosques, non-profit
cemeteries, and all lands, buildings, and
improvements, actually, directly, and
exclusively used for religious, charitable, or
educational purposes shall be exempt from
taxation.
2. Operation of sectarian schools
Sec. 4(2), Art. XIV. Educational institutions,
other than those established by religious
groups and mission boards, shall be owned
solely by citizens of the Philippines or
corporations or associations at least sixty per
centum of the capital of which is owned by such
citizens
3. Religious instruction in public schools
Sec. 3(3), Art. XIV. At the option expressed in
writing by the parents or guardians, religion
shall be allowed to be taught to their children or
wards in public elementary and high schools
within the regular class hours by instructors
designated or approved by the religious
authorities of the religion to which the children
or wards belong, without additional cost to the
Government.
4. Limited public aid to religion
Sec. 29(2), Art. VI. No public money or property
shall be appropriated, applied, paid, or
employed, directly or indirectly, for the use,
benefit, or support of any sect, church,
denomination, sectarian institution, or system
of religion, or of any priest, preacher, minister,
other religious teacher, or dignitary as such,
except when such priest, preacher, minister, or
dignitary is assigned to the armed forces, or to
any penal institution, or government orphanage
or leprosarium.

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Test to determine the constitutionality of
policies challenged under the
Establishment Clause (Lemon Test)
(a) The statute must have a secular
legislative purpose;
(b) Its primary or principal effect must be
one that neither advances nor inhibits
religion.
(c) The statute must not foster an
excessive entanglement with religion
[Estrada v. Escritor, supra].
Jurisprudence
● Religious activities with secular
purpose/character. — Postage stamps
depicting the Philippines as the site of a
significant religious event – promotes
Philippine tourism [Aglipay v. Ruiz, G.R.
No. L-45459].
● Government sponsorship of town fiestas. –
has secular character [Garces v. Estenzo,
G.R. No. L- 53487 (1981)]
● Book lending program for students in
parochial schools. – benefit to parents and
students [Board of Education v. Allen, 392
U.S. 236 (1968)]
● Display of crèche in a secular setting –
depicts origins of the holiday [Lynch v.
Donnely, 465 U.S. 668 (1984)]
● Financial support for secular academic
facilities (i.e. library and science center) in
parochial schools – has secular use [Tilton
v. Richardson, 403 U.S. 672 (1971)]
● Exemption from zoning requirements to
accommodate unique architectural
features of religious buildings i.e.
Mormon’s tall pointed steeple [Martin v.
Corporation of the Presiding Bishop, 434
Mass. 141 (2001)]
4. Free Exercise Clause
The Free Exercise Clause affords absolute
protection to individual religious convictions.
However, the government is able to regulate
the times, places, and manner of its exercise
[Cantwell v. Connecticut]. “Under the Free
Exercise Clause, religious belief is absolutely
protected, religious speech and proselytizing
are highly protected but subject to restraints
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applicable to non-religious speech, and
unconventional religious practice receives less
protection; nevertheless conduct, even if it
violates the law, could be accorded protection”
[Estrada v. Escritor, supra].
Dual Aspect
a. Freedom to believe – absolute
b. Freedom to act on one’s belief – subject to
regulation
Conduct remains subject to regulation for the
protection of society. The freedom to act must
have appropriate definitions to preserve the
enforcement of that protection. In every case,
the power to regulate must be so exercised, in
attaining a permissible end, as not to unduly
infringe on the protected freedom.
Whence, even the exercise of religion may be
regulated, at some slight inconvenience, in
order that the State may protect its citizens
from injury. Without doubt, a State may protect
its citizens from fraudulent solicitation by
requiring a stranger in the community, before
permitting him publicly to solicit funds for any
purpose, to establish his identity and his
authority to act for the cause which he purports
to represent. The State is likewise free to
regulate the time and manner of solicitation
generally, in the interest of public safety,
peace, comfort, or convenience.
In a nutshell, the Constitution guarantees the
freedom to believe absolutely, while the
freedom to act based on belief is subject to
regulation by the State when necessary to
protect the rights of others and in the interest of
public welfare [Valmores v. Achacoso, G.R.
No. 217453 (2017)].
Laws and Acts Justified under Free
Exercise Clause
Exemption from flag salute in school [Ebralinag
v. Division Superintendent of Schools of Cebu,
G.R. No. 95770 (1993)]
Freedom to propagate religious doctrines: The
power to tax the exercise of the privilege is the
power to control or suppress its enjoyment

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[American Bible Society v. City of Manila, G.R.
No. L9637 (1957)].
Non-disqualification of religious leaders from
local government office [Pamil v. Teleron, G.R.
No. L-34854 (1978)]
Working hours from 7:30 am to 3:30 pm without
break during Ramadan [Re: Request of Muslim
Employees in the Different Courts of Iligan City,
A.M. No. 02-2-10-SC (2005)]
Exemption from administrative charge on
immorality: Cohabiting with a married man with
church sanction evidenced by a document of
“Declaration of Pledging Faithfulness” [Estrada
v. Escritor, supra].
Tests
a. Clear and Present Danger
Used for religious speech.
In order to justify restraint the court must
determine whether the expression presents a
clear and present danger of any substantive
evil, which the state has a right to prevent
[American Bible Society v. City of Manila,
supra, citing Tañada and Fernando on the
Constitution of the Philippines, Vol. 1, 4th ed.,
p. 297].
b. Benevolent Neutrality – Compelling
State Interest
Under the Benevolent Neutrality Doctrine, this
is the proper test where conduct arising from
religious belief is involved.
1. Has the gov’t action created a burden on
the free exercise? Court must look into
sincerity (but not truth) of belief.
2. Is there a compelling state interest to
justify the infringement?
3. Are the means to achieve the legitimate
state objective the least intrusive? [Estrada
v. Escritor, supra]
Duty to Refer in the RH Law is violative of
the Free Exercise Clause
The provisions mandating a “hospital or a
medical practitioner to immediately refer a
person seeking health care and services under
the law to another accessible healthcare
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provider despite their conscientious objections
based on religious or ethical beliefs” is violative
of free exercise. The Court held that this opt-
out class is a false compromise because it
cannot force someone, in conscience, to do
indirectly what they cannot do directly [Imbong
v. Ochoa, supra].
N.B. The Court, however, held that the policy
of the government with regard to the promotion
of contraceptives was not violative of the
establishment clause. “[T]he State is not
precluded to pursue its legitimate secular
objectives without being dictated upon by the
policies of any one religion” [Id.].
Conscientious Objector In the RH Law
Sections 7, 23, and 24 of RA 10354
(Reproductive Health Law) impose upon the
conscientious objector the duty to refer the
patient seeking reproductive health services to
another medical practitioner.
A conscientious objector should be exempt
from compliance with the mandates of the RH
Law. If he is compelled to act contrary to his
religious belief and conviction, it would be
violative of "the principle of non-coercion"
enshrined in the constitutional right to free
exercise of religion.
The Court found no compelling state interest
which would limit the free exercise of
conscientious objectors. Only the prevention of
an immediate danger to the security and
welfare of the community can justify the
infringement of religious freedom. Also,
respondents failed to show that the means to
achieve the legitimate state objective is the
least intrusive means [Imbong v. Ochoa,
supra].

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H. LIBERTY OF ABODE AND
FREEDOM OF MOVEMENT
Sec. 6, Art. III: The liberty of abode and of
changing the same within the limits
prescribed by law shall not be impaired
except upon lawful order of the court. Neither
shall the right to travel be impaired except in
the interest of national security, public safety
or public health, as may be provided by law.
1. Scope and Limitations
Scope
Freedom of movement includes two rights:
1. Liberty of abode
2. Liberty of travel
Limitations
a. Liberty of Abode
May be impaired only upon lawful order of the
court
The court itself is to be guided by the limits
prescribed by law
A condition imposed by the court in connection
with the grant of bail is an example of a valid
limitation to liberty.
b. Liberty of Travel
May be impaired even without a lawful order of
the court
BUT the appropriate executive officer (who
may impair this right) is not granted arbitrary
discretion to impose limitations
He can only do so on the basis of “national
security, public safety, or public health” and “as
may be provided by law” (e.g. Human Security
Act, quarantine)
Impairment of this liberty is subject to judicial
review.
The executive of a municipality does not have
the right to force citizens of the Philippines to
change their domicile from one locality to
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another [Villavicencio v. Lukban, G.R. No. L-
14639 (1919)].
Right to Travel
Restraint on right to travel of accused on bail is
allowed to avoid the possibility of losing
jurisdiction if accused travels abroad [Manotoc
v. CA, G.R. No. L- 62100 (1986)].
OCA Circular No. 49-2003 which requires that
all foreign travels of judges and court personnel
must be with prior permission from the Court
does not restrict, but merely regulates, the right
to travel.
To “restrict” is to restrain or prohibit a person
from doing something, to “regulate” is to govern
or direct according to rule [OCA v. Macarine,
A.M. No. MTJ- 10-1770 (2012)].
A person’s right to travel is subject to usual
constraints imposed by the very necessity of
safeguarding the system of justice. [Marcos v.
Sandiganbayan, G.R. Nos. 115132-34 (1995)].
The right to travel does not mean the right to
choose any vehicle in traversing a toll way. The
right to travel refers to the right to move from
one place to another. The right to travel does
not entitle a person to the best form of transport
or to the most convenient route to his
destination [Mirasol v. DPWH, G.R. No.
158793 (2006)].
2. Watch-list and hold departure
orders
There was no legal basis for Department
Circular No. 41 because of the absence of a
law authorizing the Secretary of Justice to
issue Hold Departure Orders (HDO), Watch
List Orders (WLO), or Allow Departure Order
(ADO).
The Court ruled that the issuance of DOJ
Circular No. 41, without a law to justify its
action, is an unauthorized act of the DOJ of
empowering itself under the pretext of dire
exigency or urgent necessity. [Genuino v. De
Lima, G.R. No. 197930 (2018)].
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jurisdiction over the case and the person of the

Note: the following have been struck down by accused [Santiago v. Vasquez, G.R. Nos.
the Supreme Court as unconstitutional in 99289-90 (1993)].
[Genuino v. De Lima, supra] but is included in
the bar syllabus. Holding an accused in a criminal case within
the reach of the courts by preventing his
Watch list Orders Hold Departure departure from the Philippines must be
Orders considered as a valid restriction on his right to
Against whom issued travel so that he may be dealt with in
a. Accused in a. Accused on accordance with law [Silverio v. CA, G.R. No.
criminal cases criminal cases 94284 (1991)].
(irrespective of (irrespective of
nationality in the nationality in courts Precautionary Hold Departure Order
RTC or below); below RTC); It is an order in writing issued by a court,
commanding the Bureau of Immigration to
b. The respondent, b. Aliens (defendant, prevent any attempt by a person suspected of
irrespective of respondent, and a crime to depart from the Philippines which
nationality, in cases witness in pending shall be issued ex-parte in cases involving
pending before the civil or labor case, or crimes where the minimum of the penalty
DOJ or any of its any case pending prescribed by law is at least six years and one
provincial or city before an day or when the offender is a foreigner
prosecution offices administrative regardless of the imposable penalty [Sec. 1].
agency of the
c. Any person, motu government); Who files an application for a PHDP?
proprio, upon the and Prosecutor
request of any
government agency, c. Any person motu Where filed?
including proprio by the General Rule
commissions, task Secretary of Justice A PHDO is filed with any RTC within whose
forces or similar or request of territorial jurisdiction the alleged crime was
entities created by heads of committed
the Office of the departments,
President, pursuant Constitutional Exceptions
to the Anti- Commissions, For compelling reasons, it can be filed with
Trafficking in Congress, or ANY RTC within the judicial region where the
Persons Act of 2003 Supreme Court crime was committed if the place of the
and/or in connection commission of the crime is known.
with any
investigation being The RTCs in the City of Manila, Quezon City,
conducted by it, or in Cebu City, Iloilo City, Davao City and Cagayan
the interest of de Oro City shall also have the authority to act
national security, on the applications filed by the prosecutor
public safety or based on complaints instituted by the NBI,
public health. regardless where the alleged crime was
Issuing authority committed (Sec. 2).
Secretary of Justice [Department Circular
No. 41, June 7, 2010] Conditions for the issuance of a PHDO
1. Probable cause exists as determined by
A hold departure order is but an exercise of the the judge in whose court the application is
[Sandiganbayan’s] inherent power to preserve filed, and
and to maintain the effectiveness of its

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2. There is a high probability that the
respondent will depart from the Philippines
to evade arrest and prosecution of crime
against him or her.
Validity of the PHDO
The order shall be valid until lifted by the
issuing court as may be warranted by the
preliminary investigation (Sec. 6).
I. EMINENT DOMAIN
1. Concept
Sec. 9, Art. III. Private property shall not be
taken for public use without just
compensation.
The power of eminent domain is the inherent
right of the State to forcibly acquire needed
property upon just compensation, in order to
devote it to the intended public use [CRUZ].
Also called the power of expropriation.
Sec. 9, Art. III merely imposes a limit on the
government’s exercise of this power [Republic
v. Tagle, G.R. No. 129079 (1998)].
The exercise of the right of eminent domain,
whether directly by the State or by its
authorized agents, is necessarily in derogation
of private rights. The authority to condemn is to
be strictly construed in favor of the owner and
against the condemnor. When the power is
granted, the extent to which it may be
exercised is limited to the express terms or
clear implication of the statute in which the
grant is contained [National Power Corp. v.
Tarcelo, G.R. No. 198139 (2014)].
Who May Exercise
The repository of eminent domain powers is
legislature, i.e. exercised through the
enactment of laws. But power may be
delegated to LGUs and other government
entities (via charter); still, the delegation must
be by law [Manapat v. CA, supra].
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Under existing laws, the following may exercise
the power of expropriation:
1. Congress
2. President
3. Local legislative bodies
4. Certain public corporations, like the National
Housing Authority and water districts
[Metropolitan Cebu Water District v. J. King
and Sons Company, Inc., G.R. No. 175983
(2009)].
5. Quasi-public corporations like the Philippine
National Railways (PNR), PLDT, Meralco
Requisites for Valid Exercise
1. Private property
2. Genuine necessity - inherent/presumed in
legislation, but when the power is
delegated (e.g. local government units),
necessity must be proven.
3. For public use - Court has adopted a broad
definition of “public use”
4. Payment of just compensation
5. Due process [Manapat v. CA, supra]
How Exercised
Our laws require that the State's power of
eminent domain shall be exercised through
expropriation proceedings in court. Whenever
private property is taken for public use, it
becomes the ministerial duty of the concerned
office or agency to initiate expropriation
proceedings. [Department of Transportation
and Communication v. Sps. Abecina, G.R. No.
206484, (2016)].
Prior filing of an expropriation case is a
condition sine qua non before the government
is allowed to enter the property being reclaimed
and without which, the government’s
possession over the subject property becomes
illegal [Secretary of the Department of Public
Works and Highways v. Tecson, G.R. No.
179334 (2015)].
HOWEVER, Full payment of just compensation
is not a prerequisite for the Government’s
effective taking of the property; When the
taking of the property precedes the payment of
just compensation, the Government shall
indemnify the property owner by way of interest
[Republic v. Mupas, G.R. No. 181892 (2015)].

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The taking of property is different from the
transfer of the property title from the private
owner to the Government.
Under Rule 67 of the Rules of Court, there are
two phases of expropriation:
(a) the condemnation of the property after it is
determined that its acquisition will be for a
public purpose or public use; and
(b) the determination of just compensation to
be paid for the taking of private property to be
made by the court with the assistance of not
more than three commissioners [Republic v.
Mupas, supra].
Difference Between Eminent Domain
(Compensable Taking) and Regulatory
Taking
1. Eminent domain is an inherent power of
the state based on the Constitution. Just
compensation must be paid.
2. Regulatory taking is the exercise of the
state of its police power. In this case, just
compensation need not be paid.
Examples from Jurisprudence
The imposition of an aerial easement of right-
of-way was held to be compensable taking.
The exercise of the power of eminent domain
does not always result in the taking or
appropriation of title to the expropriated
property; it may also result in the imposition of
a burden upon the owner of the condemned
property, without loss of title or possession
[National Power Corporation v. Gutierrez, G.R.
No. L-60077 (1991)].
A municipal ordinance prohibiting a building
which would impair the view of the plaza from
the highway was considered regulatory taking
[People v. Fajardo, G.R. No. L-12172 (1958)].
Expansive Concept of Public Use
a. Traditional definition
Any use directly available to the general public
as a matter of right and not merely of
forbearance or accommodation.
Where the expropriated property is converted
into a plaza, park, airfield or highway, it thereby
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becomes res communes and, as such, is
subject to direct enjoyment by any and all
members of the public indiscriminately.
There is also public use even if the
expropriated property is not actually acquired
by the government but is merely devoted to
public services administered by privately-
owned public utilities like telephone or light
companies.
Public use may be free or for a fee, as long as
any member of the general public can demand
the right to use the converted property for his
direct and personal convenience [CRUZ].
b. Broadened definition
Public use may also cover uses which, while
not directly available to the public, redound to
their indirect advantage or benefit.
Example: Subdivision of expropriated lands
into small lots for sale at cost to deserving
citizens. Once transferred, the lots cease to be
public property and come under the exclusive
ownership of the transferees.
The requirement of public use is deemed
satisfied because of the vicarious advantages
enjoyed by the people as a whole, by the
promotion of social justice objectives (e.g.
equitable diffusion of property ownership;
agrarian reform; enhancement of the dignity;
welfare and security of the underprivileged).
Examples
Expropriation for slum clearance and urban
development, even if developed area is later
sold to private homeowners, commercial firms,
entertainment and service companies and
other private concerns [Reyes v. NHA, G.R.
No. 147511 (2003)]
Urban land reform and housing, or socialized
housing program involving only a one-half
hectare area [Manapat v. CA, supra]
Under the new concept, "public use" means
public advantage, convenience or benefit,
which tends to contribute to the general welfare
and the prosperity of the whole community, like

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a resort complex for tourists or housing project
[Heirs of Juancho Ardano v. Reyes, 125 SCRA
220 (1983); Sumulong v. Guerrero, 154 SCRA
461 (1987)].
2. Just Compensation
a. Definition
“The property’s fair market value at the time of
the filing of the complaint, or that sum of money
which a person desirous to buy but not
compelled to buy, and an owner willing but not
compelled to sell, would agree on as price to
be given and received therefor” [National
Power Corporation v. Baguio, G.R. No. L-
15763 (2008)].
A full and fair equivalent of the property taken
from the private owner by the expropriator. The
measure is not the taker’s gain but the owner’s
loss.
Just compensation is intended to indemnify the
owner fully for the loss he has sustained as a
result of the expropriation [Reyes commentary,
p. 152]
It shall be “real, substantial, full, ample”
[Republic v. Libunao, G.R. No. 166553 (2009)].
b. Determination of just compensation
Determination of just compensation is a judicial
function that cannot “be usurped by any other
branch or official of the government” [National
Power Corporation v. Zabala, G.R. No. 173520
(2013)]:
● No legislative enactments or executive
issuances can prevent the courts from
determining whether the right of the
property owners to just compensation has
been violated.
● Section 3A of RA No. 6395, which limits its
liability to easement fee of not more than
10% of the market value of the property
traversed by its transmission lines, cannot
restrict the constitutional power of the
courts to determine just compensation.
● Statutes and executive issuances fixing or
providing for the method of computing just
compensation are not binding on courts
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and, at best, are treated as mere guidelines
in ascertaining the amount thereof.
General Rule: Computed at the time of the
filing of the complaint for expropriation [Sec. 4,
Rule 67, ROC], whether the filing takes place
before or at the same time as the taking or
entry.
When the taking of the property sought to be
expropriated coincides with the
commencement of the expropriation
proceedings, or takes place subsequent to the
filing of the complaint for eminent domain, the
just compensation should be determined as of
the date of the filing of the complaint [City of
Iloilo v. Judge Contreras Besana, G.R. No.
168967 (2010)].
Exception: When property is taken before
filing the complaint, assessment should be
made as of the time of taking or entry.
In cases where the fair market value of the
property is difficult to ascertain, the court may
use other just and equitable market methods of
valuation in order to estimate the fair market
value of the property [Republic v. Mupas, G.R.
No. 181892 (2015)].
In order to determine just compensation, the
trial court should first ascertain the market
value of the property by considering the cost of
acquisition, the current value of like properties,
its actual or potential uses, and in the particular
case of lands, their size, shape, location, and
the tax declarations thereon [Republic v. Sps.
Salvador, G.R. No. 205428 (2017)].
If as a result of the expropriation, the remaining
lot suffers from an impairment or decrease in
value, consequential damages may be
awarded by the trial court, provided that the
consequential benefits which may arise from
the expropriation do not exceed said damages
suffered by the owner of the property [Republic
v. Sps. Salvador, supra].
Prevailing rate of interest
6 percent per annum [BSPMB Circular No.
799, Series of 2013, effective July 1, 2013]

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c. Effect of Delay
General Rule: For non-payment, the remedy
is the demand of payment of the fair market
value of the property and not the recovery of
possession of the expropriated lots [Republic
of the Philippines v. Court of Appeals, G.R. No.
146587 (2002); Reyes v. National Housing
Authority, G.R. No. 147511, (2003)].
Exception
When the government fails to pay just
compensation within five years from the finality
of the judgment in the expropriation
proceedings, the owners concerned shall have
the right to recover possession of their property
[Republic v. Vicente Lim, G.R. No. 161656
(2005)].
3. Abandonment of Intended
Use and Right of Repurchase
If the expropriator (government) does not use
the property for a public purpose, the property
reverts to the owner in fee simple [Heirs of
Moreno v. Mactan-Cebu International Airport,
G.R. No. 156273 (2005)].
In Mactan-Cebu International Airport Authority
v. Tudtud [G.R. No. 174012 (2008)], the Court
held that the expropriator has the obligation to
reconvey property expropriated but never
used, on the condition that the landowners
would return the just compensation they
received, plus interest.
Miscellaneous Application
“Taking” under Social Justice Clause Agrarian
Reform [Art. XIII, Sec. 4]: This provision is an
exercise of the police power of the State
through eminent domain [Association of Small
Landowners v. Secretary of Agrarian Reform,
G.R. No. 78742 (1989)] as it is a means to
regulate private property.
When the State exercises the power of eminent
domain in the implementation of its agrarian
reform program, the constitutional provision
which governs is Section 4, Article XIII of the
Constitution. Notably, this provision also
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imposes upon the State the obligation of
paying the landowner compensation for the
land taken, even if it is for the government’s
agrarian reform purposes [Land Bank of the
Philippines v. Honeycomb Farms Corporation,
G.R. No. 169903 (2012)].
Taking also occurs when agricultural lands are
voluntarily offered by a landowner and
approved by the Presidential Agrarian Reform
Council for coverage under the
Comprehensive Agrarian Reform Program
coverage through a stock distribution scheme
[Hacienda Luisita Incorporated v. Presidential
Agrarian Reform Council, G.R. No. 171101
(2012)].
4. Expropriation by local
government units
Essential Requisites for the Exercise by an
LGU:
1. Enactment of an ordinance, not a resolution
2. Must be for a public use, purpose or welfare,
or for the benefit of the poor and the landless
3. Payment of just compensation
4. Must be preceded by a valid and definite
offer made to the owner, who rejects the same
[Yusay v. CA, G.R. No. 156684 (2011)].
J. NON-IMPAIRMENT OF
CONTRACTS
Sec. 10, Art. III. No law impairing the
obligation of contracts shall be passed.
The non-impairment clause is limited in
application to laws that derogate from prior acts
or contracts by enlarging, abridging or in any
manner changing the intention of the parties
[PADPAO v. COMELEC, G.R. No. 223505
(2017)].
This provision prohibits the passing of a law
that changes the terms of an already existing
contract which:
1. Changes the terms of a contract between
the parties
2. Imposes new conditions

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3. Dispenses with those agreed upon or
4. Withdraws remedies for the enforcement of
the rights of the parties [PADPAO v.
COMELEC, supra].
A change in procedural remedies which does
not diminish substantive rights or increase
substantive obligations does not violate the
guarantee.
Substantial impairment is a law which changes
the terms of a legal contract between parties,
either in the time or mode of performance, or
imposes new conditions, or dispenses with
those expressed, or authorizes for its
satisfaction something different from that
provided in its terms, is law which impairs the
obligation of a contract and is therefore null and
void [Lepanto Consolidated Mining Co. v.
WMC Resources Int'l. Pty. Ltd., G.R. No.
162331 (2006)].
Contemporary Application Of The Contract
Clause
When Non-Impairment Clause Prevails
1. Against the removal of tax exemptions,
where the consideration for the contract is
the tax exemption itself 
 G.R. 208731 (2016)]
2. Regulation on loans. 
New regulations on
loans making redemption of property sold
on foreclosure stricter are not allowed to
apply retroactively [Co v. Philippine
National Bank, G.R. No. 51767 (1982)]. 

When Non-Impairment Clause Yields
1. Valid exercise of police power i.e. zoning
regulation [Presley v. Bel-Air Village
Association, G.R. No. 86774 (1991)],
premature campaign ban [Chavez v.
COMELEC, G.R. No. 162777 (2004)],
liquidation of a chartered bank [Philippine
Veterans Bank Employees Union v.
Philippine Veterans Bank, G.R. No. 67125
(1990)]
2. Statute that exempts a party from any one
class of taxes
3. Against freedom of religion [Victoriano v.
Elizalde Rope Workers, supra]
4. Judicial or quasi-judicial order
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Examples of valid impairment of contracts
1. Invalidating contracts concerning forest
lands. Preservation of forest lands could
entail intrusion upon contractual rights if it
is for the benefit of the many. [Land Bank
v. Republic, G.R. NO. 150824 (2008)] 

2. Caps on the rates that cooperatives can
charge. [SURNECO v. Energy Regulatory
Commission, G.R. No. 183626 (2010)]
3. Municipal ordinance, invalidating
restrictions set by private developers
regarding the use of land. [The Learning
Child v. Ayala Alabang, G.R. No. 134269
(2010)] 

Exclusions from the Scope of the Non-
Impairment Clause
The non-impairment clause is a limit on
legislative power, and not of judicial or quasi-
judicial power. [BPI v. SEC, G.R. No. 164641
(2007)].
Examples of contracts not included in the
provision
1. Timber license contracts [Republic v.
Pagadian Timber Co, G.R. 159308 (2008)]


2. Franchise contracts [PAGCOR v. BIR,


3. Exercise of quasi-judicial powers of a
department, even if affirmed by the
President. [Hacienda Luisita v. PARC, G.R.
No. 171101, (2011)] 

Note: Timber licenses, permits, and license
agreements are the principal instruments by
which the State regulates the utilization and
disposition of forest resources to the end that
public welfare is promoted. They are not
deemed contracts within the purview of the due
process of law clause [Oposa v. Factoran, G.R.
No. 101083 (1993)].
The Court held that non-impairment clause
does not apply to the 1992 Memorandum of
Agreement (MOA) between The Government
of the Republic of the Philippines and the
Marcos family. If one Congress cannot limit or
reduce the plenary legislative power of
succeeding Congresses, so, too, the exercise
of executive power by the past president

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cannot emasculate that of the incumbent
president. The discretionary act of the former is
not binding upon and cannot tie the hands of
the latter, who may alter the same” [Ocampo v.
Enriquez, supra].
K. ADEQUATE LEGAL
ASSISTANCE AND FREE
ACCESS TO COURTS
Sec. 11, Art. III. Free access to the courts
and quasi-judicial bodies and adequate legal
assistance shall not be denied to any person
by reason of poverty.
Sec. 21, Rule 3, Rules of Court. xxx If the
court should determine after hearing that the
party declared as an indigent is in fact a
person with sufficient income or property, the
proper docket and other lawful fees shall be
assessed and collected by the clerk of court.
xxx
Sec. 19, Rule 141, Rules of Court.
Indigent litigants exempt from payment
of legal fees. Indigent litigants (a) whose
gross income and that of their immediate
family do not exceed four thousand
(P4,000.00) pesos a month if residing in
Metro Manila, and three thousand
(P3,000.00) pesos a month if residing
outside Metro Manila, and (b) who do not
own real property with an assessed value of
more than fifty thousand (P50,000.00) pesos
shall be exempt from the payment of legal
fees.
The legal fees shall be a lien on any
judgment rendered in the case favorably to
the indigent litigant, unless the court
otherwise provides.
To be entitled to the exemption herein
provided, the litigant shall execute an
affidavit that he and his immediate family do
not earn a gross income above mentioned,
nor they own any real property with the
assessed value aforementioned, supported
by an affidavit of a disinterested person
attesting to the truth of the litigant's affidavit.
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Any falsity in the affidavit of a litigant or
disinterested person shall be sufficient
cause to strike out the pleading of that party,
without prejudice to whatever criminal
liability may have been incurred.
The Constitution explicitly premised the free
access clause on a person’s poverty, a
condition from which only a natural person can
suffer.
The Courts cannot grant to foundations x x x
the same exemption from payment of legal
fees granted to indigent litigants even if the
foundations are working for indigent and
underprivileged people. litigants [Re: Query of
Mr. Roger C Prioreschi re Exemption from
Legal and Filing Fees of the Good Shepherd
Foundation Inc., A. M. No. 09-6-9-SC (2009)].
Extending fee exemption to a juridical person
may be prone to abuse by corporations and
entities bent on circumventing the rule thereof.
Indigent party
A party may be authorized to litigate his action,
claim or defense as an indigent if the court,
upon an ex parte application and hearing, is
satisfied that the party is one who has no
money or property sufficient and available for
food, shelter and basic necessities for himself
and his family.
Such authority shall include an exemption from
payment of docket and other lawful fees, and
of transcripts of stenographic notes which the
court may order to be furnished to him.
If the applicant for exemption meets the salary
and property requirements under Section 19 of
Rule 141, then the grant of the application is
mandatory. When the application does not
satisfy one or both requirements, then the
application should not be denied outright;
instead, the court should apply the “indigency
test” under Sec. 21 of Rule 3 and use its sound
discretion in determining the merits of the
prayer for exemption [Sps. Algura v. LGU of
Naga City, G.R. No. 150135 (2006)].

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Free access to the court does NOT mean the
courts cannot impose filing fees.
Exemption of cooperatives from payment of
court and sheriff fees no longer stands.
Cooperatives can no longer invoke R.A. 6938,
as amended by R.A. 9520, as basis for
exemption from the payment of legal fees [Re:
In the matter of clarification of exemption from
payment of all court and sheriffs fees of
cooperatives, A.M. No. 12-2- 03-0 (2012)].
L. RIGHT AGAINST SELF-
INCRIMINATION
Section 17, Article III. No person shall be
compelled to be a witness against himself.
The right against self-incrimination secures to
a witness, whether she/he is a party or not, the
right to refuse to answer any particular
incriminating question
It prescribes an "option of refusal to answer
incriminating questions and not a prohibition of
inquiry [People v. Ayson, G.R. No. 85215
(1989)].
Purpose
The self-incrimination clause is meant to avoid:
 [Beltran v. Samson, G.R. No. 32025
1. Placing the witness against the strongest
temptation to commit perjury; and
2. Extorting a confession by force.
1. Scope and Coverage
The right applies only to testimonial
compulsion and production of documents,
papers, and chattels in court, except when
books of account are to be examined in the
exercise of police power and the power of
taxation.
The right is available in:
1. Criminal proceedings
2. Governmental proceedings
3. Administrative actions wherein the hearing
partakes the nature of a criminal
proceeding because of the nature of the
penalty
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4. Legislative investigations
5. Civil actions
Exclusions
An accused may be compelled to be
photographed or measured, his garments may
be removed, and his body may be examined.
The Court has also declared as constitutional
several procedures performed on the accused
such as pregnancy tests for women accused of
adultery, expulsion of morphine from one’s
mouth and the tracing of one’s foot to
determine its identity with bloody footprints.
The Court has even authorized the
examination of a woman’s genitalia, in an
action for annulment filed by her husband, to
verify his claim that she was impotent, her
orifice being too small for his penis.
Some of these procedures were, to be sure,
rather invasive and involuntary, but all of them
were constitutionally sound. DNA testing and
its results are now similarly acceptable [Agustin
v. CA, supra].
Other exclusions:
1. Handwriting in connection with a
prosecution for falsification is not allowed
(1929); Bermudez v. Castillo, Per. Rec. No.
714-A (1937)] 

2. Accused may be made to take off her
garments and shoes and be photographed
[People v. Otadura, G.R. No. L-2154
(1950)]; compelled to show her body for
physical investigation to see if she is
pregnant by an adulterous relation [Villaflor
v. Summers G.R. No. 16444 (1920)] 

Note: Re-enactment of the crime by the
accused is not allowed.
When to invoke
1. This right may only be invoked for that
specific incriminating question and cannot
be claimed for any other time. [Sabio vs.
Gordon, G.R. Nos. 174340, 174318 &
174177 (2006)]

2. It does not give a witness the right to
disregard a subpoena and decline to testify

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altogether. The witness must still take the
stand, be sworn, and answer questions. It
is the duty of his/her counsel to advise
him/her of his/her right against self-
incrimination. [People v. Ayson, supra].
Right against self-incrimination of accused
vs. ordinary witness
ACCUSED ORDINARY
WITNESS
The defendant in a An ordinary witness
criminal case cannot may be compelled to
be compelled by testify and invoke the
subpoena or any right only against
other process or each question
order of the court to requiring an
testify or produce incriminating
evidence in the answer. [People vs.
criminal case in Ayson, supra]
which he is the
accused or one of
the accused. In other
words, s/he can
refuse to testify
altogether.
If the witness is
accused, he may
totally refuse to take
the stand.
Note: The right against self-incrimination is not
self- executing. It must be claimed. If not
claimed by or in behalf of the witness, the
protection does not come into play. It follows
that the right may be waived, expressly, or
impliedly, as by a failure to claim it at the
appropriate time [People v. Ayson, supra].
Effects of Denial of Privilege
1. Exclusionary Rule (under Sec. 17, Art. III in
relation to Sec. 12): When the privilege
against self- incrimination is violated
outside of court (e.g. police), then the
testimony, as already noted, is not
admissible.

2. Ousted of Jurisdiction: When the privilege
is violated by the Court itself, that is, by the
judge, the court is ousted of its jurisdiction,
and all its proceedings, and even judgment
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are null and void [Chavez v. CA, G.R. No.
L-29169 (1968)].
2. Application
General Rule: The privilege is available in any
proceedings, even outside the court, for they
may eventually lead to a criminal prosecution.
Expanded Application
1. The right of the accused against self-
incrimination is extended to respondents in
administrative investigations that partake
of the nature of or are analogous to
criminal proceedings. The privilege has
consistently been held to extend to all
proceedings sanctioned by law; and to all
cases in which punishment is sought to be
visited upon a witness, whether a party or
not [Standard Chartered Bank v. Senate
Committee on Banks G.R. No. 167173
(2007)].
2. Administrative proceedings with penal
aspect i.e. medical board investigation
[Pascual v. Board of Medical Examiners,
G.R. No. L-25018 (1969)], forfeiture
proceeding [Cabal v. Kapunan Jr., G.R.
No. L-19052 (1962)]
3. Fact-Finding investigation by an ad hoc
body [Galman v. Pamaran, G.R. Nos.
71208-09 (1985)]
3. Immunity Statutes
Nature and Purpose
Immunity statutes seek a rational
accommodation between the imperatives of an
individual’s constitutional right against self-
incrimination and the legitimate governmental
interest in securing testimony. By voluntarily
offering to give information on the commission
of a crime and to testify against the culprits, a
person opens himself to investigation and
prosecution if he himself had participated in the
criminal act. To secure his testimony without
exposing him to the risk of prosecution, the law
recognizes that the witness can be given
immunity from prosecution. In this manner, the
state interest is satisfied while respecting the
individual’s constitutional right against self-
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incrimination [Quarto v. Ombudsman G.R. No. investigation conducted by it or under its

169042 (2011)]. authority;

Note: The following is a list of immunity statutes Use and Fruit of Immunity

included in the footnote 59 of Quarto v. Hon. “Use immunity” prohibits use of a witness’
Ombudsman:
 compelled testimony and its fruits in any
a. PD No. 749 (Granting Immunity from manner in connection with the criminal
Prosecution to Givers of Bribes and Other prosecution of the witness.
Gifts and to their Accomplices in Bribery
and Other Graft Cases against Public “Transactional immunity” grants immunity to
Officers, July 18, 1975); witnesses from prosecution for an offense to
b. PD No. 1731 (Providing for Rewards and which his compelled testimony relates [Galman
Incentives to Government Witnesses and v. Pamaran, supra].
Informants and other Purposes, October 8,
1980);
c. PD No. 1732 (Providing Immunity from M.RIGHTS OF PERSONS UNDER
Criminal Prosecution to Government CUSTODIAL INVESTIGATION
Witnesses and for other Purposes, October
8, 1980); 
 Sec. 12, Art. III. 1. Any person under
d. PD No. 1886 (creating the Agrava Fact- investigation for the commission of an
Finding Board, October 22, 1983); 
 offense shall have the right to be informed of
e. 1987 Constitution, Article XIII, Section his right to remain silent and to have
18(8) (empowering the Commission on competent and independent counsel
Human Rights to grant immunity); 
 preferably of his own choice. If the person
f. RA No. 6646 (An Act Introducing Additional cannot afford the services of counsel, he
Reforms in the Electoral System and for must be provided with one. These rights
other Purposes, January 5, 1988); 
 cannot be waived except in writing and in the
g. Executive Order No. 14, August 18, 1986; 
 presence of counsel.
h. RA No. 6770 (Ombudsman Act of 1989,

November 17, 1989); 
 2. No torture, force, violence, threat,
i. RA No. 6981 (Witness Protection, Security intimidation, or any other means which
and 
Benefit Act, April 24, 1991); 
 vitiate the free will shall be used against him.
j. RA No. 7916 (The Special Economic Zone Secret detention places, solitary,
Act 
of 1995, July 25, 1994); 
 incommunicado, or other similar forms of
k. RA No. 9165 (Comprehensive Dangerous detention are prohibited.
Drugs 
Act of 2002, June 7, 2002); 

l. RA No. 9416 (An Act Declaring as Unlawful 3. Any confession or admission obtained in
Any 
Form of Cheating in Civil Service violation of this or Section 17 hereof shall be
Examinations, 
etc., March 25, 2007); and 
 inadmissible in evidence against him.
m. RA No. 9485 (Anti-Red Tape Act of 2007,
June 
2, 2007). 
 4. The law shall provide for penal and civil
sanctions for violations of this section as well
Transactional Immunity as compensation to the rehabilitation of
Sec. 18, Article XIII. The Commission on victims of torture or similar practices, and
Human Rights shall have the following their families.
powers and functions: xxx
 (8) Grant
immunity from prosecution to any person In Miranda v. Arizona: The Federal Supreme
whose testimony or whose possession of Court made it clear that what is prohibited is the
documents or other evidence is necessary or "incommunicado interrogation of individuals in
convenient to determine the truth in any a police dominated atmosphere, resulting in

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self-incriminating statements without full
warnings of constitutional rights.”
Miranda Warning (based upon Article III,
Section 12)
The person under custodial investigation must
be informed that:
1. He has a right to remain silent and that any
statement he makes may be used as
evidence against him;
2. That he has a right to have competent and
independent counsel of his choice
3. That he has a right to be informed of the
first two rights.
RA 7438: RIGHTS OF PERSONS UNDER
CUSTODIAL INVESTIGATION
Sec. 1. Statement of Policy. - It is the policy
of the State to value the dignity of every
human being and guarantee full respect for
human rights.
Sec. 2. Rights of Persons Arrested, Detained
or Under Custodial Investigation; Duties of
Public Officers. –
(b) Any public officer or employee, or anyone
acting under his order or his place, who
arrests, detains or investigates any person
for the commission of an offense: shall
inform the latter, in a language known to and
understood by him, of his rights to remain
silent and to have competent and
independent counsel, preferably of his own
choice, who shall at all times be allowed to
confer privately with the person arrested,
detained or under custodial investigation. If
such person cannot afford the services of his
own counsel, he must be provided with a
competent and independent counsel by the
investigating officer.
1. Availability
a. When the person is already under custodial
investigation.
b. During “critical pre-trial stages” in the
criminal process
Custodial Investigation
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Involves any questioning initiated by law
enforcement.
When the investigation is no longer a general
inquiry unto an unsolved crime but has begun
to focus on a particular suspect, as when the
suspect has been taken into police custody and
the police carries out a process of interrogation
that lends itself to eliciting incriminating
statements [People v. Mara, G.R. No. 108494
(1994)].
Includes issuing an invitation to a person under
investigation in connection with an offense he
is suspected to have committed [Sec. 2, RA
7438].
Custodial Investigation Report
a. Reduced to writing by the investigating
officer.
b. It shall be read and adequately explained
to person arrested or detained by counsel
or assisting counsel in a language or
dialect known to him.
Non-compliance with the second requirement
will render the report null and void and of no
effect whatsoever [Sec. 2c, RA 7438].
Critical Pre-Trial Stage
Any critical confrontation by the prosecution at
pretrial proceedings where the results might
well determine his fate and where the absence
of counsel might derogate from his right to a
fair trial [U.S. v. Wade, 388 U.S. 218 (1967)].
Show-Up And Police Line-Up
General rule: No right to counsel
Exception: Right to counsel if accusatory. The
moment there is a move or even an urge of said
investigators to elicit admissions or
confessions or even plain information which
may appear innocent or innocuous at the time,
from said suspect [Gamboa v. Cruz, G.R. No.
L-56291 (1988)].
Show-up
● Out-of-court identification
● Accused is brought face-to-face with the
witness for identification

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Police Line-up
● Suspect is identified by witness from a
group of persons gathered for that purpose
● When the petitioner was identified by the
complainant at the police line-up, he had
not been held yet to answer for a criminal
offense. The police line-up is not a part of
the custodial inquest, hence, he was not
yet entitled to counsel.
2. Requisites
Effective communication by the investigator of
rights of accused [People v. Agustin, G.R. No.
110290 (1995)].
a. Right to Remain Silent
The warning is needed simply to make the
person under custodial investigation aware of
the existence of the right.
This warning is the threshold requirement for
an intelligent decision as to its exercise.
Further, the warning will show the individual
that his interrogators are prepared to recognize
his privilege should he choose to exercise it.
The warning of the right to remain silent must
be accompanied by the explanation that
anything said can and will be used against the
individual in court. This warning is needed in
order to make him aware not only of the
privilege to remain silent, but also of the
consequences of forgoing it.
b. Right to Counsel
Sec. 2. Rights of Persons Arrested, Detained
or Under Custodial Investigation; Duties of
Public Officers. – (a) Any person arrested
detained or under custodial investigation
shall at all times be assisted by counsel.
Competent and independent counsel
preferably of the suspect’s own choice.
Not independent counsel: special counsel,
prosecutor, counsel of the police or a municipal
attorney whose interest is adverse to that of the
accused [People v. Fabro, G.R. No. 95089
(1997)], mayor [People v. Taliman, G.R. No.
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109143], barangay captain [People v.
Tomaquin, G.R. No. 133188 (2004)].
A lawyer who was applying for work in the NBI
cannot be considered independent because he
cannot be expected to work against the interest
of a police agency he was hoping to join, as a
few months later, he in fact was admitted into
its work force [People v. Januario, G.R. No.
98552 (1997)].
Not competent counsel: lawyer signing only as
witness [People v. Ordoño, G.R. No. 132154],
mayor of town where accused is detained
[People v. Velarde, G.R. No. 139333 (2002)].
Failure to ask for a lawyer does not constitute
a waiver.
No effective waiver of the right to counsel
during interrogation can be recognized unless
specifically made after the warnings have been
given.
Request for assistance of counsel before any
interrogation cannot be ignored/denied by
authorities. Not only right to consult with an
attorney but right to be given a lawyer to
represent him if he’s indigent.
c. Rights to Visitation and Conference
Sec. 2. Rights of Persons Arrested, Detained
or Under Custodial Investigation; Duties of
Public Officers. – (f) Any person arrested or
detained or under custodial investigation
shall be allowed visits by or conferences with
any member of his immediate family, or any
medical doctor or priest or religious minister
chosen by him or by any member of his
immediate family or by his counsel, or by any
national non-governmental organization duly
accredited by the Commission on Human
Rights or by any international non-
governmental organization duly accredited
by the Office of the President. The person's
"immediate family" shall include his or her
spouse, fiancé or fiancée, parent or child,
brother or sister, grandparent or grandchild,
uncle or aunt, nephew or niece, and
guardian or ward.

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Exclusionary Rule
According to this rule, once the primary source
(the tree) is shown to have been unlawfully
obtained, any secondary or derivative evidence
(the fruit) derived from it is also inadmissible.
The fruit of the poisonous tree is at least once
removed from the illegally seized evidence, but
it is equally inadmissible. The rule is based on
the principle that evidence illegally obtained by
the State should not be used to gain other
evidence because the originally illegally
obtained evidence taints all evidence
subsequently obtained [People v.
Samontañez, G.R. No. 134530 (2000)].
Violations of the Miranda rights render
inadmissible only the extrajudicial confession
or admission made during the custodial
investigation. The admissibility of other
evidence is not affected even if obtained or
taken in the course of the custodial
investigation [People v. Malimit, G.R. No.
109775 (1996)].
Extrajudicial Confession by a person arrested,
detained or under custodial investigation
1. Shall be in writing and
2. Signed in the presence of his counsel or in
the latter’s absence:
a. upon a valid waiver and
b. in the presence of any of the following:
i. any of the parents
ii. older brother and sisters
iii. Spouse
iv. municipal mayor
v. municipal judge
vi. district school supervisor
vii. priest or minister of the gospel as
chosen by him
Otherwise, such extrajudicial confession shall
be inadmissible as evidence in any proceeding.
[Sec. 2d, R.A. 7438]
In the absence of a valid waiver, any
confession obtained from the appellant during
the police custodial investigation relative to the
crime, including any other evidence secured by
virtue of the said confession is inadmissible in
evidence even if the same was not objected to
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during the trial by the counsel of the appellant
[People v. Samontañez, supra].
3. Waiver
What can be waived?
The right to remain silent and the right to
counsel.
What cannot be waived?
The right to be given the Miranda warnings.
Rule on Waiver [Sec. 12, Art. III]
a. Must be in writing
b. Made in the presence of counsel
Sec. 2. Rights of Persons Arrested, Detained
or Under Custodial Investigation; Duties of
Public Officers. – (c) The custodial
investigation report shall be reduced to
writing by the investigating officer, provided
that before such report is signed, or
thumbmarked if the person arrested or
detained does not know how to read and
write, it shall be read and adequately
explained to him by his counsel or by the
assisting counsel provided by the
investigating officer in the language or
dialect known to such arrested or detained
person, otherwise, such investigation report
shall be null and void and of no effect
whatsoever.
Any waiver by a person arrested or detained
under the provisions of Article 125 of the
Revised Penal Code, or under custodial
investigation, shall be in writing and signed
by such person in the presence of his
counsel; otherwise the waiver shall be null
and void and of no effect.
Burden Of Proving Voluntariness Of Waiver
[People v. Jara, G.R. No. L-61356-57 (1986)]
Presumption is against the waiver. Burden of
proof lies with the prosecution.
Prosecution must prove with strongly
convincing evidence to the satisfaction of the
Court that indeed the accused:

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a. Willingly and voluntarily submitted his
confession and
b. Knowingly and deliberately manifested that
he was not interested in having a lawyer
assist him during the taking of that
confession
N. RIGHTS OF THE
ACCUSED
Sec. 14, Art. III: (1) No person shall be held
to answer for a criminal offense without due
process of law.
(2) In all criminal prosecutions, the accused
shall be presumed innocent until the contrary
is proved, and shall enjoy the right to be
heard by himself and counsel, to be informed
of the nature and cause of the accusation
against him, to have a speedy, impartial, and
public trial, to meet the witnesses face to
face, and to have compulsory process to
secure the attendance of witnesses and the
production of evidence in his behalf.
However, after arraignment, trial may
proceed notwithstanding the absence of the
accused provided that he has been duly
notified and his failure to appear is
unjustifiable.
Sec 1, Rule 115, ROC Rights of accused at
the trial. — In all criminal prosecutions, the
accused shall be entitled to the following
rights:
a. To be presumed innocent until the
contrary is proved beyond reasonable
doubt.
b. To be informed of the nature and cause
of the accusation against him.
c. To be present and defend in person and
by counsel at every stage of the
proceedings, from arraignment to
promulgation of the judgment. The
accused may, however, waive his
presence at the trial pursuant to the
stipulations set forth in his bail, unless
his presence is specifically ordered by
the court for purposes of identification.
1. The absence of the accused
without justifiable cause at the
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trial of which he had notice shall
be considered a waiver of his
right to be present thereat.
2. When an accused under custody
escapes, he shall be deemed to
have waived his right to be
present on all subsequent trial
dates until custody over him is
regained. Upon motion, the
accused may be allowed to
defend himself in person when it
sufficiently appears to the court
that he can properly protect his
right without the assistance of
counsel.
d. To testify as a witness in his own behalf
but subject to cross-examination on
matters covered by direct examination.
His silence shall not in any manner
prejudice him.
e. To be exempt from being compelled to
be a witness against himself.
f. To confront and cross-examine the
witnesses against him at the trial. Either
party may utilize as part of its evidence
the testimony of a witness who is
deceased, out of or cannot with due
diligence be found in the Philippines,
unavailable or otherwise unable to
testify, given in another case or
proceeding, judicial or administrative,
involving the same parties and subject
matter, the adverse party having the
opportunity to cross-examine him.
g. To have compulsory process issued to
secure the attendance of witnesses and
production of other evidence in his
behalf.
h. To have speedy, impartial and public
trial.
i. To appeal in all cases allowed and in the
manner prescribed by law.
1. Criminal Due Process
In criminal proceedings then, due process is
satisfied if the accused is "informed as to why
he is proceeded against and what charge he
shall meet, with his conviction being made to
rest on evidence that is not tainted with falsity
after full opportunity for him to rebut it and the

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sentence being implied in accordance with a
valid law. It is assumed, of course, that the
court that rendered the decision is one of
competent jurisdiction [Mejia v. Pamaran, G.R.
No. L- 56741-42 (1988)].
Requisites
1. Accused is heard by a court of competent
jurisdiction;
2. Accused is proceeded against under the
orderly process of law;
3. Accused is given notice and opportunity to
be heard; and
4. Judgement rendered is within the authority
of a constitutional law
2. Bail
Sec 13, Art III. All persons, except those
charged with offenses punishable by
reclusion perpetua when evidence of guilt is
strong, shall, before conviction, be bailable
by sufficient sureties, or be released on
recognizance as may be provided by law.
The right to bail shall not be impaired even
when the privilege of the writ of habeas
corpus is suspended. Excessive bail shall
not be required.
Sec 1, Rule 114, ROC. Bail defined. — Bail
is the security given for the release of a
person in custody of the law, furnished by
him or a bondsman, to guarantee his
appearance before any court as required
under the conditions hereinafter specified.
Bail may be given in the form of corporate
surety, property bond, cash deposit, or
recognizance. (1a)
Purpose of Bail
“The purpose for bail is to guarantee the
appearance of the accused at the trial, or
whenever so required by the Court The amount
should be high enough to assure the presence
of the accused when required but no higher
than is reasonably calculated to fulfill this
purpose. To fix bail at an amount equivalent to
the civil liability of which petitioner is charged is
to permit the impression that the amount paid
as bail is an exaction of the civil liability that
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accused is charged of; this we cannot allow
because bail is not intended as a punishment,
nor as a satisfaction of civil liability which
should necessarily await the judgment of the
appellate court.” [Yap v. CA, G.R. No. 141529
(2001)
Basis of right: Presumption of Innocence
The right to bail springs from the presumption
of innocence accorded every accused upon
whom should not be inflicted incarceration at
the outset since, after the trial, he would be
entitled to acquittal, unless his guilt be
established beyond reasonable doubt
[Paderanga v. CA, G.R. No. 115407 (1995)]
Who may avail of bail
General Rule: All persons under custody of
the law
Exceptions
a. Those charged with a capital offense, or an
offense punishable by reclusion perpetua
or life imprisonment when evidence of guilt
is strong, regardless of the stage of the
criminal prosecution [Sec 7, Rule 114,
ROC]
b. Military men who participated in failed coup
d’état because of their threat to national
security [Comendador v. De Villa, G.R. No.
93177 (1991)]
When Available
General Rule: From the very moment of arrest
(which may be before or after the filing of formal
charges in court) up to the time of conviction by
final judgement (which means after appeal.
Arraignment of the accused is not essential to
the approval of the bail bond. When bail is
authorized, it should be granted before
arraignment. Otherwise the accused may be
precluded from filing a motion to quash. Also,
the court will be assured of the presence of the
accused at the arraignment precisely by
granting bail and ordering his presence at any
stage of the proceeding [Lavides v. CA, G.R.
No. 129670 (2000)].

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Sec. 18, Rule 114, ROC. Notice of
application to prosecutor. — In the
application for bail under section 8 of this
Rule, the court must give reasonable notice
of the hearing to the prosecutor or require
him to submit his recommendation.
In this jurisdiction, before a judge may grant an
application for bail, whether bail is a matter of
right or discretion, the prosecutor must be
given reasonable notice of hearing or he must
be asked to submit his recommendation
[Taborite v. Sollesta, A.M. MTJ-02-1388
(2003)].
The prosecution must first be accorded an
opportunity to present evidence. It is on the
basis of such evidence that judicial discretion
is exercised in determining whether the
evidence of guilt of the accused is strong. In
other words, discretion must be exercised
regularly, legally and within the confines of
procedural due process, that is, after
evaluation of evidence submitted by the
prosecution [Taborite v. Sollesta, supra].
Bail for the provisional liberty of the accused
regardless of the crime charged should be
allowed independently of the merits of the
charge, provided his continued incarceration is
clearly shown to be injurious to his health or to
endanger his life. [Enrile v. Sandiganbayan,
G.R. No. 213847 (2015)].
Bail As A Matter Of Right
All persons, except those charged with
offenses punishable by reclusion perpetua
when evidence of guilt is strong, shall, before
conviction, be bailable by sufficient sureties, or
be released on recognizance as may be
provided by law. The right to bail shall not be
impaired even when the privilege of the writ of
habeas corpus is suspended.
Excessive bail shall not be required.
[Sec. 13, Art III, 1987 Constitution]
Bail As A Matter Of Discretion
When the accused has been convicted in the
RTC of an offense not punishable by death,
reclusion perpetua or life imprisonment, the
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admission to bail becomes discretionary [Sec.
5, Rule 114, ROC]
NOTE: Since the grant of bail is a matter of
discretion, a hearing must be conducted
whether or not the prosecution refuses to
present evidence and the prosecutor must be
notified to require him to submit his
recommendation. This notice of hearing
applies in all cases whether bail is a matter of
right or a matter of discretion [Zuño v. Cabebe,
A.M. OCA No. 03-1800-RTJ, (2004) citing
Cortes v. Catral, A.M. No. RTJ-97-1387,
(1997)].
In the cases where the grant of bail is
discretionary, due process requires that the
prosecution must be given an opportunity to
present, within a reasonable time, all the
evidence that it may desire to introduce before
the court should resolve the motion for bail
[People v. Judge Donato, G.R. No. 79269
(1991)].
a. In case the evidence of guilt is strong
In such a case, according to People v. San
Diego [G.R. No. L-29676 (1966)] the court’s
discretion to grant bail must be exercised in the
light of a summary of the evidence presented
by the prosecution.
Thus, the order granting or refusing bail must
contain a summary of the evidence for the
prosecution followed by the conclusion on
whether or not the evidence of guilt is strong.
The clear implication therefore, is that if an
accused who is charged with a crime
punishable by reclusion perpetua is convicted
by the trial court and sentenced to suffer such
a penalty, bail is neither a matter of right on the
part of the accused nor of discretion on the part
of the court. In such a situation, the court would
xxx have xxx ruled that the accused's guilt has
been proven beyond reasonable doubt. Bail
must not then be granted to the accused during
the pendency of his appeal from the judgment
of conviction [People v. Nitcha, G.R. No.
113517 (1995)]”

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b. In extradition proceedings
Extradition courts do not render judgements of
conviction or acquittal so it does not matter
whether or not the crimes the accused is being
extradited for is punishable by reclusion
perpetua [US Government v. Judge Puruganan
and Mark Jimenez, G.R. No. 148571 (2002)].
While our extradition law does not provide for
the grant of bail to an extradite, however, there
is no provision prohibiting him or her from filing
a motion for bail, a right to due process under
the Constitution. [Government of Honk Kong
SAR v. Olalia, G.R. No. 153675 (2007)].
Standards for fixing bail
Sec 9, Rule 114, ROC. Amount of
bail; guidelines. — The judge who issued
the warrant or granted the application shall
fix a reasonable amount of bail considering
primarily, but not limited to, the following
factors:
(a) Financial ability of the accused to give
bail;
(b) Nature and circumstances of the offense;
(c) Penalty for the offense charged;
(d) Character and reputation of the accused;
(e) Age and health of the accused;
(f) Weight of the evidence against the
accused;
(g) Probability of the accused appearing at
the trial;
(h) Forfeiture of other bail;
(i) The fact that accused was a fugitive from
justice when arrested; and
(j) Pendency of other cases where the
accused is on bail.
Excessive bail shall not be required
Discretion is with the court called upon to rule
on the question of bail. We must stress,
however, that where conditions imposed upon
a defendant seeking bail would amount to a
refusal thereof and render nugatory the
constitutional right to bail, we will not hesitate
to exercise our supervisory powers to provide
the required remedy [Dela Camara v. Enage,
G.R. No. L-32951-52 (1971)].
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Duties of a trial judge in case an application
for bail is filed [Cortes v. Cabal (1997)]:
1. In all cases, whether bail is a matter of right
or of discretion, notify the prosecutor of the
hearing of the application for bail or require
him to submit his recommendation (Sec.
18, Rule 114, ROC);
2. Where bail is a matter of discretion,
conduct a hearing of the application for bail
regardless of whether or not the
prosecution refuses to present evidence to
show that the guilt of the accused is strong
for the purpose of enabling the court to
exercise its sound discretion (Sec. 7 and 8,
Rule 114, ROC);
3. Decide whether the guilt of the accused is
strong based on the summary of evidence
of the prosecution; and
4. If the guilt of the accused is not strong,
discharge the accused upon approval of
the bail bond (Sec. 19, Rule 114, ROC).
3. Presumption of innocence
The requirement of proof beyond reasonable
doubt is a necessary corollary of the
constitutional right to be presumed innocent
[People v. Dramayo, G.R. No. L-21325 (1971)]
The presumption of innocence in favor of the
accused imposes upon the People of the
Philippines, “as the plaintiff in criminal cases, to
prove beyond reasonable doubt not only each
element of the crime but also the identity of the
accused as the criminal” [People v. Espera,
G.R. No. 202868, (2013)].
The accused cannot present evidence before
the prosecution does so, even if the accused
pleads guilty. It violates the presumption of
innocence [Alejandro v. Pepito, G.R. L-52090
(1980)].
The presumption of regularity in official duties
cannot by itself prevail over the presumption of
innocence of the accused. But where it is not
the sole basis for conviction, the presumption
of regularity of performance of official functions
may prevail over the constitutional presumption
of innocence [People v. Acuram, G.R. No.
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117954 (2000); People v. Abenes, G.R. No. 4. Right to be heard

210878 (2016)].
Sec. 14(2), Art III. (2) In all criminal
A corporate entity has no personality to invoke prosecutions, the accused shall be
the right to be presumed innocent which right presumed innocent until the contrary is
is available only to an individual who is an proved, and shall enjoy the right to be
accused in a criminal case [Feeder heard by himself and counsel xxx.
International v. CA, G.R. No. 94262 (1991)].
Sec 12 (1), Art III. Any person under
Equipoise Rule
investigation for the commission of an
The presumption of innocence has given rise
offense shall have the right to be informed of
to a jurisprudential rule referred to as the
his right to remain silent and to have
equipoise rule.
competent and independent counsel
preferably of his own choice. If the person
Where the evidence adduced by the parties is
cannot afford the services of counsel, he
evenly balanced, the constitutional
must be provided with one. These rights
presumption of innocence should tilt the
cannot be waived except in writing and in the
balance in favor of the accused [Corpuz v.
presence of counsel.
People, G.R. No. 180016 (1991)].
It means the accused is amply accorded legal
The application of the rule is triggered by a
assistance extended by a counsel who
situation where:
commits himself to the cause of the defense
b. the court is faced with conflicting versions
and acts accordingly. It is an efficient and truly
of the prosecution and the defense; and
decisive legal assistance, and not simply a
c. the evidence, facts, and circumstances are
perfunctory representation [People v. Bermas,
capable of two or more explanations, one
G.R. No. 120420 (1999)].
of which is consistent with the innocence of
the accused and the other consistent with
The right of the accused to present evidence is
his guilt.
guaranteed by no less than the Constitution
itself. Article III, Section 14(2) thereof, provides
Proof Beyond Reasonable Doubt
that in all criminal prosecutions, the accused
Proof beyond reasonable doubt does not mean
shall enjoy the right to be heard by himself and
such a degree of proof, excluding possibility of
counsel. This constitutional right includes the
error, produces absolute certainty. Moral
right to present evidence in one’s defense, as
certainty only is required, or that degree of
well as the right to be present and defend
proof which produces conviction in an
oneself in person at every stage of the
unprejudiced mind [Sec. 2, Rule 133, ROC].
proceedings. Stripping the accused of all his
pre-assigned trial dates constitutes a patent
In order that circumstantial evidence may
denial of the constitutionally guaranteed right to
warrant conviction, the following requisites
due process [Villareal v. People, G.R. No.
must concur:
151258 (2012)]
1. There is more than once circumstance;
2. The facts from which the inferences are
derived from are proven; and 5. Assistance of Counsel
3. The combination of all the
circumstances is such as to produce a Sec 12(1), Art III. Any person under
conviction beyond reasonable doubt investigation for the commission of an
[People v. Bato, G.R. No. 113804 offense shall have the right to be informed of
(1998)]. his right to remain silent and to have
competent and independent counsel
preferably of his own choice. If the person

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cannot afford the services of counsel, he
must be provided with one. These rights
cannot be waived except in writing and in the
presence of counsel.
Sec. 1(c), Rule 115, ROC. Rights of
accused at the trial. — In all criminal
prosecutions, the accused shall be entitled to
the following rights:
(c) To be present and defend in person and
by counsel at every stage of the
proceedings, from arraignment to
promulgation of the judgment. xxx
Sec 2(a), R.A. 7438. Rights of Persons
Arrested, Detained or Under Custodial
Investigation; Duties of Public Officers. –
(a) Any person arrested detained or under
custodial investigation shall at all times be
assisted by counsel.
It means the accused is amply accorded legal
assistance extended by a counsel who
commits himself to the cause of the defense
and acts accordingly. It is an efficient and truly
decisive legal assistance, and not simply a
perfunctory representation.
The right to counsel proceeds from the
fundamental principle of due process which
basically means that a person must be heard
before being condemned. The due process
requirement is part of a person’s basic rights; it
is not a mere formality that may be dispensed
with or performed perfunctorily [People v.
Bermas, G.R. No. 120420, (1999)].
One need not, however, be an accused to avail
of the right to counsel and the right to counsel
does not commence only during trial. Every
person under custody of the law enjoys the
right. Even a person under investigation for an
offense has the right to have a competent and
independent counsel preferably of his own
choice [RIANO]
Elements of the Right to Counsel:
a. Court’s duty to inform the accused of right
to counsel before being arraigned;
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b. It must ask him if he desires the services of
counsel;
c. If he does, and is unable to get on, the
Court must give him one; if the accused
wishes to procure private counsel, the
Court must give him time to obtain one.
d. Where no lawyer is available, the Court
may appoint any person resident of the
province and of good repute for probity and
ability.
6. Right to be informed of the
nature and cause of
accusation
Procedural due process requires that the
accused must be informed why he is being
prosecuted and what charge he must meet
[Vera v. People, supra]
7. Right to a speedy and
impartial trial
Sec. 16, Art. III. All persons shall have the
right to a speedy disposition of their cases
before all judicial, quasi-judicial, or
administrative bodies.
Sec. 17, R.A. 8493. Act not a bar to
provision on speedy trial in the
Constitution. – No provision of law on
speedy trial and no rule implementing the
same shall be interpreted as a bar to any
charge of denial of the right to speedy trial
guaranteed by Section 14(2), Article III, of
the 1987 Constitution.
Impartial Trial
A civilian cannot be tried by a military court so
long as the civil courts are open and operating,
even during Martial Law [Olaguer v. Military
Commission, G.R. No. L-54558 (1987)].
Dismissal based on the denial of the right to
speedy trial amounts to an acquittal [Acebedo
v. Sarmiento, G.R. No. L-28025 (1970)].

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When right not available
The right to speedy trial cannot be invoked
where to sustain the same would result in a
clear denial of due process to the prosecution
[Uy v. Hon. Adriano, supra].
Rationale of right to speedy trial
a. To prevent oppressive pre-trial
incarceration;
b. To minimize anxiety and concern of the
accused; and
c. To limit the possibility that the defense will
be impaired.
8. Right of confrontation
This is the basis of the right to cross-
examination.
Two-fold purpose:
a. To afford the accused an opportunity to test
the testimony of the witness by cross-
examination
b. To allow the judge to observe the
deportment of [the] witness [Go, et al. v.
The People of the Philippines and
Highdone Company, Ltd., G.R. No. 185527
(2012)].
Inadmissibility for lack of right to
confrontation:
a. Testimony of a witness who has not
submitted himself to cross examination
b. Affidavits of witness who are not presented
during trial, hence not subjected to cross
examination are hearsay [Cariago v. CA,
G.R. No. 143561 (2001)].
The Court agrees that the right to cross-
examine is a constitutional right anchored on
due process. It is a statutory right found in
Section 1(f), Rule 115 of the Revised Rules of
Criminal Procedure which provides that the
accused has the right to confront and cross-
examine the witness against him at the trial.
However, the right has always been
understood as requiring not necessarily an
actual cross-examination but merely an
opportunity to exercise the right to cross-
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examine if desired. What is proscribed by
statutory norm and jurisprudential precept is
the absence of the opportunity to cross-
examine. The right is a personal one and may
be waived expressly or impliedly [People v.
Escote Jr., G.R. No. 140756 (2003)].
The task of recalling a witness for cross-
examination is, in law, imposed on the party
who wishes to exercise said right. This is so
because the right, being personal and
waivable, the intention to utilize it must be
expressed. Silence or failure to assert it on time
amounts to renunciation thereof. Thus, it
should be the counsel for the opposing party
who should move to cross-examine plaintiff’s
witness [Fulgado v. CA, G.R. No. L-61570
(1990)].
If one is deprived of the opportunity to cross-
examine without fault on his part, it is generally
held that he is entitled to have the direct
examination stricken from the record [People v.
Seneris, G.R. No. L-48883, (1980)].
Rules on Examination of a Child Witness
[AM No. 004-07-SC]
The judge may exclude any person, including
the accused, whose presence or conduct
causes fear to the child.
9. Compulsory process
The right to compulsory process may be
invoked by the accused to secure the
attendance of witnesses and the production of
witnesses in his behalf. This is a constitutional
right embodied in Sec 14(2), Art III of the Bill of
Rights.
In connection with this right, the accused may
move the court for the issuance of a subpoena
ad testificandum or a subpoena duces tecum
pursuant to the provisions of Rule 21 of the
Rules of Court [RIANO].
In case of the unjustified failure of the witness
to comply, the court or judge issuing the
subpoena, upon proof of the service of such
subpoena and proof of his failure to attend,

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may issue a warrant for his arrest [Sec. 8, Rule
21, ROC]
Compulsory Process
a. Right to Secure Attendance of Witness
b. Right to Production of Other Evidence
Subpoena is a process directed to a person
requiring him to attend and to testify at the
hearing or trial of an action or at any
investigation conducted under the laws of the
Philippines, or for the taking of his deposition
[Caamic v. Galapon, AM No. MTJ-93-887].
10. Trial in absentia
When Can Trial In Absentia Be Done
Requisites
a. Accused failed to appear for trial
despite postponement and notice
b. Failure to appear is unjustified
c. After arraignment
Consequences of the Accused’s Failure to
Appear for Trial
Waiver of right to cross-examine and present
evidence [Gimenez v. Nazareno, G.R. No. L-
37933 (1988)].
When presence of the accused is a duty
General Rule
1. Arraignment and Plea
Sec. 1(b) of Rule 116 requires that the
“accused must be present at the arraignment
and must personally enter his plea.
2. During Trial for identification
Common reason suggests that the prosecution
must be afforded the right to identify the
accused as the perpetrator of the offense and
the very person named or described in the
complaint or information because rights during
the trial are not designed to be for the accused
alone.
3. Promulgation of Sentence
A judgement is promulgated by reading it “in
the presence of the accused…” [RIANO].
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Exception: Light offense where accused need
not personally appear.
Note: As a general rule, subject to certain
exception, any constitutional or statutory right
may be waived if such waiver is not against
public policy.
Administrative Circular No. 16-93, issued on
September 9, 1993, provides that… The
practice of requiring the convict to appear
before the trial court for “promulgation” of the
judgement of the appellate court should,
therefore, be immediately discontinued.
It is clear from the foregoing that the practice of
requiring convicts to appear before the trial
courts for promulgation of the affirmance or
modification by this Court or the CA of the
judgements of conviction in criminal cases is
no longer allowed [Almuete v. People, G.R. No.
179611 (2013)].
In cases where death penalty would be
imposed
Circumstances that qualify a crime and
increases its penalty to death cannot be
subject of stipulation. This strict rule is
warranted by the gravity and irreversibility of
capital punishment. To justify the death
penalty, the prosecution must specifically
allege in the information and prove during trial
the qualifying circumstances of minority of the
victim and her relationship to the offender
[People v. Lagua, G.R. No. 188315 (2010)].
On application for taking oral depositions
outside the Philippines
The Court only allows the taking of oral
depositions under extraordinary circumstances
in order to prevent a failure of justice. This is
best left at the sound discretion of the court
wherein the application was filed [Jaylo v.
Sandiganbayan, G.R. No. 111305 (2001)].
Writ of Habeas Corpus
Sec. 15, Art. III. The privilege of the writ of
habeas corpus shall not be suspended
except in cases of invasion or rebellion when
the public safety requires it.

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Suspension of the Privilege of the Writ
Sec. 18, Art. VII. The President shall be the
Commander-in-Chief of all armed forces of
the Philippines and whenever it becomes
necessary, he may call out such armed
forces to prevent or suppress lawless
violence, invasion or rebellion. In case of
invasion or rebellion, when the public safety
requires it, he may, for a period not
exceeding sixty days, suspend the privilege
of the writ of habeas corpus or place the
Philippines or any part thereof under martial
law.
xxx
A state of martial law does not suspend the
operation of the Constitution, nor supplant
the functioning of the civil courts or
legislative assemblies, nor authorize the
conferment of jurisdiction on military courts
and agencies over civilians where civil courts
are able to function, nor automatically
suspend the privilege of the writ.
The suspension of the privilege of the writ
shall apply only to persons judicially charged
for rebellion or offenses inherent in or directly
connected with invasion.
Definition of the Writ of Habeas Corpus
A writ issued by a court directed to a person
detaining another, commanding him to produce
the body of the prisoner at a designated time
and place, with the day and cause of his
caption and detention, to do, to submit to, and
to receive whatever the court or judge
awarding the writ shall consider in his behalf
[Sombong v. CA, G.R. No. 111876 (1990)].
Availability
1. Involuntary restraint of liberty
2. Voluntary restraint of liberty i.e. right of
parents to regain custody of minor child
even if the child is in the custody of a third
person of her own free will. [Sombong v.
CA, supra]
3. Illegal arrest with supervening event when
restraint of liberty is already by virtue of the
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complaint or information [Velasco v. CA,
G.R. No. 118644 (1995)].
a. The issuance of a judicial process
preventing the discharge of the
detained person.
b. Another is the filing of a complaint or
information for the offense for which
the accused is detained. [Sec. 4, Rule
102]
4. Where a sentence imposes punishment in
excess of the power of the court to
impose, such sentence is void as to the
excess [Gumabon v. Director of Prisons,
G.R. No. L-30026 (1971)].
5. “Habeas corpus is the proper remedy for a
person deprived of liberty due to mistaken
identity. In such cases, the person is not
under any lawful process and is
continuously being illegally detained” [In
the Matter of Petition for Habeas Corpus of
Datukan Malang Salibo, G.R. No. 197597
(2015)].
Restraint of Liberty
The nature of the restraint of liberty need not
be related to any offense so as to entitle a
person to the efficient remedy of habeas
corpus. It may be availed of as a post-
conviction remedy or when there is an alleged
violation of the liberty of abode. In other words,
habeas corpus effectively substantiates the
implied autonomy of citizens constitutionally
protected in the right to liberty in Article III,
Section 1 of the Constitution. Habeas corpus
being a remedy for a constitutional right, courts
must apply a conscientious and deliberate level
of scrutiny so that the substantive right to liberty
will not be further curtailed in the labyrinth of
other processes. [In the Matter of the Petition
for Habeas Corpus of Datukan Malang Salibo,
supra]
Not only physical restraint but any restraint on
freedom of action is sufficient i.e. (1) curtailed
freedom of movement by the condition that he
must get approval of respondents for any travel
outside Metro Manila, (2) abridged liberty of
abode because prior approval of respondent is
required in case petitioner wants to change
place of residence, (3) abridged freedom of
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interviews inimical to national security, and (4)
petitioner is required to report regularly to
respondents or their reps [Moncupa v. Enrile,
G.R. No. L-63345 (1986)].
This Court has held that a restrictive custody
and monitoring of movements or whereabouts
of police officers under investigation by their
superiors is not a form of illegal detention or
restraint of liberty [Ampatuan v. Macaraig, G.R.
No. 182497 (2010)].
Restrictive custody is, at best, nominal restraint
which is beyond the ambit of habeas corpus. It
is neither actual nor effective restraint that
would call for the grant of the remedy prayed
for. It is a permissible precautionary measure
to assure the PNP authorities that the police
officers concerned are always accounted for.
[Ampatuan v. Macaraig, supra].
Note: The fact that the party to whom the writ
is addressed has illegally parted with the
custody of a person before the application for
the writ is no reason why the writ should not
issue [Villavicencio v. Lukban, G.R. No. L-
14639 (1919)].
Test for valid suspension of the privilege of
the writ
Arbitrariness, not correctness.
Writs of Amparo, Habeas Data, Kalikasan
1. Writ of Amparo
A.M. No. 07-9-12-SC (25 September 2007):
The Rule on the Writ of Amparo
Sec. 1. Petition. – The petition for a writ of
amparo is a remedy available to any person
whose right to life, liberty and security is
violated or threatened with violation by an
unlawful act or omission of a public official or
employee, or of a private individual or entity.
Concept
[An amparo proceeding] does not determine
guilt nor pinpoint criminal culpability for the
disappearance [threats thereof or extrajudicial
killings]; it determines responsibility, or at least
accountability for purposes of imposing the
appropriate remedies to address the
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disappearance [Razon Jr. v. Tagitis, G.R. No.
182498 (2009)]
Scope
The Amparo Rule was intended to address the
intractable problem of “extralegal killings” and
“enforced disappearances,” and its coverage,
in its present form is confined to these
instances or to threats thereof.
If what is involved is the issue of child custody
and the exercise of parental rights over a child,
who, for all intents and purposes, has been
legally considered a ward of the State, the
Amparo rule cannot be properly applied
[Caram v. Segui, G.R. No. 193652 (2014)].
Extralegal Killings
Killings committed without due process of law.
Enforced Disappearances
Elements
a. That there be an arrest, detention,
abduction or any form of deprivation of
liberty;
b. That it be carried out by, or with the
authorization, support or acquiescence
of, the State or a political organization;
c. That it be followed by the State or
political organization’s refusal to
acknowledge or give information on the
fate or whereabouts of the person
subject of the amparo petition; and,
d. That the intention for such refusal is to
remove subject person from the
protection of the law for a prolonged
period of time.
a. Basis
Sec. 5, Art. VIII. The Supreme Court shall
have the following powers: xxx (5)
Promulgate rules concerning the protection
and enforcement of constitutional rights, xxx.
Such rules shall provide a simplified and
inexpensive procedure for the speedy
disposition of cases, shall be uniform for all
courts of the same grade, and shall not
diminish, increase, or modify substantive
rights.
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Sandiganba 1. Before the

b. Petition for Writ yan or any of issuing court
its justices any justice
Form Court of thereof; or
The petition shall be signed and verified [Sec. Appeals or 2. any RTC
5]. any of its of the place
justices where the
Contents threat, act or
The petition shall allege the following: omission
1. The personal circumstances of the was
petitioner committed or
2. The name and personal circumstances of any of its
the respondent responsible for the threat, elements
act or omission, or, if the name is unknown occurred
or uncertain, the respondent may be Supreme 1. Before the
described by an assumed appellation Court or any issuing court
3. The right to life, liberty and security of the of its justices any justice
aggrieved party violated or threatened with thereof;
violation by an unlawful act or omission of or
the respondent, and how such threat or 2. before the
violation is committed with the attendant Sandiganba
circumstances detailed in supporting yan or any
affidavits CA or any of
4. The investigation conducted, if any, their justices
specifying the names, personal 3. any RTC
circumstances, and addresses of the of the place
investigating authority or individuals, as where the
well as the manner and conduct of the threat, act or
investigation, together with any report omission
5. The actions and recourses taken by the was
petitioner to determine the fate or committed or
whereabouts of the aggrieved party and any of its
the identity of the person responsible for elements
the threat, act or omission occurred
6. The relief prayed for.
Return
The petition may include a general prayer for Within 72 hours after service of the writ, the
other just and equitable reliefs [Sec. 5]. respondent shall file a verified written return
together with supporting affidavits which shall,
Where to file among other things, contain his defenses. A
Filed Enforced Returnable general denial is not allowed [Sec. 9].
RTC of the Anywhere in Before the
place where the issuing court Hearing
the threat, Philippines or Summary or court may call for a preliminary
act, or judge conference; given same priority as petition for
omission habeas corpus [Sec. 13].
was
committed or Proof required: Substantial evidence
any of its For the protective writ of amparo to issue,
elements allegation and proof that the persons subject
occurred thereof are missing are not enough. It must

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also be shown by the required quantum of
proof that their disappearance was carried out
by, or with the authorization, support or
acquiescence of, [the government] or a political
organization, followed by a refusal to
acknowledge [the same or] give information on
the fate or whereabouts of [said missing]
persons [Navia v. Pardico, G.R. No. 184467
(2012)].
Defense
c. Private individual – ordinary diligence
d. Public official – extraordinary diligence, no
presumption of regularity of duties [Sec.
17]
Note: Command responsibility is a way of
impleading a superior of the accused (subject
of the writ) to be made responsible for the
crimes committed by his subordinates — by
failing to prevent or punish the said accused.
As regards the relief granted, the Court held
that the production order under the Amparo
rule is different from a search warrant and may
be likened to the production of documents or
things under Rule 27.1, ROC [Secretary of
National Defense v. Manalo, supra].
Writ of Habeas Data
A.M. No. 08-1-16-SC (25 January 2008)
See also Writ of Habeas Data under Privacy of
Communications and Correspondence above.
The writ of habeas data is an independent and
summary remedy designed to protect the
image, privacy, honor, information, and
freedom of information of an individual, and to
provide a forum to enforce one’s right to the
truth and to informational privacy.
There must be a nexus between right to privacy
and right to life, liberty and security.
Right to Informational Privacy v. Legitimate
State Interest
The determination of whether the privilege of
the writ of habeas data, being an extraordinary
remedy, may be granted in this case entails a
delicate balancing of the alleged intrusion upon
the private life of a person and the relevant
state interest involved [Gamboa v. Chan,
supra].
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Without an actionable entitlement in the first
place to the right to informational privacy, a
habeas data petition will not prosper [Vivares v.
St. Theresa’s College, et al., G.R. No. 202666
(2014)].
Writ of Kalikasan
A.M. No. 09-6-8-SC (13 April 2010)
Definition: Remedy against violation or threat
of violation of constitutional right to a balanced
and healthful ecology by an unlawful act or
omission of a public official or employee, or
private individual or entity, involving
environmental damage of such magnitude as
to prejudice the life, health or property of
inhabitants in two or more cities or provinces
Requisites for the Issuance of the Writ
a. There is an actual or threatened violation of
the constitutional right to a balanced and
healthful ecology;
b. The actual or threatened violation arises
from an unlawful act or omission of a public
official or employee, or private individual or
entity; and
c. The actual or threatened violation involves
or will lead to an environmental damage of
such magnitude as to prejudice the life,
health or property of inhabitants in two or
more cities or provinces [Segovia v.
Climate Change Commission, G.R. No.
211010 (2017)].
Who may file
Natural or juridical persons, NGO or public
interest groups in behalf of persons whose right
is violated.
Who has jurisdiction
Supreme Court or Court of Appeals.
When is writ issued
Within three (3) days from the date of filing of
the petition, if the petition is sufficient in form
and substance
Return of Respondent
Within a non-extendible period of ten (10) days
after service of the writ, the respondent shall
file a verified return which shall contain all

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defenses; all defenses not raised are deemed
waived.
Hearing
Preliminary conference; same priority as other
writs (no more than 60 days).
Reliefs
Permanent cease and desist order against the
respondent, directive to respondent to protect,
preserve, rehabilitate or restore the
environment; to monitor strict compliance with
the decision and orders of the court, to make
periodic reports on the execution of the final
judgment, and other reliefs [Sec. 15, Rule 7].
“A rehabilitation or restoration program to be
implemented at the cost of the violator is also a
major relief that may be obtained under a
judgment rendered in a citizens' suit under the
Rules” [Arigo v. Swift, G.R. No. 206510
(2014)].
O. RIGHT TO THE SPEEDY
DISPOSITION OF
CASES
Sec. 16, Art III. All persons shall have the
right to a speedy disposition of their cases
before all judicial, quasi-judicial, or
administrative bodies.
The right to speedy disposition of cases is not
limited to the accused in criminal proceedings
but extends to all parties in all cases, be it civil
or administrative in nature, as well as all
proceedings, either judicial or quasi-judicial.
[Coscolluela v. Sandiganbayan [First Division],
G.R. No. 191411 (2013)].
While the right to speedy trial is invoked against
courts of law, the right to speedy disposition of
cases may be invoked before quasi-judicial or
administrative tribunals in proceedings that are
adversarial and may result in possible criminal
liability. [Cagang v. Sandiganbayan, G.R. Nos.
206438, 210141-42 (2018)]
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Due regard must be given to the facts and
circumstances surrounding each case xxx.
What the Constitution prohibits are
unreasonable, arbitrary and oppressive delays
which render rights nugatory [Ombudsman v.
Jurado, G.R. No. 154155 (2008)].
Note: the following show rulings of the Court
wherein the delay caused by the judge was not
excused:
● A judge’s illness should not be an excuse
for his failure to render the corresponding
decision or resolution within the prescribed
period [Balajedeong v. Del Rosario, A.M.
No. MTJ-07-1662 (2007)]
● A heavy workload due to additional work,
as acting presiding judge in other courts, is
not sufficient justification for the delay
because judges are allowed, upon motion
or letter-requests, extensions of the
reglementary period in deciding cases [Re:
Report on the Judicial and Financial Audit
Conducted in MTC’s of Bayombong and
Solano and MCTC, Aritao-Sta. Fe, Nueva
Vizcaya, A.M. NO. 05-3-83-MTC (2007)].
● The absence of a branch clerk of court
should not affect the prompt disposition of
cases. It is the duty of the judge to
recommend to the Supreme Court the
immediate appointment of a branch clerk of
court [Office of the Court Administrator v.
Laron, A.M. NO. RTJ-04-1870 (2007)].
● The non-submission of the transcript of the
stenographic notes by stenographers
would not relieve judges of their duty to
render a decision within the required period
as judges are directed to take down notes
of salient portions of the hearing and
proceed in the preparation of decisions
without waiting for the transcribed
stenographic notes [Office of the Court
Administrator v. Janolo Jr., 534 SCRA
262].
● The defects in a motion are not reasons for
a judge not to act on the same [Heirs of
Simeon Piedad v. Estrera, A.M. No. RTJ-
09-2170 (2009)].

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Dismissal based on violation of the right to
speedy disposition of cases
A criminal case may be dismissed for violation
of a person’s right to speedy disposition of
cases [Coscolluela v. Sandiganbayan, supra].
P. RIGHT AGAINST EXCESSIVE FINES
AND CRUEL, DEGRADING, AND
INHUMAN PUNISHMENTS
Sec. 19, Art III. (1) Excessive fines shall not
be imposed, nor cruel, degrading or inhuman
punishment inflicted. Neither shall death
penalty be imposed, unless, for compelling
reasons involving heinous crimes, the
Congress hereafter provides for it. Any death
penalty already imposed shall be reduced to
reclusion perpetua.
(2) The employment of physical,
psychological, or degrading punishment
against any prisoner or detainee or the use
of substandard or inadequate penal facilities
under subhuman conditions shall be dealt
with by law.
Cruel Punishment
• Involve torture of lingering death [Legarda
v. Valdez G.R. No. 513 (1902)].
• Not only severe, harsh, or excessive but
flagrantly and plainly oppressive
• Wholly or disproportionate to the nature of
the offense as to shock the moral sense of
the community [People v. Estoista, G.R.
No. L-5793 (1953)].
The constitutional limit must be reckoned on
the basis of the nature and of punishment
measured in terms of physical pain.
What is prohibited is cruel and unusual
punishment. Unusual punishment is not
prohibited, especially if it makes the penalty
less severe.
The prohibition of cruel and unusual
punishment is generally aimed at the form or
character of the punishment rather than its
severity in respect of duration or amount, and
applies to punishments which public sentiment
has regarded as cruel or obsolete. Fine and
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imprisonment would not thus be within the
prohibition [People v. dela Cruz, supra].
The imposition of the penalty of death is hereby
prohibited. Accordingly, R.A. No. 8177,
otherwise known as the Act Designating Death
by Lethal Injection is hereby repealed. R.A. No.
7659, otherwise known as the Death Penalty
Law, and all other laws, executive orders and
decrees, insofar as they impose the death
penalty are hereby repealed or amended
accordingly [Sec. 1, R.A. 9346].
The import of the grant of power to Congress
to restore the death penalty requires:
1. That the Congress defined or describe
what is meant by heinous crimes
2. That Congress specify and penalize by
death, only crimes that qualify as heinous
in accordance with the definition or
description set in the death penalty bill
and/or designate crimes punishable by
reclusion perpetua to death in which latter
case, death can only be imposed upon the
attendance of circumstances duly proven
in court that characterize the crime to be
heinous in accordance with the definition or
description set in the death penalty bill.
3. That Congress, in enacting this death
penalty bill be singularly motivated by
“compelling reasons involving heinous
crimes.”
For a death penalty bill to be valid, Sec 19(1)
does not require that there be a positive
manifestation in the form of higher incidence of
crime first perceived and statistically proven.
Neither does the said provision require that the
death penalty be resorted to as a last recourse
when all other criminal reforms have failed to
abate criminality in society [People v.
Echegaray, G.R. No. 117472 (1997)].
Q. NON-IMPRISONMENT
FOR DEBTS
Sec 20, Art III. No person shall be
imprisoned for debt or non-payment of a poll
tax.

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Debt
Any civil obligation arising from a contract. It
includes even debts obtained through fraud
since no distinction is made in the Constitution
[Ganaway v. Quillen, G.R. No. L-18619
(1922)].
Poll Tax
A specific sum levied upon any person
belonging to a certain class without regard to
property or occupation (e.g. community tax).
In a case where the accused was convicted
and imprisoned for estafa (where the accused
failed to render promised service to the injured
in exchange for the latter’s retrieval of the
former’s cedula), the Court held that the
imprisonment was correct since it was for
estafa and not involuntary servitude or
imprisonment for debt [Ramirez v. de Orozco,
G.R. No. L-11157 (1916)].
No person may be imprisoned for debt in virtue
of a civil proceeding [Makapagal v.
Santamaria, G.R. No. L-34616 (1930)].
A person may be imprisoned as a penalty for a
crime arising from a contractual debt and
imposed in a proper criminal proceeding. Thus,
the conversion of a criminal fine into a prison
term does not violate the right to non-
imprisonment for debts because in such a
case, imprisonment is imposed for a monetary
obligation arising from a crime [Ajeno v. Judge
Insero, A.M. No. 1098-CFI (1976)].
R. RIGHT AGAINST
DOUBLE JEOPARDY
Sec. 21, Art. III. No person shall be twice put
in jeopardy of punishment for the same
offense. If an act is punished by a law and an
ordinance, conviction or acquittal under
either shall constitute a bar to another
prosecution of the same act.
APPLICATION

1. In administrative cases: Not applicable
[Cayao-Lasam v. Ramolet (2008)]
 2. First jeopardy must have been validly
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2. Contempt: Applicable. Acquittal
effectively bars a second prosecution.
[Atty. Santiago v. Hon. Anunciacion, Jr.
(1990)]
TERMINATION OF JEOPARDY
1. By acquittal 

2. By final conviction 

3. By dismissal without express consent of
accused.
4. By “dismissal” on the merits 

Two types of double jeopardy [People v.
Relova, G.R. L-45129 (1987)]
1. Prosecution for the same offense
a. Same offense charged; 

b. Attempt of the same offense; 

c. Frustration of the same offense; 

d. Offense necessarily included in the 1st
offense (All the elements of the 2nd
constitute some of the elements of the
1st offense) 

e. Offense that necessarily includes the
1st offense (All the elements of the 1st
constitute some of the elements of the
2nd offense)

2. Prosecution for the same act
a. If punished by law and at the same time
punished by an ordinance; 

b. There is conviction or acquittal under
either 

Examples where there is no double jeopardy:
1. Conviction of a crime under a special law,
which also constitutes an offense under the
RPC, may not be a bar to the prosecution
under the RPC because the former is
malum prohibitum while the other is malum
in se.

2. Where two informations are filed charging
the same accused with two different
offenses arising from the act, where the two
offenses have different elements.
[Example: B.P.22 and the issuance of
bouncing checks for estafa]
1. Requisites; scope
1. First jeopardy attached prior to the second
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3. Second jeopardy must be for the same
offense or the second offense includes or
is necessarily included in the first offense;
or is an attempt or frustration thereof
Requisites for first jeopardy to attach:
A previous case must be filed and must contain
the following:
1. There must be a complaint or information
or other formal charge sufficient in form and
substance to sustain a conviction; 
 the accused to enter a plea of guilty to a lesser
2. The complaint or information must be filed
before a court of competent jurisdiction; 
 offense charged with the conformity of the trial
3. The accused has been arraigned and has
pleaded to the charges; 

4. The accused must have been convicted or
acquitted or the case against him was
dismissed or otherwise terminated without
his express consent. [Sec. 7, Rule 117;
People v. Obsania (1968)] 
 jeopardy for the same offense. [Cruz
Then, a subsequent complaint or information
was filed containing a crime that is:
1. The same offense
2. An attempt to commit the said offense;
3. A frustration of the said offense;
4. Any offense which necessarily includes the
first offense charged;
5. Any offense which is necessarily included
in the first offense charged.
2. Limitations; Exceptions to the
Rule on Double Jeopardy
The conviction of the accused shall not be a bar
to another prosecution for an offense which
necessarily includes the offense charged in the
former complaint or information under the
following instances, pursuant to Sec. 7, Rule
117, Rules of Court:
a. Supervening Event: The graver offense
developed due to "supervening facts"
arising from the same act or omission
constituting the former charge. (e.g., A
person convicted of physical injuries may
still be prosecuted for homicide if the victim
dies later.)
b. Newly Discovered Event: The facts
constituting the graver charge became
known or were discovered only after the
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filing of the former complaint or information.


c. Defective Plea Bargain: The plea of guilty
to the lesser offense was made without the
consent of the fiscal and the offended
party, except as provided in Sec. 1 (f) of
Rule 116. 

Note: In case of failure of the offended party to
appear despite due notice, the court may allow
offense which is necessarily included in the
prosecutor alone.
Appeal by prosecution; when allowed
General Rule: A judgment of acquittal is final
and no longer reviewable. It cannot be
reconsidered because it places the accused in
commentary, p. 777]
Exceptions: Appeal from acquittal is not
double jeopardy if: (DuMi-GAD)
1. Deprivation of due process: Where the
prosecution is deprived of a fair opportunity
to prosecute and prove its case [Villareal v.
People (2012)]
Provided, that the judge considered the
evidence, even if the appreciation of the
evidence leading to the acquittal is
erroneous, an appeal or motion for
reconsideration by the prosecution will not
be allowed. [People v. Judge Velasco
(2000)]
2. Mistrial [Galman v. Sandiganbayan, G.R.
No. 72670 (1986)]
3. Grave abuse of discretion amounting to
lack or excess of jurisdiction [People v. Uy,
G.R. No. 158157 (2005)]
Remedy for the above cases: special civil
action of certiorari under Rule 65 of the Rules
of Court
The private complainant or the offended party
may question such acquittal or dismissal only
insofar as the civil liability of the accused is
concerned [Villareal v. Aliga, G.R. No. 166995
(2014)].

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The prosecution can appeal where the
accused is deemed to have waived or is
estopped from invoking his right against double
jeopardy [CRUZ at 778].
Waiver of right against double jeopardy
The right against double jeopardy is deemed
waived if he appeals his conviction.
If the accused had been prosecuted for a
higher offense but was convicted for a lower
offense, he has technically been acquitted of
the higher offense. His appeal would give the
Court the right to impose a penalty higher than
that of the original conviction imposed on him
[Trono v. U.S. 199 U.S. 521 (1905)].
General Rule: Dismissal with consent of
accused waives double jeopardy.
When the case is dismissed other than on the
merits, upon motion of the accused personally,
or through counsel, such dismissal is regarded
as “with express consent of the accused”, who
is therefore deemed to have waived the right to
plea double jeopardy.
Provisional dismissal — A case shall not be
provisionally dismissed except with the
express consent of the accused and with notice
to the offended party. [Sec. 8, par. 1, Rule 117,
ROC.]
Exceptions
a. When the dismissal is based on
insufficiency of the evidence of the
prosecution [People v. City Court of Silay,
G.R. No. L-43790 (1976)]
b. When the dismissal is based on the denial
of his right to a speedy trial [People v.
Judge Abaño G.R. No. L-23599 (1955)] 
 Domestic services are always to be
c. When accused is discharged to be a state
witness
A mere verbal dismissal is not final until written
and signed by the judge [Rivera, Jr. v. People
G.R. No. 93219 (1990)].
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S. RIGHT AGAINST
INVOLUNTARY SERVITUDE
Sec. 18, Art. III.
No person shall be detained solely by reason
of his political beliefs and aspirations. 

No involuntary servitude in any form shall
exist except as a punishment for a crime
whereof the party shall have been duly
convicted. 

Involuntary Servitude refers to a condition of
enforced and compulsory service induced by
means of any scheme, plan or pattern,
intended to cause a person to believe that if he
or she did not enter into or continue in such
condition, he or she or another person would
suffer serious harm or other forms of abuse or
physical restraint, or threat of abuse or harm,
or coercion including depriving access to travel
documents and withholding salaries, or the
abuse or threatened abuse of the legal
process. [RA 9208 as amended by RA 10364]
Slavery and involuntary servitude, together
with their corollary peonage, all denote “a
condition of enforced, compulsory service of
one to another” [Hodges v. U.S., 203 U.S. 1
(1906) in Rubi v. Provincial Board of Mindoro,
supra].
A private person who contracts obligations of
rendering services in a civil capacity to the
Army as an employee in its offices cannot, by
law, either civil or military, be compelled to fulfill
them by imprisonment and deportation from his
place of residence. [In Re Brooks, G.R. No. 507
(1901)].
remunerated, and no agreement may subsist in
law in which it is stipulated that any domestic
service shall be absolutely gratuitous. [De los
Reyes v. Alojado, G.R. No. L-5671 (1910)].
Exceptions to the Prohibition against
Involuntary Servitude
a. If punishment is for a crime after conviction.
[Sec. 18, Art. III]

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b. In the interest of national defense, all Definition

citizens may be compelled by law to render
personal military or civil service. [Sec. 4,
Art. II]
 the time it was committed [CRUZ at 589].
c. A return to work order. “So imperative is the
order in fact that it is not even considered
violative of the right against involuntary
servitude.”
d. A worker must obey the order if he wants
to retain his work even if his inclination is to
strike. [Sarmiento v. Tuico, G.R. No.
75271-73, (1988)]
 laws. [Lacson v. Executive Secretary]
e. Naval enlistment [Robertson v. Baldwin,
165 U.S. 275 (1897)]
 Equivalent of the impairment clause in criminal
f. Posse comitatus - obligation of the
individual to assist in the protection of the
peace and good order of his community
[Kaisahan ng Manggagawa sa Kahoy v.
Gotamco Sawmills, G.R. No. L-1573,
(1948)]
 when done, and punishes such action.
Political Prisoners
The accused being political prisoners subject
to the civil jurisdiction of ordinary courts of
justice, if they are to be prosecuted at all, the
army has no jurisdiction, nor power, nor
authority, from all legal standpoints, to continue
holding them in restraint. They are entitled, as
a matter of fundamental right, to be
immediately released, any allegation as to
whether a war has ended or not [Raquiza v.
Bradford, G.R. No. L-44 (1945)].
T. EX POST FACTO LAWS
AND BILLS OF ATTAINDER
Sec. 22, Art. III. No ex post facto law or bill
of attainder shall be enacted.
The constitutional prohibition against ex post
facto laws and bills of attainder cannot be
invoked to protect allegedly vested civil rights,
because it is only applicable to criminal
proceedings, and not to civil proceedings
which affect private rights retrospectively
[Province of Camarines Sur v. Director of
Lands, G.R. No. L-43361 (1937)].
An ex post facto law is one that would make a
previous act criminal although it was not so at


Concept
In general, ex post facto laws prohibits
retrospectivity of penal laws. Moreover, the
mode of procedure provided for in the right to
appeal, which is statutory and not natural, is not
included in the prohibition against ex post facto



matters. 

What are Considered Ex Post Facto laws
● Makes criminal an action done before the
passage of the law which was innocent


● Aggravates a crime or makes it greater
than when it was committed. 

● Changes the punishment and inflicts a
greater punishment than the law annexed
to the crime when it was committed. 

● Alters the legal rules of evidence and r
eceives less or different testimony than the
law required at the time of the commission
of the offense in order to convict the
defendant [Mekin v. Wolfe, G.R. No. 1251
(1903)]. 

● Assumes to regulate civil rights and
remedies only but in effect imposes a
penalty or deprivation of a right which when
done was lawful. 

● Deprives a person accused of a crime of
some lawful protection of a former
conviction or acquittal, or a proclamation of
amnesty [In re Kay Villegas Kami, G.R. No.
L-32485 (1970)]. 

Characteristics of an ex-post facto law
(CReP)
1. Refer to criminal matters; 

2. Be retroactive in its application; 

3. To the prejudice of the accused. [Cruz
commentary, 
p. 591] 

“The prohibition applies only to criminal or
penal matters and not to laws which concern
civil matters or proceedings generally, or which

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affect or regulate civil or private rights.”
[Republic v. Fernandez, G.R. No. L-9141
(1956)]
Examples
1. In Bayot v. Sandiganbayan [G.R. No. L-
61776 to No. L- 61861 (1984)], an
amendment to R.A. 3019, which provides for
suspension pendente lite of any public officer
or employee accused of offenses involving
fraudulent use of public funds or property,
including those charged earlier, is not an ex
post facto law. The suspension was not
punitive, but only preventive in nature.
2. In People v. Estrada [G.R. Nos. 164368-69
(2009)], R.A. 9160, which was made to apply
to the accused for acts allegedly committed
prior to its enactment, was considered ex
post facto. Prior to its enactment, numbered
accounts or anonymous accounts were
permitted banking transactions, whether they
be allowed by law or by a mere banking
regulation.
Bill of Attainder
It is a legislative act that inflicts punishment
without trial, its essence being the substitution
of legislative fiat for a judicial determination of
guilt. It is only when a statute applies to either
named individuals or to easily ascertainable is
a legislative act that inflicts punishment without
trial, its essence being the substitution of
legislative fiat for a judicial determination of
guilt.
Elements
1. There must be a law.
 compliance may be raised [Disini v. Sec. of
2. The law imposes a penal burden on a
named individual or easily ascertainable
members of a group.
 3. R.A. 1700 which declared the Communist
3. There is a direct imposition of penal
burden without judicial trial.
In Relation to Ex Post Facto law
“Frequently a bill of attainder was doubly
objectionable because of its ex post facto
features.
Therefore, if a statute is a bill of attainder, it is
also an ex post facto law. But if it is not an ex
post facto law, the reasons that establish that it
is not are persuasive that it cannot be a bill of
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attainder” [People v. Ferrer, G.R. No. L-32613-
14 (1972)].
Examples of law which are NOT bills of
attainder
1. R.A. 9335, which provides for the removal
of the Bureau of Customs’ employees who
would not be able to meet their revenue
targets, as prescribed by law. RA 9335
does not seek to inflict punishment without
judicial trial, but it merely lays down the
grounds for the termination of a BIR or
BOC official or employee and provides for
the consequences thereof [Bureau of
Customs Employees Association v. Teves,
G.R. No. 181704 (2011)].
In other words, if a legislation only states
the grounds for a violation, then it is not
considered as a bill of attainder
2. Sec. 20 of the Cybercrime Law, which
imposed a penalty of imprisonment upon
those who would fail to comply with certain
provisions of Chapter IV of the said law.
The Court held that since the non-
compliance would be punished as a
violation of PD 1829, Sec. 20 of the
Cybercrime Law necessarily incorporates
elements of the offense which are defined
therein. The act of non- compliance, for it
to be punishable, must still be done
“knowingly or willfully.” There must still be
a judicial declaration of guilt, during which,
defense and justifications for non-
Justice, supra].
Party of the Philippines a clear and present
danger to Philippine security, and thus
prohibited membership in such
organization, was contended to be a bill of
attainder. Although the law mentions the
CPP in particular, its purpose is not to
define a crime but only to lay a basis or to
justify the legislative determination that
membership in such organization is a crime
because of the clear and present danger to
national security [People v. Ferrer, supra]
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which the will of the state is expressed and

A. GENERAL PRINCIPLES
1. Public Office
Definition
The right, authority and duty, created and
conferred by law, by which, for a given period
either fixed by law or enduring at the pleasure
of the creating power, an individual is invested
with some portion of the sovereign functions of
government, to be exercised by that individual
for the benefit of the public [Fernandez v. Sto.
Tomas, G.R. No. 116418 (1995), quoting
MECHEM]
Nature Right, authority, and duty
enforced. Its officers therefore are likewise
agents entrusted with the responsibility of
discharging its functions. As such, there is no
presumption that they are empowered to act,
there must be a delegation of such authority,
either express or implied. In the absence of a
valid grant, they are devoid of power [Villegas
v. Subido, G.R. No. L-26534 (1969)]
Sec. 1, Art. XI. Public office is a public trust. Public
officers and employees must, at all times, be
accountable to the people, serve them with utmost
responsibility, integrity, loyalty, and efficiency; act
with patriotism and justice, and lead modest lives.
The provision embodies the nature of a public
office as a public trust, and not as a property
right.

Origin Created and conferred by law The constitutional provision means that public
office is a responsibility.
Duration For a given period, either:
1. Fixed by law, or a. Elements
2. Enduring at the pleasure of
the appointing power
1. It must be created by the
Nature of An individual is invested with Constitution or by the legislature or
the some portion of the sovereign created by a municipality or other body
Exercise (of functions of government through authority conferred by the
the right, legislature;
authority, 2. It must possess a delegation of a
and duty) portion of the sovereign power of
government, to be exercised for the
Object of For the benefit of the public benefit of the public;
the 3. The powers conferred and the duties
Exercise to be discharged must be defined,
directly or impliedly, by the
legislature or through legislative
Constitutional Principles
authority;
4. The duties must be performed
Sec. 1, Art. II. The Philippines is a democratic and
republican State. Sovereignty resides in the people independently and without control
and all government authority emanates from them. of a superior power, other than the
law, unless they be those of an inferior
This is the central or core provision for the law or subordinate office, created or
on public officers. The second sentence, in authorized by the legislature and by it
particular, is the foundation of the law on public placed under the general control of a
accountability. superior officer or body;
5. It must have some permanency and
A public officer exercises delegated powers: A continuity and not be only temporary
public official exercises power, not rights. The or occasional. [State Ex Rel. Barney v.
government itself is merely an agency through

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Hawkins, 257 P. 411 (Montana
Supreme Court, 1927)]
Permanence and continuity are not
indispensable
Hence, even if the tenure of the Chair of the
National Centennial Commission (NCC) is
merely temporary, it is a public office. The NCC
was an ad-hoc body that was created by an
Executive Order to perform an executive and
sovereign function—to coordinate the
celebrations of the Philippine Centennial
[Laurel v. Desierto, G.R. No. 145368 (2002)].
Salary is not an element
While salary is a usual criterion for determining
the nature of a position, it is not a necessary
condition. The material factor was the
delegation of sovereign functions [Id.].
Delegation of sovereign function, most
important element
The delegation of a portion of the sovereign
powers of government necessarily means that
the powers are to be exercised for the benefit
of the public. [MECHEM, The Law Of Public
Offices And Officers (1890), Book I, Chapter 1,
§4]
This delegation is the most important element
of a public office and distinguishes it from
private employment or a contract [Id.].
On duties to be performed independently
General Rule: Duties must be performed
independently and without the control of a
superior power other than the law.
Exception: Duties of an inferior or subordinate
office that was created or authorized by the
Legislature and which inferior or subordinate
office is placed under the general control of a
superior office or body.
b. Creation, Modification, Abolition
CREATION
Modes of Creation of Public Office
1. By the Constitution;
2. By statute/law; or
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3. By a tribunal or body to which the power to
create the office has been delegated.
HOW A PUBLIC OFFICE IS CREATED
General Rule: The creation of a public office is
primarily a legislative function.
Exception: Where the office is created by the
Constitution itself.
The power to create a public office may be
delegated by Congress, subject to the
requirements of a valid delegation of legislative
powers.
The delegation is limited by the Constitution
and the relevant statute. Hence, the president
cannot deprive courts of jurisdiction by
requiring administrative appeals prior to court
action when the statute does not provide for
that limitation. This is because the power to
apportion jurisdiction is exclusively within the
powers of Congress [See UST v. Board of Tax
Appeals, G.R. No. 5701 (1953)].
MODIFICATION/ABOLITION
General Rule: The power to create an office
includes the power to modify or abolish it.
(Hence, the power to modify or abolish an
office is also primarily legislative.)
Exception: Where the Constitution prohibits
such modification/abolition.
Abolishing an office also abolishes unexpired
term: The legislature’s abolition of an office
(e.g. a court) also abolishes the unexpired
term. The legislative power to create a court
carries with it the power to abolish it [Ocampo
v. Sec. of Justice, G.R. No. 7910 (1955)].
President has power to reorganize the
Executive; President’s power of control gives
him authority to deactivate the functions of
particular offices. As far as bureaus, agencies
or offices in the executive department are
concerned, the President's power of control
may justify him to inactivate the functions of a
particular office, or certain laws may grant him
the broad authority to carry out reorganization
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measures. [Buklod ng Kawaning EIIB vs. bound by the

Zamora, G.R. No. 142801-2, (2001)] contract.
Subject matter
Characteristics A public office Limited duration and
Public office is a public trust: Art. XI, Sec. 1, embraces the sideS specific in its object. Its
CONST. [supra]. Public office is not a property terms define and limit
of tenure, duration,
right. the rights and
continuity, and the obligations of the
duties connected parties, and neither may
A public office is not a property right, it is a therewith are depart therefrom
public trust. No one has a vested right to any generally continuing without the consent of
public office, much less a vested right to an and permanent. the other.
expectancy of holding a public office. A public Scope
office is not property within the sense of the Duties are very specific
Duties are generally
constitutional guaranties of due process of law, to the contract.
continuing and
but is a public trust or agency. As public officers
permanent.
are mere agents and not rulers of the people, Where duties are defined
no man has a proprietary or contractual right to
The law. Contract
an office. Congress may amend at any time the
law to change or even withdraw the statutory
right. [Montescarlos v. COMELEC, G.R. No. Public office is personal: Public office being
152295 (2002); Cornejo v. Gabriel, G.R. No. personal, the death of a public officer
16887 (1920)] terminates his right to occupy the contested
office and extinguishes his counterclaim for
Exception: Public office is analogous to damages. His widow and/or heirs cannot be
property in a limited context and due process substituted in the counterclaim suit [Abeja v.
may be invoked when the dispute concerns Tañada, G.R. No. 112283 (1994)].
one‘s constitutional right to security of tenure
[Lumiqued v. Exevea, G.R. No. 117565 2. Public Officer
(1997)].
a. Definitions
Public office is not a contract: An office also
differs from a contract, for, as has been said, A public officer is an individual vested with
“the latter from its nature is necessarily limited
some portion of the sovereign functions of the
in its duration and specific in its objects. The
government to be exercised by him for the
terms agreed upon define the rights and benefit of the public [Alba v. Evangelista,G,R..
obligations of both parties, and neither may Nos. L-10360 and L-10433, (1957)]
depart from them without the assent of the
other." [MECHEM, The Law Of Public Offices
Under Revised Administrative Code, Sec. 2
And Officers (1890), Book I, Chapter 1, §3]
Sec. 2 (14) “Officer” as distinguished from
“clerk” or “employee”, refers to a person
Public Office Contract whose duties, not being of a clerical or
How created
manual nature, involves the exercise of
Incident of sovereignty. Originates from will of discretion in the performance of the
Sovereignty is the contracting parties
functions of the government. When used
omnipresent
Object
with reference to a person having authority
To carry out the Obligations imposed to do a particular act or perform a particular
sovereign as well as only upon the persons function in the exercise of governmental
governmental who entered into the power, “officer” includes any government
contract. employee, agent or body having authority to
functions affecting
even persons not do the act or exercise that function.

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Under Revised Penal Code, Art. 203
Art. 203. Who are public officers. — For the
purpose of applying the provisions of this
and the preceding titles of this book, any
person who, by direct provision of the law,
popular election or appointment by
competent authority, shall take part in the
performance of public functions in the
Government of the Philippine Islands, or
shall perform in said Government or in any
of its branches public duties as an employee,
agent or subordinate official, of any rank or
class, shall be deemed to be a public officer.
Under RA 3019 (Anti Graft and Corrupt
Practices Act), Sec. 2
Sec. 2 xxx
a. “Government” includes the national
government, the local governments, the
government-owned and government-
controlled corporations, and all other
instrumentalities or agencies of the Republic
of the Philippines and their branches.
b. “Public officer” includes elective and
appointive officials and employees,
permanent or temporary, whether in the
classified or unclassified or exempt service
receiving compensation, even nominal, from
the government as defined in the preceding
subparagraph.
b. Public Officer v. Public Employee
Public Employee under Revised Administrative
Code, Sec. 2 (15)
(15) “Employee” when used with reference
to a person in the public service, includes
any person in the service of the government
or any of its agencies, divisions, subdivisions
or instrumentalities.
Public employment is broader than public
office. All public office is public employment,
but not all public employment is a public office.
Public employment as a position lacks either
one or more of the foregoing elements of a
public office. It is created by contract rather
than by force of law [DE LEON].
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An officer is distinguished from a mere
employee in the sense that:
1. His position has greater importance,
dignity, and independence;
2. He is required to take an official oath, and
to give an official bond;
3. He has greater liability to account for
misfeasance or nonfeasance in office: and
4. His tenure of office is usually different from
that of an ordinary employee [SUAREZ,
Political Law Reviewer (2015)]
c. Who are not Public Officers
Generally, persons holding offices or
employment which are not public offices, i.e.
those missing one of the essential elements,
supra.
Examples
A concession forest guard, even when
appointed by a government agency, if such
appointment was in compliance with a
requirement imposed by an administrative
regulation on the lumber company who was
also mandated to pay the guard’s salaries
[Martha Lumber Mill v. Lagradante, G.R. No.
7599 (1956)].
Rationale: There was no public office in this
case. The Court further noted that the
appointment by the government was only done
to ensure the faithful performance of the
guard’s duties. [Id.]
A company cashier of a private corporation
owned by the government [See Tanchoco v.
GSIS, G.R. No. L-16826 (1962)]
Rationale: Even if the Manila Railroad
Company was owned by the Government, its
funds were private funds because the Court
found that it was not imbued with governmental
powers [Id.].
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d. Classifications to be distinguished from the selection or

designation by a popular vote. [DE LEON].
Creation Constitutional
2. Election
Statutory The choice or selection of candidates to public
office by popular vote through the use of the
Public Body National ballot (Rulloda v. COMELEC, G.R. No. 154198
Served (2003)].
Local The act of selecting or choosing a person by
popular vote to occupy the office.
Department Legislative
of 3. Designation
government Executive The mere imposition of new or additional duties
to which upon an officer to be performed by him in a
their Judicial special manner. It presupposes that the officer
functions is already in the service by virtue of an earlier
pertain appointment, performing other functions.

Nature of Civil 4. Other Modes: A person may also acquire

Functions title to public office through two other
Military
means, namely:
Exercise of Discretionary a. Succession by operation of law (when
Judgement the office to which one succeeds is
or Discretion Ministerial legally vacated) or;
b. By direct provision of law (such as
Legality of De Jure when the office is validly held in an ex-
Title to Office officio capacity by a public officer).
De Facto
1. Appointments
Compensa- Lucrative
tion Nature
Honorary
Appointment is a Discretionary Power
[CRUZ, The Law on Public Officers (2018)] “Appointment is an essentially discretionary
power and must be performed by the officer in
which it is vested according to his best lights,
B. MODES OF ACQUIRING the only condition being that the appointee
TITLE TO PUBLIC OFFICE should possess the qualifications required by
law. If he does, then the appointment cannot be
Generally, the two modes of acquiring title to faulted on the ground that there are others
public office are better qualified who should have been
1. Appointment preferred” [Luego v. CSC, G.R. No. 69137
2. Election [DE LEON] (1986)].

Modes Administrators of public officers, primarily the

1. Appointment
The act of designation by the executive officer,
board, or body to whom that power has been
delegated, of the individual who is to exercise
the powers and function of a given office. It is
department heads should be entrusted with
plenary, or at least sufficient, discretion. Their
position most favorably determines who can
best fulfill the functions of a vacated office.
There should always be full recognition of the
wide scope of a discretionary authority, unless
the law speaks in the most mandatory and

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peremptory tone, considering all the
circumstances [Reyes v. Abeleda, G.R. No.
25491 (1968)].
Scope of discretion
The discretion of the appointing authority is not
only in the choice of the person who is to be
appointed but also in the nature and character
of the appointment intended (i.e., whether the
appointment is permanent or temporary).
Generally, a Political Question: Appointment is
generally a political question involving
considerations of wisdom which only the
appointing authority can decide.
Exception: Appointments requiring
confirmation by the Commission on
Appointments. In such cases, the Commission
on Appointments may review the wisdom of the
appointment and has the power to refuse to
concur with it even if the President's choice
possessed all the qualifications prescribed by
law [Luego v. CSC, supra].
Power of CSC to recall appointments does
not include control of discretion:
The CSC authority to recall an appointment
which has been initially approved when it is
shown that the same was issued in disregard
of pertinent laws, rules and regulations.
However, it does not have the power to recall
an appointment on the ground that another
person is better qualified [See Luego v. CSC,
supra].
The promotion of the “next-in-rank” is not
mandatory
While there is a preference for the next- in-rank
in the Civil Service Law [see Sec. 21(1)-(6), Bk.
V, Admin. Code (Civil Service Law)], it does not
impose a “rigid or mechanistic formula” that
requires the appointing power to select the
more senior officer. Unless the law speaks in
the most mandatory and peremptory tone,
there should be full recognition of the wide
scope of the discretionary authority to appoint
[Reyes v. Abeleda, G.R. No. 25491 (1968)].
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There is no requirement that “vacancies must
be filled by promotion, transfer, reinstatement,
reemployment or certification,in that order.
That would be to construe the provision not
merely as a legislative prescription of
qualifications but as a legislative appointment,
repugnant to the Constitution. What [the law]
does purport to say is that as far as practicable
the person next in rank should be promoted,
otherwise the vacancy may be filled by
transfer, reinstatement, reemployment or
certification, as the appointing power sees fit,
provided the appointee is certified to be
qualified and eligible” [Pineda v. Claudio, G.R.
No. 29661 (1967)].
“Upon recommendation” is merely advisory: In
cases of provincial and city prosecutors and
their assistants, they shall be appointed by the
President “upon the recommendation of the
Secretary” [Sec. 10, P.D. No. 1275]. The
phrase “upon recommendation of the
Secretary of Justice” should be interpreted to
be a mere advice. It is persuasive in character,
but is not binding or obligatory upon the person
to whom it is made [Bermudez v. Torres, G.R.
No. 131429 (1999)].
N.B. The Secretary of Justice is under the
control of the President. The rule is different
with respect to recommendations made by
officers over whom the appointing power
exercises no power of control, e.g. as the
recommendation by the Governor of a
Province to the Secretary of the Department of
Budget and Management in the appointment of
a Provincial Budget Officer. In the said
example, the recommendation by the Governor
is a condition sine qua non for the validity of the
appointment [See San Juan v. CSC, G.R. No.
92299 (1991)].
Courts will act with restraint: Generally, as
regards the power of appointment, courts will
act with restraint.
Hence, mandamus will not lie to require the
appointment of a particular applicant or
nominee.

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Exceptions
1. When there is grave abuse of discretion,
prohibition or mandamus will lie. [See
Aytona v. Castillo, G.R. No. 19313 (1962),
on the midnight appointments of President
Garcia].
2. Where the palpable excess of authority or
abuse of discretion in refusing to issue
promotional appointment would lead to
manifest injustice, mandamus will lie to
compel the appointing authority to issue
said appointments [Pineda v. Claudio, G.R.
No. 29661 (1967)].
Appointment is Generally an Executive
Function
General Rule: Appointment to office is
intrinsically an executive act involving the
exercise of discretion [Concepcion v. Paredes,
G.R. 17539 (1921)].
Exceptions
1. Congress may appoint its own officials and
staff [See Springer v. Government, 277
U.S. 189 (1928)].
2. When the Constitution vests the powers in
another branch of the State (i.e. Judiciary,
Sec. 5(6), Art. VIII) or an independent office
(e.g. Constitutional Commissions, Sec. 4,
Art. IX-A; Ombudsman, Sec. 6, Art. XI;
Commission on Human Rights, Sec.
18(10), Art. XIII).
N.B. Mechem believes that when appointment
is exercised by Congress, the courts, and
similar non- executive bodies, the exercise is
still an executive function.
The power to appoint may be granted by law to
officials exercising executive functions. This is
expressly sanctioned by the provision which
holds that “Congress may, by law, vest the
appointment of other officers lower in rank [...]
in the heads of departments, agencies,
commissions, or boards.” [Sec. 16, Art. VII,
Constitution]
Congress cannot vest such power in officials
not mentioned in the above provision, such as
heads of bureaus [DE LEON].
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The power of local chief executives to appoint
local government employees under the Local
Government Code is separately sanctioned in
the power of Congress to “provide for the
qualifications, election, appointment and
removal, term, salaries, powers and functions
and duties of local officials, and all other
matters relating to the organization and
operation of the local units” [Sec. 3, Art. X,
Constitution].
Must be Unhindered by Congress
The President’s power to appoint under the
Constitution should necessarily have a
reasonable measure of freedom, latitude, or
discretion in choosing appointees [Cuyegkeng
v. Cruz, G.R. No. 16263 (1960)].
Congress cannot either appoint the
Commissioner of the Service, or impose upon
the President the duty to appoint any particular
person to said office. The appointing power is
the exclusive prerogative of the President,
upon which no limitations may be imposed by
Congress, except those resulting [1] from the
need of securing the concurrence of the
Commission on Appointments and [2] from the
exercise of the limited legislative power to
prescribe the qualifications to a given
appointive office [Manalang v. Quitoriano, G.R.
No. 6898 (1954)].
Legislative appointments
Legislative appointments are repugnant to the
Constitution [Pineda v. Claudio, G.R. No.
29661 (1967)].
Effectively legislative appointments are also
prohibited: “When Congress clothes the
President with the power to appoint an officer,
it (Congress) cannot at the same time limit the
choice of the President to only one candidate.
[...] when the qualifications prescribed by
Congress can only be met by one individual,
such enactment effectively eliminates the
discretion of the appointing power to choose
and constitutes an irregular restriction on the
power of appointment.” [Flores v. Drilon, G.R.
No. 104732 (1993)] In this case, the law
assailed provided that “for the first year of its
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operations from the effectivity of this Act, the
mayor of the City of Olongapo shall be
appointed [by the President] as the chairman
and chief executive officer of the Subic
Authority.”
N.B. This is not to be confused with the power
of Congress to appoint its own staff and
officials, supra.
Requisites for a valid appointment
1. Position is vacant
2. The appointing authority must be vested
with the power to appoint at the time
appointment is made;
3. The appointee should possess all the
qualifications including appropriate civil
service eligibility and none of the
disqualifications;
4. The appointee accepts the appointment by
taking the oath and entering into discharge
of duty. [Garces v. CA, G.R. No. 114795,
(1996)].
2. Election
Designation may also be loosely defined as an
appointment because it likewise involves the
naming of a particular person to a specified
public office. That is the common
understanding of the term. However, where the
person is merely designated and not
appointed, the implication is that he shall hold
the office only in a temporary capacity and may
be replaced at will by the appointing authority.
In this sense, the designation is considered
only an acting or temporary appointment,
which does not confer security of tenure on the
person named.
An employee who is designated in an acting
capacity is not entitled to the difference in
salary between his regular position and the
higher position to which he is designated, in the
absence of any authority to authorize the
payment of his additional salary [Dimaandal v.
Commission on Audit, G.R. No. 122197
(1998)].
APPOINTMENT VS. DESIGNATION
Appointment Designation

Election is the means by which the people

Definition Appointing Imposition of
choose their officials for a definite and fixed authority selects additional
period and to whom they entrust for the time an individual who duties upon
being the exercise of the powers of the will occupy a existing office.
government. (Garchitorena v. Crescini, 39 Phil. certain public
258) office.

As to Executive, Legislative,
In an election, an officer occupies the office by Irrevocable revocable
nature
virtue of the mandate of the electorate. They
are elected for a definite term and may be As to effect Selection of an Mere
removed therefrom only upon stringent individual who is imposition by
conditions. [Farinas v. Executive Secretary, to exercise the law of
G.R. No. 147387 (2003)]. functions of a additional
given office. duties on an
incumbent
The first consideration of every democratic official.
polity is to give effect to the expressed will of
the majority. Can be subject of Cannot be
a protest before subject of a
the CSC. protest before
3. Designation the CSC.

It is the imposition of additional duties, usually As to Connoted Implies

by law, on a person already in public office. effectivity permanency temporariness
[Binamira v. Garrucho, G.R. No. 92008 (1990)].

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Extent of Comprehensive Limited C. MODES AND KINDS OF

Power
APPOINTMENT
Security of No. The
Tenure Yes. designation 1. Classification of
may be
revoked at
Appointments
will.
[Binamira v. a. As to term
Garucho,
G.R. No.
92008 (1990)] Permanent Temporary
Appointment Appointment
Abandon- Yes. A public No. While
ment of officer who later assuming the Eligibility issued to a issued to a
Prior Office accepts even a designated person who person who
temporary functions or if meets all the meets all the
appointment the requirements requirements
terminates his designation is for the for the position
relationship with revoked, the positions to to which he is
his former office public officer which he is being
[Romualdez III v. may perform being appointed
CSC , G.R. Nos. the functions appointed, except the
94878-81 of the “prior” including the appropriate
(1991)]. office. appropriate civil service
eligibility eligibility,
prescribed (EO provided the
292 Book V, following
Title I, Subtitle conditions are
A, Chapter 5, present:
Sec. 27) (1) absence of
appro-
priate
eligibles
(2) it becomes
necessary
in the
public
interest to
fill a
vacancy
(EO 292 Book
V, Title I,
Subtitle A,
Chapter 5,
Sec. 27)

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Confirma- Yes, if required Not subject to facto convert the temporary appointment into a
tion by CA by the office. confirmation by permanent one; a new appointment is
the CA. Such
necessary. [Province of Camarines Sur v. CA,
confirmation, if
given G.R. No. 104639, (1995)]
erroneously,
will not make The mere fact that a position belongs to the
the incumbent Career Service does not automatically confer
a permanent security of tenure. Such right will have to
appointee.
depend on the nature of the appointment
(Valencia v.
Peralta, 8 which, in turn, depends on the appointee’s
SCRA 692) eligibility or lack of it. [De Leon v. CA, G.R. No.
Security of Yes. No. 127182 (2001)]
tenure Appointment is
revocable at When temporary appointments not allowed: In
will and without no case shall any Member [or Chair] of the (a)
the necessity
of just cause or
Civil Service Commission, (b) Commission on
a valid Elections, or (c) Commission on Audit be
investigation. appointed or designated in a temporary or
acting capacity. [Sec. 1(2), Art. IX-B; Sec. 1(2),
1. Permanent Art. IX-C; Sec. 1(2), Art. IXD, Constitution]
A permanent appointment is extended to a
person possessing the requisite qualifications, a. Presidential Appointments
including the eligibility required for the position,
and thus, protected by the constitutional Four Groups of Officers the President is
guarantee of security of tenure. (NACHURA, Authorized to Appoint [Sarmiento v. Mison,
Outline Reviewer in Political Law) G.R. No. 79974 (1987)]
1. Specifically enumerated under Sec.
2. Temporary 16, Art. VII of the Constitution, i.e.:
A temporary appointment is an acting a. Heads of the executive departments;
appointment; it is extended to one who may not b. Ambassadors;
possess the requisite qualifications or eligibility c. Other public ministers and consuls;
required by law for the position, and is d. Officers of the armed forces from the
revocable at will, without the necessity of just rank of colonel or naval captain;
cause or valid investigation. [NACHURA] e. Other officers whose appointments
are vested in him by the Constitution:
Temporary appointment shall not exceed 12 1. Regular members of the
months, but the appointee may be replaced Judicial and Bar Council
sooner if a qualified civil service eligible 2. The Chairman and
becomes available. [P.D. 807, Sec. 25(b)] Commissioners of the Civil
Service Commission
An “acting” appointment is a temporary 3. The Chairman and
appointment and revocable in character. Commissioners of the
[Marohombsar v. Alonto, 194 SCRA 391] COMELEC
4. The Chairman and
A mere designation does not confer security of Commissioners of the
tenure, as the person designated occupies the Commission on Audit
position only in an acting capacity. [Sevilla v. 5. Members of the Regional
CA, 209 SCRA 637] Consultative Commission

Acquisition of the appropriate civil service

eligibility by a temporary appointee will not ipso

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2. All other officers of the Government 1. Regular or Ad Interim

whose appointments are not
otherwise provided for by law;
3. Officers whom the President may be Regular Ad Interim
Appointment Appointment
authorized by law to appoint (e.g.
heads of GOCCs, undersecretaries,
heads of bureaus and offices, and
When made While During the
other officials); Congress is in recess of the
by the
4. Officers lower in rank whose session [Sec. Congress,
President
appointments the Congress may by 16(2), Art. VII] whether
law vest in the President alone. voluntary or
compulsory
[Id.]
Requires CA Confirmation or Not
WHEN CA CONFIRMATION REQUIRED Nature of Permanent Permanent
[Sec. 16, Art. VII, 1987 Constitution; Sarmiento appointment
v. Mison, 156 SCRA 549]
1. Specifically enumerated under Sec. 16, Art.
VII of the Constitution: Effectivity Upon Immediately
a. Heads of the executive departments; confirmation by effective
the CA
b. Ambassadors;
c. Other public ministers and consuls;
Duration Until the end of Ceases to be
d. Officers of the armed forces from the the term valid:
rank of colonel or naval captain; 1. If
e. Other officers whose appointments disapprov
are vested in him by the Constitution. ed by the
CA; or
WHEN CA CONFIRMATION NOT REQUIRED 2. If
bypassed
[Sec. 16, Art. VII, 1987 Constitution]: by the CA
1. All other officers whose appointments are upon the
not otherwise provided for by law; next
2. Officers whom the President may be adjournme
authorized by law to appoint; nt of
3. Appointments explicitly exempted from the Congress
confirmation requirement under the
Constitution: Disapproval vs. Bypass
(a) Vice-President as a member of the An ad interim appointee disapproved by the
cabinet [Sec. 3, Art. VII]; COA cannot be reappointed. But a by-passed
(b) Members of the Supreme Court and appointee, or one whose appointment was not
judges of lower courts [Sec. 9, Art. acted upon the merits by the CA, may be
VIII]; appointed again by the President, because
(c) The Ombudsman and his deputies failure by the CA to confirm an ad interim
[Sec. 9, Art. XI]. appointment is not disapproval.

The list of appointments requiring confirmation Renewal of by-passed appointment

is exclusive. Congress cannot, by law, require
confirmation by the CA for a public office
created by statute. This would be
unconstitutional as it expands the powers of
the CA [Calderon v. Carale, G.R. No. 91636
(1992)].
“A by-passed appointment is one that has not
been finally acted upon on the merits by the
Commission on Appointments at the close of
the session of Congress. There is no final
decision by the Commission on Appointments
to give or withhold its consent to the
appointment as required by the Constitution.

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Absent such decision, the President is free to
renew the ad interim appointment of a by-
passed appointee.”
An ad interim appointment is a permanent
appointment, and its being subject to
confirmation does not alter its permanent
character. (Pamantasan ng Lungsod ng
Maynila v. IAC, 140 SCRA 22)
Classification of appointments into regular and
ad interim can be used only when referring to
the four (4) categories of appointments made
by the President of the Philippines in the first
sentence of Sec. 16, Art. VIII of the
Constitution, which require confirmation by the
Commission on Appointments, viz.:
(a) Heads of executive departments;
(b) Ambassadors, other public ministers and
consuls;
(c) Officers of the armed forces of the
Philippines, from the rank of colonel or
naval captain; and
(d) Officers whose appointments are vested in
the President under the Constitution.
(Sarmiento v. Mison, 156 SCRA 549)
3. Midnight Appointments
General rule: A President or Acting President
shall not make appointments two (2) months
immediately before the next presidential
elections and up to the end of his term
Exception: Temporary appointments to
executive positions when continued vacancies
therein will prejudice public service or
endanger public safety [Sec. 15, Art. VII, 1987
Constitution]
This provision applies only to presidential
appointments. There is no law that prohibits
local executive officials from making
appointments during the last days of their
tenure. [De Rama v. CA, G.R. No. 131136
(2001)]
The prohibition does not apply to Members of
the Supreme Court and the judiciary. [De
Castro vs. JBC, G.R. No. 191002, (2010)]
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b. Appointing Power
Par. 1, Sec. 16, Art. VII, Constitution
The President shall nominate and, with the consent
of the Commission on Appointments, appoint the
heads of the executive departments, ambassadors,
other public ministers and consuls, or officers of the
armed forces from the rank of colonel or naval
captain, and other officers whose appointments are
vested in him in this Constitution. He shall also
appoint all other officers of the Government whose
appointments are not otherwise provided for by law,
and those whom he may be authorized by law to
appoint. The Congress may, by law, vest the
appointment of other officers lower in rank in the
President alone, in the courts, or in the heads of
departments, agencies, commissions, or boards.
Power to Appoint as Presidential
Prerogative
The power to appoint is the prerogative of the
President, except in those instances when the
Constitution provides otherwise. Usurpation of
this fundamentally Executive power by the
Legislative and Judicial branches violates the
system of separation of powers that inheres in
our democratic republican government. [Rufino
v. Endriga, G.R. No. 139554 (2006)].
However, the grant of power to appoint to the
heads of agencies, commissions, or boards is
a matter of legislative grace. Congress has the
discretion to grant to, or withhold from, the
heads of agencies, commissions, or boards,
the power to appoint lower-ranked officers. If it
so grants, Congress may impose certain
conditions for the exercise of legislative
delegation, like requiring the recommendation
of subordinate officers or the concurrence of
the other members of the commission or board.
The Constitution is clear that the officers whom
the heads of departments, agencies,
commissions, or boards may appoint must be
of lower rank than those vested by law with the
power to appoint.
Four Groups of Officers the President is
Authorized to Appoint [Sarmiento v. Mison,
G.R. No. 79974 (1987)]
1. Specifically enumerated under Sec. 16,
Art. VII of the Constitution, i.e.:
a. Heads of the executive
departments;
b. Ambassadors;

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c. Other public ministers and
consuls;
d. Officers of the armed forces
from the rank of colonel or
naval captain;
e. Other officers whose
appointments are vested in him
by the Constitution;
1. All other officers of the Government
whose appointments are not otherwise
provided for by law;
2. Officers whom the President may be
authorized by law to appoint;
3. Officers lower in rank whose
appointments the Congress may by
law vest in the President alone.
D. ELIGIBILITY AND
QUALIFICATION
REQUIREMENTS
1. Definition
a. Eligibility: The state or quality of being
legally fit or qualified to be chosen. [DE
LEON] The term usually used in
reference to the Civil Service Law,
refers to the endowment or
requirement or accomplishment that
fits one for a public office.
b. Qualification: Endowment or act
which a person must do before he can
occupy a public office.
Qualification is understood in two senses:
a. Endowment: refers to the qualities or
attributes which make an individual eligible
for public office. It must be possessed at
the time of appointment or election and
continuously for as long as the official
relationship continues (i.e. age, citizenship
etc.)
b. Act: refers to the act of entering into the
performance of the functions of the office.
(i.e. taking oath of office) [SUAREZ]
N.B. Failure to perform an act required by law
could affect the officer’s title to the given office,
e.g. the office of any elected official who fails or
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refuses to take his oath of office within six
months from his proclamation shall be
considered vacant unless said failure is for
cause or causes beyond his control [Sec. 11,
Omnibus Election Code].
Once proclaimed and duly sworn in office, a
public officer is entitled to assume office and to
exercise the functions thereof. The pendency
of an election protest is not sufficient basis to
enjoin him from assuming office or from
discharging his functions [Mendoza v. Laxina
(2003)].
The qualifications which relate to an office must
be complied with by persons seeking that
office. An election or appointment to office of a
person who is ineligible or unqualified gives
him no right to hold office. [DE LEON]
Distinction between eligibility and
qualification in the CAREER CIVIL SERVICE
under the ADMINISTRATIVE CODE:
Definition of Eligible under the Admin Code,
Book V, Section 5(8)
Sec. 5. Definitions of Terms. (8) Eligible
refers to a person who obtains a passing
grade in a civil service examination or is
granted a civil service eligibility and whose
name is entered in the register of eligibles.
Admin Code, Book V, Section 22 (1)
Sec. 22: Qualification Standards - (1) A
qualification standard expresses the
minimum requirements for a class of
positions in terms of education, training and
experience, civil service eligibility, physical
fitness, and other qualities required for
successful performance. The degree of
qualifications of an officer or employee shall
be determined by the appointing authority on
the basis of the qualification standard for the
particular position.
Application
According to Admin Code, Book V, Section 21
(7)— “(7) Qualification in an appropriate
examination shall be required for appointment
to positions in the first and second levels in the
career service in accordance with the Civil

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Service rules, except as otherwise provided in
this Title: Provided, That whenever there is a
civil service eligible actually available for
appointment, no person who is not such an
eligible shall be appointed even in a temporary
capacity to any vacant position in the career
service in the government or in any
government-owned or controlled corporation
with original charter, except when the
immediate filling of the vacancy is urgently
required in the public interest, or when the
vacancy is not permanent, in which cases
temporary appointments of non-eligibles may
be made in the absence of eligibles actually
and immediately available.”
Therefore, a distinction between ‘eligible’ and
‘having qualifications’ may be seen in this
provision. The general rule can be summarized
as: if there is a CES eligible (person who
passed the civil service examination, for
example), he shall be appointed. With the
exception that, if only non-eligibles apply, but
have qualifications (i.e. did not take the civil
service examinations but has the educational
background necessary), it may lead to either
immediate filling if it is urgently required by
public interest, or temporary filling of
vacancies.
2. Power of Congress to Prescribe
Qualification
a. Power of Congress depending on how
office is created
1. By the Constitution: When the
qualifications are prescribed by the
Constitution, they are generally
exclusive, except where the
Constitution itself provides otherwise.
(i.e. Qualifications prescribed for
President, Congress, Judiciary, and
Constitutional Commissions, or
Constitutional prohibitions on who may
not be appointed, i.e. Article VIII, Sec.
7; Art. XI-B, Section 6-7; Article XVI,
Section 5(4) etc.)
Hence, Congress cannot pass a
statute that requires drug testing for
candidates for the House and Senate,
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as the qualifications of members of
Congress are provided in the
Constitution [See Social Justice
Society v. Dangerous Drugs Board,
G.R. No. 157870 (2008)].
2. By Statute: In the absence of
constitutional inhibition, Congress has
the same right to provide
disqualifications that it has to provide
qualifications for office [DE LEON].
Restrictions on the Power of Congress to
Prescribe Qualifications
1. Congress cannot exceed its constitutional
powers;
2. Congress cannot impose conditions of
eligibility inconsistent with constitutional
provisions;
3. The qualification must be germane to the
position, or must be relevant to the office
for they are prescribed (CRUZ)
4. Where the Constitution establishes specific
eligibility requirements for a particular
constitutional office, the constitutional
criteria are exclusive, and Congress cannot
add to them except if the Constitution
expressly or impliedly gives the power to
set qualifications.
5. Congress cannot prescribe qualifications
so detailed as to practically amount to
making a legislative appointment: it is
unconstitutional and therefore void for
being a usurpation of executive power;
Examples of Prohibited Qualifications in
Jurisprudence
1. A proviso which limits the choices of the
appointing authority to only one eligible.
When Congress clothes the President with
the power to appoint an officer, it
(Congress) cannot at the same time limit
the choice of the President to only one
candidate. Once the power of appointment
is conferred on the President, such
conferment necessarily carries the
discretion of whom to appoint. [Flores v.
Drilon, G.R. No. 104732, (1993)];
2. Designating an unqualified person. The
People's Court Act, which provided that the
President could designate Judges of First

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Instance, Judges- at-large of First Instance
or Cadastral Judges to sit as substitute
Justices of the Supreme Court in treason
cases without them necessarily having to
possess the required constitutional
qualifications of a regular Supreme Court
Justice [Vargas v. Rilloraza, G.R. No. L-
1612 (1948)];
3. Automatic transfer to a new office. A
legislative enactment abolishing a of the commencement of the term of
particular office and providing for the
automatic transfer of the incumbent officer
to a new office created [Manalang v.
Quitoriano, G.R. No. L-6898 (1954)];
4. Requiring inclusion in a list. A provision that
impliedly prescribes inclusion in a list
submitted by the Executive Council of the
Phil. Medical Association as one of the
qualifications for appointment; and which
confines the selection of the members of
the Board of Medical Examiners to the 12
persons included in the list [Cuyegkeng v.
Cruz, G.R. No. 16263 (1960)]. Note: the
Constitution itself, however, may require
inclusion in a list as a prerequisite to
appointment (e.g. the JBC list of nominees)
3. Time of Possession of
Qualifications
a. If law specifies: At the time specified by
the Constitution or law (i.e. Sec. 3, Art. VI:
“No person shall be a Senator unless he is
[...] on the day of the election, is at least
[...]”; Sec. 2, Art. VII: “No person may be
elected President unless he is [...] at least
forty years of age on the day of the election
[...]”
b. If law does not specify: If time is
unspecified, there are two views:
1. Qualification during commencement
of term or induction into office:
The word “eligible” as used in
constitutions and statutes, has
reference to the capacity not of being
elected or appointed to office, but of
holding office, and that, therefore, if
qualified at the time of commencement
of the term or induction into office,
disqualification of the candidate or
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appointee at the time of election or
appointment is immaterial;
2. Qualification/eligibility during election
or appointment:
Conditions of eligibility must exist at the
time of the election or appointment,
and that their existence only at the time
office or induction of the candidate or
appointee into office is not sufficient to
qualify him to office.
Reconciliation of the two views: If the
provision refers to “holding of office,” rather
than to eligibility to office, in defining the
qualifications, the courts are inclined to hold
that the qualifications are to be determined at
the time of the commencement of the term [DE
LEON]. This is consistent with the rule on
liberal interpretation of eligibility requirements
for public office.
Qualifications are of a continuing nature
Qualification is of a continuing nature, and
must exist throughout the holding of the public
office. Once the qualifications are lost, the
public officer forfeits the office.
Eligibility to an office should be construed as of
a continuing nature and must exist at the
commencement of the term and during
occupancy of the office. The fact that private
respondent may have been qualified at the
time he assumed the Directorship is not
sufficient to entitle him to continue holding
office, if during the continuance of his
incumbency he ceases to be qualified. [Aguila
v. Genato, G.R. No. L-55151 March 17, 1981]
No estoppel in ineligibility
Knowledge of ineligibility of a candidate and
failure to question such ineligibility before or
during the election is not a bar to questioning
such eligibility after such ineligible candidate
has won and been proclaimed. Estoppel will
not apply in such a case [Castañeda v. Yap,
G.R. No. L-5379 (1952)].

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Citizenship requirement should
possessed at the start of term
The Local Government Code does not specify
any particular date or time when the candidate
must possess the required citizenship, unlike
for residence and age. The requirement is to
ensure that no alien shall govern our people
and country or a unit of territory thereof. An
official begins to govern or discharge his
functions only upon proclamation and at the
start of his term. This liberal interpretation gives
spirit, life and meaning to our law on
qualifications consistent with its purpose
[Frivaldo v. COMELEC, G.R. No. 120295
(1996)].
Note: Constitutional offices require natural-
born citizenship, hence this is a non-issue for
them.
Presumption of eligibility
Doubts as to the eligibility of a candidate are
presumed in favor of one who has been elected
or appointed to public office.
“The right to public office should be strictly
construed against ineligibility. The right of a
citizen to hold office is the general rule,
ineligibility the exception, and therefore, a
citizen may not be deprived of this right without
proof of some disqualification specifically
declared by law” [De Leon].
4. Qualifications Prescribed by
the Constitution
For President and Vice-President [Sec. 2-3
Art. VII]
1. Natural-born citizen
2. Registered voter
3. Able to read and write
4. 40 years old on day of election
5. Resident of the Philippines for at least 10
years immediately preceding election day
For Senator [Sec. 3, Art. VI]
1. Natural-born citizen
2. 35 years old on election day
3. Able to read and write
4. Registered voter
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be 5. Resident of the Philippines for at least 2
years immediately preceding election day
For Members of the House of
Representatives [Sec. 6, Art. VI]
1. Natural-born citizen
2. 25 years old on election day
3. Able to read and write
4. Registered voter in district in which he shall
be elected
5. Resident thereof for not less than one year
immediately preceding election day
N.B. Residency and registration in the district
(i.e. requirements 4 and 5) are not required for
partylist representatives.
Members of the Supreme Court [Sec. 7(1),
Art. VIII]
1. For SC & lower collegiate courts: Natural-
born citizen
2. At least 40 years old
3. 15 years or more as a judge or engaged in
law practice
4. Of proven Competence, Integrity, Probity
and Independence
Members of Constitutional Commissions
Civil Service Commission [Sec. 1(1), Art. IX-
B]
1. Natural-born citizen
2. 35 years old on election day
3. Not a candidate for any elective
position in the election immediately
preceding appointment
4. With proven capacity for public
administration
COMELEC [Sec 1(1), Art. IX-C]
1. Natural-born citizen
2. 35 years old on election day
3. Not a candidate for any elective
position in the election immediately
preceding appointment
4. College degree holder
5. Chairman and majority: Should be
members of the bar who have been
engaged in the practice of law for at
least 10 years
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COA [Sec 1(1), Art. IX-D]

CSC COMELEC COA
1. Natural-born citizen
2. 35 years old on election day
3. Not a candidate for any elective Natural born citizen
position in the election immediately
preceding appointment 35 y.o.
i. CPA with at least 10 years
of auditing experience; OR Not a candidate for any elective position in
ii. (b) Member of the Bar the election immediately preceding
engaged in practice of law appointment
for at least 10 years (at no
time shall all members With proven College (a) CPA with
capacity for degree at least 10
belong to the same
profession) public holder years of
administration auditing
experience;
OR (b)
PRES/ SE- HoR SC Member of
VP NATOR
the Bar
engaged in
Natural born citizen practice of
law for at
Able to read and least 10
write years

Chairman At no time
40 y.o. 35 y.o. 25 y.o. 40 y.o.
and majority shall all
should be Members of
Registered Registered members of the Com-
voter voter in the bar who mission
district have been belong to
engaged in the same
Resident the practice profession
of law for at
least 10
10 yrs 2 yrs 1 yr years.

Of proven “Practice of law” means any activity, in or out

competence, of court, which requires the application of law,
integrity, legal procedure, knowledge, training and
probity and experience. Generally, to practice law is to give
independence notice or render any kind of service which
requires the use in any degree of legal
knowledge or skill [Cayetano v. Monsod, G.R.
No. 100113 (1991)].

“Residency” in election law, refers to domicile,

i.e. the place where a party actually or
constructively has his permanent home, where
he intends to return. To successfully effect a
change of domicile, the candidate must prove

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an actual removal or an actual change of
domicile [Aquino v. COMELEC, G.R. No.
120265 (1995)].
There is a presumption in favor of domicile of
origin. Domicile requires the twin elements of
actual habitual residence and animus manendi
(intent to permanently remain). Domicile of
origin is not easily lost; it is deemed to continue
absent a clear and positive proof of a
successful change of domicile [Romualdez-
Marcos v. COMELEC, G.R. No. 119976
(1995)].
On Oath of Office
An oath of office is a qualifying requirement for
a public office. Only when the public officer has
satisfied this prerequisite can his right to enter
into the position be considered plenary and
complete. Until then, he has none at all, and for
as long as he has not qualified; the holdover
officer is the rightful occupant [Lecaroz v.
Sandiganbayan, G.R. No. 130872 (1999)].
Persons required to take Oath of Office in the
Constitution:
• All public officers and employees (Art. IX-
B, Sec. 4);
• President, Vice President, or Acting
President (Art. VII, Sec. 5);
• All members of the Armed Forces (Art. XVI,
Sec. 5 (1))
5. Other Particular Qualifications
Qualification Standards and Requirements
under the Civil Service Law
Qualification standards enumerate the
minimum requirements for a class of positions
in terms of education, training and experience,
civil service eligibility, physical fitness, and
other qualities required for successful
performance [Sec. 22, Book V, Admin. Code].
The Departments and Agencies are
responsible for continuously establishing,
administering and maintaining the qualification
standards as an incentive to career
advancement [Sec. 7, Rule IV, Omnibus
Rules].
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Such establishment, administration, and
maintenance shall be assisted and approved
by the CSC and shall be in consultation with
the Wage and Position Classification Office
[Id.].
It shall be established for all positions in the 1st
and 2nd levels [Sec. 1, Rule IV, Omnibus
Rules]
Political Qualifications for Office
Political qualifications refer to membership in
political parties, including those registered in
the party-list system.
General Rule: Political qualifications are not
required for public office.
Exceptions
1. Membership in the electoral tribunals of
either the House of Representatives or
Senate, which requires proportional
representation [Art. VI, Sec. 17,
Constitution];
2. Party-list representation;
3. Commission on Appointments, which
requires proportional representation [Art.
VI, Sec. 18, Constitution];
4. Vacancies in local Sanggunians, except the
Sangguniang Barangay, which requires
that the appointee come from the same
political party as that of the sanggunian
member who caused the vacancy [Sec.
45(b), Local Government Code]
Other Prohibited Qualifications:
• Religious test or qualification shall not be
required: Constitution (1987), Article III,
Section 5, last sentence: No religious test
shall be required for the exercise of civil or
political rights.
• Property qualifications may not be
imposed. The right to vote and be voted for
shall not be dependent upon the wealth of
the individual concerned. [Maquera v
Borra, G.R. No. L-24761 (1965)]
• Aliens are not eligible for public office. The
purpose of the citizenship requirement is to
ensure that no alien, i.e., no person owing
allegiance to another nation, shall govern
our people and country or a unit of territory

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thereof [Frivaldo v. COMELEC, G.R. No.
120295 (1996)].
Effect of Pardon upon the Disqualification
to Hold Public Office
General Rule: Pardon will not restore the right
to hold public office. (Art. 36, Revised Penal
Code)
Exception: When the pardon’s terms
expressly restores such (Art. 36, RPC);
Rule under Risos-Vidal v. COMELEC [G.R.
No. 206666 (2015)]
As to whether the terms of the pardon must
expressly restore political rights: The Court
broadly held there that the “pardoning power of
the President cannot be limited by legislative
action,” and added that “Articles 36 and 41 of
the Revised Penal Code cannot, in any way,
serve to abridge or diminish the exclusive
power and prerogative of the President to
pardon persons convicted of violating penal
statutes.”
If the wording of the pardon is “complete,
unambiguous, and unqualified,” it includes the
restoration of civil and political rights because
it is “unfettered by Articles 36 and 41 of the
Revised Penal Code” [Id.].
[DE LEON]:
1. If granted after conviction, it frees the
individual from all the penalties and
legal disabilities and restores him to all
civil rights. A pardon doesn’t ipso facto
restore a convicted felon to public
office
2. Such pardon restores his eligibility for
appointment to that office. The person
pardoned may apply for reappointment
to the office which was forfeited by
reason of his conviction and undergo
the usual procedure required for a new
appointment
a. A pardon of a public officer
merely removes the
disqualification from holding
public employment but it
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cannot go beyond that as
public office is public trust
b. A pardon doesn’t extinguish
the civil liability of the grantee
arising from the crime he has
been convicted of.
E. DISABILITIES AND
INHIBITIONS OF
PUBLIC OFFICERS
1. Definition and Power of Congress
Disqualification
the presence of circumstances and qualities
which make an individual ineligible from
holding a public office. Lack of disqualification
itself is a qualification. [DE LEON]
Authority to prescribe disqualifications
The legislature has the right to prescribe
disqualifications in the same manner that it can
prescribe qualifications, provided the
prescribed disqualifications do not violate the
Constitution.
Restrictions
a. Congress may not add disqualifications
where the Constitution has provided them
in such a way as to indicate an intention
that the disqualifications provided shall
embrace all that are to be permitted and
b. When the Constitution has attached a
disqualification to the holding of any office,
Congress cannot remove it until the power
to prescribe qualifications as to such
offices as it may create [DE LEON]
2. Constitutional Disqualifications
and Disabilities
a. Disqualifications
1. No candidate who has lost in any election,
shall within one year after such election, be
appointed to any office in the Government
or any Government-owned or controlled
corporations or in any of their subsidiaries.
[Sec. 6, Art. IX-B]

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2. No elective official shall be eligible for
appointment or designation in any capacity
to any public office or position during his
tenure [Sec. 7(1), Art. IX- B] unless they
forfeit their seat
3. No appointive official shall hold any other
office or employment in the Government or
any subdivision, agency or instrumentality
thereof, GOCCs or their subsidiaries,
unless otherwise allowed by law or his
position’s primary functions. [Sec. 7(2),
Art. IX-B]
4. The President, Vice-President, the
Members of the Cabinet, and the deputies
or assistants shall not, unless otherwise
provided in the Constitution, hold any other
office of employment during their tenure
On the holding of multiple offices
The provision in Art. IX-B is the general
Constitutional prohibition on holding multiple
offices, as opposed to the prohibition in Art. VII
which is specific to high-ranking executive
department officials in Civil Liberties Union v.
Executive Secretary: The prohibition in Section
13, Article VII against the President, Vice
President, Cabinet and deputies is absolute,
covering public and private positions or
employment.
On the other hand, the prohibition in Section 7,
par. (2), Article IX-B only refers to other
positions in the government, GOCCSs and
their subsidiaries, and does not cover private
employment.”
N.B. “Members of the Cabinet” here are
synonymous with “heads of the executive
departments,” i.e. the prohibition does not
apply to all officers of cabinet rank.
Exceptions
a. Unless otherwise provided in the
Constitution (i.e. Secretary of Justice
as ex officio member of the JBC)
b. Ex officio positions
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There is no violation of the constitutional
provision when another office is held by a
public officer in an ex officio capacity (where
one can’t receive compensation or other
honoraria anyway), as provided by law and as
required by the primary functions of his office
[National Amnesty Commission v. COA, G.R.
No. 156982 (2004)].
Requirements for a valid ex officio holding
a. Holding of the ex officio office is
provided by law
b. The holding is required by the primary
functions of their positions
c. The position is held without additional
compensation
d. [National Amnesty Commission v.
COA]
The prohibition against dual or multiple
offices held by one official must be
construed as to apply to all appointments
or designations, whether permanent or
temporary (Funa v Agra, G.R. No. 191644
(2013)]
5. Impeachment: Judgment in cases of
impeachment shall not extend further than
removal from office and disqualification to
hold any office under the Republic of the
Philippines [Sec. 3(7), Art. XI]
6. No Senator or Member of the House of
Representatives may hold any other office
or employment in the Government, or any
subdivision, agency, or instrumentality
thereof, including GOCCs or their
subsidiaries, during his term without
forfeiting his seat. (Incompatible Office)
Neither shall he be appointed to any office
which may have been created nor the
emoluments thereof increased during the
term for which he was elected (Prohibited/
Forbidden Office)
[Sec. 13, Art. IV]
7. Members of the Supreme Court and of
other courts established by law shall not be
designated to any agency performing

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quasi-judicial or administrative functions
[Sec. 12, Art. VII]
Exception: Designation to the Presidential
Electoral Tribunal, Senate Electoral
Tribunal or House of Representatives
Electoral Tribunal [Sec. 4 (7), Art. VII; Sec.
7, Art. VI]
[Macalintal v Presidential Electoral
Tribunal, G.R. No. 191618 (2010)]
8. No member of a Constitutional
Commission shall, during his tenure, hold
any other office or employment. [Sec. 2,
Art. IX-A].
The same disqualification applies
to the Ombudsman and his
Deputies [Sec. 8, Art. XI]
9. Members of the Constitutional Commissions
must not have been candidates for any
elective position in the elections
immediately preceding their appointment
[Sec. 1, Art. IX-B, IX-C, IX-D]
10. Ombudsman and his Deputies shall not be
qualified to run for any office in the election
immediately succeeding their cessation
from office [Sec. 11, Art. XI]
11. The President’s spouse and relatives by
consanguinity or affinity within the fourth
civil degree shall not during his tenure be
appointed as Members of the
Constitutional Commissions, Office of the
Ombudsman, Secretaries,
Undersecretaries, Chairmen or Heads of
Bureaus or Officers [Sec. 12, Art. VII]
b. Other Disabilities of the President, Vice
President, Members of Cabinet, and
their Deputies and Assistants
1. They shall not practice any other
profession.
2. They shall not participate, directly or
indirectly, in any business.
3. They shall not be financially interested,
directly or indirectly, in any contract with, or
in any franchise or special privilege granted
by the government or any subdivision,
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agency or instrumentality thereof, including
any GOCC or their subsidiaries.
4. They shall strictly avoid conflict of interest
in the conduct of their office.
The President is also prohibited during his
tenure from appointing his spouse and
relatives by consanguinity or affinity within
the fourth civil degree. [Sec. 13, Art. VII]
c. Other Disabilities of Members of
Congress
1. They may not personally appear as
counsel before any court, election tribunal,
or quasi-judicial body.
2. They shall not be financially interested,
directly or indirectly, in any contract with, or
in any franchise or special privilege granted
by the government or any subdivision,
agency or instrumentality thereof, including
any GOCC or their subsidiaries during his
term of office.
Financial interest – is any contract that
involves financial investment or business out of
which he derives profit or gain. However,
borrowing money from a GOCC cannot be
considered as such.
The prohibition on financial interest in any
contract with the government extends to his
spouse. However, it does not extend to his
brother or son unless used as a dummy. [DE
LEON]
3. They shall not intervene in any government
office for his pecuniary benefit or where he
may be called upon to act on account of his
office. [Sec. 14, Art. VI]
d. Other Disabilities of Members of
Constitutional Commissions
1. They shall not engage in the practice of any
profession or in the active management or
control of any business that in any way may be
affected by the functions of his office.
2. They shall not be financially interested,
directly or indirectly, in any contract with, or in

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any franchise or special privilege granted by
the government or any subdivision, agency or
instrumentality thereof, including any GOCC or
their subsidiaries.
3. Disqualifications for Appointive
Officers
1. Under Administrative Code, Book V,
Sec. 58- Limitations on Appointment
(1) No elective official shall be eligible
for appointment or designation in
any capacity to any public office or
position during his tenure.
Exception to void appointment
of elective official: The
appointment will be valid if he
resigns from his elective seat. [DE
LEON]
(2) No candidate who has lost in any
election shall, within one year after
election, be appointed to any office
in the Government or any
government-owned or controlled
corporations or in any of its
subsidiaries.
(3) No appointive official shall hold any
other office or employment in the
Government or any subdivision,
agency or instrumentality thereof,
including government-owned or
controlled corporations or their
subsidiaries.
Exception: Unless otherwise allowed
by law or by the primary functions of his
position
1. When allowed by law, the
positions may be totally
unrelated to each other.
2. When the functions are related,
the prohibition does not apply
even in the absence of an
enabling law. [DE LEON]
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2. Nepotism
Sec. 59, Chapter 7, Book V, Admin. Code.
(1) All appointments in the national, provincial, city
and municipal governments or in any branch or
instrumentality thereof, including government-
owned or controlled corporations, made in favor of
a relative of the appointing or recommending
authority, or of the chief of the bureau or office, or of
the persons exercising immediate supervision over
him, are hereby prohibited.
As used in this Section, the word "relative" and
members of the family referred to are those related
within the third-degree either or consanguinity or of
affinity.
(2) The following are exempted from the operation
of the rules on nepotism: (a) persons employed in a
confidential capacity, (b) teachers, (c) physicians,
and (d) members of the Armed Forces of the
Philippines: Provided, however, That in each
particular instance full report of such appointment
shall be made to the Commission.
The restriction mentioned in subsection (1) shall not
be applicable to the case of a member of any family
who, after his or her appointment to any position in
an office or bureau, contracts marriage with
someone in the same office or bureau, in which
event the employment or retention therein of both
husband and wife may be allowed.
In order to give immediate effect to these provisions,
cases of previous appointments which are in
contravention hereof shall be corrected by transfer,
and pending such transfer, no promotion or salary
increase shall be allowed in favor of the relative or
relatives who are appointed in violation of these
provisions.
General Rule on Nepotism: The Civil Service
Law prohibits all appointments in the national
and local governments or any branch or
instrumentality thereof made in favor of the
relative of:
1. appointing authority;
2. recommending authority;
3. chief of the bureau or office; or
4. person exercising immediate
supervision over the
appointee
In the last two cases, it is immaterial who the
appointing or recommending authority is. To
constitute a violation of the law, it suffices that
an appointment is extended or issued in favor

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of a relative of the chief of the bureau or office,
or the person exercising immediate supervision
over the appointee [CSC v. Dacoycoy, G.R.
No. 135805 (1999)]
The restriction against nepotic appointments
extends to appointments made by a group of
individuals acting as a body. The Court has
deemed the appointment of a daughter of a
sitting Commissioner to a position in the CHR
as nepotic even if made by the Commission as
a body. [Cortes v. CSC, G.R. No. 200103
(2014)].
Relative: One who is related within the third
degree of either consanguinity or of affinity
[Sec. 59, Chapter 7, Book V, EO 292 (Admin.
Code)].
Exceptions: The prohibition on nepotic
appointments in the Civil Service Law does not
apply if the appointee is:
1. Person employed in a confidential
capacity
2. Teachers
3. Physicians
4. Member of the Armed Forces of the
Philippines
4. Disqualifications under the Local
Government Code
The following persons are disqualified from
running for any elective local position:
1. Sentenced by final judgment for an offense
involving moral turpitude or for an offense
punishable by 1 year or more of
imprisonment, within 2 years after serving
sentence;
2. Removed from office as a result of an
administrative case;
3. Convicted by final judgment for violating the
oath of allegiance to the Republic;
4. Dual citizenship;
5. Fugitive from justice in criminal or non-
political cases here or abroad;
6. Permanent residents in a foreign country or
those who have acquired the right to reside
abroad and continue to avail of the same
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right after the effectivity of the Local
Government Code; or
7. Insane or feeble-minded. [Sec. 40, LGC]
Dual citizenship is different from dual
allegiance.
1. Dual citizenship arises when, as a result of
the concurrent application of the different
laws of two or more states, a person is
simultaneously considered a national by
the said states.
2. Dual allegiance, on the other hand, refers
to the situation in which a person
simultaneously owes, by some positive act,
loyalty to two or more states.
3. While dual citizenship is involuntary, dual
allegiance is the result of an individual’s
volition. The Constitutional Commission
was not concerned with dual citizens per se
but with naturalized citizens who maintain
their allegiance to their countries of origin
even after their naturalization.
Hence, the phrase “dual citizenship” in R.A.
No. 7160 [Local Government Code], sec.
40(d) must be understood as referring to
“dual allegiance” [Mercado v. Manzano,
G.R. No. 135083 (1999)].
5. Other Prohibitions
a. Prohibition against engaging in partisan
political activities for Career Service
Employees
Officers and employees of the CSC and
members of the military are prohibited from
engaging directly or indirectly in any partisan
political activity.
Partisan politics – acts designed to have a
candidate elected or not, or to promote the
candidacy of a person to a public office. It is
also synonymous to electioneering or partisan
political campaign.
Note: Elective officials and cabinet members
who are holding political offices are not
embraced in the prohibition.
[DE LEON]
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b. Prohibition against acceptance of any
present from any foreign state.
What is prohibited is the acceptance of a
present officially offered by the government of
the foreign state. However, it is permissible for
an official of the Philippines to accept a private
or personal gift from the head of a foreign
government. The prohibition is directed only
against public officers and not private citizens.
[DE LEON]
c. Prohibition against receiving additional,
double or indirect compensation.
No elective or appointive public officer or
employee shall receive additional, double, or
indirect compensation, unless specifically
authorized by law, nor accept without the
consent of the Congress, any present,
emolument, office, or title of any kind from any
foreign government.
practice will not conflict or tend to conflict with
their official functions”
Sec. 7(b)(1) considers it unlawful for public
officials and employees during their
incumbency to: “Own, control, manage, or
accept employment as officer, employee,
consultant, counsel, broker, agent, trustee or
nominee in any private enterprise regulated,
supervised or licensed by their office unless
expressly allowed by law. “
Exception: A public official or employee can
engage in the practice of his or her profession
under the following conditions:
1. the private practice is authorized by the
Constitution or by the law; and
2. the practice will not conflict, or tend to
conflict, with his or her official
functions.

Pensions or gratuities shall not be considered f. Prohibitions regarding practice of

as additional, double, or indirect compensation. profession and engagement in private
[Sec. 8, Art. IX-B, 1987 Constitution] business and professions

d. Prohibition against grant of loan, 1. For elective officers under LGC

guaranty or other form of financial a. All governors, city, and municipality
accommodation. mayors prohibited from practicing
No loan, guaranty, or other form of financial their professions or engaging in
accommodation for any business purpose may any occupation other than exercise
be granted, directly or indirectly, by any of functions as local chief
government-owned or controlled bank or executives
financial institution to the President, the Vice- b. Sanggunian members may
President, the Members of the Cabinet, the practice their professions or
Congress, the Supreme Court, and the engage in any occupation except
Constitutional Commissions, the Ombudsman, during session hours. However,
or to any firm or entity in which they have those who are members of the bar
controlling interest, during their tenure. shall not:
[Sec. 16, Art. XI, 1987 Constitution] i. appear as counsel before
any court in any civil case
e. Prohibition on holding offices in private where the LGU is adverse
sector party
Private Practice of the Profession: Sec. 7 of ii. appear as counsel in
R.A. 6713 (Code of Conduct and Ethical criminal case where official
Standards for Public Officials and Employees) of government is accused
generally provides for the prohibited acts and of an offense in relation to
transactions of public officials and employees. his office
Subsection (b)(2) makes it unlawful for them to: iii. collect any fee for
“Engage in the private practice of their appearance in
profession unless authorized by the administrative proceedings
Constitution or law, provided, that such involving his LGU

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iv. use property and personnel
of the government except
when sanggunian member
is defending interest of the
government
c. Doctors may practice profession
even during work hours only in
occasions of emergency, provided
that officials concerned do not
derive monetary compensation
[Sec. 90, LGC]
A civil service officer or employee whose
responsibilities do not require his time to be
fully at the disposal of the government can
engage in the private practice of law only
with the written permission of the head of
the department concerned [Catu v.
Rellosa, A.C. No. 5738, (2008)]
2. For appointive officers under Civil
Service Rules
No officer shall engage directly in any
private business, vocation, or profession or
be connected with any commercial, credit,
agricultural, or industrial undertaking
without a written permission from the head
of the department.
This prohibition will be absolute in the case
of those officers and employees whose
duties and responsibilities require that their
entire time be at the disposal of the
Government.
Exception: If an employee is granted
permission to engage, in outside activities,
the time so devoted outside of office hours
should be fixed by the chief of the agency
to the end that it will not impair in any way
the efficiency of the officer or employee
Exception to exception: No permission is
necessary in the case of investments,
made by an officer or employee, which do
not involve any real or apparent conflict
between his private interests and public
duties, or in any way influence him in the
discharge of his duties, and he shall not
take part in the management of the
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enterprise or become an officer or member
of the board of directors.
[Sec. 12, Rule XVIII of the Revised Civil
Service Rules]
g. Prohibition against appointment of
members of the armed forces to certain
positions
No member of the armed forces in the
active service shall, at any time, be
appointed or designated in any capacity to
a civilian position in the Government,
including government-owned or controlled
corporations or any of their subsidiaries.
[Sec. 5(4), Art. XVI, 1987 Constitution]
F. POWERS AND DUTIES
OF PUBLIC OFFICERS
1. Scope of power of a public officer
a. Expressly conferred upon him by law under
which he has been appointed or elected
b. Expressly annexed to the office by law
which created it or some other law referring
to it
c. Attached to the office as incidents to it
d. Generally, the powers are prescribed by
the Constitution or statutes. They only have
those powers expressly granted to them. If
broader powers are desirable, must be
conferred by the proper authority; cannot
be merely assumed nor created by the
courts. [DE LEON]
Source of Powers of Public Officer
Authority of Public Officers is derived from the
people themselves. The people, directly or
through representatives, create offices and
agencies as they deem desirable for the
administration of the public function. [DE
LEON]
Sovereignty resides in the people and all
government authority emanates from them.
[Sec. 1, Art. II, 1987 Constitution]
The right to be a public officer, then, or to
exercise the powers and authority of a public
office, must find its source in some provision of
the public law.

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In the absence of a valid grant, public officials
are devoid of power. A public official exercises
power, not rights. The Government itself is
merely an agency through which the will of the
State is expressed and enforced. Its officers
therefore are likewise agents entrusted with the
responsibility of discharging its functions. As
such there is no presumption that they are
empowered to act. There must be a delegation
of such authority, either express or implied
[Villegas v. Subido, G.R. No. L-26534 (1969)].
But once the power is expressly granted, it will
be broadly construed in line with the doctrine of
necessary implication. [DE LEON]
Doctrine of Necessary Implication
All powers necessary for the effective exercise
of the express powers are deemed impliedly
granted [NACHURA]
Authority can be exercised only during the term
when the public officer is, by law, invested with
the rights and duties of the office.
Territorial limitation of authority of public
officers:
a. The authority of public officers is limited to
territory where law has effect, by virtue of
which they claim, has sovereign force – the
authority cannot exist in places where the
law has no effect
b. Action at a place not authorized by law is
ordinarily invalid – where a public officer
authorized by law to perform his office at a
particular place, action at a place not
authorized by law is invalid. (i.e. judge
levying and selling property outside its
jurisdiction is invalid.) [DE LEON]
Duration of authority
Limited to the term during which he is by law
invested with the rights and duties of the office
[DE LEON]
Construction of grant of powers
Express grants of power are subject to a strict
interpretation and will be construed as
conferring those powers only which are
expressly imposed or necessarily implied.
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[DE LEON; Banco Filipino Savings & Mortgage
Bank v. Monetary Board, G.R. 70054 (1991)]
2. Classification of Powers and Duties
a. As to Nature
1. Ministerial – Official duty is ministerial when
it is absolute, certain and imperative involving
merely execution of a specific duty arising from
fixed and designated facts. Where the officer or
official body has no judicial power or discretion
as to the interpretation of the law, and the
course to be pursued is fixed by law, their acts
are ministerial only. [State ex rel. School Dist.
v. Ellis, 163 Neb. 86 (Neb. 1956)]
General Rule: Performance of duties of this
nature may be properly delegated to another.
Exceptions
• Delegation is expressly prohibited by law;
or
• The law expressly requires that the act be
performed by the officer in person.
Mandamus will lie but only upon a clear
showing of a legal right [Sec. 3, Rule 65, Rules
of Court]
2. Discretionary – Acts which necessarily
require the exercise of reason in the adaptation
of means to an end, and discretion in
determining how or whether the act shall be
done or the course pursued. When the law
commits to any officer the duty of looking into
facts and acting upon them, not in a way which
it specifically directs, but after a discretion in its
nature, the function is discretionary (e.g. quasi-
judicial acts).
General Rule: A public officer cannot delegate
his discretionary duties to another.
Rationale: In cases where the execution of the
office requires exercise of judgment or
discretion by the officer, the presumption is that
he was chosen to because he was deemed fit
and competent to exercise such judgment.
Exception: The power to substitute another in
his place has been expressly granted by law.

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Mandamus will not lie for the performance of a
discretionary duty.
Exception to the Exception: When the
discretion is granted only as to the manner of
its exercise and not the discretion to act or not
to act, the court may require a general action
[BF Homes v. National Water Resources
Council, G.R. No. 78529 (1987)]
b. As to the Obligation of the Officer to
Perform His/Her Powers and Duties
1. Mandatory – Powers conferred on public
officers are generally construed as mandatory
although the language may be permissive,
where they are for the benefit of the public or
individuals.
2. Permissive – Statutory provisions define the
time and mode in which public officers will
discharge their duties, and those which are
obviously designed merely to secure order,
uniformity, system and dispatch in public
business are generally deemed directory.
If the act does not affect third persons and is
not clearly beneficial to the public, permissive
words will not be construed as mandatory.
[DE LEON]
c. As to the Relationship of the Officer to
His/Her Subordinates
1. Power of Control – It implies the power of
an officer to manage, direct or govern,
including the power to alter or modify or set
aside what a subordinate had done in the
performance of his duties and to
substitute his judgment for that of the
latter.
2. Power of Supervision – Supervisory
power is the power of mere oversight over
an inferior body which does not include any
restraining authority over such body. A
supervising officer merely sees to it that the
rules are followed, but he himself does not
lay down such rules, nor does he have the
discretion to modify or replace them. [DE
LEON]
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3. Duties of Public Officers
a. General (Constitutional) duties
1. To be accountable to the people; to
serve them with utmost responsibility,
integrity, loyalty and efficiency; to act
with patriotism and justice; and to lead
modest lives [Sec. 1, Art. IX]
2. To submit a declaration under oath of
his assets, liabilities and net worth
upon assumption of office and as often
thereafter as may be required by law
[Sec. 17, Art. XI]
3. To owe the State and the Constitution
allegiance at all times [Sec. 18, Art. XI]
[NACHURA]
4. Duty to make financial disclosures for
Members of Congress— All Members
of the Senate and the House of
Representatives shall, upon
assumption of office, make a full
disclosure of their financial and
business interest. They shall notify the
House concerned of a potential conflict
of interest that may arise from the filing
of a proposed legislation of which they
are authors. [Sec. 12, Art. VI]
b. Duties of Public Officers as Trustees for
the Public
1. In general
a. Duty to obey the law
b. Duty to accept and continue in office
c. Duty to accept burden of office
d. Duty as to diligence and care in the
performance of official duties
e. Duty in choice and supervision of
subordinates
2. Ethical duties – bound to perform honestly,
faithfully, and to the best of his ability, and to
act primarily for the benefit of the people. An
attempt to exercise those powers corruptly for
some improper purpose is null and void.
a. Duty to refrain from outside activities
that interfere with the proper discharge
of their duties
b. Duty not to use his official power to
further his own interest.
c. Duty to act with civility [DE LEON]
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c. Specific Duties under the Code of

Conduct and Ethical Standards for Public
G. RIGHTS OF PUBLIC
Officials and Employees OFFICERS
1. Act promptly on letters and requests 1. Rights incident to public
2. All public officials shall, within fifteen (15)
working days from receipt, respond to office
letters, telegrams or other means of a. The rights of one elected or appointed
communication sent by the public. The to office are, in general, measured by
reply must contain the answer taken on the the Constitution or the law under which
request. he was elected or appointed.
3. Submit annual performance reports b. Right to office – The just and legal
4. All heads or other responsible officers of claim to exercise the powers and the
agencies of the government or of GOCCs responsibilities of public office.
shall, within forty-five (45) working days
from the end of the year, render a full and 2. Rights as a Citizen
complete report of performance and a. Protection from publication
accomplishments, as prescribed by commenting on his fitness and the like
existing rules and regulations of the i. The mere fact that one
agency, office or corporation concerned. occupies a public office does
5. Process documents and papers not deprive him of the
expeditiously protection accorded to citizens
6. All official papers and documents must be by the Constitution and the
processed and completed within a laws.
reasonable time from the preparation ii. However, by reason of the
thereof and must contain, as far as public character of his
practicable, not more than three (3) employment or office, a public
signatories therein. officer is, in general, held not
7. Act immediately on the public’s personal entitled to the same protection
transactions from publications commenting
8. All public officials and employees must on his fitness and the like, as is
attend to anyone who wants to avail accorded to the ordinary
himself of the services of their offices, and citizen.
must, at all times, act promptly and b. Engaging in certain political and
expeditiously. business activities
9. Make documents accessible to the public i. Public employees may be
10. All public documents must be made required to suspend or refrain
accessible to, and readily available for from certain political or
inspection by, the public within reasonable business activities that are
working hours [DE LEON, citing Sec. 5, embraced within the
R.A. 6713]. constitutional rights of others,
when such activities are
reasonably deemed
inconsistent with their public
status and duties. [DE LEON]
c. Right to Compensation/ Salary

Compensation
In reference to the remuneration of public
officers, whether it is in the form of a fixed
salary or wages, per diems, fees,

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commissions, or perquisites of whatsoever
character.
Distinguished from honorarium which is
something given not as a matter of obligation
but in appreciation for services rendered.
Salary
Personal compensation to be paid to the public
officer for his services, and it is generally a
fixed annual or periodical payment depending
on the time and not on the amount of the
services he may render [DE LEON]
Basis of Right to Compensation [DE LEON]
1. Created by law
2. Services rendered - actual performance of
duties
Exceptions: Vacation leaves under CSC
MC No. 41-98; Preventive suspension
subsequently found to be unjustified [Gloria
v. CA, G.. No. 131012 (1999)]; Back
salaries in case of reinstatement
[Constantino-David v. Pangandaman-
Gania, G.R. No. 156039 (2003)].
3. Compensation fixed by law
4. Legal title to office
Exception: When there is no de jure officer
claiming the office, the de facto officer is
entitled to salaries for the period when he
actually discharged functions [Civil
Liberties Union v. Executive Secretary,
G.R. No. 83896 (1991)].
5. Amount of compensation
6. The Congress shall provide for the
standardization of compensation of
government officials and employees,
including those in government-owned or
controlled corporations with original
charters, taking into account the nature of
the responsibilities pertaining to, and the
qualifications required for their positions
[Sec. 5, Art. IX-B, 1987 Constitution].
Salary Not Subject to Garnishment
The salary of a public officer may not, by
garnishment, attachment or order of execution,
be seized before being paid to him and
appropriated for the payment of his debts. [The
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Director of the Bureau of Commerce and
Industry v. Concepcion, G.R. No. L-9031,
(1922)].
Delivery required
The salary check of a government officer or
employee does not belong to him before it is
physically delivered to him. Until that time, the
check belongs to the government as public
fund and may not be garnished. [De la Victoria
v. Burgos, G.R. No. 111190(1995)].
Prohibition against receiving additional ,
double, or indirect compensation
No elective or appointive public officer
employee shall receive additional, double, or
indirect compensation unless specifically
authorized by law, nor accept without the
consent of the Congress, any present,
emolument, office, or title of any kind from any
foreign government. Pensions and gratuities
shall not be considered as additional, double or
indirect compensation [Sec. 8, Art. IX-B, 1987
Constitution].
Ex Officio Position
The ex officio position being actually and in
legal contemplation part of the principal office,
it follows that the official concerned has no right
to receive any other form of additional
compensation for his services in the said
position [Philippine Health Insurance Corp v.
COA, G.R. No. 222838, (2018)]
Other Constitutional Provisions Regarding
Compensation of Public Officers
a. The salaries of Senators and Members of
the House of Representatives shall be
determined by law. No increase in said
compensation shall take effect until after
the expiration of the full term of all the
Members of the Senate and the House of
Representatives approving such increase
[Sec. 10, Art. VI]
b. The salaries of the President and Vice-
President shall be determined by law and
shall not be decreased during their tenure.
No increase in said compensation shall
take effect until after the expiration of the
term of the incumbent during which such
increase was approved. They shall not

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receive during their tenure any other
emolument from the Government or any
other source. [Sec. 6, Art. VII]
c. The salary of the Chief Justice and of the
Associate Justices of the Supreme Court,
and of judges of lower courts shall be fixed
by law. During their continuance in office,
their salary shall not be decreased. [Sec.
10, Art. VIII]
3. Other Rights [DE LEON]
Rights under the Constitution
a. Right to self-organization
The right to self-organization shall not be
denied to government employees. [Sec.
2(5), Art. IX-B]
b. Right to protection of temporary
employees
Employees in the government given
temporary appointments do not enjoy
security of tenure. They shall be given such
protection as may be established by law to
prevent indiscriminate dismissals.
c. Freedom of members of Congress from
arrest and from being questioned
A Senator or Member of the House of
Representatives shall, in all offenses
punishable by not more than six years
imprisonment, be privileged from arrest
while Congress is in session. No member
shall be questioned nor be held liable in
any other place for any speech or debate in
the Congress or in any committee thereof
[Sec. 11, Art. VI].
d. Right not to be removed or suspended
except for cause provided by law
Rights under the Civil Service Decree and
the New Administrative Code
a. Right to preference in promotion
b. Right to present complaints and grievances
c. Right not to be suspended or dismissed
except for cause as provided by law and
after due process
d. Right to organize
On the right to Collective Bargaining in
government employment, it is the legislature
and, where properly given delegated power,
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the administrative heads of government which
fix the terms and conditions of employment.
While employees of chartered GFIs enjoy the
constitutional right to bargain collectively, they
may only do so for non economic benefits.
The DBP is bound by the Salary
Standardization Law, and monetary awards
and benefits can only be granted in accordance
with the law.
SSL: "coverage, conditions for the grant,
including the rates of allowances, benefits, and
incentives to all government employees, shall
be rationalized in accordance with the policies
to be issued by the President upon
recommendation of the Department of Budget
and Management." [DBP v. COA, G.R. No.
210838 (2018)]
Rights under the Revised Government
Service Insurance Act
Covered employees are entitled to retirement
benefits, separation benefits, unemployment or
involuntary separation benefits, disability
benefits, survivorship benefits, funeral benefits
and life insurance benefits.
Right to Retirement Pay
Retirement laws are liberally construed in favor
of the retiree [Profeta v. Drilon, G.R. No.
104139 (1992)]. It may not be withheld and
applied to his indebtedness to the government
[Tantuico v. Domingo, G.R. No. 96422 (1994)].
Right to Reimbursement and Indemnity
When a public officer, in the due performance
of his duties, has been expressly or impliedly
required by law to incur expenses on the public
account, not covered by his salary or
commission and not attributable to his own
neglect or default, the reasonable and proper
amount thereof forms a legitimate charge
against the public for which he should be
reimbursed.
Within the same limits, the officer is entitled to
be indemnified by the public against the
consequences of acts which he has been
expressly or impliedly required to perform upon

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the public account, and which are not
manifestly illegal and which he does not know
to be wrong.
Right to Reinstatement and Back Salary
Reinstatement
The restoration to a state or condition from
which one had been removed or separated.
One who is reinstated assumes the position he
had occupied prior to the dismissal. Back
salary or wages is a form of relief that restores
the income that was lost by reason of unlawful
dismissal.
Back Salary
An officer who has been lawfully separated or
suspended from his office is not entitled to
compensation for the period during which he
was so suspended.
Where an officer was unlawfully removed and
was prevented for a time by no fault of his own
from performing the duties of his office, he may
recover back wages, and the amount that he
had earned in other employment during his
unlawful removal should not be deducted from
his unpaid salary.
The officer cannot be faulted for her inability to
work or to render any service from the time she
was illegally dismissed up to the time of her
reinstatement. Verily, to withhold her back
salaries and other benefits during her illegal
dismissal would put to naught the constitutional
guarantee of security of tenure for those in the
civil service. [Constantino-David v.
Pangandaman-Gania, supra]
Right to Property, Devices and Inventions
Title to a public office carries with it the right,
during the incumbency of the officer, to the
insignia and property thereof.
The question whether records, discoveries,
inventions, devices, data and the like, made or
prepared by an officer while he is occupying the
office, belong to the public, must be determined
with reference to the facts of each case.
a. Where such are indispensable in the
proper conduct of the office, the officer
may not take them as his own property.
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b. If, not being required by law, they are
prepared by the officer apart from his
official duties and are not
indispensable in the proper conduct of
the office, the officer may acquire a
property right therein.
H. LIABILITIES OF PUBLIC
OFFICERS
In General
Public officers in respect of the persons to
whom their duty is owing, are divided into 2
classes – those whose duty is owed solely to
the public and those whose duty is owed in
some degree to the individuals. An individual
has no cause of action against a public officer
for a breach of duty owed solely to the public
[DE LEON].
An individual can hold a public officer
personally liable for damages on account of an
act or omission that violates a constitutional
right only if it results in a particular wrong or
injury to the former [Vinzons-Chato v. Fortune
Tobacco, G.R. No. 141309 (2008)].
A public officer shall not be civilly liable for acts
done in the performance of his official duties,
unless there is a clear showing of bad faith,
malice or negligence [Sec. 38(1), Chapter 9,
Book I, Admin. Code].
However, under Sec. 24 of the Local
Government Code, local governments and
their officials are expressly not exempt from
liability for death or injury to persons or damage
to property.
Three-Fold Responsibility of Public Officers
A public officer is under a three-fold
responsibility for violation of duty or for
wrongful act or omission:
1. Civil Liability: if the individual is damaged
by such violation, the official shall, in some
cases, be held liable civilly to reimburse the
injured party.
2. Criminal Liability: if the law has attached
a penal sanction, the officer may be
punished criminally. The mere fact that an

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officer is acting in an official capacity will
not relieve him from criminal liability.
3. Administrative Liability: such violation
may also lead to imposition of fine,
reprimand, suspension or removal from
office, as the case may be.
Thus, if such violation or wrongful act results in
damages to an individual, the public officer
may be held civilly liable to reimburse the
injured party. If the law violated attaches a
penal sanction, the erring officer may also be
punished criminally. Finally, such violation may
also lead to suspension, removal from office, or
other administrative sanctions. The action that
may result for each liability under the "threefold
liability rule" may proceed independently of one
another, as in fact, the quantum of evidence
required in each case is different. [Ramiscal v.
COA, G.R. No. 213716 (2017)]
Liability of Ministerial Officers
[NACHURA]
1. Nonfeasance - Neglect or refusal to
perform an act which is the officer’s legal
obligation to perform
2. Misfeasance – Failure to use that degree
of care, skill, and diligence required in the
performance of official duty
3. Malfeasance – The doing, through
ignorance, inattention or malice, of an act
which he had no legal right to perform
Statutory Liability
1. Failure or neglect to perform official duty
[Art. 32, Civil Code];
2. Violating rights and liberties of private
individuals [Art. 33, Civil Code];
3. Liability of peace officers for not rendering
aid or protection to a person [Art. 34, Civil
Code], and the subsidiary liability of municipal
corporations in such case;
4. Neglecting to perform a duty without just
cause within (i) a period fixed by law or
regulation; or (ii) a reasonable period, if no
period is fixed [Sec. 38(2), Chapter 9, Book I,
Admin. Code].
Liability on Contracts
General Rule: A public officer acting within the
scope of his authority and in his official capacity
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is not personally liable on contracts executed
on behalf of the government.
Exception: A public officer becomes
personally liable on such contracts when:
1. the officer intended to render himself
personally liable;
2. when he makes no mention of the public
agency he serves; or
3. when he does not indicate that it is
executed in an official capacity
Liability on Tort
A public official is not liable for damages for
performing a duty required by law and absent
bad faith. [Mabutol v. Pascual, G.R. No. L-
60898 (1983)]
An officer who acts outside the scope of his
jurisdiction and without authorization of law
may be amenable to personal liability in a civil
suit. [Festejo v. Fernando, G.R. No. L-5156
(1954)]
Liability of Superior Officers for Acts of
Subordinate Officers
A head of a department or a superior officer
shall not be civilly liable for the wrongful acts,
omissions of duty, negligence or misfeasance
of his subordinates, unless he has actually
authorized by written order the specific act or
misconduct complained of [Sec. 38(3), Chapter
9, Book I, Admin. Code].
Neither the principle of command responsibility
(in military or political structural dynamics) nor
the doctrine of respondeat superior (in quasi
delicts) applies in this case. The negligence of
the subordinate cannot be ascribed to his
superior in the absence of evidence of the
latter’s own negligence [Reyes v. Rural Bank of
San Miguel, G.R. No. 154499 (2004)]
Liability of Subordinate Officers
No subordinate officer or employee shall be
civilly liable for acts done by him in good faith
in the performance of his duties. However, he
shall be liable for wilful or negligent acts done
by him which are contrary to law, morals, public
policy and good customs even if he acted
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under orders or instructions of his superiors
[Sec. 39, Chapter 9, Book I, Admin. Code].
1. Preventive suspension and
back salaries
the penalty is suspension or removal, the
respondent shall be considered as having
been under preventive suspension during
the pendency of the appeal in the event he
wins the appeal [Sec. 47(4), Chapter 6,
Subtitle A, Title I, Book V, Admin. Code].

Preventive Suspension Employees are entitled to compensation

Preventive Suspension is a disciplinary for the period of their suspension pending
measure which is intended to enable the appeal if they are found innocent. Such
disciplinary authority to investigate charges suspension is actually punitive and it is
against the respondent by preventing the latter precisely because the respondent is
from using his position or office to influence penalized before his sentence is confirmed
witnesses, to intimidate them, or to tamper with that he should be paid his salaries in the
the records which may be vital in the event he is exonerated. [DE LEON].
prosecution of the case against him.
Pending
Kinds of Preventive Suspension Pending Appeal
Investigation
a. Preventive suspension pending Punitive in character
investigation
Not a penalty, but (it is in effect
The proper disciplining authority may only a means of subsequently
preventively suspend any subordinate
enabling the considered illegal if
officer under his authority pending an disciplining authority respondent is
investigation, if the charge against such
to conduct exonerated and the
officer involves dishonesty, oppression or unhampered administrative
grave misconduct or neglect in the investigation decision finding him
performance of duty or if there are reasons guilty is reversed)
to believe that the respondent is guilty of
No Right to
the charges which would warrant his If exonerated –
Compensation
removal from service [Sec. 51, Chapter 6, reinstated with full
(backwages) for
Subtitle A, Title I, Book V, Admin. Code]. pay for the period of
Preventive
suspension
Suspension Pending
No compensation is due for the period of If conviction is
Investigation Even if
preventive suspension pending affirmed- the period
Employee is
investigation. Such preventive suspension of his suspension
Exonerated
is authorized by the Civil Service Law and becomes part of the
Exception:
cannot, therefore, be considered final penalty of
Suspension
“unjustified” even if later the charges are suspension or
unjustified
dismissed. For this reason, it is limited to dismissal.
90 days unless the delay in the conclusion
[Gloria v. CA, G.R. No. 131012 (1999); Baculi
of the investigation is due to the employee
v. Office of the President, G.R. No. 188681,
concerned [DE LEON].
(2017)]
If investigation is not finished and decision
Rules on Preventive Suspension
not rendered within proper time- automatic
reinstatement [DE LEON]
1. Appointive Officials [Secs. 51-52, Chapter
7, Subtitle A, Title I, Book V, Admin. Code]
b. Preventive suspension pending appeal
An appeal [from the decision of the
a. Not a Presidential Appointee
disciplinary authority shall not stop the
i. Imposed by – the proper disciplining
decision from being executory, and in case
authority

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ii. Against – any subordinate officer or
employee under such authority
iii. When – pending an investigation
iv. Grounds –
a. Charge involves dishonesty,
oppression or grave
misconduct, neglect in the
performance of duty; or
b. There are reasons to believe
that respondent is guilty of the
charges which would warrant
his removal from the service
v. Period – administrative investigation
must be terminated within 90 days,
otherwise the respondent shall be
automatically reinstated unless the
delay in the disposition of the case is
due to the fault, negligence or petition
of the respondent, in which case the
period of delay shall not be counted
b. Presidential Appointee
Preventive suspension in the case of
presidential appointees may raise a due
process question if continued for an
unreasonable period of time [DE LEON].
Note: Under EO 43 (2017)—Creating the
Presidential Anti-Corruption Commission
and Providing for its Powers, Duties and
Functions, and for Other Purposes
Preventive Suspension [Sec. 6, EO 43]
a. Imposed by – the President upon
recommendation of the Commission
b. Against – a presidential appointee upon
which a complaint has been filed
c. When – upon filing of a complaint or charge
d. Grounds – when the circumstance of the
investigation warrant the same, such as
when the charges are punishable with
removal form the service or when
respondent’s continues stay in office will
prejudice the fair determination of the case
e. Period – until the case is terminated by the
Commission, but in no case shall exceed
ninety (90) days, except when the delay is
due to the fault, negligence, or action of the
respondent, in which case the period of
such delay shall not be counted in
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computing the period of preventive
suspension.
2. Elective Officials [Sec. 63, R.A. 7160]
a. Imposed by – Against
i. President – Elective official of a
province, Highly Urbanized City or
Independent Component City
ii. Governor – Elective official of
Component City or municipality
iii. Mayor – Elective official of a
barangay
b. When – at any time after the issues are
joined
c. Requisites:
i. After the issues are joined;
ii. Evidence of guilt is strong; and
iii. Given the gravity of the offense,
there is great probability that the
continuance in office of the
respondent could:
1. influence the witnesses; or
2. pose a threat to the safety
and integrity of the records
and other evidence.
d. Duration
i. Single administrative case – not to
exceed 60 days
ii. Several administrative cases – not
more than 90 days within a single
year on the same ground or
grounds existing and known at the
time of the first suspension
e. Preventive suspension of an elective local
official is not an interruption of the 3-term
limit rule [Aldovino v. COMELEC, G.R. No.
184836 (2009)]
Note: The authority to preventively suspend is
exercised concurrently by the ombudsman,
pursuant to R.A. 6770, which authorizes
preventive suspension of 6 months [Hagad v.
Gozo-Dadole, G.R. No. 108072 (1995)].
Sec. 24, R.A. 6770
Section 24. Preventive Suspension. — The
Ombudsman or his Deputy may preventively
suspend any officer or employee under his
authority pending an investigation, if in his
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judgment the evidence of guilt is strong, and

(a) the charge against such officer or
employee involves dishonesty, oppression
or grave misconduct or neglect in the
performance of duty; (b) the charges would
warrant removal from the service; or (c) the
respondent's continued stay in office may
prejudice the case filed against him.

The preventive suspension shall continue

until the case is terminated by the Office of
the Ombudsman but not more than six (6)
months, without pay, except when the delay
in the disposition of the case by the Office of
the Ombudsman is due to the fault,
negligence or petition of the respondent, in
which case the period of such delay shall not
be counted in computing the period of
suspension herein provided.

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General Overview of Preventive Suspension in Administrative Cases

EO 292 (Admin RA 7160 (LGC) EO 43 (PACC) RA 6770 (The

Code) Ombudsman Act
of 1989)
Applicable Book V, Title I, Sec. 63 Sec. 6 Sec. 24
Provision Subtitle A, Chapter
7, Section 51-52
Officers Public Officers in Local government Presidential Public officers
covered the Civil Service officials appointees (local and elective)
Grounds -Dishonesty, (a) Disloyalty to the Investigations for -Evidence of guilt
oppression or Republic of the acts constitution is strong
grave misconduct, Philippines; violations of any of and
or neglect in the (b) Culpable the following: -(a) the charge
performance of violation of the 1) RA 3019 against such
duty, or Constitution; 2) RA 1379 on officer or employee
-If there are (c) Dishonesty, unlawful involves
reasons to believe oppression, acquisition of dishonesty,
that the misconduct in property by a oppression or
respondent is office, gross public officer or grave misconduct
guilty of charges negligence, or employee or neglect in the
which would dereliction of duty; 3) RA 6713 performance of
warrant his (d) Commission of 4) EO 292, duty; (b) the
removal from the any offense whenever it charges would
service. involving moral defines and warrant removal
turpitude or an imposes from the service; or
offense punishable administrative (c) the
by at least prision sanctions on acts respondent's
mayor; and omissions continued stay in
(e) Abuse of constituting office may
authority; violations of the prejudice the case
(f) Unauthorized foregoing laws and filed against him.
absence for fifteen issuances
(15) consecutive 6) Rules and
working days, regulations duly
except in the case promulgated by
of members of the competent
Sangguniang authority to
Panlalawigan, implement any of
Sangguniang the foregoing laws
Panlungsod, and issuances;
Sangguniang and
bayan, and 7) Other violations
Sangguniang as may be referred
Barangay; to the president
(g) Application for, (EO 43, Sec. 5)
or acquisition of,
foreign citizenship
or residence or the
status of an

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immigrant of
another country;
and
(h) Such other
grounds as may be
provided in this
Code and other
laws.
(LGC, Sec. 60)
Duration 90 days -Single case: 60 90 days 6 months without
days pay
-Several cases
filed: Not more
than 90 days for a
single year
Note: R.A. 3019 (The Anti-Graft and Corrupt Practices Act) and R.A. 7080 (Act Defining and Penalizing
the Crime of Plunder) also provide for Suspension but for criminal proceedings filed against the public
officers. Suspension under R.A. 6770 above, may also apply to criminal cases.

2. Illegal dismissal, unlawful removal should not be deducted from

his unpaid salary.
reinstatement, and back
salaries An employee of the civil service who is ordered
reinstated is also entitled to the full payment of
[Also See: Rights of Public Officers, Right to his or her back wages during the entire period
Reinstatement and Back Salaries] of time that he or she was wrongfully prevented
from performing the duties of his or her position
Reinstatement and back salary or wages are and from enjoying its benefits. [Campol v.
separate reliefs given to an illegally dismissed Balao-As and Sianen, G.R. No. 197634
official or employee. (2016)]

General Rule is the "no work-no pay" principle
– public officials are only entitled to
compensation if they render service. But the
Court has excepted from this general principle
and awarded back salaries even for unworked
days to illegally dismissed or unjustly
suspended employees to deny these
employees their back salaries amounts to
unwarranted punishment after they have been
exonerated from the charge that led to their
dismissal or suspension. [CSC v. Cruz, G.R.
187858 (2011)]
When award is proper
Where an officer was unlawfully removed and
was prevented for a time by no fault of his own
from performing the duties of his office, he may
recover back wages, and the amount that he
had earned in other employment during his
Such payment of salaries corresponding to the
period when an employee is not allowed to
work may be decreed if he is found innocent of
the charges which caused the suspension and
when the suspension is unjustified. [Miranda v.
COA, G.R. No. 84613 (1991)]
This is only fair and just because an employee
who is reinstated after having been illegally
dismissed is considered as not having left her
office and should be given the corresponding
compensation at the time of her reinstatement.
[CSC v. Gentallan, G.R. No. 152833 (2005)]
The right to receive full backwages
corresponds to the salary at the time of his
dismissal until reinstatement. Any income he
may have obtained during the litigation of the
case shall not be deducted from this amount.
[Campol v. Balao-As and Sianen, supra]

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Two conditions before an employee may be 1 year from the date the petitioner is ousted
entitled to back salaries: from his position. The claim for back salaries
a. the employee must be found innocent of and damages is also subject to the 1-year
the charges and prescriptive period [DE LEON].
b. his suspension must be unjustified.
[Bangalisan v. CA, supra]
I. IMMUNITY OF PUBLIC
Note: Officer may only receive back salaries OFFICERS
during the period of preventive suspension
pending appeal, not pending investigation, until General Rule
his reinstatement. [CSC v. Cruz, supra] While the doctrine of state immunity appears to
prohibit only suits against the state without its
Responsibility to pay consent, it is also applicable to complaints filed
If the illegal dismissal is found to have been against officials of the state for acts allegedly
made in bad faith or due to personal malice of performed by them in the discharge of their
the superior officers then they will be held duties.
personally accountable for the employee’s
back salaries; otherwise, the government The suit is regarded as one against the state
disburses funds to answer for such arbitrary where satisfaction of the judgment against the
dismissal. [Constantino-David v. officials will require the state itself to perform a
Pangandaman-Gania, supra] positive act, such as the appropriation of the
amount necessary to pay the damages
Where removal or suspension lawful awarded against them.
An officer who has been lawfully separated or
suspended from his office is not entitled to Exception
compensation for the period during which he The rule does not apply where the public official
was so suspended, even if it be subsequently is charged in his official capacity for acts that
determined that the cause for which he was are unauthorized or unlawful and injurious to
suspended was unjustified. [DE LEON] the rights of others. Neither does it apply where
the public official is clearly being sued not in his
It does not impair his constitutional rights official capacity but in his personal capacity,
because the Constitution itself allows although the acts complained of may have
suspension for cause as provided by law and been committed while he occupied a public
the law provides that an employee may be position. [Dayrit v. Phil. Pharmawealth, Inc,
suspended pending an investigation or by way G.R. No. 169304 (2007)]
of penalty. [Bangalisan v. CA, G.R. 124678
(1997)] Official Immunity State Immunity
It is more limited. It It directly protects the
Duty of Plaintiff to Prove His/Her Right to protects the public sovereign/government
Office official from tort from tort liability. It
For a plaintiff to succeed in seeking liability for does not apply in
reinstatement to an office, he must prove his damages arising causes of action which
right to the office. In a quo warranto from discretionary do not seek to impose
proceeding, the person suing must show that acts in the a charge or financial.
he has a clear right to the office allegedly held performance of his
unlawfully by another. Absent that right, the official duties.
lack of qualification or eligibility of the But an officer who The state is not bound
supposed usurper is immaterial. exceeds the power by the mistake,
conferred on him neglect or wrongdoing
A petition for quo warranto and mandamus by law cannot hide of its agents and
affecting title to public office must be filed within behind this officers.

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principle; the
official becomes
personally liable.
Official immunity not absolute
1. Suit to enforce liability for personal
torts – Mere allegation that a government
officer is being sued in his personal
capacity does not automatically remove
him from official immunity. Neither does
mere invocation of official character suffice
to insulate the officer from liability for
damages.
a. A public officer enjoys only
qualified immunity. The protection
afforded by official immunity
generally applies only to activities
within the scope of office that are in
good faith and are not reckless,
malicious or corrupt. But the
general rule is that there is a
presumption of good faith.
b. Where damages are sought in an
action filed against a public officer
which, if granted, could result in his
personal liability, he may be
properly represented by a private
counsel.
2. Suit to compel performance of official
duty or restrain performance of an act –
the general rule is that state/government
may not be sued without its consent and, in
effect, a suit against a public officer for his
official acts is a suit against the state. The
exceptions are:
a. A public officer may be sued as
such to compel him to do an act
required by law.
b. Where the government itself has
violated its own laws, the aggrieved
party may directly implead the
government (even without filing his
claim first with the COA as usually
required) because the doctrine of
state immunity cannot be used as
an instrument for perpetrating an
injustice. [DE LEON]
Presidential Immunity from Suit
The President shall be immune from suit during
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his tenure [Rubrico v. Macapagal-Arroyo, G.R.
No. 183871 (2010)]
A non-sitting President does not enjoy
immunity from suit, even for acts committed
during the latter/s tenure. The intent of the
framers of the Constitution is clear that the
immunity of the president from suit is
concurrent only with his tenure and not his
term. (In the Matter of the Petition for the Writ
of Amparo and Habeas Data in favor of Noriel
H. Rodriguez, Noriel H. Rodrigue v.
Macapagal-Arroyo, G.R. No. 191805 & 193160
(2011)]
J. DISTINGUISH: DE FACTO
AND DE JURE OFFICERS
1. De Facto Officer
It is the doctrine that a person who is admitted
and sworn into office by the proper authority is
deemed to be rightfully in such office until:
a. he is ousted by judicial declaration in a
proper proceeding; or
b. b. his admission thereto is declared void.
Purpose: to ensure the orderly functioning of
government. The public cannot afford to check
the validity of the officer's title each time they
transact with him.
Definition
“One who has the reputation of being the officer
that he assumes to be, and yet is not a good
officer in point of law.” [Torres v. Ribo, G.R. No.
L-2051 (1948)].
Elements of a De Facto Officership
a. A validly existing public office (i.e. a de jure
office)
b. Actual physical possession of the office in
good faith
c. Color of title to the office or general
acquiescence by the public
There is color of title to the office in ANY of the
following circumstances:
a. There is no known appointment or election,
but people are induced by circumstances
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of reputation or acquiescence to suppose of such good

that he is the officer he assumes to be.
office faith.
Consequently, people do not to inquire into
accordi
his authority, and they submit to him or
ng to
invoke his action;
law’s
b. He possessed public office under color of a
prescrib
known and valid appointment or election,
ed
but he failed to conform to some precedent
mode.
requirement or condition (e.g., taking an
oath or giving a bond); Basis of Right: he Reputation:
c. He possessed public office under color of a Authority / has the he possesses
known election or appointment, but such is As to color lawful office and
VOID because: of authority right/title to performs its
1. He is ineligible; the office duties under
● The electing or appointing body is color of right,
not empowered to do such; but he is not
● His exercise of his function was technically
defective or irregular; and qualified to act
● The public does not know of such in all points of
ineligibility, want of authority, or law
irregularity.
2. He possessed public office under How Cannot be In a direct
color of an election or an Ousted ousted even proceeding
appointment by or pursuant to a in a direct (quo warranto)
public, unconstitutional law, before proceeding ; cannot be
the same is adjudged to be such ousted
collaterally
Officer De Jure v. Officer De Facto
Validity of Valid, Valid as to the
De Jure De Facto
Official subject to public until his
Requisites a. A de a. De jure Acts exceptions title to the
jure office; (e.g. acting office is
office b. He beyond his adjudged
exists; assumed scope of insufficient
b. He is office authority,
legally under etc.)
qualifie color of
Rule on Rightfully Conditionally
d for the right or
Compensat entitled to entitled to
office; general
ion compensati receive
c. He is acquiesce
on’ the compensation:
lawfully nce by the
principle of only when no
chosen public;
“no work, no de jure officer
to such c. He
pay” is is declared
office; actually
inapplicable and only for
d. He and
to him actual
underta physically
services
kes to possesse
rendered
perform d the
the office in
duties

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Officer Created under an Unconstitutional
Statute
The prevalent view is that a person appointed
or elected in accordance with a law later
declared to be unconstitutional may be
considered de facto at least before the
declaration of unconstitutionality.
Legal Effects of Acts of De Facto Officers
[Monroy v. CA, G.R. No. L-23258 (1967)]
a. As regards the officers themselves: A party
suing or defending in his own right as a
public officer must show that he is an officer
de jure. It is not sufficient that he be merely
a de facto officer.
b. As regards the public and third persons:
The acts of a de facto officer are valid as to
third persons and the public until his title to
office is adjudged insufficient.
Rationale: The doctrine is intended not for the
protection of the public officer, but for the
protection of the public and individuals who get
involved in the official acts of persons
discharging the duties of a public office.
De Facto Officer’s Official Acts are Not
Subject to Collateral Attack
A de facto officer’s and his acts’ validity cannot
be collaterally questioned in proceedings
where he is not a party, or which were not
instituted to determine the very question.
Remedy: Quo warranto proceedings filed by:
a. The person claiming entitlement to the
office;
b. The Republic of the Philippines
(represented by the Solicitor-General or a
public prosecutor).
Liability of De Facto Officers
A de facto officer generally has the same
degree of liability and accountability for official
acts as a de jure officer.
The de facto officer may be liable for all
imposable penalties for ANY of the following
acts:
a. usurping or unlawfully holding office;
b. exercising the functions of public office
without lawful right;
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c. ineligibility for the public office as required
by law
The officer cannot excuse responsibility for
crimes committed in his official capacity by
asserting his de facto status.
Right to Compensation of De Facto Officer
General Rule: A de facto officer cannot sue for
the recovery of salary, fees or other
emoluments attached to the office, for the
duties he has performed. His acts, as far as he
himself is concerned, are void.
Moreover, the rightful incumbent may recover
from the de facto officer the salary received by
the latter during his wrongful tenure. [Monroy v.
CA, supra].
Exception: Where there is no de jure officer, a
de facto officer, who in good faith has had
possession of the office and has discharged
the duties pertaining thereto, is legally entitled
to the emoluments of the office, and may in an
appropriate action recover the salary, fees and
other compensations attached to the office
[Civil Liberties Union v. Executive Secretary,
supra].
K. TERMINATION OF
OFFICIAL RELATION
Modes of termination of official relations
1. Natural Causes
a. Expiration of term or tenure of office;
b. Reaching age limit (retirement);
c. Death or permanent disability;
2. Acts or Neglect of Officer
a. Resignation
b. Acceptance of an incompatible office;
c. Abandonment of office;
d. Prescription of right to office;
3. Acts of the Government or People
a. Removal;
b. Impeachment;
c. Abolition of office;
d. Conviction of a crime;

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e. Recall.
f. Non User
1. Expiration of the Term or
Tenure of the Office
General rule: Upon the expiration of the
officer’s term, his rights, duties and authority as
a public officer must ipso facto cease.
Exception: Unless he is authorized by law to
hold over.
When a public officer is placed in a hold over
status it means that his term has expired or his
services terminated but he should continue
holding his office until his successor is
appointed or chosen or has qualified. [DE
LEON]
Where an office is created, or an officer is
appointed, for the purpose of performing a
single act or the accomplishment of a given
result, the office terminates and the officer’s
authority ceases with the accomplishment of
the purposes which called it into being.
Term of office
The time during which the officer may claim to
hold the office as of right and fixes the interval
after which the several incumbents shall
succeed one another. It is a fixed and definite
period of time to hold office, perform its
functions and enjoy its privileges and
emoluments until the expiration of said period.
Tenure of office
The period during which the incumbent actually
holds office.
Expiration of Coterminous Employment
No officer or employee in the Civil Service shall
be removed or suspended except for cause
provided by law. The phrase "cause provided
by law," however, includes "loss of
confidence." It is an established rule that the
tenure of those holding primarily confidential
positions ends upon loss of confidence,
because their term of office lasts only as long
as confidence in them endures. Their
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termination can be justified on the ground of
loss of confidence, in which case, their
cessation from office involves no removal but
the expiration of their term of office.
2. Reaching the Age Limit
(Retirement)
Compulsory Retirement Age
1. Members of the Judiciary – 70 yrs old [Sec.
11, Art. VIII, 1987 Constitution]
2. Other government officers and employees
– 65 yrs old [Sec. 13(b), R.A. 8291 (GSIS
Law)]
Sec. 13(b), R.A. 8291, GSIS Law:
(b) Unless the service is extended by
appropriate authorities, retirement shall be
compulsory for an employee of sixty-five (65)
years of age with at least fifteen (15) years
of service: Provided, That if he has less than
fifteen (15) years of service, he may be
allowed to continue in the service in
accordance with existing civil service rules
and regulations.
Early Retirement [Sec. 13-A, R.A. 8291]
SEC. 13-A. Conditions for Entitlement. - A
member who retires from the service shall be
entitled to the retirement benefits
enumerated in paragraph (a) of Section 13
hereof: Provided, That:
(1) he has rendered at least fifteen years of
service;
(2) he is at least sixty (60) years of age at the
time of retirement; and
(3) he is not receiving a monthly pension
benefit from permanent total disability.
“Public officers and employees who actively
petition for retirement or separation benefits
willfully affirm their separation from service.
They are bound by their own voluntary
departure. Absent any indication that their
choice was vitiated by confounding
predicaments, like desperate financial need,
they cannot renege on their self-imposed state,
and later importune the government to
reinstate them to the position they readily
relinquished and to pay them backwages in the

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intervening period.” [Civil Service Commission
v. Moralde, G.R. No. 211077, August 15, 2018]
3. Death or Permanent Disability
Death of incumbent renders the office vacant.
Upon his death, the public official ceases to
hold office, and all rights, duties, obligations
are extinguished. However, if the authority is
conferred over two or more officers, death of
one terminates his authority and leaves a
vacancy but the entire office is not vacant.
Unless the joint action of all is expressly
required, the survivors may execute the office.
Permanent disability covers either mental or
physical disability. When degree of incapacity
is at issue (i.e. when the appointee refuses to
give up the position) the appointing power will
have to make the decision whether the
condition of the public official has created a
vacancy but a judicial determination of the fact
is necessary to render it conclusive.
[DE LEON]
4. Resignation
The act of giving up or the act of a public officer
by which he declines his office and renounces
the further right to use it. It is an expression of
the incumbent in some form, express or
implied, of the intention to surrender, renounce
and relinquish the office and the acceptance
thereof by competent lawful authority [Ortiz v.
COMELEC, G.R. No. 78957 (1988)].
Requisites:
a. Intention to relinquish a part of the term
b. Act of relinquishment
c. Acceptance by the proper authority, either
expressly or implied
Art. 238 of the RPC makes it an offense for any
public officer who, before acceptance of his
resignation, abandons his office to the
detriment of the public service.
Forms of resignation
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1. Where a law requires that resignation is to
be made in any particular form, that form
must be substantially complied with.
2. Where no such form is prescribed, no
particular mode is required, but the
resignation may be made by any method
indicative of the purpose. It need not be in
writing, unless so required by law. A written
resignation, delivered to the board or
officer authorized to receive it and fill the
vacancy thereby created, is prima facie,
but not conclusive evidence of the intention
to relinquish the office.
[DE LEON]
N.B. Courtesy resignation cannot properly be
interpreted as a resignation in the legal sense
for it is not necessarily a reflection of a public
official’s intention to surrender his position.
Rather, it manifests his submission to the will
of the political authority and the appointing
power [Ortiz v. COMELEC, supra].
When resignation is effective
1. Date specified in the tender
2. If no such date is specified, resignation
shall be effective when the public officer
receives notice of the acceptance of his
resignation, NOT the date of the letter or
notice of acceptance [Gamboa v. CA, G.R.
No. L-38068 (1981)]
Revocation of Resignation:
A resignation can be validly withdrawn before
the public official is notified of its acceptance
[Republic v. Singun, supra].
Acceptance of resignation
1. As provided by law
2. If the law is silent on who shall accept and
the public officer is an appointive officer,
tender to the appointing authority. If
elective, tender to those authorized by law
Resigning Public Accepting
Officer Authority
President and VP Congress
Respective
Members of Congress
Houses
Governors, Vice-
President
Governors, and Mayors
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and Vice-Mayors of When Incompatible

Highly Urbanized Cities 1. There is conflict in such duties and
and Independent functions, so that the performance of the
Component Cities duties of one interferes with the
City Mayors and Vice performance of the duties of the other as to
Mayors of Component render it improper from consideration of
Cities, and Municipal Governor public policy for one person to retain both.
Mayors and Vice- 2. One is subordinate to the other and is
Mayors subject in some degree to its supervisory
Sanggunian power for obviously in such a situation, the
Sanggunian Members design that one acts as a check on the
concerned
Elective Barangay Municipal or City other would be frustrated.
Officials Mayors 3. The Constitution or the law itself declares
Appointive Public Appointing the incompatibility even though there is no
Officers Authority inconsistency in the nature and functions of
[SUAREZ] the offices. [DE LEON]

Effect of Filing COC: Deemed Resigned Subordinate Office

Sec. 66, B.P. Blg. 881. Candidates holding
appointive office or positions. - Any person
holding a public appointive office or position,
including active members of the Armed Forces
of the Philippines, and officers and employees
in government-owned or controlled
corporations, shall be considered ipso facto
resigned from his office upon the filing of his
certificate of candidacy.
Note: Only applicable to appointive officials,
Elective officials are not deemed resigned
upon filing of COC
5. Acceptance of an
Incompatible Officer
General Rule: One who, while occupying one
office, accepts another office incompatible with
the first ipso facto vacates the first office.
Exceptions
a. Where the public officer is authorized by
law to accept the other office (ex officio
capacity).
b. If the public officer accepts a forbidden
office, the holding of the second office is
absolutely void. [Sec. 13, Art. IV, 1987
Constitution]
[I]ncompatibility between two offices, is an
inconsistency in the functions of the two; x x x
Where one office is not subordinate to the
other, nor the relations of the one to the other
such as are inconsistent and repugnant, there
is not that incompatibility from which the law
declares that the acceptance of the one is the
vacation of the other. x x x The offices must
subordinate, one [over] the other, and they
must, per se, have the right to interfere, one
with the other, before they are incompatible at
common law. [Public Interest Center Inc. v.
Elma, G.R. No. 138965 (2006)]
6. Abandonment of Office
Voluntary relinquishment of an office by the
holder of a right, title, or claim thereto with the
intention of not reclaiming it or terminating his
possession and control thereof.
Requisites
1. Intention to abandon
2. An overt or “external” act by which the
intention is carried into effect
[Canonizado v. Aguirre, G.R. No. 133132
(2001)]
Distinguished from Resignation
While resignation in general is a formal
relinquishment, abandonment is a voluntary

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relinquishment through non-user. Non-user
refers to a neglect to use a privilege or a right
or to exercise an easement or an office
[Municipality of San Andres, Catanduanes v.
CA, G.R. No. 118883 (1998)].
What may Constitute as Abandonment
1. Abandonment may also result from an
acquiescence by the officer in his wrongful
removal or discharge, for instance, after a
summary removal, an unreasonable delay
by an officer illegally removed in taking
steps to vindicate his rights may constitute
an abandonment of the office. Where,
while desiring and intending to hold the
office, and with no willful desire or intention
to abandon it, the public officer vacates it in
deference to the requirements of a statute
which is afterwards declared
unconstitutional, such a surrender will not
be deemed an abandonment and the
officer may recover the office. [Canonizado
v. Aguirre, supra].
2. Non-user refers to a neglect to use a right
or privilege or to exercise an office.
However, nonperformance of the duties of
an office does not constitute abandonment
where such nonperformance results from
temporary disability or from involuntary
failure to perform. [Canonizado v. Aguirre,
supra].
3. An officer or employee shall be
automatically separated from the service if
he fails to return to the service after the
expiration of one-year leave of absence
without pay. Also, officers and employees
who are absent for at least 30 days without
approved leave (AWOL) shall be dropped
from the service after due notice [Civil
Service Rules].
7. Prescription of Right to Office
Petition for Quo Warranto against another, for
reinstatement due to illegal ouster or dismissal
instituted within 1 year from ouster:
Section 16 of Rule 66 of the Rules of Court
expressly provides that an action against a
public office or employee may not be filed for
the plaintiff's ouster from office unless the
same is commenced within one year after the
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cause of the ouster, or the right of the plaintiff
to hold such office or position arose. This
period of one year is a condition precedent for
the existence of the cause of action for quo
warranto.
We hold that in view of the policy of the State
contained in the law fixing the period of one
year within which actions for quo warranto may
be instituted, any person claiming right to a
position in the civil service should also be
required to file his petition for reinstatement
with the period of one year, otherwise he is
thereby considered as having abandoned his
office. [Cristobal v. Melcohor, G.R. No. L-
43203 (1977)]
8. Removal
Ouster of an incumbent public officer before
the expiration of his term. It implies that the
office exists after the ouster. Another term used
is dismissal [DE LEON].
It is the forcible and permanent separation of
the incumbent from office before the expiration
of his term [Ingles v. Mutuc, G.R. No. L-
20390(1968)].
Modes of Removal
Removal from office may be express or
implied.
a. Appointment of another officer in the place
of the incumbent operates as a removal if
the latter was notified [DE LEON].
b. The transfer of an officer or employee
without his consent from one office to
another, whether it results in promotion or
demotion, advancement or reduction in
salary, is equivalent to his illegal removal or
separation from the first office [Gloria v.
CA, G.R. No. 119903 (2000)].
c. Demotion to a lower position with a lower
rate of compensation is also equivalent to
removal if no cause is shown for it [De
Guzman v. CSC, G.R. No. 101105 (1994)].
Limitations
1. Constitutional guarantee of security of
tenure. No officer or employee of the civil

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service shall be removed or suspended
except for cause provided by law [Sec.
2(3), Art IX-B, 1987 Constitution].
2. Removal or resignation from office is not a
bar to a finding of administrative liability
[Office of the President v. Cataquiz, G.R.
No. 183445 (2011)].
3. Removal not for a just cause, or non-
compliance with the prescribed procedure
constitutes a reversible error and entitles
the officer or employee to reinstatement
with back salaries and without loss of
seniority rights.
Elements of Removal for Cause
1. The cause is a legal cause, i.e. determined
by law and not the appointing power
2. As a general rule, the cause must be
connected to the functions and duties of
the office
3. The cause must be of a substantial nature
as to directly affect the interest of the public
4. The removal must be after due process
Extent of President’s Removal Power
1. With respect to non-career officers
exercising purely executive functions
whose tenure is not fixed by law (i.e.
members of the Cabinet), the President
may remove them with or without cause
and Congress may not restrict such power.
2. With respect to officers exercising quasi-
legislative or quasi-judicial functions (e.g.
members of the SEC), they may be
removed only on grounds provided by law
to protect their independence.
3. With respect to constitutional officers
removable only by means of impeachment,
and judges of lower courts, they are not
subject to the removal of the President.
Reinstatement of a Rightful Office-Holder:
Cause for Removal
In Dario v Mison, G.R. No. 81954 (1989), Court
found that the reorganization of the Ministry of
Finance was not done in good faith, which
warranted the reinstatement of those officers
who were terminated due to the reorganization.
Court ordered “the employees whom
Commissioner Mison may have appointed as
replacements are ordered to vacate their posts
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subject to the payment of whatever benefits
that may be provided by law.”
9. Impeachment
See Power of impeachment under Part V of the
Constitutional Law 1 for discussion
10. Abolition of office
Requisites [Mendoza v. Quisumbing, G.R. No.
78053 (1990)]:
a. Abolition must be done in good faith
b. Clear intent to do away with the office
c. Not for personal or political reasons
d. Cannot be implemented in a manner
contrary to law
Limitations
a. Except when restrained by the
Constitution, the Congress has the right to
abolish an office, even during the term for
which an existing incumbent may have
been elected. Valid abolition of office does
not constitute removal of the incumbent.
b. No law shall be passed reorganizing the
Judiciary when it undermines the security
of tenure of its members [Sec. 2, Art. VIII,
1987 Constitution].
c. The fundamental principle afforded to civil
service employees against removal
“except for cause as provided by law” does
not protect them against abolition of the
positions held by them in the absence of
any other provision expressly or impliedly
prohibiting abolition thereof [Castillo v.
Pajo, G.R. No. L-11262 (1958)].
Reorganization
Reduction of personnel, consolidation of
offices, or abolition thereof by reason of
economy or redundancy of functions. It could
result in the loss of one’s position through
removal or abolition of an office. [United
Claimant Association of NEA v. NEA, G.R. No.
187107 (2012)].

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Reorganization is valid provided they are
pursued in good faith.
Good faith - If the newly created office has
substantially new, different, or additional
functions, duties or powers, so that it may be
said in fact to create an office different from the
one abolished, even though it embraces all or
some. [Dario v Mison, supra]
Attrition
Reduction of personnel as a result of
resignation, retirement, dismissal in
accordance with existing laws, death or
transfer to another office [Sec. 2(a), R.A. 7430
(Attrition Law)]
11. Conviction of a Crime
When the penalties of perpetual or temporary
absolute disqualification or penalties of
perpetual or temporary special disqualification
are imposed upon conviction of a crime,
termination of official relation results, for one of
the effects of the imposition of said penalties is
the deprivation of the public office which the
offender may have held. [Arts. 30-31, Revised
Penal Code]
12. Recall
It is a method of removal prior to the expiration
of the term of a public officer on account of loss
of confidence exercised directly by the
registered voters of a local government unit.
[Secs. 69-75, LGC]
13. Non-User/ Failure to
assume Office
The office of any official elected who fails or
refuses to take his oath of office within six
months from his proclamation shall be
considered vacant, unless said failure is for a
cause or causes beyond his control [Sec. 11,
B.P. Blg. 881].
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L. CIVIL SERVICE
1. Scope
The Civil Service embraces all branches,
subdivisions, instrumentalities and agencies of
the Government, including government-owned
and controlled corporations with original
charters [Sec. 2(1), Art. IX-B, 1987
Constitution]
The Civil Service Commission, as the central
personnel agency of the Government, shall
establish a career service and adopt measures
to promote morale, efficiency, integrity,
responsiveness, progressiveness, and
courtesy in the civil service [Sec. 3, Art. IX-B,
1987 Constitution]
(Powers and Function, see: Sec. 12, Chapter
3, Subtitle A, Title I, Book V, Admin. Code)
(Jurisdiction of the CSC over Disciplinary
cases, see: Sec. 47, Chapter 7, Subtitle A, Title
I, Book V, Admin Code.)
(Jurisdiction of CSC over employment status
and qualification standards, see: Secs. 21-22 &
26, Chapter 5, Subtitle A, Title I, Book V,
Admin. Code)
N.B. As to the power of the CSC to review an
appointee’s qualifications: The only function of
the CSC is to review the appointment in the
light of the requirements of the Civil Service
Law, and when it finds the appointee to be
qualified and all other legal requirements have
been otherwise satisfied, it has no choice but
to attest to the appointment [Lapinid v. CSC,
G.R. No. 96298 (1991)].
Note: In TIDCORP v. CSC [G.R. No. 182249
(2013)], the Court clarified that the CSC’s rule-
making power, albeit constitutionally granted,
is still limited to the implementation and
interpretation of the laws it is tasked to enforce.
Thus, a law which exempts an agency from
rules on position classification cannot be
overridden by a CSC Memorandum Circular.

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Limitations on the CSC’s powers
1. It cannot order the replacement of the
appointee simply because it considers
another employee to be better qualified
[Lapinid v. CSC, supra].
2. The CSC cannot co-manage or be a
surrogate administrator of government
offices and agencies.
3. It cannot change the nature of the
appointment extended by the appointing
officer [Luego v. CSC, G.R. No. L-69136
(1986)].
The authority of city or municipal mayors to
exercise administrative supervision over
city/municipal civil registrars is not exclusive,
but concurrent with the CSC. [Mamiscal v.
Abdullah, A.M. No. SCC-13-18-J (2015)].
2. Appointments to the Civil
Service
Classification of Positions in the Civil
Service:
1. Career Service
Characterized by:
a. Entrance based on merit and fitness to
be determined as far as practicable by
competitive examinations, or based on
highly technical qualifications,
b. Opportunity for advancement to higher
career positions, and
c. Security of tenure.
The Career Service shall include:
a. Open Career positions - appointment
to which prior qualification in an
appropriate examination is required;
b. Closed Career positions - scientific, or
highly technical in nature;
c. Positions in the Career Executive
Service (CES), all of whom are
appointed by the President; namely:
i. Undersecretary and Assistant
Secretary
ii. Bureau Director and Assistant
Bureau Director
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iii. Regional Director and
Assistant Regional Director
iv. Chief of Department Service
and other officers of equivalent
rank as may be identified by the
Career Executive Service
Board;
d. Career officers (other than those in the
Career Executive Service) who are
appointed by the President, such as
the Foreign Service Officers in the
Department of Foreign Affairs;
e. Commissioned officers and enlisted
men of the Armed Forces which shall
maintain a separate merit system;
f. Personnel of government-owned or
controlled corporations, whether
performing governmental or proprietary
functions, who do not fall under the
non-career service; and
g. Permanent laborers, whether skilled,
semi-skilled, or unskilled.
[Section 7 2nd par., Chapter 2, Subtitle A, Title
I, Book V, Admin Code (1987)]
2. Non-Career Service
Characterized by:
a. Entrance on bases other than usual
test of merit and fitness;
b. Tenure which is limited either to:
i. Period specified by law or
ii. Period which is co-terminous
with that of the appointing
power subject to his pleasure,
or
iii. Duration of a particular project.
c. It includes:
i. Elective officials and their
personal or confidential staff;
ii. Department heads who hold
positions at the pleasure of the
President, including their staff;
iii. Chairmen and members of
commissions and boards with
fixed terms of office, including
their staff;
iv. Contractual personnel;
v. Emergency and seasonal
personnel [Sec. 9, Chapter 2,
Subtitle A, Title I, Book V,
Admin. Code]

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Career Service Appointments—
Determination of Merit and Fitness
General Rule: Appointments to the Career
Service shall be made only according to merit
and fitness, to be determined as far as
practicable by competitive examination. [Sec.
2(2), Art. IX(B), 1987 Constitution]
Exceptions: Positions which are
a. Policy determining - where the officer is
vested with the power of formulating
policies for the government or any of its
agencies, subdivisions, or
instrumentalities.
b. Primarily Confidential – characterized by
the close proximity of positions of the
appointee as well as the high degree of
trust and confidence inherent in their
relationship [CSC v. Javier, G.R. No.
173264 (2008)].
c. Highly Technical – requires possession of
technical skill or training in a superior
degree. (e.g. City Legal Officer)
N.B. It is the nature of the position which
determines whether a position is policy
determining, primarily confidential or highly
technical.
Positions which fall under these 3 exceptions
are also positions wherein there may be
removal at the pleasure of the appointing
authority.
Classes of Positions in the Career Service
Three major levels, which require
examinations:
a. Clerical, trades, crafts, custodial service –
involve non-professional or sub
professional work in a non-supervisory or
supervisory capacity requiring less than
four years of college;
b. Professional, technical and scientific
positions – involve professional, technical
or scientific work in a non-supervisory or
supervisory capacity requiring at least 4
years of college;
c. Career Executive Service
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Requirement of competitive examinations
● Entrance to levels (a) and (b) is through
competitive examinations, which shall be
open to those inside and outside the
service who meet the minimum
qualifications. Entrance to a higher level
does not require previous qualifications.
● Entrance to (c) is prescribed by the Career
Executive Service Board.
For promotion within the same level, no civil
service examination is required, provided he
has previously passed the same for the said
level. [DE LEON; Sec. 8, Chapter 2, Subtitle A,
Title I, Book V, Admin. Code]
1st and 2nd level appointees should be both
a. Eligible - person who obtains a passing
grade in a civil service examination or is
granted a civil service eligibility and whose
name is entered in the register of eligibles
b. Qualified - meets qualification standards
If no eligible apply, but non-eligibles with
qualifications apply, they may be appointed if:
a. Immediate filling is urgently required by
public interest or
b. Temporary filling of vacancies
[Sec. 21 (7), Chapter 5, Subtitle A, Title I,
Book V, Admin. Code]
A non-eligible shall not be appointed to any
position in the civil service whenever there is a
civil service eligible actually available for and
ready to accept appointment. [Sec. 26, Chapter
5, Subtitle A, Title I, Book V, Admin. Code]
Qualification Standards [Sec. 22, Chapter 5,
Subtitle A, Title I, Book V, Admin. Code]:
A qualification standard expresses the
minimum requirements for a class of positions
in terms of education, training and experience,
civil service eligibility, physical fitness, and
other qualities required for successful
performance.
The establishment, administration and
maintenance of qualification standards shall be
the responsibility of the department or agency,
with the assistance and approval of the Civil

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Service Commission and in consultation with
the Wage and Position Classification Office.
In order for a position to be covered by the
CES, two elements must concur:
a. Position must either be:
i. A position enumerated under Book
V, Title I, Subsection A, Chapter 2,
Section 7(3) of the Administrative
Code of 1987, OR
ii. A position of equal rank as those
enumerated, and identified by the
Career Executive Service Board to
be such a position of equal rank.
b. Holder of the position must be a
presidential appointee.
Approval and Recall of the CSC
General Rule: Appointments for competitive
positions need approval of the CSC.
For an appointee to a classified position to be
entitled to the protection of the law against
unjust removal, his appointment must receive
the proper approval of the Commissioner of
Civil Service [Favis v. Rupisan, G.R. No. L-
22823 (1966)] If the person is qualified, CSC
has no other power but to affirm.
Español v. CSC, G.R. No. 85479 (1992):
“Fundamental is the rule that appointment is an
essentially discretionary power and must be
performed by the officer in whom it is vested
according to his best lights, the only condition
being that the appointee shall possess the
qualifications required by law. If he does, then
the appointment cannot be faulted on the
ground that there are others better qualified
who should have been preferred. This is a
political question involving considerations of
wisdom which only the appointing authority can
decide.”
Exceptions: Presidential appointments, AFP,
police forces, firemen and jail guards [DE
LEON]
Recall
Grounds [Sec. 20, Rule VI, IRR of Admin.
Code; De Rama v. CA, G.R. No. 131135
(2001)]
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a. Non-compliance with the
procedures/criteria provided by the
agency’s Merit Promotion Plan
b. Failure to pass through the agency’s
Selection/Promotion Board
c. Violation of existing collective
agreement between management and
employees relative to promotion
d. Violation of other existing civil service
laws, rules and regulations
N.B. The above grounds are available despite
initial approval by the CSC of the appointment.
Distinguished From Recall Under LGC
The CSC has the power to recall an
appointment which has been initially approved
when it is shown that the same was issued in
disregard of pertinent CSC laws, rules and
regulations. In contrast, recall under Sec 69-75
of the Local Government Code is a mode of
removal of a public official by the people before
the end of his term of office. [Garcia v.
COMELEC, G.R. No. 111511 (1993)]
1. Personnel actions
Any action denoting the movement or progress
of personnel in the civil service shall be known
as personnel action.
Such action shall include appointment through
certification, promotion, transfer,
reinstatement, re-employment, detail,
reassignment, demotion, and separation.
All personnel actions shall be in accordance
with such rules, standards, and regulations as
may be promulgated by the Commission. [Sec.
26 2nd par., Chapter 5, Subtitle A, Title I, Book
V, Admin. Code]
a. Original
Appointment/Appointment
through Certification
Original
The initial entry into the career or non-career
service

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Appointment through certification
An appointment through certification to a
position in the civil service, except as herein
otherwise provided, shall be issued to a person
who has been selected from a list of qualified
persons certified by the Commission from an
appropriate register of eligibles, and who
meets all the other requirements of the
position.
6-month probationary period
Original appointees in the career service with
permanent status of appointment, shall
undergo probationary period for a thorough
assessment of his/her performance and
character.
A probationer may be dropped from the service
for unsatisfactory conduct or want of capacity
any time before the expiration of the
probationary period: Provided, That such
action is appealable to the Commission. [Sec.
26 (1), Chapter 5, Subtitle A, Title I, Book V,
Admin. Code]
b. Promotion
A promotion is a movement from one position
to another with an increase in duties and
responsibilities as authorized by law and
usually accompanied by an increase in pay.
The movement may be from one department or
agency to another or from one organizational
unit to another in the same department or
agency. [Sec. 26 (2), Chapter 5, Subtitle A,
Title I, Book V, Admin. Code]
Any upward movement from the non-career
service to the career service and vice versa
shall not be considered as a promotion but as
reappointment.
Within the same level, no civil service
examination shall be required for promotion to
a higher position in one or more related
occupational groups. A candidate for
promotion should, however, have previously
passed the examination for that level. [Sec.
8(3), Chapter 2, Subtitle A, Title I, Book V,
Admin. Code]
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The pendency of an administrative case
against any employee shall not be a bar to
promotion.
An employee who has been found guilty of an
administrative offense and imposed the penalty
of demotion, suspension or fine shall be
disqualified for promotion for the same period
of suspension or fine. [Sec. 11(b), 2017
Omnibus Rules on Appointments and Other
Human Resource Actions, Rule IV]
Next-In-Rank Rule
When a vacancy occurs in a position in the
second level of the Career Service as defined
in Section 8, the employees in the government
service who occupy the next lower positions in
the occupational group under which the vacant
position is classified, qualified and with the
appropriate civil service eligibility shall be
considered for promotion.
Section 4, CSC Resolution No. 83-343: “An
employee who holds a next-in-rank position
who is deemed the most competent and
qualified, possesses an appropriate civil
service eligibility, and meets the other
conditions for promotion shall be promoted to
the higher position when it becomes vacant.
However, the appointing authority may
promote an employee who is not next-in-rank
but who possesses superior qualifications and
competence compared to a next-in-rank
employee who merely meets the minimum
requirements for the position.”
The rule neither grants a vested right to the
holder nor imposes a ministerial duty on the
appointing authority to promote such person to
the next higher position.
A qualified next-in-rank employee shall have
the right to appeal initially to the Secretaries or
heads of agencies or instrumentalities
including GOCCs with original charters, then to
the Merit System Protection Board, and finally
to the Civil Service Commission an
appointment made in favor of another
employee if the appellant is not satisfied with
the written special reason or reasons given by

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the appointing authority for such appointment;
Provided, however, that the decision of the
Civil Service Commission may be reviewed on
certiorari only by the Supreme Court within
thirty (30) days from receipt of the decision of
the aggrieved party.
“Qualified next-in-rank”- an employee
appointed on a permanent basis to a position
previously determined to be next- in-rank and
who meets the requirements for appointment
thereto as previously determined by the
appointing authority and approved by the
Commission. [Sec. 21 (b), Chapter 5, Subtitle
A, Title I, Book V, Admin. Code]
Automatic Reversion Rule
Requisites:
a. Series of promotions
b. All promotional appointments are
simultaneously submitted to the
Commission for approval
c. The Commission disapproves the
appointment of a person to a higher
position.
[Divinagracia v. Sto. Tomas, G.R. No.
110954 (1995)]
The disapproval of the appointment of a person
proposed to a higher position invalidates the
promotion of those in the lower positions and
automatically restores them to their former
positions. However, the affected persons are
entitled to payment of salaries for services
actually rendered at a rate fixed in their
promotional appointments
c. Transfer
A transfer is a movement from one position to
another which is of equivalent rank, level, or
salary without break in service involving the
issuance of an appointment.
It shall not be considered disciplinary when
made in the interest of public service, in which
case, the employee concerned shall be
informed of the reasons therefor. If the
employee believes that there is no justification
for the transfer, he may appeal his case to the
Commission.
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The transfer may be from one department or
agency to another or from one organizational
unit to another in the same department or
agency: Provided, however, That any
movement from the non-career service to the
career service shall not be considered a
transfer. [Sec. 26(3), Chapter 5, Subtitle A,
Title I, Book V, Admin. Code]
While a temporary transfer or assignment of
personnel is permissible even without the
employee's prior consent, it cannot be done
when the transfer is a preliminary step toward
his removal, or a scheme to lure him away from
his permanent position, or when it is designed
to indirectly terminate his service, or force his
resignation. Such a transfer would in effect
circumvent the provision which safeguards the
tenure of office of those who are in the Civil
Service. [Republic v. Pacheo, G.R. No. 178021
(2012)]
d. Reinstatement
Any person who has been permanently
appointed to a position in the career service
and who has, through no delinquency or
misconduct, been separated therefrom, may
be reinstated to a position in the same level for
which he is qualified. [Sec. 26(4), Chapter 5,
Subtitle A, Title I, Book V, Admin. Code]
Requisites for validity
a. Any permanent appointee of a career
service position
b. No commission of delinquency or
misconduct, and is not separated.
c. The reinstatement is to a position in the
same level for which the officer is qualified.
Note: Pardon does not ipso facto restore a
convicted felon to public office (a new
appointment must be given)
However, when a person is acquitted because
he did not truly commit the offense he is
relieved from all punitive consequences of the
criminal act. He need no longer apply for
reinstatement; he is restored to his office ipso
facto upon the issuance of the clemency, and

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he is entitled to backwages [Garcia v.
Chairman of the Commission on Audit, G.R.
No. L-75025 (1993)]
Reinstatement to comparable position
The restoration of a person, as a result of a
decision, to a career position from which
he/she has been separated but subject position
is already abolished, requiring the issuance of
an appointment to a comparable position to the
separated employee. [Sec. 11(f), 1st par., Rule
IV, 2017 Omnibus Rules]
e. Reemployment
Names of persons who have been appointed
permanently to positions in the career service
and who have been separated as a result of
reduction in force or reorganization, shall be
entered in a list from which selection for
reemployment shall be made.
[Sec. 26(5), Chapter 5, Subtitle A, Title I, Book
V, Admin. Code]
f. Detail
A detail is the movement of an employee from
one agency to another without the issuance of
an appointment and shall be allowed, only for
a limited period in the case of employees
occupying professional, technical and scientific
positions.
If the employee believes that there is no
justification for the detail, he may appeal his
case to the Commission. Pending appeal, the
decision to detail the employee shall be
executory unless otherwise ordered by the
Commission. [Sec. 26(6), Chapter 5, Subtitle
A, Title I, Book V, Admin. Code]
No detail or reassignment whatever shall be
made within three (3) months before any
election.[Sec. 58, Chapter 8, Subtitle A, Title I,
Book V, Admin. Code]
Detail shall be governed by the following rules:
a. The detailed employee shall receive
his/her salary only from his/her parent
department/agency.
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b. Detail without consent shall be allowed
only for a period of one (1) year.
c. Detail with consent shall be allowed for a
maximum of three (3) years. The extension
or renewal of the detail shall be
discretionary on the part of the parent
agency.
d. Detail from one dept/ agency to another
shall be covered by an agreement
manifesting the arrangement between the
agency heads that it shall not result in
reduction in rank, status, or salary of the
employee, the duration of the detail, duties
to be assigned to the employee and
responsibilities of the parent agency and
receiving agency.
[Sec. 13(b)(1-4), Rule IV, 2017 Omnibus
Rules]
g. Reassignment
An employee may be reassigned from one
organizational unit to another in the same
agency: Provided, That such reassignment
shall not involve a reduction in rank, status or
salary.
[Sec. 26(7), Chapter 5, Subtitle A, Title I, Book
V, Admin. Code]
Reassignment shall be governed by the
following rules:
a. Reassignment of employees with station-
specific place of work indicated in their
respective appointments within the
geographical location of the agency shall
be allowed only for a maximum period of
one (1) year.
i. The restoration or return to the
original post/assignment shall be
automatic without the need of any
order of restoration/revocation of
the order of reassignment.
ii. An appointment is considered
station-specific when
1. The particular office or
station where the position
is located is specifically
indicated on the face of the
appointment paper; or
2. The position title already
specifies the station

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b. If an appointment is not station-specific, the
one-year maximum period of reassignment
within the geographical location of the
agency shall not apply.
i. However, the employee concerned
may request for a recall of the
reassignment citing his/her
reasons why he/she wants to go
back to his/her original station.
ii. The reassignment may also be
revoked or recalled by the
appointing officer/authority or be
declared not valid by the Civil
Service Commission or a
competent court, on appeal.
[Sec. 13(a)(1-2, 4-5), Rule IV, 2017
Omnibus Rules]
Reassignment should not amount to
constructive dismissal.
h. Reappointment
The issuance of an appointment as a result of
reorganization, devolution, salary
standardization, re-nationalization,
recategorization, rationalization or similar
events, including the following:
a. The issuance of appointment from
temporary to permanent, career to non-
career or vice versa, non-career to another
non-career, all of which entails no gap in
the service.
i. Non-career employees who are
appointed for the first time in the
career service under permanent
status shall be required to undergo
probationary period for six (6)
months.
b. The renewal of temporary, contractual and
casual appointment upon the expiration of
the appointment or subsequent
appointment of substitute teachers, which
entails no gap in the service.
i. A temporary appointment may be
renewed if there is no qualified
eligible actually available who is
willing to accept the appointment,
as certified by the highest official in
charge of human resource
management and provided that the
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performance rating of the
employee is at least Satisfactory.
c. Personal or coterminous staff of elective
officials, who shall continue to serve in a
coterminous capacity upon reelection of
the said elective officials.
d. In the same manner personal or
coterminous staff of officials whose term of
office ended and are subsequently
absorbed or rehired by the succeeding
official without gap in their service shall be
issued new appointments, the nature of
which is reappointment.
Reappointment presupposes no gap in the
service. [Sec. 11(e), Rule IV, 2017 Omnibus
Rules]
i. Demotion
The movement of an employee from a higher
position to a lower position where he/she
qualifies, if a lower position is available. The
demotion entails reduction in duties,
responsibilities, status or rank, which may or
may not involve a reduction in salary.
In cases where the demotion is due to
reorganization or rationalization, the employee
shall be allowed to continue to receive the
salary of the higher position,
In cases where the demotion is voluntary or at
the instance of the employee, he/she shall be
allowed to receive the same step of the salary
grade of the position where he/she voluntarily
sought to be appointed. A written consent shall
be secured from the demoted employee. [Sec.
11(g), Rule IV, 2017 Omnibus Rules]
i. Reclassification
A form of staffing modification and/or position
classification action which is applied only when
there is a substantial change in the regular
duties and responsibilities of the position.
This may result in a change in any or all of the
position attributes: position title, level and/or
salary grade. It generally involves a change in
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the position title and may be accompanied by shall be approved/validated, regardless of

an upward or downward change in salary.
Reclassification is the generic term for changes
in staff/position classification which includes
upgrading, downgrading, and recategorization.
Reclassification of position requires the
issuance of an appointment but the same is
ministerial on the part of the appointing
officer/authority.
whether he/she meets the qualification
requirements of the position involved. The
incumbent of the reclassified position has a
vested right to the reclassified position but
he/she shall not be promoted unless he/she
meets the qualification requirements of the
next higher position.
In LGUs, no reclassification shall be allowed
except when the position is actually vacant.

The appointment of an incumbent (permanent [Sec. 11(h), Rule IV, 2017 Omnibus Rules]
employee) whose position was reclassified

SUMMARY OF PERSONNEL ACTIONS

Needs
Contemplates
Personnel Description/ (New)
Movement Gap in
Action Requisite Appointme
Employment?
nt Papers?
Original Undergoes 6 month - - Yes
Appointment probationary period
Promotion Increase in duty & Upward; may include: - -
pay -w/in same dept/
agency
-from one dept/agency
to another

Transfer Equivalent rank, May include: None Yes

level, salary -w/in same/ dept
agency
-from one dept/agency
to another
Reinstatement Was separated Same position None No
(Same Position) through no
delinquency,
reinstated to same
position
Reinstatement Was separated Abolished position to - Yes
(Comparable through no new position
Position) delinquency,
reinstated to same
position
Reemployment Was separated as a Same position Yes -
result of reduction in
force or
reorganization,
reorganization,
retirement, voluntary
resignation, dropping
from rolls etc

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Detail Limited period; in Same position, one - No

case of professional, agency to another
technical and agency
scientific positions
Reassignment No reduction of rank; Different - -
1-year period for organizational unit,
station specific; No 1 but w/in same agency
year period for non-
station specific
Reappointment Appointment as a May include: None Yes, for
result of -Non-career to career coterminous
reorganization, and vice versa staff who
devolution, salary -Temporary to continue to
standardization, re- permanent and vice serve as
nationalization, versa such upon
recategorization, -Renewal of reelection of
rationalization etc temporary, official and
contractual, casual etc coterminous
staff of
previous
official
rehired by
succeeding
official
Demotion Reduction in duties, Higher to lower - -
responsibilities, position
status, rank; May be
voluntary/ involuntary
Reclassification Substantial change May include: - Yes
in regular duties -upgrading, (ministerial
resulting in changes downgrading, on the part
in position attributes recategorization of the
appointing
officer)

5. Inefficiency and incompetence in the

M. ACCOUNTABILITY OF performance of official duties; 

PUBLIC OFFICERS 6. Willful refusal to pay just debts or willful
failure to pay taxes due to the government;
1. Accountability 

7. Oppression;
(Administrative and Criminal) 8. Dishonesty;

9. Misconduct;
DISCIPLINE 10. Disgraceful and Immoral conduct;
Grounds for Discipline 11. Neglect of duty;
1. Discourtesy in the course of official duties; 
 12. Physical or Mental Incapacity due to
2. Refusal to perform official duty or render immoral or vicious habits;
overtime 
service; 
 13. Conviction of a crime involving moral
3. Falsification of official documents; 
 turpitude;
4. Habitual Drunkenness; 
 14. Being notoriously Undesirable;
15. Gambling.

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element of grave misconduct consists in the act

Negligence vs. Dishonesty of an official or employee who unlawfully or
wrongfully uses his station or character to
NEGLIGENCE DISHONESTY
procure some benefit for himself or for another,
In the case of public Dishonesty begins contrary to the rights of others. [Gabon v.
officials, there is when an individual Merka, A.M. P-11-3000, 2011].
negligence when intentionally makes
there is a breach of a false statement in Grave misconduct
 consists in a government
duty or failure to any material fact or official's deliberate violation of a rule of law or
perform the practicing or standard of behavior. It is regarded as grave
obligation, and there attempting to when the elements of corruption, clear intent to
is gross negligence practice any violate the law, or flagrant disregard of
when a breach of duty deception or fraud in established rules are present. [NPC v. CSC,
is flagrant and order to secure his G.R. 152093, 2012)].
palpable. examination,
[Presidential Anti- registration, Simple neglect of duty is defined as the
Graft Commission appointment or failure of an employee to give proper attention
and the office of the promotion. to a required task or to discharge a duty due to
President v. Pleyto, It should be carelessness or indifference. On the other
G.R. No. 176058, emphasized only hand, gross neglect of duty is characterized by
2011]. when the want of even the slightest care, or by conscious
accumulated wealth indifference to the consequences, and in cases
becomes manifestly involving public officials, by flagrant and
disproportionate to palpable breach of duty. It is the omission of
the employee's that care that even inattentive and thoughtless
income or other men never fail to take on their own property.
sources of income [Land Bank of the Philippines v. San Juan Jr.,
and his failure to G.R. 192890, 2013].
properly account or
explain his other JURISDICTION IN DISCIPLINARY CASES
sources of income 1. Heads of ministries, agencies and
does he become instrumentalities, provinces, cities and
susceptible to municipalities have jurisdiction to
dishonesty. investigate and decide matters involving
[Ombudsman v. disciplinary action against officers and
Nieto, G.R. No. employees under their jurisdiction.
185685, 2011]. 2. The decision is final in case the penalty
imposed is suspension of not more than 30
days or fine in an amount not exceeding
MISCONDUCT IN OFFICE 30-days salary.
Misconduct in office 
refers to "any unlawful 3. In other cases, the decision shall be initially
behavior by a public officer in relation to the appealed to the department head and
duties of his office, willful in character. The term finally to the Civil Service Commission and
embraces acts which the office holder had no pending appeal. It shall be executory
right to perform, acts performed improperly, EXCEPT when the penalty is removal, in
and failure to act in the face of an affirmative which case it shall be executory only after
duty to act." In grave misconduct, as confirmation by the department head.
distinguished from simple misconduct, the 4. The Civil Service Commission has
elements of corruption, clear intent to violate appellate jurisdiction. Case may be filed
the law, or flagrant disregard of established directly to it; it may decide on the case or
rule must be manifest. Corruption as an deputize a department or agency.

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PREVENTIVE SUSPENSION
 and/or witnesses, the court may order the

Merely a preventive measure, a preliminary
step in an administrative investigation. The
purpose of the suspension order is to prevent
the accused from using his position and the
powers and prerogatives of his office to
influence potential witnesses or tamper with
records which may be vital in the prosecution
of the case against him. If after such
investigation, the charge is established and the
person investigated is found guilty of acts
warranting his suspension or removal, then, as
a penalty, he is suspended, removed or
dismissed. [Villasenor v. Sandiganbayan, G.R.
No. 180700, 2008].
Two kinds of preventive suspension of
government employees charged with offenses
punishable by removal or suspension:
● Preventive suspension pending
investigation; and 
 Method of national inquest into the conduct of
● Preventive suspension pending appeal if
the penalty imposed by the disciplining
authority is suspension or dismissal and,
after review, the respondent is exonerated.


Prior notice and hearing are not required in
the issuance of a preventive suspension
order
Settled is the rule that prior notice and hearing
are not required in the issuance of a preventive
suspension order. [Carabeo v. CA, G.R.
178000/178003, 2009].
GROUNDS FOR PREVENTIVE
SUSPENSION OF POLICE OFFICERS [Sec.
55, R.A. 8551] (Preventive Suspension
Pending Criminal Case)
The court shall immediately suspend the
accused from office for a period not exceeding
90 days from arraignment:
1. Upon the filing of a complaint or information
sufficient 
in form and substance against a
member of the PNP; 
 Constitution].
2. For grave felonies where the penalty
imposed by law 
is 6 years and 1 day or
more. 
 the list of impeachable offenses.
preventive suspension of the accused PNP
member even if the charge is punishable by a
penalty lower than 6 years and 1 day.
General Rule: The period of preventive
suspension shall not be more than 90 days.
Exception: If the delay in the disposition of the
case is due to the fault, negligence or petitions
of the respondent.
The preventive suspension may be sooner
lifted by the court in the exigency of the service
upon recommendation of the chief, PNP. Such
case shall be subject to continuous trial and
shall be terminated within 90 days from
arraignment of the accused.
Impeachment
public men.
It is the power of Congress to remove a public
official for serious crimes or misconduct as
provided in the Constitution [Corona v. Senate,
G.R. No. 200242 (2012)].
Purpose: To protect the people from official
delinquencies or malfeasances. It is primarily
intended for the protection of the State, not for
the punishment of the offender.
A. Impeachable Officers
1. President 

2. Vice-President 

3. Members of the Supreme Court 

4. Members of the Constitutional
Commissions
5. Ombudsman 

All other public officers and employees may be
removed from office as provided by law, but not
by impeachment [Sec. 2, Art. XI, 1987
It is an exclusive list. Congress cannot add to

However, if it can be shown by evidence that These officers cannot be charged in court with
the accused is harassing the complainant offenses that have removal from office as

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penalty. But after an official has been Qualifications: (Ombudsman and

impeached, he can be charged with the Deputies):
appropriate offense. Resignation by an a. Natural born citizen of the Philippines 

impeachable official does not place him b. At least 40 years old at time of appointment
beyond the reach of impeachment 

proceedings; he can still be impeached. c. Of recognized probity and independence

d. Member of the Philippine bar 

B. Grounds for Impeachment e. Must not have been candidate for any
1. Culpable violation of the Constitution 
 elective office in 
the immediately preceding
2. Treason 
 election 

3. Bribery 
 f. For Ombudsman: He must have been for
4. Graft and corruption 
 10 years or more:
5. Other high crimes, or 
 i. A judge OR 

6. Betrayal of public trust. 
 ii. Engaged in the practice of law

See Power of Impeachment under Part V. of Disqualifications and Prohibitions

the Constitutional Law 1 part of the reviewer for a. Cannot hold any other office or
discussion. employment during his tenure;
b. Cannot engage in the practice of any
Effects of impeachment profession or in the active management or
1. Removal from office of the official control of any business which may be
concerned
 affected by the functions of his office;
2. Disqualification to hold any office
 c. Cannot be financially interested, directly or
3. Officer still Liable to prosecution, trial, and indirectly, in any contract with or in any
punishment if the impeachable offense franchise or privilege granted by the
committed also constitutes a felony or Government, any of its subdivisions,
crime. agencies or instrumentalities, including
GOCCs or their subsidiaries.
C. Judgment
Judgment in cases of impeachment shall not Appointment
extend further than removal from office and a. Ombudsman and deputies

disqualification to hold any office under the b. By the president from a list of at least 6
Republic of the Philippines, but the party nominees prepared by the Judicial and Bar
convicted shall nevertheless be liable and Council. Vacancies will be filled from a list
subject to prosecution, trial, and punishment, of 3 nominees.

according to law [Sec. 3, Art. XI, 1987 c. Appointments do NOT require confirmation

Constitution]. d. All vacancies shall be filled within 3 months
after they occur.

2. The Ombudsman and the e. Appointees have 7-year terms without
reappointment and are not qualified to run
Office of the Special for any office in the election succeeding
Prosecutor their cessation from office.

f. Other ombudsman officials and employees
THE OMBUDSMAN i. By the Ombudsman 

Composition ii. In accordance with Civil Service
a. Ombudsman/Tanodbayan; 
 Law 

b. Overall Deputy (at least one Deputy each
for Luzon, 
Visayas and Mindanao). 
 A. FUNCTIONS
c. Deputy for military establishment may be Powers and Functions under R.A. 6770
appointed 
 1. Investigate any act or omission of any
public official, employee, office or agency

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which appears to be illegal, unjust,
improper, or inefficient. This may be done
by the Ombudsman on its own or upon
complaint.
2. Direct any public official or employee, or
any government subdivision, agency or
instrumentality, as well as of any
government-owned or controlled
corporation with original charter:
a. To perform and expedite any act or
duty required by law, or
b. To stop, prevent, and correct any
abuse or impropriety in the
performance of duties
3. Direct the officer concerned:
a. To take appropriate action against
a public official or employee at
fault, and
b. To recommend the latter’s
removal, suspension, demotion,
fine, censure, or prosecution, and
c. To ensure compliance therewith.
4. Direct the officer concerned, in any
appropriate case, and subject to such
limitations as may be provided by law, to
furnish it with copies of documents relating
to contracts or transactions entered into by
his office involving the disbursement or use
of public funds or properties. The
Ombudsman can also report any
irregularity to the Commission on Audit for
appropriate action.
5. Request any government agency for
assistance and information necessary in
the discharge of its responsibilities, and to
examine, if necessary, pertinent records
and documents.
6. Publicize matters covered by its
investigation when circumstances so
warrant and with due prudence.
7. Determine the causes of inefficiency, red
tape, mismanagement, fraud, and
corruption in the Government and make
recommendations for their elimination and
the observance of high standards of ethics
and efficiency.
8. Promulgate its rules of procedure and
exercise such other powers or perform
such functions or duties as may be
provided by law [Sec. 13, Art. XI, 1987
Constitution]
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9. Administer oaths, issue subpoena and
subpoena duces tecum, and take
testimony in any investigation or inquiry,
including the power to examine and have
access to bank accounts and records; 

10. Punish for contempt in accordance with the
Rules of Court and under the same
procedure and with the same penalties
provided therein; 

11. Delegate to the Deputies, or its
investigators or representatives such
authority or duty as shall ensure the
effective exercise or performance of the
powers, functions, and duties herein or
hereinafter provided; 

12. Investigate and initiate the proper action for
the recovery of ill-gotten and/or
unexplained wealth amassed after
February 25, 1986 and the prosecution of
the parties involved therein [For Nos. 9-12,
Sec. 15, R.A. 6770] 

ADMINISTRATIVE JURISDICTION
General Rule: The Office of the Ombudsman
has disciplinary authority over all elective and
appointive officials of the government and its
subdivisions, instrumentalities and agencies,
including Members of the Cabinet, local
government, government-owned or controlled
corporations and their subsidiaries [Sec. 21,
R.A. 6770]
Exceptions: The Ombudsman has no
disciplinary power over the following [Sec. 21,
R.A. 6770]:

1. Officials who may be removed only by
impeachment
2. Members of Congress 

3. Members of the Judiciary 

However, the Office of the Ombudsman has
the power to investigate any serious
misconduct in office committed by officials
removable by impeachment, for the purpose of
filing a verified complaint for impeachment, if
warranted [Sec. 22, R.A. 6770].
The disciplinary power of the Ombudsman over
elective officials is concurrent with the power
vested in the officials specified in the Local
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Government Code of 1991 [Hagad v. Dozo-
Dadole, supra].
The Deputy Ombudsman is also subject to the
disciplinary authority of the Ombudsman, and
not the President [Gonzales III v. Office of the
President, G.R. No. 196231 (2014)].
Preventive Suspension
The Ombudsman or his Deputy may
preventively suspend any officer or employee
under his authority pending an investigation:
1. If in his judgment the evidence of guilt is
strong, 
and 
 6770, which states that “[n]o court shall hear
2. Either of the following are present:
• The charge against such officer or
employee involves dishonesty, oppression
or grave misconduct or neglect in the
performance of duty; 
 Congress increased the appellate jurisdiction
• The charges would warrant removal from
the service; or 
 concurrence. By confining the remedy to a
• The respondent's continued stay in office
may prejudice the case filed against him
[Sec. 24, R.A. 6770]. 
 jurisdiction, in denigration of the judicial power
The preventive suspension shall continue until
the case is terminated by the Office of the
Ombudsman but not more than six (6) months,
without pay, except when the delay in the
disposition of the case by the Office of the
Ombudsman is due to the fault, negligence or
petition of the respondent, in which case the
period of such delay shall not be counted in
computing the period of suspension herein
provided [Sec. 24, R.A. 6770].
Prior notice and hearing is not required before
suspension may be meted out. Suspension is
not a punishment or penalty but only a
preventive measure to prevent the respondent
from using his position or office to influence or
intimidate prospective witnesses or tamper
with the records which may be vital in the
prosecution of the case against them.
CRIMINAL JURISDICTION
The Ombudsman exercises primary jurisdiction
to investigate any act or omission of the public
officer in criminal cases cognizable by the
Sandiganbayan
It has concurrent jurisdiction with other
investigative agencies with respect to criminal
cases involving public officers cognizable by
regular courts [Office of the Ombudsman v.
Rodriguez, G.R. No. 172700 (2010)].
B. JUDICIAL REVIEW IN ADMINISTRATIVE
PROCEEDINGS
Remedy: Petition for review under Rule 43 of
the Rules of Court with the Court of Appeals.
N.B. The second paragraph of Sec. 14, R.A.
any appeal or application for remedy against
the decision or findings of the Ombudsman,
except the Supreme Court, on pure question of
law,” is unconstitutional. Effectively,
of the Supreme Court without its advice and
Rule 45 appeal, the provision takes away the
remedy of certiorari, grounded on errors of
constitutionally vested in courts [Carpio-
Morales v. CA, G.R. No. 217126-27 (2015)].
Decisions or resolutions of the Ombudsman in
administrative cases absolving the respondent
of the charge or imposing upon him the penalty
of public censure or reprimand, suspension of
not more than one month, or a fine equivalent
to one-month salary, is final and unappealable
[AGPALO].
In all other cases, the decision shall become
final after the expiration of 10 days from receipt
thereof by the respondent, unless a motion for
reconsideration or a petition for review is filed
with the CA pursuant to Rule 43 of the Rules of
Court [AGPALO].
C. JUDICIAL REVIEW IN PENAL
PROCEEDINGS
General Rule: Courts cannot review the
exercise of discretion of the Ombudsman in
prosecuting or dismissing a criminal complaint
filed before it [Loquias v. Ombudsman, G.R.
No. 139396 (2000)].

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Exception: When the Ombudsman’s findings Removal; Filling of Vacancy


are tainted with grave abuse of discretion. 1. Grounds for removal: Treason, bribery,
See Carpio-Morales v. CA, supra. graft and corruption, other high crimes, or
betrayal of public trust.

THE OFFICE OF THE SPECIAL 2. The Special Prosecutor, may be removed
PROSECUTOR from office by the President for any of the
Under PD 1487, as amended by PD 1607, grounds provided for the removal of the
Tanodbayan was both prosecutor and Ombudsman, and after due process.

Ombudsman. Harmonization of the laws left
the Special Prosecutor to continue to exercise Prohibitions and Disqualifications
powers of the former Tanodbayan except those ● The Special Prosecutor shall not, during
specifically passed on to the Ombudsman. their tenure, hold any other office or
employment

Since the power to investigate has been vested ● Shall not, during said tenure, directly or
'to the Ombudsman, the Special Prosecutor indirectly practice any other profession,
can only investigate and prosecute if participate in any business, or be
authorised by the Ombudsman. financially interested in any contract with,
or in any franchise, or special privilege,
Appointment of Special Prosecutor granted by the government or any
1. The President selects from a list of at least subdivision, agency or instrumentality
twenty-one 
(21) nominees prepared by the thereof, including government-owned or
Judicial and Bar 
Council 
 controlled corporations or their
2. From a list of three (3) nominees for each subsidiaries.
vacancy 
thereafter, which shall be filled ● Shall strictly avoid conflict of interest in the
within three (3) months 
after it occurs, 
 conduct of their office.

3. Each list shall be published in a newspaper ● Shall not be qualified to run for any office in
of general circulation. the election immediately following their
cessation from office.
In the organization of the Office of the ● Shall not be allowed to appear or practice
Ombudsman for filling up of positions therein, before the Ombudsman for two (2) years
regional, cultural or ethnic considerations shall following their cessation from office.
be taken into account to the end that the Office ● No spouse or relative by consanguinity or
shall be as much as possible representative of affinity within the fourth civil degree and no
the regional, ethnic and cultural make-up of the law, business or professional partner or
Filipino nation. associate the Special Prosecutor within
one (1) year preceding the appointment
Qualifications may appear as counsel or agent on any
● Natural born citizens of the Philippines, 
 matter pending before the Office of the
● At least forty (40) years old, 
 Ombudsman or transact business directly
● Of recognized probity and independence, 
 or indirectly therewith.
● Member of the Philippine Bar, 
 ○ This disqualification shall apply
● Must not have been candidates for any during the tenure of the official
elective 
national or local office in the concerned. This disqualification
immediately preceding election whether likewise extends to the law,
regular or special. 
 business or professional firm for
the same period.
Term

The Special Prosecutor shall serve for a term Authority and Responsibilities
of seven (7) years without reappointment. ● Shall be composed of the Special
Prosecutor and 
his prosecution staff.

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● The Office of the Special Prosecutor shall exceeding One Million Pesos (1,000,000.00)
be under the supervision and control of the [R.A. 10660].
Ombudsman. 

● It shall have the following powers:

 In the absence of any allegation that the
○ To conduct preliminary offense charged was necessarily connected
investigation and prosecute with the discharge of the duties or functions of
criminal cases within the a public officer, the ordinary court, not the
jurisdiction of the Sandiganbayan; 
 Sandiganbayan, has jurisdiction to hear and
○ To enter into plea bargaining decide the case.
agreements; and 

○ To perform such other duties What determines the jurisdiction of the
assigned to it by the 
Ombudsman. Sandiganbayan is the specific factual
allegation in the Information that would indicate
3. Sandiganbayan close intimacy between the discharge of the
accused's official duties and the commission of
A. NATURE AND COMPOSITION the offense charged in order to qualify the
The Sandiganbayan was created under P.D. crime as having been committed in relation to
1606 as amended by R.A. 8249. It is a special public office. The relation between the crime
court, of the same level as the Court of Appeals and the office must be direct and not
and possessing all the inherent powers of a accidental, that is, the relation has to be such
court of justice. It is composed of a presiding that, in the legal sense, the offense cannot exist
justice and fourteen associate justices who without the office.
shall be appointed by the President.
C. OFFICIALS AND PRIVATE INDIVIDUALS
B. EXCLUSIVE ORIGINAL JURISDICTION SUBJECT TO ITS JURISDICTION
1. Over the following crimes, when committed Under Sec, 4(a) and (b) of P.D. 1606, as
by public officials and employees classified amended, the Sandiganbayan shall exercise
as Salary Grade 27 or higher:
 exclusive original jurisdiction over the cases
a. Violations of R.A. 3019 and 1379; 
 mentioned in (1) above where one or more of
b. Crimes committed by public the accused are officials occupying the
officers and employees embraced following positions in the government, whether
in Chapter II, Sec. 2, Title VII, in a permanent, acting or interim capacity at the
Book II of the Revised Penal time of the commission of the offense:
Code;
c. Other offenses or felonies, whether 1. Officials of the executive branch occupying
simple or complexed with other the positions of regional director and
crimes, committed in relation to higher, otherwise classified as Grade '27'
their office. 
 and higher, of the Compensation and
Position Classification Act of 1989 (R.A.
2. Civil and criminal cases filed pursuant to and 6758), specifically including:
in connection with Executive Orders No. 1, 2, a. Provincial governors, vice-
14, and 14-a issued in 1986 
 governors, members of the
sangguniang panlalawigan, and
Provided, That the Regional Trial Court shall provincial treasurers, assessors,
have exclusive original jurisdiction where engineers, and other provincial
the information:

 department heads;
a. does not allege any damage to the b. City mayors, vice-mayors,

government or any bribery; or 
 members of the sangguniang
b. alleges damage to the government or bribery panlungsod, city treasurers,
arising from the same or closely related assessors, engineers, and other
transactions or acts in an amount not city department heads; 


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c. Officials of the diplomatic service
occupying the position of consul
and higher;
d. Philippine army and air force
colonels, naval captains, and all
officers of higher rank;
e. Officers of the Philippine National
Police while occupying the position
of provincial director and those
holding the rank of senior
superintendent or higher;
f. City and provincial prosecutors and
their assistants, and officials and
prosecutors in the Office of the
Ombudsman and special
prosecutor;
2. Presidents, directors or trustees, or
managers of government-owned or
controlled corporations, state universities
or educational institutions or foundations;
3. Members of Congress and officials thereof
classified as Grade "27" and up under the
Compensation and Position Classification
Act of 1989;
4. Members of the judiciary without prejudice
to the provisions of the Constitution;
5. Chairpersons and members of
Constitutional Commissions, without
prejudice to the provisions of the
Constitution; and
6. All other national and local officials
classified as Grade "27" and higher under
the Compensation and Position
Classification Act of 1989. 
 indefinite term
In case private individuals are charged as co-
principals, accomplices or accessories with the
public officers or employees, including those
employed in government- owned or -controlled
corporations, they shall be tried jointly with said
public officers and employees in the proper
courts which shall exercise exclusive
jurisdiction over them.
D. EXCLUSIVE APPELLATE
JURISDICTION
The Sandiganbayan shall exercise exclusive
appellate jurisdiction over final judgments,
resolutions or orders of regional trial courts
whether in the exercise of their own original
jurisdiction or of their appellate jurisdiction.
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E. APPELLATE JURISDICTION OF THE
SUPREME COURT
The appellate jurisdiction of the Supreme Court
is limited to questions of law over decisions and
final orders of the Sandiganbayan [Republic v.
Sandiganbayan, G.R. No. 102508 (2002)].
N. TERM LIMITS
1. Appointive Officials
a. Constitutional Appointive Officers:
Constitutional Commissions - 7
years without reappointment. Of
those first appointed, the Chairman
shall hold office for 7 years, one
Commissioner for 5 years, and the
other Commissioner for 3 years,
without reappointment.
Appointment to any vacancy shall
be for the unexpired portion of the
term of the predecessor. [Art. IX-B,
IX- C, IX-D, Secs. 2]
i. Ombudsman and Deputies - 7
years without reappointment [Art.
XI, Sec. 11]
b. Other Appointive Officials
i. GR: Security of tenure
ii. Exception: When Congress may fix
the term of an office for a fixed or
Where the term is prescribed by law, public
policy forbids the beginning and expiration of
terms to be left to the discretion of the person
holding the office, or the body having the
appointing power.
When Congress creates the office, it has the
power to modify the term. It can also change
the tenure of the officers holding offices that it
created.
Budgetary authority has no power to shorten a
term of office fixed by the legislative act by
refusing to appropriate funds.
[DE LEON]
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Note: Does not apply to non-career service i.e.

those whose tenure is co-terminous with that of
the appointing power or subject to his pleasure,
or limited to the duration of a particular project

2. Elective Officials
a. Provided for in the Constitution
i. President - No person who has
succeeded as President and has
served as such for more than four
years shall be qualified for election
to the same office at any time. [Sec.
4 (1), Art, VII]
ii. Vice President - No more than 2
successive terms. [Sec. 4 (2), Art.
VII]
iii. Senators - No more than 2
consecutive terms. [Sec. 4, Art. VI]
iv. Members of the House of
Representatives - No more than 3
consecutive terms. [Sec. 7, Art. VI]
b. All Elective Local Officials Except
Barangay Officials [Sec. 8, Art. X, 1987
Constitution; Sec. 43, LGC]
i. 3 years from noon of June 30, 1992
or the date provided by law
ii. No official shall serve for more than
3 consecutive terms for the same
position;
c. Barangay and Sangguniang Kabataan
Officials [Sec. 2, R.A. 9164, Sec. 11, R.A.
10742]
i. 3 years
ii. No barangay elective official shall
serve for more than 3 consecutive
terms in the same position

Voluntary renunciation of office for any length

of time shall not be considered as an
interruption in the continuity of service for the
full term of election for the following:
a. Vice President
b. Senators
c. Members of the House of Representatives
d. All elective officials, including barangay
and Sangguniang Kabataan Official

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ADMINISTRATIVE LAW
POLITICAL LAW

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A. GENERAL PRINCIPLES
1. Definition
Administrative law is that branch of modern law
under which the executive department of the
government, acting in a quasi-legislative or
quasi-judicial capacity, interferes with the
conduct of the individual for the purpose of
promoting the well-being of the community.
[Dean Roscoue Pound]
Administrative law is the law concerning the
powers and procedures of administrative
agencies, including specially the law governing
judicial review of administrative actions [K.
Davis, Administrative Law Treatise 1 (1958),
cited in DE LEON].
According to scholars, a broad conception of
administrative law is that it is the amalgamation
of public laws (i.e., constitutional provisions,
legislative statutes, judicial opinions, executive
directives) that addresses the democratic
legitimacy, control, and performance of
administrative authority and discretion by
specifying the legal structures, procedures,
and standards utilized by government agencies
with an emphasis on the role of institutional
oversight by the courts. [Andrew Osorio,
Foundations of the Administrative Law (2016)]
This seems to conform with the understanding
of this area of law in the Philippines.
Administrative functions are those which
involve the regulation and control over the
conduct and affairs of individuals for their own
welfare and the promulgation of rules and
regulations to better carry out the policy of the
legislature or such as are devolved upon the
administrative agency by the organic law of its
existence. [In Re: Rodolfo v. Manzano, A.M.
No. 88-7-1861-RTC (1988)]
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2. Historical Considerations
a. Why did administrative agencies come
about?
(1) Growing complexities of modern life
(2) Multiplication of number of subjects needing
government regulation; and
(3) Increased difficulty of administering laws
[Pangasinan Transportation v. Public Service
Commission, G.R. No. L-47065 (1940)]
b. Why are administrative agencies
needed? Because the government lacks:
(1) Time
(2) Expertise and
(3) Organizational aptitude for effective and
continuing regulation of new developments in
society [STONE]
B. ADMINISTRATIVE
AGENCIES
1. Definition
"Agency" includes any department, bureau,
office, commission, authority or officer of the
National Government authorized by law or
executive order to make rules, issue licenses,
grant rights or privileges, and adjudicate cases;
research institutions with respect to licensing
functions; government corporations with
respect to functions regulating private right,
privileges, occupation or business; and officials
in the exercise of disciplinary power as
provided by law. [Sec. 2(1), Book VII, Admin
Code.]
Administrative agencies are the organs of
government, other than a court and other than
the legislature, which affect the rights of private
parties either through adjudication or through
rule-making [NACHURA].
Administrative agency is the term used
generally to describe an agency exercising
some significant combination of executive,
legislative, and judicial powers. It is a
government body charged with administering

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and implementing particular legislation [DE
LEON].
Care must be taken, however, in distinguishing
between the quasi-legislative and quasi-judicial
sets of powers and the purely administrative
powers. In contrast to rule-making and
adjudication, purely administrative power is
concerned with the work of applying policies
and enforcing orders as determined by proper
governmental organs. [Romeo Jalosjos v.
Commission on Elections, G.R. No. 205033,
(2013)]
2. Manner of Creation
a. Agencies of Constitutional Origin –
those created by the 1987 Constitution (e.g.
CSC, COMELEC, COA, CHR)
b. Agencies Created by Statutes (e.g.
NLRC, SEC, PRC, Social Security
Commission, Bureau of Immigration,
Intellectual Property Office, Games and
Amusement Board, Energy Regulatory
Commission, and Insurance Commission)
c. Executive Orders/Authorities of law
(e.g. Fact-finding Agencies)
Power of the President to Create Ad-hoc
Committees
Under his broad powers to execute the laws,
the President can […] create ad hoc bodies for
purposes of investigating reported crimes. The
President, however, has to observe the limits
imposed on him by the constitutional plan: he
must respect the separation of powers and the
independence of other bodies which have their
own constitutional and statutory mandates
[Biraogo v. Philippine Truth Commission, G.R.
No. 192935 (2010)].
3. When is an Agency Administrative?
Where its function is primarily regulatory EVEN
IF it conducts hearings and determines
controversies to carry out its regulatory duty.
The ever increasing variety of powers and
functions given to administrative agencies
recognizes the need for thr active intervention
of administrative agencies in matters calling for
technical knowledge and speed in countless
controversies which cannot be possibly be
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handled by regular courts. [The Honorable
Monetary Board v. Philippine Veterans Bank,
G.R. No. 189571, (2015)]
On its rule-making authority, it is
administrative when it does not have the
discretion to determine what the law shall be
but merely prescribes details for the
enforcement of the law.
4. Kinds of Administrative Agencies
a. Government grant or gratuity,
special privilege (e.g. Bureau of Lands, Phil.
Veterans Admin., GSIS, SSS, PAO);
b. Carrying out the actual business of
government (e.g. BIR, Bureau of Customs,
Bureau of Immigration, Land Registration
Authority);
c. Service for public benefit (e.g. Phil
Post, PNR, MWSS, NFA, NHA);
d. Regulation of businesses affected
with public interest (e.g. Insurance
Commission, LTFRB, NTC, HLURB);
e. Regulation of private businesses
and individuals (e.g. SEC);
f. Adjustment of individual
controversies because of a strong social
policy involved (e.g. ECC, NLRC, SEC, DAR,
COA) [DE LEON]
5. Control of Administrative Action
a. The President's Executive Power
The executive power shall be vested in the
President of the Philippines. [Sec. 1, Art. VII,
1987 Constitution]
The President shall have control of all the
executive departments, bureaus, and offices.
He shall ensure that the laws be faithfully
executed. [Sec. 17, Art. VII, 1987 Constitution]
Control - the power of an officer to alter or
modify or nullify or set aside what a subordinate
officer had done in the performance of his
duties and to substitute the judgment of the
former for test of the latter
Supervision - overseeing or the power or
authority of an officer to see that subordinate

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officers perform their duties [Ganzon v. C.A.,
G.R. No. 93252, (1991)]
Can the president control ALL administrative
agencies?
It depends on whether the enabling statute has
given a power of review to the President.
b. Congressional Oversight Power
Congress uses its oversight power to make
sure that the administrative agencies perform
their functions within the authority delegated to
them.
There are three categories of congressional
oversight functions, namely:
1. Scrutiny - passive process of looking
at readily available facts; Congress may
request information and report from the other
branches of government. It can give
recommendations or pass resolutions for
consideration of the agency involved.
2. Investigation - involves a more
intense digging of facts. The power of
Congress to conduct investigation is
recognized by the 1987 Constitution in that the
Senate or the House of Representatives or any
of its respective committee may conduct
inquiries in aid of legislation.
3. Supervision - connotes a continuing
and informed awareness on the part of a
congressional committee regarding executive
operations in a given administrative area. It
allows Congress to scrutinize the exercise of
delegated law-making authority, and permits
Congress to retain part of that delegated
authority [Macalintal v. Comelec, G.R. No.
157013, (2003)].
A legislative veto is a statutory provision
requiring the President or an administrative
agency to present the proposed implementing
rules and regulations of a law to Congress
which, by itself or through a committee formed
by it, retains a "right" or "power" to approve or
disapprove such regulations before they take
effect. As such, a legislative veto in the form of
a congressional oversight committee is in the
form of an inward-turning delegation designed
to attach a congressional leash (other than
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through scrutiny and investigation) to an
agency to which Congress has by law initially
delegated broad powers [Abakada v. Purisima,
G.R. No. 166715, (2008)].
c. Judicial Review
Courts can provide immediate relief and also
they defer to experts. If the law is silent, it does
not mean that there is no judicial review.
For questions of policy, the court will not
interfere with the decisions of administrative
agencies.
For questions of discretion, the courts will also
generally not interfere unless there is grave
abuse of discretion.
d. The Ombudsman
The Office of the Ombudsman has the power
to "investigate and prosecute on its own or on
complaint by any person, any act or omission
of any public officer or employee, office or
agency, when such act or omission appears to
be illegal, unjust, improper or inefficient." This
power has been held to include the
investigation and prosecution of any crime
committed by a public official regardless of
whether the acts or omissions complained of
are related to, or connected with, or arise from
the performance of his official duty. It is enough
that the act or omission was committed by a
public official [Lastimosa v. Vasquez, G.R. No.
116801, (1995)].
C. POWERS OF ADMINISTRATIVE
AGENCIES
The powers of administrative agencies are:
1. Quasi-legislative (Rule-making)
2. Quasi-judicial (Adjudicatory);
3. Determinative powers
a. Enabling powers - permit the doing of
an act which the law undertakes to
regulate and which would be unlawful
without government approval (e.g.

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issuance of licenses to engage in
particular business or occupation)
b. Directing powers - order the
performance of particular acts to
ensure compliance with the law and
often exercised for corrective
purposes
• Dispensing powers - allows the
administrative officer to relax the
general operation of a law or
exempt from performance of a
general duty
• Examining powers - enables the
administrative body to inspect the
records and premises, and
investigate the activities, of
persons or entities coming under
its jurisdiction
• Summary powers - those
involving use by administrative
authorities of force upon persons
or things without necessity of
previous judicial warrant
● [CRUZ]
Does the grant of such powers to
Administrative Agencies violate the Doctrine of
Separation of Powers?
No. Administrative agencies became the catch
basin for the residual powers of the three
branches. The theory of the separation of
powers is designed to forestall overaction
resulting from concentration of power.
However, with the growing complexity of
modern life, there is a constantly growing
tendency toward the delegation of greater
powers by the legislature [Pangasinan
Transportation v. Public Service Commission,
G.R. No. L-47065 (1940)].
1. Rule-making Power
The authority delegated by the law-making
body to the administrative agency to adopt
rules and regulations intended to carry out the
provisions of a law and implement a legislative
policy [CRUZ].
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Quasi-legislative or rule-making power is the
power to make rules and regulations that
results in delegated legislation that is within the
confines of the granting statute and the
doctrine of non-delegability and separability of
powers. [The Chairman and Executive
Director, Palawan Council for Sustainable
Development v. Lim, G.R. No. 183173 (2016)].
The grant of rule-making is a relaxation of the
separation of powers principle and is an
exception to the non-delegation of legislative
powers. But such administrative regulations
must be consistent with the law and be for the
sole purpose of enforcing its provisions and not
to transcend the limits marked by the law. xxx
The details and the manner of carrying out the
law are oftentimes left to the administrative
agency entrusted with its enforcement. [People
v. Maceren, G.R. No. L- 32166 (1977)]
Administrative regulations enacted by
administrative agencies to implement and
interpret the law which they are entrusted to
enforce have the force of law and are entitled
to respect. Such rules and regulations partake
of the nature of a statute and are just as binding
as if they have been written in the statute itself.
As such, they have the force and effect of law
and enjoy the presumption of constitutionality
and legality until they are set aside with finality
in an appropriate case by a competent court.
Congress, in the guise of assuming the role of
an overseer, may not pass upon their legality
by subjecting them to its stamp of approval
without disturbing the calculated balance of
powers established in the Constitution. Hence,
legislative vetoes are unconstitutional.
[Abakada Guro Party List v. Hon. Cesar
Purisima, G.R. No. 166715, (2008)].
Doctrine of Subordinate Legislation
Power to promulgate rules and regulations is
only limited to carrying into effect what is
provided in the legislative enactment.
Administrative issuances may be distinguished
according to their nature and substance:
legislative and interpretative. A legislative rule
is in the matter of subordinate legislation,
designed to implement a primary legislation by

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providing the details thereof. An interpretative
rule, on the other hand, is designed to provide
guidelines to the law which the administrative
agency is in charge of enforcing. [BPI Leasing
Corporation v. Court of Appeals, G.R. No.
127624, (2003)].
Non-Delegation Doctrine
Potestas delegata non delegare potest. What
has been delegated cannot be delegated.
The general rule barring delegation of
legislative powers is subject to the following
recognized limitations or exceptions:
a. Delegation of tariff powers to the President
[Sec. 28 (2), Art. VI, 1987 Constitution];
b. Delegation of emergency powers to the
President [Sec. 23 (2), Art. VI, 1987
Constitution];
c. Delegation to the people at large;
d. Delegation to local governments; and
e. Delegation to administrative bodies
[Abakada v. Ermita, G.R. No. 168056
(2005)]
Permissible Delegation
a. Ascertainment of Facts
A statute may give to non-judicial officers:
1. The power to declare the existence of
facts which call into operation the statute's
provisions, and
2. May grant to commissioners and other
subordinate officers the power to ascertain
and determine appropriate facts as a basis
for procedure in the enforcement of
particular laws.
Such functions are merely incidental to the
exercise of power granted by law to clear
navigable streams of unauthorized
obstructions. They can be conferred upon
executive officials provided the party
affected is given the opportunity to be
heard [Lovina v. Moreno, G.R. No. L-17821
(1963)].
b. Filling in the Details
c. General Rule-Making Power
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General Rules:
1. Every administrative agency is to file with
the University of the Philippines Law
Center three (3) certified copies of every
rule adopted by it.
2. Each rule shall become effective fifteen
(15) days from the date of filing as above
provided unless a different date is fixed by
law, or specified in the rule in cases of
imminent danger to public health, safety
and welfare, the existence of which must
be expressed in a statement
accompanying the rule.
3. Every rule establishing an offense or
defining an act which, pursuant to law, is
punishable as a crime or subject to a
penalty shall in all cases be published in full
text.
4. If not otherwise required by law, an agency
shall, as far as practicable, publish or
circulate notices of proposed rules and
afford interested parties the opportunity to
submit their views prior to the adoption of
any rule.
5. In the fixing of rates, no rule or final order
shall be valid unless the proposed rates
shall have been published in a newspaper
of general circulation at least two (2) weeks
before the first hearing thereon.
[Secs. 3, 4, 6, and 9, Chapter 2, Book VII,
Admin. Code]
Requisites for a Valid Delegation
1. Completeness Test – The law must be
complete in itself and must set forth the
policy to be executed.
A statute is incomplete if it does not lay
down any rule or definite standard by which
the administrative officer or board may be
guided in the exercise of discretionary
powers delegated to it [People v. Vera,
G.R. No. L-45685 (1937)].
The law must be complete in all its terms
and conditions when it leaves the
legislature such that when it reaches the

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delegate the only thing he will have to do is
enforce it. [Eastern Shipping Lines, Inc. v.
POEA, G.R. No. 76633 (1988)]
To determine whether or not there is an
undue delegation of legislative power, the
inquiry must be directed to the scope and
definiteness of the measure enacted. The
legislature does not abdicate its functions
when it describes what job must be done,
who is to do it, and what is the scope of his
authority [Edu v. Ericta, G.R. No. L-32096
(1970)]; and
2. Sufficient Standards Test – The law
must fix a standard, the limits of which are
sufficiently determinate or determinable, to
which the delegate must conform
[Abakada v. Ermita, G.R. No. 168056
(2005)].
The legislature may delegate to executive
officers or bodies the power to determine
certain facts or conditions, or the
happening of contingencies, on which the
operation of a statute is, by its terms, made
to depend, but the legislature must
prescribe sufficient standards, policies or
limitations on their authority [Abakada v.
Ermita, supra].
Sufficient Standard
1. Defines legislative policy, marks its
limits, maps out its boundaries and
specifies the public agency to apply it;
and
2. Indicates the circumstances under
which the legislative command is to be
effected [Santiago v. COMELEC, G.R.
127325 (1997); Abakada v. Ermita,
supra].
Forms of a sufficient standard:
1. Express;
2. Implied [Edu v. Ericta, G.R. No. L-
32096 (1970)]; or
3. Embodied in other statutes on the
same matter and not necessarily in
the same law being challenged
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[Chiongbian v. Orbos, G.R. No. 96754
(1995)].
In case of a delegation of rate-fixing power, the
only standard which the legislature is required
to prescribe for the guidance of the
administrative authority is that the rate be
reasonable and just. However, it has been held
that even in the absence of an express
requirement as to reasonableness, this
standard may be implied [PHILCOMSAT v.
Alcuaz, G.R. No. 84818 (1989)].
The power conferred upon an administrative
agency to issue rules and regulations
necessary to carry out its functions has been
held to be an adequate source of authority to
delegate a particular function, unless by
express provision of the Act or by implication it
has been withheld [Realty Exchange Venture
Corp. v. Sendino, G.R. No. 109703 (1994)].
a. Kinds of Administrative Rules and
Regulations
1. Supplementary legislation – pertains to
rules and regulations that fix details in the
execution of a policy in the law, e.g. IRRs of the
Labor Code. This is also called a legislative rule
or subordinate legislation.
2. Interpretative legislation – pertains to rules
and regulations construing or interpreting the
provisions of a statute to be enforced and they
are binding on all concerned until they are
changed, e.g. BIR Circulars.
Legislative Rules v. Interpretative Rules
Legislative Interpretative
Rules Rules
As to Promulgated Promulgated
Source pursuant to its pursuant to its
quasi- quasi-judicial
legislative/rule- capacity.
making
functions.
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As to Create a new Merely clarify Administrative construction is not necessarily

Function law, a new the meaning of a binding upon the courts. An action of an
policy, with the preexisting law administrative agency may be disturbed or set
force and effect by inferring its aside by the judicial department if there is an
of law. implications. error of law, or abuse of power or lack of
jurisdiction or grave abuse of discretion clearly
As to Need Need not be
conflicting with either the letter or the spirit of a
Publication publication. published.
legislative enactment. [Peralta v. Civil Service
As to So long as the At best merely Commission, G.R. No. 95832 (1992)].
Binding court finds that advisory; the
the court may NOTICE AND HEARING
Effect
legislative rules review the 1. In the exercise of quasi-judicial functions
are within the correctness of
As a general rule, notice and hearing, as the
power of the the
administrative interpretation of fundamental requirements of procedural due
agency to pass, the law given by process, are essential only when an
as seen in the the administrative body exercises its quasi-judicial
primary law, administrative function.
then the rules body, and
bind the court. substitute its
2. In the exercise of quasi-legislative
The court own view of
cannot what is correct. functions
question the In the performance of its executive or
wisdom or If it is not within legislative functions, such as issuing rules and
correctness of the scope of the regulations, an administrative body need not
the policy administrative comply with the requirements of notice and
contained in agency, the
hearing [Corona v. United Harbor Pilots
the rules. court may, in
addition to Association of the Philippines, G.R. No.
invalidating the 111953 (1997), citing PHILCOMSAT v. Alcuaz,
same, also G.R. No. 84818 (1989)]. The requirements of
substitute its due process are presumably satisfied by the
decision or notice, comment, and public hearing
interpretation or
give its own set
procedures to be complied with by agencies in
of rules. the issuance of legislative rules.

As to Due Procedural due Due process Can the power to hear and decide a case be
Process process means involves whether delegated?
that the body the parties were The rule that requires an administrative officer
observed the afforded the
proper opportunity to be
to exercise his own judgment and discretion
procedure in notified and does not preclude him from utilizing, as a
passing rules. heard before the matter of practical administrative procedure,
Substantive issuance of the the aid of subordinates to investigate and
due process, ruling. report to him the facts, on the basis of which
on the other the officer will make his decisions. There is no
hand, deals
with the abnegation of responsibility by the officer if his
limitations subordinates heard the case as the decision
posed by remains with and is made by the officer.
constitutional [American Tobacco Co. v. Director of Patents,
and G.R. No. L-26803 (1975)]
fundamental
rights to rule-
making.
3. In the issuance of interpretative rulings
When an administrative rule is merely
interpretative in nature, its applicability needs

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nothing further than its bare issuance for it
gives no real consequence more than what the
law itself has already prescribed. When, upon
the other hand, the administrative rule goes
beyond merely providing for the means that
can facilitate or render least cumbersome the
implementation of the law but substantially
adds to or increases the burden of those
governed, it behooves the agency to accord at
least to those directly affected a chance to be
heard, and thereafter to be duly informed,
before that new issuance is given the force and
effect of law [Commissioner of Internal
Revenue v. CA, G.R. No. 119761 (1996)].
Restrictions on interpretative regulations:
1. Does not change the character of a
ministerial duty;
2. Does not involve unlawful use of legislative
or judicial power.
3. May eliminate construction and uncertainty
in doubtful cases. When laws are susceptible
of two or more interpretations, the
administrative agency should make known its
official position.
4. Administrative construction/interpretation
not binding on the court as to the proper
construction of a statute, but generally it is
given great weight, has a very persuasive
influence and may actually be regarded by the
courts as the controlling factor. [Lim Hoa Ting
vs. Central Bank of the Philippines, G.R. No. L-
10666 (1958)]
5. Administrative interpretation is merely
advisory; courts finally determine what the law
means [Victorias Milling Co., Inc. v. Social
Security Commission, G.R. No. 16704 (1962)]
6. Contingent legislation – Pertains to rules and
regulations made by an administrative
authority on the existence of certain facts or
things upon which the enforcement of the law
depends.
b. Requisites for Validity
Requisites of a valid administrative rule:
1. Within the scope or authority of law;
2. Authorized by law;
3. Reasonable - If shown to bear no
reasonable relation to the purposes [using
the means-purpose or rational relation
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test] for which they are authorized to be
issued, then they must be held to be
invalid [Lupangco v. CA, G.R. No. 77372
(1988)];
4. Promulgated in accordance with
prescribed procedure
Tests to determine invalidity of rules [DE
LEON]:
1. If it exceeds the authority conferred to it;
2. If it conflicts with the governing statute;
3. If it extends or modifies the statute;
4. If it has no reasonable relationship to the
statutory purpose; and
5. If it is arbitrary or unreasonable or
unconstitutional.
Where a rule or regulation has a provision not
expressly stated or contained in the statute
being implemented, that provision does not
necessarily contradict the statute. A legislative
rule is in the nature of subordinate legislation,
designed to implement a primary legislation by
providing the details thereof. All that is required
is that the regulation should be germane to the
objects and purposes of the law; that the
regulation be not in contradiction to but in
conformity with the standards prescribed by the
law [Holy Spirit Homeowners Association, Inc.
v. Defensor, G.R. No. 163980 (2006)].
Rule-making power must be confined to details
for regulating the mode or proceedings in order
to carry into effect the law as it has been
enacted, and it cannot be extended to amend
or expand the statutory requirements or to
embrace matters not covered by the statute.
Administrative regulations must always be in
harmony with the provisions of the law because
any resulting discrepancy between the two will
always be resolved in favor of the basic law
[Commissioner v. Fortune Tobacco, G.R. Nos.
167274-75 (2008)].
Accordingly, as the constitutional body
specifically charged with the enforcement and
administration of all laws and regulations
relative to the conduct of an election, plebiscite,
initiative, referendum, and recall, the
COMELEC should be given sufficient leeway in
accounting for the exigencies of the upcoming

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elections. In fine, its measures therefor should
be respected, unless it is clearly shown that the
same are devoid of any reasonable
justification. [Kabataan Party-list v. COMELEC,
G.R. No. 221318 (2015)].
The function of promulgating rules and
regulations may be legitimately exercised only
for the purpose of carrying the provisions of the
law into effect. The power of administrative
agencies is thus confined to implementing the
law or putting it into effect. Corollary to this is
that administrative regulations cannot extend
the law and amend a legislative enactment.
[Land Bank of the Philippines v. Court of
Appeals, G.R. No. 118712, (1995)].
In the case at bar, A.O. No. 308 may have been
impelled by a worthy purpose, but, it cannot
pass constitutional scrutiny for it is not narrowly
drawn. when the integrity of a fundamental
right is at stake, this court will give the
challenged law, administrative order, rule or
regulation a stricter scrutiny. It will not do for
the authorities to invoke the presumption of
regularity in the performance of official duties.
[Blas Ople v. Rubed Torres et. al., G.R. No.
127685, (1998)].
RULES ON PUBLICATION
1. Administrative rules and regulations are
subject to the publication and effectivity rules of
the Administrative Code.
2. Publication Requirement: E.O. 200 (Art. 2,
Civil Code) requires publication of laws in the
Official Gazette or in a newspaper of general
circulation. Publication is indispensable,
especially if the rule is general.
Publication is indispensable in every case, but
the legislature may in its discretion provide that
the usual 15-day period shall be shortened or
extended. Publication must be in full or it is no
publication at all, since its purpose is to inform
the public of the content of the law. [Tañada v.
Tuvera, G.R. No. L-63915 (1986)]
Publication is mandatory for the following to
be effective:
1. Laws not only of general application, but
also laws of local application, private laws;
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2. Presidential decrees and executive orders
promulgated by the President in the
exercise of legislative powers whenever
the same are validly delegated by the
legislature or, at present, directly conferred
by the Constitution;
3. Administrative rules and regulations
enforcing or implementing existing law
pursuant also to a valid delegation;
4. City charters; and
5. Circulars issued by the Monetary Board
not merely interpreting but "filling in the
details" of the Central Bank Act which that
body is supposed to enforce
Publication is not necessary for the following
to be effective:
1. Interpretative regulations;
2. Regulations which are merely internal in
nature (regulating only the personnel of the
administrative agency need not the
published);
3. Letters of instructions issued by
administrative superiors concerning the
rules or guidelines to be followed by their
subordinates in the performance of their
duties;
4. Internal instructions issued by an
administrative agency; and
5. Municipal ordinances which are governed
by the Local Government Code [Tañada v.
Tuvera, G.R. No. L-63915 (1986)]
FILING REQUIREMENT
Filing
Every agency shall file with the University of the
Philippines Law Center three (3) certified
copes of every rule adopted by it. Rules in force
on the date of the effectivity of this Code which
are not filed within three (3) months from that
date shall not thereafter be the basis of any
sanction against any party or persons. [Sec. 3,
Chapter 1, Book VII, Admin. Code]
The Administrative Code of 1987, particularly
Section 3 of Book VII thereof, expressly
requires each agency to file with the Office of
the National Administrative Register (ONAR) of
the University of the Philippines Law Center
three certified copies of every rule adopted by

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it. Administrative issuances which are not
published or filed with the ONAR are ineffective
and may not be enforced [GMA v. MTRCB,
G.R. No. 148579 (2007)].
Not all rules and regulations adopted by every
government agency are to be filed with the UP
Law Center. Only those of general or of
permanent character are to be filed. According
to the UP Law Center’s guidelines for receiving
and publication of rules and regulations,
“interpretative regulations and those merely
internal in nature, that is, regulating only the
personnel of the administrative agency and not
the public,” need not be filed with the UP Law
Center. [Board of Trustees v. Velasco, G.R.
No. 170463 (2011)].
Effectivity: 15 days after filing and publication
EFFECTIVITY
In addition to other rule-making requirements
provided by law not inconsistent with this Book,
each rule shall become effective fifteen (15)
days from the date of filing as above provided
unless a different date is fixed by law, or
specified in the rule in cases of imminent
danger to public health, safety and welfare, the
existence of which must be expressed in a
statement accompanying the rule. The agency
shall take appropriate measures to make
emergency rules known to persons who may
be affected by them. [Sec. 4, Chapter 1, Book
VII, Admin. Code]
Note:
1. The Administrative Code requires filing.
2. The Civil Code requires publication.
3. Because the Civil Code does not preclude
other rule-making requirements provided by
law (i.e. the Administrative Code), both
publication and filing must be satisfied before
the 15 day-count begins.
These requirements of publication and filing
were put in place as safeguards against
abuses on the part of lawmakers and as
guarantees to the constitutional right to due
process and to information on matters of public
concern and, therefore, require strict
compliance. Failure to comply with the
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requirements of publication and filing of
administrative issuances renders said
issuances ineffective [Republic v. Pilipinas
Shell Petroleum, G.R. No. 173918 (2008)].
Exceptions
1. Different date is fixed by law or specified in
the rule; and
2. In case of imminent danger to public health,
safety and welfare.
PENAL RULES
Omission of Some Rules.
Every rule establishing an offense or defining
an act which, pursuant to law is punishable as
a crime or subject to a penalty shall in all cases
be published in full text. [Sec. 6, Chapter 1,
Book VII, Admin. Code]
General Rule: Rules must not provide penal
sanctions.
Exception: A violation or infringement of a rule
or regulation validly issued can constitute a
crime punishable as provided in the authorizing
statute and by virtue of the latter [People v.
Maceren, G.R. No. L- 32166 (1977)].
For an administrative regulation to have the
force of penal law:
1. The violation of the administrative regulation
must be made a crime by the delegating statute
itself; and
2. The penalty for such violation must be
provided by the statute itself [Perez v. LPG
Refillers Association of the Philippines, Inc.,
G.R. No. 159149 (2006), citing U.S. v. Panlilio,
G.R. No. L-9876 (1914)].
Penal laws and regulations imposing penalties
must be published before it takes effect
[People v. Que Po Lay, G.R. No. 6791 (1954)].
Can administrative bodies make penal rules?
NO. A lawmaking body cannot delegate to an
executive official the power to declare what
acts should constitute an offense. Penal
statutes are exclusive to the legislature and
cannot be delegated. Administrative rules and
regulations must not include, prohibit or punish
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acts which the law does not even define as a a basis for their official action and to exercise
criminal act. [People v. Maceren, G.R. No. L- discretion of a judicial nature. [Civil Service
32166 (1977)]. Commission v. Magoyag, G.R. No. 197792
(2015)].
In a prosecution for a violation of an
administrative order, it must clearly appear that Source
the order is one within the scope of authority Incidental to the power of regulation but is often
conferred upon the administrative body and the expressly conferred by the legislature through
order will be scrutinized with special care. specific provisions in the charter of the agency.
[People v. Maceren, G.R. No. L-32166 (1977)]
Distinguished from Judicial Proceedings
Power to Amend, Revise, Alter or Repeal Administrative Judicial
Rules Nature Inquisitorial Adversarial
Following the doctrine of necessary of
implication, the grant of express power to Procee
formulate implementing rules and regulations dings
must necessarily include the power to amend, Rules Liberally applied Follow technical
revise, alter, or repeal the same [Yazaki Torres of but subject to rules in the
Manufacturing, Inc. v. CA, G.R. No. 130584 Proced Ang Tibay Rules of Court
(2006)]. ure requirements
Nature Decision Decision
and generally limited includes
2. Adjudicatory Power Extent to matters of matters brought
of general concern, as issue by the
It is the power of an administrative agency to Decisio but also resolves parties
hear and determine, or to ascertain facts and n the issues raised
decide by the application of rules to the by the parties in
ascertained facts. By this power, administrative a specific
dispute
authorities are enabled to interpret and apply
Parties The agency itself Only the private
not only implementing rules and regulations
may be a party parties
promulgated by them but also the laws
to the
entrusted to their administration. [DE LEON] proceedings
before it
The power of the administrative agency to
determine questions of fact to which the
Distinguished from Investigative Power [DE
legislative policy is to apply, in accordance with LEON]
the standards laid down by the law itself [Smart
Communications v. NTC, G.R. No. 151908 The purpose of an investigation is to discover,
(2003)]. find out, learn, obtain information. Nowhere
included is the notion of settling, deciding or
An agency is said to be exercising judicial resolving controversies in the facts inquired
function where it has the power to determine into by application of the law to the facts
what the law is and what the legal rights of established by the inquiry.
the parties are, and then undertakes to
determine these questions and adjudicate To 'investigate' means to examine, explore,
upon the rights of the parties. Quasi-judicial inquire or delve or probe into, research on,
function is a term which applies to the action, study. The purpose of investigation, of course,
discretion, etc. of public administrative officers is to discover, to find out, to learn, obtain
or bodies, who are required to investigate facts information. Nowhere included or intimated is
or ascertain the existence of facts, hold the notion of settling, deciding or resolving a
hearings, and draw conclusions from them as controversy involved in the facts inquired into

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by application of the law to the facts
established by the inquiry.
The legal meaning of "investigate" is
essentially the same: "(t)o follow up step by
step by patient inquiry or observation. To trace
or track; to search into; to examine and inquire
into with care and accuracy; to find out by
careful inquisition; examination; the taking of
evidence; a legal inquiry;" "to inquire; to make
an investigation," "investigation" being in turn
described as "(a)n administrative function, the
exercise of which ordinarily does not require a
hearing.
To 'adjudicate' means to adjudge, arbitrate,
judge, decide, determine, resolve, rule on,
settle. The dictionary defines the term as "to
settle finally (the rights and duties of the parties
to a court case) on the merits of issues raised:
x x to pass judgment on: settle judicially: x x act
as judge." In the legal sense, "adjudicate"
means: "To settle in the exercise of judicial
authority. To determine finally.
Fact-finding is not adjudication and it cannot be
likened to the judicial function of a court of
justice, or even a quasi-judicial agency or
office. The function of receiving evidence and
ascertaining therefrom the facts of a
controversy is not a judicial function. To be
considered as such, the act of receiving
evidence and arriving at factual conclusions in
a controversy must be accompanied by the
authority of applying the law to the factual
conclusions to the end that the controversy
may be decided or resolved authoritatively,
finally and definitively, subject to appeals or
modes of review as may be provided by law.
[Louis Biraogo v. Philippine Truth Commission,
G.R. No. 192935, (2010), citing Hon. Isidro
Carino v. CHR, G.R. No. 96681, (1991)].
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Distinguished from Legislative or Rule-
Making Power [DE LEON]
1. Quasi-judicial action involves enforcement of
liabilities as they stand on present or past facts
and under laws supposed to exist, while quasi-
legislation looks to the future and changes
existing conditions by making a new rule to be
applied prospectively.
2. Adjudication applies to named persons or to
specific situations while the legislation lays
down general regulations that apply to classes
of persons or situations.
Requisites for a Valid Exercise:
1. Jurisdiction
2. Due process
General Rule: A tribunal, board or officer
exercising judicial functions acts without
jurisdiction if no authority has been conferred
to it by law to hear and decide cases.
● Jurisdiction to hear must be explicit or
by necessary implication, conferred
through the terms of the enabling
statute.
● Effect of administrative acts outside
jurisdiction—Void.
Rationale: They are mere creatures of law and
have no general powers but only such as have
been conferred upon them by law.
Powers Included in Quasi-Judicial
Functions
Subpoena Power
In any contested case, the agency shall have
the power to require the attendance of
witnesses or the production of books, papers,
documents and other pertinent data, upon
request of any party before or during the
hearing upon showing of general relevance.
Unless otherwise provided by law, the agency
may, in case of disobedience, invoke the aid of
the Regional Trial Court within whose
jurisdiction the contested case being heard
falls. The Court may punish contumacy or
refusal as contempt. [Sec. 13, Chapter 1, Book
VII, Admin. Code]

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Administrative agencies may enforce
subpoenas issued in the course of
investigations, whether or not adjudication is
involved, and whether or not probable cause is
shown and even before the issuance of a
complaint. The purpose of the subpoena is to
discover evidence, not to prove a pending
charge. When investigative and accusatory
duties are delegated by statute to an
administrative body, it, too may take steps to
inform itself as to whether there is probable
violation of the law.
A subpoena meets the requirements for
enforcement if the inquiry is:
(1) within the authority of the agency;
(2) the demand is not too indefinite; and
(3) the information is reasonably relevant
[Evangelista v. Jarencio, G.R. No. L-
29274, (1975)].
Contempt Power
General Rule: Exercised through the order
and assistance of RTC.
Exception: When the law gives agency
contempt power.
The exercise of this power [to punish for
contempt] has always been regarded as a
necessary incident and attribute of courts. Its
exercise by administrative bodies has been
invariably limited to making effective the power
to elicit testimony, and the exercise of that
power by an administrative body in furtherance
of its administrative function has been held
invalid [Guevara v. Comelec, G.R. No. L-
12596, (1958)].
Power to issue Search Warrant or Warrant
of Arrest
General Rule: Only judges may issue.
Under the express terms of our Constitution, it
is doubtful whether the arrest of an individual
may be ordered by any authority other than the
judge if the purpose is merely to determine the
existence of a probable cause, leading to an
administrative investigation. [Qua Chee Gan v.
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Deportation Board, G.R. No. L-10280 (1963),
decided under the 1935 Constitution. Note that
the 1987 and 1935 Constitutions are the same
in limiting the issuance of warrants of arrest to
a judge.]
Under Article III, Section 2, of the 1987
Constitution, only judges, and no other, may
issue warrants of arrest and search. The
exception is in cases of deportation of illegal
and undesirable aliens, whom the President or
the Commissioner of Immigration may order
arrested, following a final order of deportation,
for the purpose of deportation [Salazar v.
Achacoso, G.R. No. 81510 (1990)].
Board of Commissioners v. De La Rosa [G.R.
Nos. 95122 (1991)] reiterates the rule that for a
warrant of arrest issued by the Commissioner
of Immigration to be valid, it must be for the
sole purpose of executing a final order of
deportation. A warrant of arrest issued by the
Commissioner of Immigration for purposes of
investigation only is null and void for being
unconstitutional.
Exception: A warrant may be issued by the
administrative agency following a final order.
It is different if the order of arrest is issued to
carry out a final finding of a violation, either by
an executive or legislative officer or agency
duly authorized for the purpose, as then the
warrant is not that mentioned in the
Constitution which is issuable only on probable
cause. Such for example, would be a warrant
of arrest to carry out a final order of deportation,
or to effect compliance of an order of contempt
[Qua Chee Gan vs. Deportation Board, G.R.
No. L-10280 (1963)].
Note: In Harvey v. Defensor-Santiago [G.R.
No. L-82544 (1988)], there was no final order
of deportation. The executive officials were the
ones who made a finding of probable cause,
not the judge. As such, this case seems to
carve out another exception (in addition to
warrant of arrest to enforce an order of
deportation) - upon showing of probable cause
and the filing of a charge.

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a. Administrative Due Process
While administrative agencies are free from the
rigidity of certain procedural requirements, they
cannot entirely ignore or disregard the
fundamental and essential requirements of due
process in trials and investigations of an
administrative character [Ang Tibay v. CIR,
G.R. No. L-46496 (1940)].
Effect of Decisions Rendered without Due
Process
A decision rendered without due process is
void ab initio and may be attacked at any time
directly or collaterally by means of a separate
action or proceeding where it is invoked
[Garcia v. Molina, G.R. No. 157383 (2010)].
Due process as a constitutional precept does
not always and in all situations require a trial-
type proceeding. Due process is satisfied when
a person is notified of the charge against him
and given an opportunity to explain or defend
himself. The essence of due process is simply
to be heard, or as applied to administrative
proceedings, an opportunity to explain one's
side, or an opportunity to seek a
reconsideration of the action or ruling
complained of. [NAPOLCOM National
Appellate Board v. Bernabe, G.R. No. 129914,
(2000)].
CARDINAL PRIMARY RIGHTS
Ang Tibay v. CIR [G.R. No. L-46496 (1940)]
lays down the cardinal primary rights:
1. Right to a hearing (includes the right of a
party to present his own case and submit
evidence in support thereof)
2. The tribunal must consider the evidence
presented
3. Decision must be supported by evidence.
4. Evidence must be substantial.
Quantum of Proof: Substantial
Evidence
The amount of relevant evidence which
a reasonable mind might accept as
adequate to justify a conclusion [Sec.
5, Rule 133, Rules of Court]
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An administrative proceeding is
different from a criminal case and may
proceed independently thereof. The
quantum of proof in the latter is
different, such that the verdict in one
need not necessarily be the same as in
the other. A finding of guilt in the
criminal case will not necessarily result
in a finding of liability in the
administrative case [Miralles v. Go,
G.R. No. 139943, (2001)].
5. Decision must be rendered on the
evidence presented at the hearing or at
least contained in the record and disclosed
to the parties affected
6. The judge must act on its or his own
independent consideration of the law and
facts of the controversy (not simply accept
the views of a subordinate in arriving at a
decision)
7. Decision must be rendered in such a
manner as to let the parties know the
various issues involved and the reasons for
the decision rendered.
In administrative proceedings, procedural due
process has been recognized to include the
following:
(1) The right to actual or constructive notice of
the institution of proceedings which may affect
a respondent’s legal rights;
(2) A real opportunity to be heard personally or
with the assistance of counsel, to present
witnesses and evidence in one’s favor, and to
defend one’s rights;
(3) A tribunal vested with competent jurisdiction
and so constituted as to afford a person
charged administratively a reasonable
guarantee of honesty as well as impartiality;
and
(4) A finding by said tribunal which is supported
by substantial evidence submitted for
consideration during the hearing or contained
in the records or made known to the parties
affected [Vivo v. Pagcor, G.R. No. 187854,
(2013)].

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Due process does not require that actual taking
of testimony be before the same officer who will
decide the case. As long as a party is not
deprived of his right to present his own case
and submit evidence in support thereof, and
the decision is supported by the evidence in the
record, there is no question that the
requirements of due process and fair trial are
fully met [American Tobacco Co. v. Director of
Patents, G.R. No. L-26803 (1975)].
The actual exercise of the disciplining
authority's prerogative requires a prior
independent consideration of the law and the
facts. Failure to comply with this requirement
results in an invalid decision. The disciplining
authority should not merely and solely rely on
an investigator's recommendation, but must
personally weigh and assess the evidence
gathered [DOH v. Camposano, G.R. No.
157684 (2005)].
One may be heard, not solely by verbal
presentation but also, and perhaps even many
times more creditably than oral argument,
through pleadings [Mutuc v. CA, G.R. No.
48108 (1990)].
RIGHT TO COUNSEL
The right to counsel is not imperative in
administrative investigations because such
inquiries are conducted merely to determine
whether there are facts that merit disciplinary
measures against erring public officers and
employees, with the purpose of maintaining the
dignity of government service [Lumiqued v.
Exevea, G.R. No. 117565 (1997)].
Presence of a party at a trial is not always the
essence of due process. All that the law
requires to satisfy adherence to this
constitutional precept is that the parties be
given notice of the trial, an opportunity to be
heard. Where the defendant failed to appear on
the date set for the trial, of which he was
previously notified, he is deemed to have
forfeited his right to be heard in his defense
[Asprec v. Itchon, G.R. No. L- 21685 (1966)].
Any seeming defect in the observance of due
process is cured by the filing of a motion for
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reconsideration. Denial of due process cannot
be successfully invoked by a party who has had
the opportunity to be heard on his motion for
reconsideration [A.Z. Arnaiz Realty Inc. v.
Office of the President, G.R. No. 170623,
(2010)].
The principle that a person cannot be
prejudiced by a ruling rendered in an action or
proceeding in which he was not made a party
conforms to the constitutional guarantee of due
process of law. Since respondent was not
impleaded in the HLURB case, he could not be
bound by the decision rendered therein.
Because he was not impleaded in said case;
he was not given the opportunity to present his
case therein [Aguilar v. O’Pallick, G.R. No.
182280 (2013)].
Is a trial necessary?
No. Due process does not necessarily mean or
require a trial-type hearing, but simply an
opportunity or a right to be heard. [Vinta
Maritime Co., Inc. v. NLRC, G.R. No. 113911
(1978)].
BUT the right of a party to confront and cross-
examine an opposing witness is a fundamental
right which is part of due process. If without his
fault, this right is violated, he is entitled to have
the direct examination stricken off the record
[Bachrach Motor Co., Inc. v. CIR, G.R. No. L-
26136 (1978)].
While the right to cross-examine is a vital
element of procedural due process, the right
does not necessarily require an actual cross
examination but merely an opportunity to
exercise this right if desired by the party entitled
to it [Gannapao v. CSC, G.R. No. 180141
(2011)].
The requirements [of notice and hearing] are
followed where parties are given fair
opportunity to explain their side. Such cases
may be resolved based solely on documentary
evidence submitted by parties as affidavits may
take the place of their direct testimony.
[Samalio v. CA, G.R. No. 140079, (2005)].

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Evidence on record must be fully disclosed to
the parties [American Inter-Fashion v. Office of
the President, G.R. No. 92422 (1991)], but
respondents in administrative cases are not
entitled to be informed of findings of
investigative committees but only of the
decision of the administrative body [Pefianco v.
Moral, G.R. No. 132248 (2000)].
DECISIONS RENDERED
Section 14, Article VIII of the 1987 Constitution
(i.e., “No decision shall be rendered by any
court without expressing therein clearly and
distinctly the facts and the law on which it is
based.”) need not apply to decisions rendered
in administrative proceedings. Said section
applies only to decisions rendered in judicial
proceedings. The constitutional mandate does
not preclude the validity of “memorandum
decisions,” which adopt by reference the
findings of fact and conclusions of law
contained in the decisions of inferior tribunals
[Solid Homes, Inc. v. Laserna, G.R. No.
166051 (2008)].
There is no requirement in Ang Tibay v. CIR
that the decision must express clearly and
distinctly the facts and the law on which it is
based for as long as the administrative
decision is grounded on evidence, and
expressed in a manner that sufficiently informs
the parties of the factual and legal bases of the
decision, the due process requirement is
satisfied [Solid Homes, Inc. v. Laserna, G.R.
No. 166051 (2008)]. This is not understood as
abandoning the requirement in the Constitution
and the Administrative Code with respecting
explaining the factual and legal bases of
judgment, only that the decision is sufficient
even if it is not written in the same extended
manner as in judicial decisions.
The order, it is true, does not make its own
discussion of the evidence or its own findings
of fact, but such is not necessary if the court is
satisfied with the report of its examiner or
referee which already contains a full discussion
of the evidence and the findings of fact based
thereon. The situation differs if the court
disagrees with the report in which case it
should state the reasons for its disagreement.
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If it is in full accord with the report, it is
purposeless to repeat what the examiner has
already found in it. [Graciano Indias v.
Philippine Iron Mines, G.R. No. L-9987 (1957)]
**Note: in Indias, the “court” being referred to
was the Court of Industrial Relations which was
an administrative agency
Note: However, in the Administrative Code, it
is provided that:
Decision. – Every decision rendered by the
agency in a contested case shall be in writing
and shall state clearly and distinctly the facts
and the law on which it is based. The agency
shall decide each case within thirty (30) days
following its submission. The parties shall be
notified of the decision personally or by
registered mail addressed to their counsel of
record, if any, or to them. [Sec. 14, Chapter 1,
Book VII, Admin. Code]
Due process is violated when:
1. There is failure to sufficiently explain the
reason for the decision rendered; or
2. If not supported by substantial evidence; or
3. Imputation of a violation and imposition
of a fine despite absence of due notice and
hearing [Globe Telecom v. NTC, G.R. No.
143964 (2004)].
NOTICE AND HEARING
When required:
1. When the law specifically requires it; or
2. When it affects a person’s status and liberty
When not required:
1. When there is urgent need for immediate
action [Secretary of Justice v. Lantion, G.R.
No. 139465 (2000)];
2. When there is tentativeness of
administrative action, i.e. the person
affected is not precluded from enjoying the
right to notice and hearing at a later time
without prejudice to them;
3. When notice and hearing have been
proferred, but the right to exercise them
have not been claimed;

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4. Discretion is exercised by an officer vested
with it upon an undisputed fact [Suntay v.
People, G.R. No. L-9430 (1957)];
5. If it involves the exercise of discretion and
there is no grave abuse;
6. When it involves rules to govern future
conduct of persons or enterprises, unless
law provides otherwise; or
7. In the valid exercise of police power.
Meetings in the nature of consultation and
conferences may not be valid substitutes for
the proper observance of notice and hearing
[Equitable Bank v. NLRC, G.R. No. 102467,
(1997)].
It is a constitutional commonplace that the
ordinary requirements of procedural due
process yield to the necessities of protecting
vital public interests, through the exercise of
police power [Pollution Adjudication Board v.
CA, G.R. No. 93891 (1991)].
NOTE: In this case, ex parte cease and desist
orders are allowed (a) whenever the wastes
discharged by an establishment pose an
"immediate threat to life, public health, safety
or welfare, or to animal or plant life or (b)
Whenever such discharges or wastes exceed
"the allowable standards set by the NPCC".
Required Notice and Hearing under the
Admin. Code
● Contested cases [Sec. 11, Chapter 3, Book
VII, Admin. Code]
● Insofar as practicable, to certain licensing
procedures, involving grant, renewal,
denial or cancellation of a license; i.e. when
the grant, renewal, denial or cancellation of
a license is required to be preceded by
notice and hearing [Sec. 17(1), Chapter 3,
Book VII, Admin. Code]
● All licensing procedures, when a license is
withdrawn, suspended, revoked or
annulled [Sec. 17(2), Chapter 3, Book VII,
Admin. Code]
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Exceptions
Notice and hearing not required in cases of
(a) willful violation of pertinent laws, rules
and regulations or
(b) when public security, health, or safety
require otherwise [Sec. 17(2), Chapter
3, Book. VII, Admin. Code].
APPLICABILITY OF RULES OF EVIDENCE
IN ADMINISTRATIVE PROCEEDINGS
In administrative proceedings, technical rules
of procedure and evidence are not strictly
applied; administrative due process cannot be
fully equated with due process in its strict
judicial sense [Vinta Maritime Co., Inc. v.
NLRC, G.R. No. 113911 (1978)].
Administrative rules of procedure are
construed liberally to promote their objective
and to assist parties in obtaining just, speedy
and inexpensive determination of their
respective claims and defenses. As a general
rule, a finding of guilt in administrative cases, if
supported by substantial evidence will be
sustained by this Court [Civil Service
Commission v. Colanggo, G.R. No. 174935,
(2008)].
b. Administrative Appeal and Review
Different kinds of administrative appeal and
review [DE LEON]:
1. That which inheres in the relation of
administrative superior to administrative
subordinate where determinations are
made at lower levels of the same
administrative system;
2. That embraced in statutes which provide
for a determination to be made by a
particular officer of body subject to appeal,
review, or redetermination by another
officer or body in the same agency or in the
same administrative system;
3. That in which the statute attempts to make
a court a part of the administrative scheme
by providing in terms or effect that the
court, on review of the action of an
administrative agency, shall exercise
powers of such extent that they differ from

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ordinary judicial functions and involve a
trial de novo of matters of fact or discretion
and application of the independent
judgment of the court;
4. That in which the statute provides that an
order made by a division of a Commission
or Board has the same force and effect as
if made by the Commission subject to a
rehearing by the full Commission, for the
‘rehearing’ is practically an appeal to
another administrative tribunal;
5. That in which the statute provides for an
appeal to an officer on an intermediate
level with subsequent appeal to the head of
the department or agency; and
6. That embraced in statutes which provide
for appeal at the highest level, namely, the
President.
A party must prove that it has been affected or
aggrieved by an administrative agency in order
to entitle it to a review by an appellate
administrative body or another administrative
body.
The appellate administrative agency may
conduct additional hearings in the appealed
case, if deemed necessary [Reyes v. Zamora,
G.R. No. L-46732 (1979)].
N.B. Under the Doctrine of Qualified Political
Agency [Villena v. Secretary of Interior, G.R.
No. L-46570 (1939)], a decision of the
department head generally need not be
appealed to the Office of the President, since
the department head (e.g. Secretary) is the
alter ego of the President, and the former’s acts
are presumably the President’s. However, the
doctrine does not apply when (a) the act is
repudiated by the President, or (b) the act is
required (by law) to be performed specifically
by the department head.
In order that the review of the decision of a
subordinate officer might not turn out to be a
farce, the reviewing officer must perforce be
other than the officer whose decision is under
review; otherwise, there could be no different
view or there would be no real review of the
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case. [Zambales Chromite Mining v. CA, G.R.
No. L-49711, (1979)].
The law, in prescribing a process of appeal to
a higher level, contemplates that the reviewing
officer is a person different from the one who
issued the appealed decision. Otherwise, the
review becomes a farce; it is rendered
meaningless [Rivera v. CSC, G.R. No. 115147
(1995)].
c. Administrative Res Judicata
This doctrine of finality of judgment is grounded
on fundamental considerations of public policy
and sound practice. Nothing is more settled in
law than that once a judgment attains finality it
thereby becomes immutable and unalterable.
[Civil Service Commission v. Magoyag, G.R.
No. 197792 (2015)].
When it applies
The doctrine of res judicata applies only to
judicial or quasi-judicial proceedings and not to
the exercise of purely administrative functions.
Administrative proceedings are non-litigious
and summary in nature; hence, res judicata
does not apply [Nasipit Lumber Co. v. NLRC,
G.R. No. 54424 (1989)].
Requisites:
1. The former judgment must be final;
2. It must have been rendered by a court
having jurisdiction over the subject matter and
the parties;
3. It must be a judgment on the merits; and
4. There must be identity of parties, subject
matter and cause of action [Ipekdijan
Merchandising v. CTA, G.R. No. L-14791
(1963)].
Res judicata embraces two concepts:
1. Bar by prior judgment: exists “when, as
between the first case where the judgment was
rendered and the second case that is sought to
be barred.” there is identity of parties, subject
matter, and causes of action.
2. Conclusiveness of judgment: exists when
“a fact or question has been squarely put in
issue, judicially passed upon, and adjudged in

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a former suit by a court of competent
jurisdiction.” This principle only needs identity
of parties and issues to apply. [Emerald
Garment Manufacturing Corp. v. CA, G.R. No.
100098 (1995)].
While it is true that this Court has declared that
the doctrine of res judicata applies only to
judicial or quasi-judicial proceedings, and not
to the exercise of administrative powers, we
have also limited the latter to proceedings
purely administrative in nature. Therefore,
when the administrative proceedings take on
an adversary character, the doctrine of res
judicata certainly applies [Heirs of Maximino
Derla v. Heirs of Catalina Derla Vda. De
Hipolito, G.R. No. 157717 (2011)].
Effect
Decisions and orders of administrative bodies
rendered pursuant to their quasi-judicial
authority have, upon their finality, the force and
effect of a final judgment within the purview of
the doctrine of res judicata, which forbids the
reopening of matters once judicially
determined by competent authorities.
General Rule: Res judicata does not apply in
administrative adjudication relative to
citizenship.
Exception: For res judicata to be applied in
cases of citizenship, the following must be
present:
1. A person's citizenship must be raised as a
material issue in a controversy where said
person is a party;
2. The Solicitor General or his authorized
representative took active part in the resolution
thereof; and
3. The finding or citizenship is affirmed by SC
[Board of Commissioners v. De la Rosa, G.R.
Nos. 95122 (1991)].
Res judicata may not be invoked in labor
relations proceedings because they are non-
litigious and summary in nature [Nasipit
Lumber Co., Inc. v. NLRC, G.R. No. 54424
(1989)].
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Due to the difference between the quantum of
evidence, procedure, and sanctions imposed in
criminal and administrative proceedings, the
findings and conclusions in one should not
necessarily be binding on the other [Ocampo v.
Office of the Ombudsman, G.R. No.114683
(2000)].
The basis of administrative liability differs from
criminal liability. The purpose of administrative
proceedings is mainly to protect the public
service, based on the time-honored principle
that a public office is a public trust. On the other
hand, the purpose of the criminal prosecution
is the punishment of crime [Ferrer v.
Sandiganbayan, G.R. No. 161067 (2008)].
Forum Shopping
There is forum-shopping whenever, as a result
of an adverse opinion in one forum, a party
seeks a favorable opinion (other than by
appeal or certiorari) in another. The principle
applies not only with respect to suits filed in the
courts but also in connection with litigation
commenced in the courts while an
administrative proceeding is pending, in order
to defeat administrative processes and in
anticipation of an unfavorable administrative
ruling and a favorable court ruling.
The test for determining whether a party has
violated the rule against forum shopping is
where a final judgment in one case will amount
to res judicata in the action under consideration
[Fortich v. Corona, G.R. No. 131457 (1998),
citing First Philippine International Bank v. CA
(1996)].
The rule against forum shopping applies only
to judicial cases or proceedings, not to
administrative cases [Office of the
Ombudsman v. Rodriguez, G.R. No. 172700
(2010)].

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3. Fact-Finding, Investigative,
Licensing, and Rate-Fixing
Powers
a. Ascertainment of Fact
A statute may give to non-judicial officers:
1. The power to declare the existence of
facts which call into operation the
statute’s provisions, and
2. May grant to commissioners and other
subordinate officers the power to
ascertain and determine appropriate
facts as a basis for procedure in the
enforcement of particular laws.
Such functions are merely incidental to the
exercise of power granted by law to clear
navigable streams of unauthorized
obstructions. They can be conferred upon
executive officials provided the party affected
is given the opportunity to be heard [Lovina v.
Moreno, G.R. No. L-17821 (1963)].
b. Investigative Powers
Administrative agencies’ power to conduct
investigations and hearings, and make findings
and recommendations thereon is inherent in
their functions as administrative agencies.
General Rule: Findings of fact by
administrative agencies and quasi-judicial
bodies, which have acquired expertise
because of their jurisdiction is confined to
specific matters, are generally accorded not
only great respect but even finality, absent a
showing of grave abuse of discretion [Marlow
Navigation Philippines Inc. vs. Heirs of Ricardo
S. Ganal, G.R. No. 220168 (2017)].
Exception: Equally settled that one of the
exceptions to the above rule is when the factual
findings of the quasi-judicial agencies
concerned are conflicting or contrary with those
of the CA.
"Investigate" means to examine, explore,
inquire or delve or probe into, research on,
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study. The purpose of investigation is to
discover, to find out, to learn, obtain
information. Nowhere included or intimated is
the notion of settling, deciding or resolving a
controversy involved in the facts inquired into
by application of the law to the facts
established by the inquiry [Cariño v. CHR, G.R.
No. 96681 (1991)].
c. Licensing Function
Licensing Procedure
1. When the grant, renewal, denial or
cancellation of a license is required to
be preceded by notice and hearing, the
provisions concerning contested cases
shall apply insofar as practicable.
2. Except in cases of willful violation of
pertinent laws, rules and regulations or
when public security, health, or safety
requires otherwise, no license may be
withdrawn, suspended, revoked or
annulled without notice and hearing
[Sec. 17, Chapter 3, Book VII, Admin.
Code].
Nonexpiration of License
Where the licensee has made timely and
sufficient application for the renewal of a
license with reference to any activity of a
continuing nature, the existing license shall not
expire until the application shall have been
finally determined by the agency [Sec. 18,
Chapter 3, Book VII, Admin. Code].
Definitions
1. “License” includes the whole or any
part of any agency permit, certificate,
passport, clearance, approval,
registration, charter, membership,
statutory exemption or other form of
permission, or regulation of the
exercise of a right or privilege.
2. “Licensing” includes agency process
involving the grant, renewal, denial,
revocation, suspension, annulment,
withdrawal, limitation, amendment,
modification or conditioning of a
license.

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When are notice and hearing required in
licensing?
Only if it is a contested case. Otherwise, it can
be dispensed with (e.g., driver’s licenses) [Sec.
2, Chapter 1, Book VII, Admin. Code].
A license or permit is not a contract between
the sovereignty and the licensee. Rather, it is a
special privilege, a permission or authority to
do what is within its terms. It is always
revocable. The absence of an expiry date in a
license does not make it perpetual.
Notwithstanding that absence, the license
cannot last beyond the life of the basic authority
under which it was issued [Gonzalo Sy Trading
v. Central Bank, G.R. No. L-41480 (1976)].
Note: The Administrative Code, however,
prescribes notice and hearing before it can be
revoked, subject to certain exceptions.
d. Fixing of Rates, Wages, and Prices
Definition
“Rate” means any charge to the public for a
service open to all and upon the same terms,
including individual or joint rates, tolls,
classification or schedules thereof, as well as
communication, mileage, kilometrage and
other special rates which shall be imposed by
law or regulation to be observed and followed
by any person [Sec. 2, Chapter 1, Book VII,
Admin. Code].
PUBLICATION REQUIREMENT FOR RATE-
FIXING
Public Participation
[…] (2) In the fixing of rates, no rule or final
order shall be valid unless the proposed rates
shall have been published in a newspaper of
general circulation at least 2 weeks before the
first hearing thereon [Sec. 9, Chapter 2, Book
VII, Admin Code].
Generally, the power to fix rates is a quasi-
legislative function, i.e. it is meant to apply to
all. However, it becomes quasi-judicial when
the rate is applicable only to a particular party,
predicated upon a finding of fact
[PHILCOMSAT v. Alcuaz, G.R. No. 84818
(1989), citing Vigan Electric Light Co. v. Public
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Service Commission, G.R. No. L-19850
(1964)].
While respondent [NTC] may fix a temporary
rate pending final determination of the
application of petitioner, such rate-fixing order,
even if temporary, is not exempt from the
statutory procedural requirements of notice
and hearing, as well as the requirement of
reasonableness [PHILCOMSAT v. Alcuaz,
G.R. No. 84818 (1989)].
N.B. The old doctrine is if the rate-fixing power
is quasi-legislative, it need not be accompanied
by prior notice and hearing. Under the
Administrative Code (supra), the distinction
seems to have been disregarded, since the
provision did not qualify the character of the
rate-fixing, and now requires prior notice (via
publication) before the hearing.
Can the power to fix rates be delegated to a
common carrier or other public service?
NO.
The latter may propose new rates, but these
will not be effective without the approval of the
administrative agency [KMU v. Garcia, G.R.
No. 115381 (1994)].
What are considered in the fixing of rates?
1. The present valuation of all the property of a
public utility, and
2. The fixed assets.
The property is deemed taken and condemned
by the public at the time of filing the petition,
and the rate should go up and down with the
physical valuation of the property. It should not
be confiscatory as to be oppressive to the
business owner, but should also be just and
reasonable so that it is fair to the public.
[Ynchausti v. Public Utility Commissioner, G.R.
No. L-17665 (1922)].
The charter of Manila International Airport
Authority (MIAA), as amended, directly vests
the power to determine revisions of fees,
charges and rates in the “ministry head” and
even requires approval of the cabinet. The
ministry head who has the power to determine
the revision of fees, charges and rates of the

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MIAA is now the DOTC Secretary. As an
attached agency of the DOTC, the MIAA is
governed by the Administrative Code of 1987
which requires notice and public hearing in the
fixing of rates [MIAA v. Airspan Corp., G.R. No.
157581 (2004)].
D. JUDICIAL REVIEW
General Rule
Judicial review may be granted or withheld as
Congress chooses, except when the
Constitution requires or allows it. Thus, a law
may provide that the decision of an
administrative agency shall be final and not
reviewable and it would still not offend due
process.
However, Sec. 1, par. 2, Art. VIII of the
Constitution, provides that judicial review of
administrative decisions cannot be denied the
courts when there is an allegation of grave
abuse of discretion [NACHURA].
It is generally understood that as to
administrative agencies exercising quasi-
judicial or legislative power, there is an
underlying power in the courts to scrutinize the
acts of such agencies on questions of law and
jurisdiction even though no right of review is
given by statute. xxx Judicial review is proper
in case of lack of jurisdiction, grave abuse of
discretion, error of law, fraud or collusion [San
Miguel Corp. v. NLRC, G.R. No. L-39195
(1975), citing Timbancaya v. Vicente, G.R. No.
L-19100 (1963)].
Rationale
The purpose of judicial review is to keep the
administrative agency within its jurisdiction and
protect the substantial rights of the parties;
It is that part of the checks and balances which
restricts the separation of powers and forestalls
arbitrary and unjust adjudications [St. Martin’s
Funeral Homes v. NLRC, G.R. No. 130866
(1998)].
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N.B. Rule 43 of the Rules of Court provides that
the Court of Appeals shall have appellate
jurisdiction over awards, judgments, final
orders or resolutions of or authorized by any
quasi-judicial agency in the exercise of its
quasi-judicial functions.
EXTENT OF JUDICIAL REVIEW
1. Questions of Law
a. Constitutionality of the law creating the
agency and granting it powers
b. Validity of agency action if these
transcend limits established by law
c. Correctness of interpretation or
application of the law
2. Questions of Fact
Judicial Review. –
Review shall be made on the basis of the
record taken as a whole. The findings of fact of
the agency when supported by substantial
evidence shall be final except when specifically
provided otherwise by law [Sec. 25, Chapter 4,
Book VII, Admin. Code].
General Rule: Findings of fact by the agency
are final when supported by substantial
evidence.
Exceptions
a. Specifically allowed otherwise by law
b. Fraud, imposition, mistake, or other error of
judgment in evaluating the evidence [Ortua
v. Singson Encarnacion, G.R. No. L-39919
(1934)]
c. Error in appreciation of pleadings and
interpretation of the documentary evidence
presented by the parties [Tan Tiong Teck
v. SEC, G.R. No. L-46471 (1940)]
d. Decision of the agency was rendered by an
almost divided agency and that the division
was precisely on the facts as borne out by
the evidence [Gonzales v. Victory Labor
Union, G.R. No. L-2256 (1969)]
3. Question of Discretion
General Rule: Administrative and
discretionary functions may not be interfered
with by the courts.

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Rationale: Courts have none of the technical
and economic or financial competence which
specialized administrative agencies have at
their disposal, and in particular must be wary of
intervening in matters which are at their core
technical and economic in nature [PLDT v.
National Telecommunications Commission,
G.R. No. 94374 (1995)].
Exceptions
1. When there is a grave abuse of discretion;
2. Where the power is exercised in an
arbitrary or despotic manner [Banco
Filipino Savings and Mortgage Bank v.
Monetary Board, G.R. No. 70054 (1991)];
3. If without reasonable support in the
evidence;
4. Rendered against law, or
5. Issued without jurisdiction [Laguna
Tayabas Bus Company v. Public Service
Commission, G.R. No. 10903 (1957)].
1. Doctrine of Primary
Administrative Jurisdiction
Courts cannot or will not determine a
controversy involving a question which is within
the jurisdiction of the administrative tribunal
prior to the resolution of that question by the
administrative tribunal, where the question
demands the exercise of sound administrative
discretion requiring the special knowledge,
experience and services of the administrative
tribunal to determine technical and intricate
matters of fact [Guy v. Ignacio, G.R. No.
167824 (2010)].
It can only occur where there is a concurrence
of jurisdiction between the court and the
administrative agency.
It is a question of the court yielding to the
agency because of the latter’s expertise, and
does not amount to ouster of the court [Texas
& Pacific Railway v. Abilene, 204 U.S. 426
(1907)].
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It may occur that the Court has jurisdiction to
take cognizance of a particular case, which
means that the matter involved is also judicial
in character. However, if the determination of
the case requires the expertise, specialized
skills and knowledge of the proper
administrative bodies because technical
matters or intricate questions of facts are
involved, then relief must first be obtained in an
administrative proceeding before a remedy will
be supplied by the courts even though the
matter is within the proper jurisdiction of a court
[Industrial Enterprises, Inc. v. CA, G.R. No.
88550 (1990)].
Administrative agencies are given a wide
latitude in the evaluation of evidence and in the
exercise of their adjudicative functions, latitude
which includes the authority to take judicial
notice of facts within their special competence
[Quiambao v. CA, G.R. No. 128305 (2005)].
The doctrine of primary jurisdiction applies
where a claim is originally cognizable in the
courts, and comes into play whenever
enforcement of the claim requires the
resolution of issues which, under a regulatory
scheme, have been placed within the special
competence of an administrative body; in such
case, the judicial process is suspended
pending referral of such issues to the
administrative body for its view [Industrial
Enterprises, Inc. v. CA, supra].
The doctrine of primary jurisdiction does not
warrant a court to arrogate unto itself authority
to resolve a controversy the jurisdiction over
which is initially lodged with an administrative
body of special competence [Vidad v. RTC,
G.R. No. 98084 (1993)].
Rationale
In this era of clogged docket courts, the need
for specialized administrative boards with the
special knowledge and capability to hear and
determine promptly disputes on technical
matters has become well-nigh indispensable.
Between the power lodged in an administrative
body and a court, the unmistakable trend has
been to refer it to the former [GMA v. ABS CBN,
G.R. No. 160703 (2005)].

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Requisites
1. An administrative body and a regular court
have concurrent and original jurisdiction
2. Question to be resolved requires expertise
of administrative agency
3. Legislative intent on the matter is to have
uniformity in rulings
4. Administrative agency is performing a
quasi-judicial or adjudicatory function (not
rulemaking or quasi-legislative function
[Smart v. NTC, G.R. No. 151908 (2003)]
Effect
While no prejudicial question strictly arises
where one is a civil case and the other is an
administrative proceeding, in the interest of
good order, it behooves the court to suspend
its action on the cases before it pending the
final outcome of the administrative proceedings
[Vidad v. RTC, supra].
Does not per se have the effect of restraining
or preventing the courts from the exercise of
their lawfully conferred jurisdiction. A contrary
rule would unduly expand the doctrine of
primary jurisdiction [Conrad and Co., Inc. v.
CA, G.R. No. 115115 (1995)].
All the proceedings of the court in violation of
the doctrine and all orders and decisions
rendered thereby are null and void [Province of
Aklan v. Jody King Construction and
Development Corp., G.R. No. 197592 (2013)].
Note: The court may raise the issue of primary
jurisdiction sua sponte and its invocation
cannot be waived by the failure of the parties to
argue it as the doctrine exists for the proper
distribution of power between judicial and
administrative bodies and not for the
convenience of the parties [Euro-Med
Laboratories Phil., Inc. v. Province of
Batangas, G.R. No. 148106 (2006)].
When the Doctrine is not Applicable
1. When the issue is not within the
competence of the administrative body to
act on (e.g. pure questions of law, over
which the expertise is with the courts);
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a. Regular courts have jurisdiction in
cases where what is assailed is the
validity or constitutionality of a rule
or regulation issued by the
administrative agency in the
performance of its quasi-legislative
function [Smart v. NTC, supra]
2. When the issue involved is clearly a factual
question that does not require specialized
skills and knowledge for resolution to justify
the exercise of primary jurisdiction.
2. Doctrine of Exhaustion of
Administrative Remedies
General Rule: Where the law has delineated
the procedure by which administrative appeal
or remedy could be effected, the same should
be followed before recourse to judicial action
can be initiated [Pascual v. Provincial Board,
G.R. No. L-11959 (1959)].
One of the reasons for exhaustion of
administrative remedies is our well-entrenched
doctrine on separation of powers, which
enjoins upon the Judiciary a policy of non-
interference with matters falling primarily (albeit
not exclusively) within the competence of other
departments. Courts, for reasons of law, comity
and convenience, should not entertain suits
unless the available administrative remedies
have first been resorted to and the proper
authorities have been given an appropriate
opportunity to act and correct their alleged
errors, if any, committed in the administrative
forum [Antolin v. Domondon, G.R. No. 165036
(2010)].
Requisites
a. The administrative agency is performing a
quasi-judicial function;
b. Judicial review is available; and
c. The court acts in its appellate jurisdiction.
Rationale
a. Legal reason: The law prescribes a
procedure.
b. Practical reason: To ensure that disputes
involving technical and specialized matters

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are first resolved by the body which has
the expertise and competence to resolve
them, and, in most cases, to give the
agency a chance to correct its own errors
and prevent unnecessary and premature
resort to the courts. It also entails lesser
expenses and provides for a speedier
disposition of controversies.
c. Reasons of comity: Expedience,
courtesy, convenience.
d. Separation of powers: enjoins upon the
Judiciary a policy of non-interference with
matters falling primarily (albeit not
exclusively) within the competence of
other departments.
a. Exceptions to the Doctrine
The exceptions may be condensed into three:
1. Grave abuse of discretion;
2. Pure question of law; or
3. No other plain, speedy, and adequate
remedy.
This list has been expanded by case law to
include:
1. Purely legal questions [Castro v. Secretary,
G.R. No. 132174 (2001)]
2. There is grave doubt as to the availability
of the administrative remedy [Pascual v.
Provincial Board, supra]
3. Steps to be taken are merely matters of
form. [Pascual v. Provincial Board, supra]
4. Administrative remedy not exclusive but
merely cumulative or concurrent to a
judicial remedy. [Pascual v. Provincial
Board, supra]
5. There are circumstances indicating
urgency of judicial intervention. [DAR v.
Apex Investment, G.R. No. 149422 (2003)]
6. Rule does not provide plain, speedy,
adequate remedy. [Information
Technology Foundation v. COMELEC,
G.R. No. 159139 (2004)]
7. Resort to exhaustion will only be
oppressive and patently unreasonable.
[Cipriano v. Marcelino, G.R. No. L-27793
(1972)]
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8. Where the administrative remedy is only
permissive or voluntary and not a
prerequisite to the institution of judicial
proceedings. [Corpus v. Cuaderno, Sr.,
G.R. No. L-17860 (1962)]
9. Application of the doctrine will only cause
great and irreparable damage which
cannot be prevented except by taking the
appropriate court action. [De Lara, Jr. v.
Cloribel, G.R. No. L-21653 (1965)]
10. When it involves the rule-making or quasi-
legislative functions of an administrative
agency. [Smart v. NTC, supra]
11. Administrative agency is in estoppel.
[Republic v. Sandiganbayan, supra]
12. Doctrine of qualified political agency
(respondent is a department secretary
whose acts as an alter ego of the President
bears the implied and assumed approval
of the latter). [Demaisip v. CA, G.R. No. L-
13000 (1959); Pagara v. CA, G.R. No.
96882 (1996)]
13. Subject of controversy is private land in
land case proceedings. [Soto v. Jareno,
G.R. No. L-38962 (1986)]
14. Violation of due process [Pagara v. CA,
supra]
15. Where there is unreasonable delay or
official inaction that will irretrievably
prejudice the complainant. [Republic v.
Sandiganbayan, supra]
16. Administrative action is patently illegal
amounting to lack or excess of jurisdiction.
[DAR v. Apex Investment, supra]
17. Resort to administrative remedy will
amount to a nullification of a claim. [Paat v.
CA, G.R. No. 111107 (1997); Alzate v.
Aldana, G.R. No. L- 14407 (1960)]
18. No administrative review provided for by
law. [Estrada v. CA, G.R. No. 137862
(2004)]
19. Issue of non-exhaustion of administrative
remedies has been rendered moot.
[included in the enumeration in Estrada v.
CA, supra]
20. When the claim involved is small.
21. When strong public interest is involved.
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22. In quo warranto proceedings [included in c. When Appeals to the Office of the
the enumeration in Lopez v. City of Manila, President are Required
G.R. No. 127139 (1999)]
23. Law expressly provides for a different A decision or order issued by a department or
review procedure. [Samahang agency need not be appealed to the Office of
Magbubukid v. CA, G.R. No. 103953 the President when there is a special law that
(1999)]; and provides for a different mode of appeal. If the
24. When there is no express legal provision law does not provide for a specific relief,
requiring such administrative step as a appeals may be taken to the Office of the
President [Moran v. Office of the President,
condition precedent to taking action in
G.R. No. 192957 (2014)].
court. [CSC v. DBM, G.R. No. 158791
(2005)]
When OP is not exercising quasi-judicial
functions
b. Effect of Failure to Exhaust When the OP itself represents a party, i.e., the
Administrative Remedies Republic, to a contract, it merely exercises a
contractual right by cancelling/revoking said
A direct action in court without prior exhaustion agreement—a purely administrative action
of administrative remedies, when required, is which should not be considered quasi-judicial
premature, warranting its dismissal on a motion in nature. Thus, absent the OP's proper
to dismiss grounded on lack of cause of action. exercise of a quasi-judicial function, the CA has
no appellate jurisdiction over the case [Narra
Before a party is allowed to seek the Nickel Mining and Development Corp. v.
intervention of the court, it is a pre-condition Redmont Consolidated Mines Corp., G.R. No.
that he should have availed of all the means of 202877 (2015)].
administrative processes afforded him. Hence,
if a remedy within the administrative machinery Doctrine of Doctrine of
can still be resorted to by giving the Exhaustion Primary
administrative officer concerned every of Administrati
opportunity to decide on a matter that comes Administrati ve
within his jurisdiction then such remedy should ve Remedies Jurisdiction
be exhausted first before the court's judicial Jurisdictio Appellate Concurrent
power can be sought. The premature n of Court Original
invocation of court's intervention is fatal to Jurisdiction
one's cause of action. Accordingly, absent any with Admin
finding of waiver or estoppel the case is Body
susceptible of dismissal for lack of cause of Ground Exhaustion of The court
action. [Rosita Montanez v. Provincial Agrarian for Non- Administrativ yields to the
Reform Adjudicator et. al., G.R. No. 183142 exercise e remedy is a jurisdiction of
(2009)]. Of condition the
Jurisdictio precedent. administrative
Failure to observe the doctrine of exhaustion of n agency
administrative remedies does not affect the because of its
Court’s jurisdiction. specialized
knowledge or
If not invoked at the proper time, this ground is expertise.
deemed waived and the court can take Court Dismiss Suspend
cognizance of the case and try it [Republic v. Action Judicial
Sandiganbayan, G.R. Nos. 112708-09 (1996)]. Action

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Waivabilit Waivable Cannot be

y waived

3. Doctrine of Finality of
Administrative Action
Courts will not interfere with the act of an
administrative agency before it has reached
finality or it has been completed.

Once a decision or order becomes final and

executory, it thereby becomes immutable and
unalterable and any amendment or alteration
which substantially affects a final and
executory judgment is null and void for lack of
jurisdiction, including the entire proceedings
held for that purpose [Gagui v. Dejero, G.R. No.
196036 (2013)].

Rationale: Without a final order or decision,

the power has not been fully and finally
exercised.

Exceptions to the doctrine of finality [Peña

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

After a judgment has become final, if there is

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

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A. SUFFRAGE
Right to Suffrage
Definition: Suffrage is the right to vote in the
election of officers chosen by the people and in
the determination of questions submitted to the
people.
Scope of Suffrage
Election
The means by which the people choose their
officials for a definite and fixed period and to
whom they entrust for the time being the
exercise of the powers of government.
Types of elections
1. Regular - one provided by law for the
election of officers either nationwide or in
certain subdivisions thereof, after the
expiration of the full term of the former
officers.
The SK election is not a regular election
(whether national or local) because it is
participated in by the youth with ages
ranging from 15 to 21, many of whom are
not qualified to vote in a regular election.
[Paras v. COMELEC, G.R. No. 123169
(1996)]
2. Special - one held to fill a vacancy before
the expiration of the term for which the
incumbent was elected.
Plebiscite [Sec. 3(e), R.A. 6735] - the electoral
process by which an initiative on the
Constitution is approved or rejected by the
people.
Initiative [Sec. 3(a), R.A. 6735] - the power of
the people to propose amendments to the
Constitution or to propose and enact
legislations through an election called for the
purpose. There are three (3) systems of
initiative, namely:
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i. Initiative on the Constitution
which refers to a petition
proposing amendments to the
Constitution;
Amendments to this Constitution may
likewise be directly proposed by the
people through initiative upon a petition
of at least twelve per centum of the total
number of registered voters, of which
every legislative district must be
represented by at least three per
centum of the registered voters therein.
No amendment under this section shall
be authorized within five years
following the ratification of this
Constitution nor oftener than once
every five years thereafter.
The Congress shall provide for the
implementation of the exercise of this
right. [Sec. 2, Art. XVII, 1987
Constitution]
The constitutional provision on
people’s initiative to amend the
Constitution can only be implemented
by law to be passed by Congress. No
such law has been passed. R.A. No.
6735 is incomplete, inadequate, or
wanting in essential terms and
conditions insofar as initiative on
amendments to the Constitution is
concerned. [Defensor-Santiago v.
COMELEC, G.R. No. 127325 (1997)]
Section 2 of Art. XVII of the Constitution
is limited to proposals to amend - not to
revise - the Constitution. [Lambino v.
COMELEC, GR No. 174153 (2006)]
ii. Initiative on statutes which
refers to a petition proposing to
enact a national legislation; and
iii. Initiative on local legislation
which refers to a petition
proposing to enact a regional,
provincial, city, municipal, or

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barangay law, resolution or
ordinance.
Referendum [Sec. 3(c), R.A. 6735]
The power of the electorate to approve or reject
a legislation through an election called for the
purpose. It may be of two classes, namely:
i. Referendum on statutes which refers to
a petition to approve or reject an act or
law, or part thereof, passed by
Congress; and
ii. Referendum on local law which refers
to a petition to approve or reject a law,
resolution or ordinance enacted by
regional assemblies and local
legislative bodies.
Recall
The termination of official relationship of a local
elective official for loss of confidence prior to
the expiration of his term through the will of the
electorate [Sec. 69, LGC]
1. Qualification and
disqualification of voters
CNAR
Sec. 1, Art. V, 1987 Constitution. Suffrage may be
exercised by all citizens of the Philippines, not
otherwise disqualified by law, who are at least
eighteen years of age, and who shall have resided
in the Philippines for at least one year and in the
place wherein they propose to vote, for at least six
months immediately preceding the election. No
literacy, property, or other substantive requirement
shall be imposed on the exercise of suffrage.
Congress is prohibited by the Constitution to
impose additional substantive requirements for
voting like education, sex, and taxpaying
ability, but Congress may add procedural
requirements by promulgation of the necessary
laws.
Congress may impose limitations on the
statutory right of suffrage. The provision under
Sec. 1, Art. V, Const. [that no literacy, property,
or other substantive requirement shall be
imposed on the exercise of suffrage] is merely
“geared towards the elimination of irrelevant
standards that are purely based on socio-
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economic considerations that have no bearing
on the right of a citizen to intelligently cast his
vote and to further the public good” [Kabataan
Partylist v. COMELEC, G.R. No. 221318
(2015)].
The Legislature may prescribe only general
qualifications that are relevant to the office for
which they are prescribed. [CRUZ] Property
qualifications may not be imposed. [Maquera v.
Borra, G.R. No. L-24761 (1965)]
Biometrics validation requirement is not an
unconstitutional substantive requirement:
Even if failure to comply with the biometrics
validation requirement will result in the
deactivation of the voter’s registration [under
R.A. 10367 or the Biometrics Law of 2013], it is
not unconstitutional. The requirement is a
“mere aspect of the registration procedure, of
which the State has the right to reasonably
regulate” [Kabataan Partylist v. COMELEC,
G.R. No. 221318 (2015)].
Qualifications in General
1. Filipino citizen by birth or naturalization
No presumption can be indulged in favor of
the claimant of Philippine citizenship, and
any doubt regarding citizenship must be
resolved in favor of the State. [Go v.
Ramos, GR No. 167569 (2009)]
2. At least 18 years of age at the time of the
election
Any person, who, on the day of registration
may not have reached the required age or
period of residence but, who, on the day of
the election shall possess such
qualifications, may register as a voter.
[Sec. 9, R.A. 8189]
3. Resident of the Philippines for at least
one (1) year
4. Resident of the place wherein they
propose to vote for at least six (6)

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months immediately preceding the
election
Any person who temporarily resides in another
city, municipality or country solely by any of the
following reasons shall not be deemed to have
lost his original residence:
i. Occupation, profession, employment in
private or public service
ii. Educational activities
iii. Work in the military or naval
reservations within the Philippines
iv. Service in the Armed Forces of the
Philippines or the National Police
Forces
v. Confinement or detention in
government institutions in accordance
with law [Sec. 9, R.A. 8189]
It is not necessary that a person should have a
house in order to establish his residence or
domicile in a municipality. It is enough that he
should live there, provided that his stay is
accompanied by his intention to reside therein
permanently. [Romualdez-Marcos v.
COMELEC, G.R. No. 119976 (1995)]
In election cases, the Court treats domicile and
residence as synonymous terms. Both import
not only an intention to reside in a fixed place
but also personal presence in that place,
coupled with conduct indicative of such
intention [Pundaodaya v. COMELEC, G.R. No.
179313 (2009)].
There is nothing wrong in an individual
changing residences so he could run for an
elective post, for as long as he is able to prove
that he has effected a change of residence for
the period required by law [Aquino v.
COMELEC, G.R. No. 120265 (1995)].
A candidate does not automatically regain his
residence after the retention or reacquisition of
Philippine citizenship under RA No. 9225. He
must still establish the fact of residence
[Caballero v. COMELEC, G.R. No. 209835
(2015)].
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Not otherwise disqualified by law
Disqualifications in General
The following shall be disqualified from
registering [Sec. 11, R.A. 8189]:
1. Any person who has been sentenced by
final judgment to suffer imprisonment
of not less than one (1) year, such
disability not having been removed by
plenary pardon or amnesty.
N.B. The right to vote shall be
automatically reacquired upon
expiration of five (5) years after service
of sentence.
2. Any person who has been adjudged by
final judgment by a competent court or
tribunal of having committed any crime:
a. involving disloyalty to the duly
constituted government such as
rebellion, sedition, violation of the
firearms laws; or
b. against national security
Exception: Unless restored to his full
civil and political rights in accordance
with law.
N.B. The right to vote shall be
automatically reacquired upon
expiration of five (5) years after service
of sentence.
3. Insane or incompetent persons
declared as such by competent
authority
Exception: Unless subsequently declared
by proper authority that such person is no
longer insane or incompetent.

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2. Registration and deactivation
of voters
a. Registration [of voters]
The act of accomplishing and filing of a sworn
application for registration by a qualified voter
before the election officer of the city or
municipality wherein he resides and including
the same in the book of registered voters upon
approval by the Election Registration Board
[Sec. 3(a), R.A. 8189].
It is essential to the exercise of the right of
suffrage, not the possession thereof. It is part
of the right to vote and an indispensable
element in the election process.
Condition Precedent
Registration does not confer the right to vote
but it is a condition precedent to the exercise of
the right [Yra v. Abano, G.R. No. L-30187
(1928)].
Registered voter
In order that a qualified elector may vote in any
election, plebiscite or referendum, he must be
registered in the Permanent List of Voters for
the city or municipality in which he resides
[Sec. 115, B.P. Blg. 881].
Rationale for registration requirements,
qualifications, and disqualifications: The right
to vote is not a natural right but is a right
created by law. Suffrage is a privilege granted
by the State to such persons or classes as are
most likely to exercise it for the public good
[People v. Corral, G.R. No. L-42300 (1936)].
“Proceeding from the significance of
registration as a necessary requisite to the right
to vote, the State undoubtedly,
in the exercise of its inherent police power, may
then enact laws to safeguard and regulate the
act of voter's registration for the ultimate
purpose of conducting honest, orderly and
peaceful election“ [Akbayan-Youth v.
COMELEC, G.R. No. 147066 (2001)].
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Qualification must be distinguished from
registration
Registration regulates the exercise of the right
of suffrage and is not a qualification for such
right. Registration is only one step towards
voting, and it is not one of the elements that
makes a citizen a qualified voter. Thus,
although one is deemed to be a “qualified
elector,” he must nonetheless still comply with
the registration procedure in order to vote
[Kabataan Party List v. COMELEC, G.R. No.
221318 (2015)].
Election Registration Board (ERB)
The body constituted to act on all applications
for registration. [Sec. 3(g), R.A. 8189]. There
shall be in each city and municipality as many
ERBs as there are election officers therein
[Sec. 15, R.A. 8189].
Composition of the ERB [Sec. 15, R.A. 8189]:
a. Election Officer, who serves as the
Chairman. If disqualified, COMELEC
shall designate an acting Election
Officer.
b. Public school official most senior in
rank
c. Local civil registrar, or in his absence,
the city or municipal treasurer. If
neither are available, any other
appointive civil service official from the
same locality as designated by the
COMELEC.
No member of the Board shall be related to
each other or to any incumbent city or
municipal elective official within the fourth civil
degree of consanguinity or affinity. If in
succeeding elections, any of the newly elected
city or municipal officials is related to a member
of the board within the fourth civil degree of
consanguinity or affinity, such member is
automatically disqualified to preserve the
integrity of the Election Registration Board
[Sec. 15, R.A. 8189].

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Board of Election Inspectors
The body which conducts the election in the
polling place of the precinct usually composed
of three (3) public school teachers appointed
by the Commission. [Sec. 3(o), R.A. 8189]
System of Continuing Registration of
Voters
The personal filing of application of registration
of voters shall be conducted daily in the office
of the Election Officer during regular office
hours. [Sec. 8, R.A. 8189]
Exception [i.e. when registration is prohibited]:
Within 120 days before a regular election and
90 days before a special election. COMELEC
Resolution 8585, which set the deadline for
voter registration to Oct. 31, 2009 (election was
May 10, 2010, or more than 120 days), was
declared null and void because Sec. 8 of RA
8189 has determined that the period of 120
days before a regular election and 90 days
before a special election is enough time for the
COMELEC to make all the necessary
preparations with respect to the coming
elections. COMELEC is granted the power to
fix other periods and dates for pre-election
activities only if the same cannot be reasonably
held within the period provided by law. There is
no ground to hold that the mandate of
continuing voter registration cannot be
reasonably held within the period provided by
Sec. 8 of R.A. 8189 [Palatino v. COMELEC,
G.R. No. 189868 (2009)].
Validation
The process of taking the biometrics of
registered voters whose biometrics have not
yet been captured [Sec. 2(d), R.A. 10367, An
Act Providing for Mandatory Biometrics Voter
Registration].
Voters who fail to submit for validation on or
before the last day of filing of application for
registration for purposes of the May 2016
elections shall be deactivated [Sec. 7, R.A.
10367]. Those deactivated may apply for
reactivation after the May 2016 elections
following the procedure provided in Sec. 28 of
RA 8189 [Sec. 8, R.A. 10367].
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Manner of registration for illiterate or
disabled voters [Sec. 14, R.A. 8189]
Illiterate persons: With the assistance of the
Election Officer or any member of an
accredited citizen’s arms.
Physically disabled persons: Application for
registration may be prepared by:
a. Any relative within the 4th civil degree
of consanguinity or affinity;
b. The Election Officer; or
c. Any member of an accredited citizen’s
arm
N.B. Definition of disabled voter under the
AES: A person with impaired capacity to use
the Automated Election System (“AES”) [Sec.
2(11), R.A. 9369].
Book of Voters
The compilation of all registration records in a
precinct [Sec. 3(c), R.A. 8189]
List of Voters
An enumeration of names of registered voters
in a precinct duly certified by the Election
Registration Board for use in the election [Sec.
3(c), R.A. 8189]
The ERB shall prepare and post a certified list
of voters 90 days before a regular election and
60 days before a special election [Sec. 30, R.A.
8189].
Copies of the certified list along with a certified
list of deactivated voters categorized by
precinct per barangay, within the same period
shall be posted in the office of the Election
Officer and in the bulletin board of each
city/municipal hall. Upon payment of the fees
as fixed by the Commission, the candidates
and heads shall also be furnished copies
thereof [Sec. 30, R.A. 8189].
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Instances When the List of Voters will be

Ground for Specific Mode of
Altered: DECANT Deactivation Reactivation
1. Deactivation/Reactivation [Sec. 27-28,
R.A. 8189] [Sec. 27, R.A. 8189]
2. Exclusion/Inclusion [Sec. 34-35, R.A.
8189] Any person who has Right to vote is
been sentenced by final automatically reacquired
3. Cancellation of Registration [Sec. 29, R.A. judgment to suffer upon expiration of five
8189] imprisonment for not (5) years after service of
4. Annulment of Book of Voters [Sec. 39, R.A. less than one (1) year sentence as certified by
8189] the clerks of courts of the
Except: If such disability Municipal/Municipal
5. New voters [Sec. 10, R.A. 8189] is removed by plenary Circuit/
6. Transfer of Residence [Sec. 12-13, R.A. pardon or amnesty Metropolitan/Regional
8189] Trial Courts and the
Sandiganbayan
b. Deactivation Any person who has Right to vote is
Process of deactivating the registration of been adjudged by final automatically reacquired
certain persons, removing their registration judgment by a upon expiration of five
records from the corresponding precinct book competent court or (5) years after service of
of voters and placing the same in the inactive tribunal of having sentence
caused/committed:
file, properly marked “deactivated” and dated in
(i) any crime involving
indelible ink. disloyalty to the duly
constituted government
Reactivation such as rebellion,
Any voter whose registration has been sedition, violation of the
deactivated may file with the Election Officer a anti-subversion and
firearms laws, or
sworn application for reactivation of his
(ii) any crime against
registration in the form of an affidavit stating national security
that the grounds for the deactivation no longer
exist. [Sec. 28, R.A. 8189] Except: If full civil and
political rights is restored
The application for reactivation may be filed in accordance with law.
any time but not later than one hundred twenty
Any person declared by General mode of
(120) days before a regular election and ninety competent authority to reactivation
(90) days before a special election. be insane or
incompetent
The Election Officer shall submit said
application to the Election Registration Board Except: If such
disqualification has been
for appropriate action.
subsequently removed
by a declaration of a
In case the application is approved, the proper authority that
Election Officer shall retrieve the registration such person is no longer
record from the inactive file and include the insane or incompetent
same in the corresponding precinct book of
Any person who did not
voters. Local heads or representatives of
vote in the two (2)
political parties shall be properly notified on successive preceding
approved applications. regular elections as
shown by their voting
records

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Note: For this purpose,
regular elections do not
include the
Sangguniang Kabataan
(SK) elections
Any person whose
registration has been
ordered excluded by the
Court
Any person who has lost
his Filipino citizenship
Cancellation of Registration
The Board shall cancel the registration records
of those who have died as certified by the Local
Civil Registrar. [Sec. 29, R.A. 8189]
The Local Civil Registrar shall:
i. Submit each month a certified list of
persons who died during the previous
month to the Election Officer of the
place where the deceased are
registered or in the absence of
information thereof, to the Election
Officer of the city or municipality of the
deceased's residence as appearing in
his death certificate.
ii. Furnish a copy of this list to the national
central file and the proper provincial
file.
The Election Officer shall:
i. Post in the bulletin board of his office a
list of those persons who died whose
registrations were cancelled.
ii. Furnish copies thereof to the local
heads of the political parties, the
national central file, and the provincial
file.
Annulment of Book of Voters
The COMELEC shall, upon verified petition of
any voter or election officer or duly registered
political party, and after notice and hearing,
annul any book of voters that is:
• Not prepared in accordance with R.A. 8189
or the Voters’ Registration Act of 1996
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• Prepared through fraud, bribery, forgery,
impersonation, intimidation, force, or any
similar irregularity; or
• Contains data that are statistically
improbable
No order, ruling or decision annulling a book of
voters shall be executed within 90 days before
an election [Sec. 39, R.A. 8189]
New Voters
A qualified voter shall be registered in the
permanent list of voters in a precinct of the city
or municipality wherein he resides to be able to
vote in any election. [Sec. 10, R.A. 8189]
Transfer of Residence
The precinct assignment of a voter in the
permanent list of voters shall not be
changed/altered/transferred to another
precinct without the express written consent of
the voter. Provided, however, that the voter
shall not unreasonably withhold such consent.
Any violation thereof shall constitute an
election offense [Sec. 4, R.A. 8189].
In case of change of residence to another city
or municipality, the registered voter may apply
with the Election Officer of his new residence
for the transfer of his registration records. The
application for transfer of registration shall be
subject to the requirements of notice and
hearing and the approval of the Election
Registration Board. Upon approval, the
Election Officer of the former residence of the
voter shall transmit by registered mail the
voter's registration record to the Election
Officer of the voter's new residence [Sec. 12,
R.A. 8189].
In case of change of address in the same
municipality or city, the voter shall immediately
notify the Election Officer in writing. If the
change of address involves a change in
precinct, the Board shall transfer his
registration record to the precinct book of
voters of his new precinct and notify the voter
of his new precinct [Sec. 13, R.A. 8189].

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Challenges to Right to Register
Oppositions to contest a registrant's
application for inclusion in the voter's list [Sec.
13, R.A. 8189]
By: Any voter, candidate or representative of a
registered political party
Form:
i. In writing, stating the grounds therefor
ii. Under oath
iii. Attached to the application, together
with the proof of notice of hearing to the
challenger and the applicant
When filed: Not later than the second Monday
of the month in which the application is
scheduled to be heard or processed by the
Election Registration Board. Should the
second Monday of the month fall on a non-
working holiday, oppositions may be filed on
the next following working day.
The hearing on the challenge shall be heard on
the third Monday of the month and the decision
shall be rendered before the end of the month.
Election Period [Sec. 9, Art. IX-C, 1987
Constitution]
Shall commence 90 days before the day of the
election and shall end 30 days thereafter.
Exception: Special cases, when otherwise
fixed by the COMELEC.
Precinct
The basic unit of territory established by the
Commission for the purpose of voting [Sec.
3(j), R.A. 8189]
Polling place
The place where the Board of Election
Inspectors conducts its proceeding and where
the voters cast their votes [Sec. 3(l), R.A. 8189]
Voting center
The building or place where the polling place is
located [Sec. 3(m), R.A. 8189]
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3. Inclusion and exclusion
proceedings
a. Jurisdiction in Inclusion and Exclusion
Case [Sec. 33, R.A. 8189]
The Municipal and Metropolitan Trial Courts
shall have original and exclusive jurisdiction
over all cases of inclusion and exclusion of
voters in their respective cities or
municipalities.
Decisions of the Municipal or Metropolitan Trial
Courts may be appealed by the aggrieved
party to the Regional Trial Court within five (5)
days from receipt of notice thereof. Otherwise,
said decision shall become final and executory.
The regional trial court shall decide the appeal
within ten (10) days from the time it is received
and the decision shall immediately become
final and executory. No motion for
reconsideration shall be entertained.
The nature of the MTC’s jurisdiction is limited.
The jurisdiction of the MTC “over exclusion
cases is limited only to determining the right of
the voter to (a) remain in the list of voters or (b)
to declare that the challenged voter is not
qualified to vote in the precinct in which he is
registered, specifying the ground of the voters
disqualification.” Hence, the trial court has no
power to order the change or transfer of
registration from one place of residence to
another for it is the function of the ERB as
provided under Section 12 of R.A. No. 8189
[Domino v. COMELEC, G.R. No. 134015
(1999)].
Generally, no res judicata: A decision in an
exclusion or inclusion proceeding, even if final
and unappealable, does not acquire the nature
ofres judicata [Domino v. COMELEC, supra].
Exception: The decision is res judicata as to
the right to remain in the list of voters or for
being excluded therefrom for the particular
election in relation to which the proceedings
had been held [Id.].

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Petition for
Inclusion of Voters
in the List
[Sec. 34, R.A. 8189]
When to File
Any time except one
hundred five (105) days
prior to a regular election
or seventy-five (75) days
prior to a special election
Who may File
Any person whose
application for
registration has been
disapproved by the
Board or whose name
has been stricken out
from the list
Form
A petition to include his
name in the permanent
list of voters in his
precinct, supported by a
certificate of disapproval
of his application and
proof of service of notice
of his petition upon the
Board.
Period to Decide
Within fifteen (15) days
after its filing
Procedure if Petition is Approved
The Board shall place
the application for
registration previously
disapproved in the
corresponding book of
voters and indicate in
the application for
registration the date of
the order of inclusion
and the court which
issued the same.
ELECTION LAW
Special Rules on Overseas Absentee
Petition for
Voters
Exclusion of
Voters in the List
[Sec. 35, R.A. 8189]
Any time except one
hundred (100) days prior
to a regular election or
sixty-five (65) days
before a special election
Any registered voters,
representative of a
political party or the
Election Officer
A sworn petition for the
exclusion of a voter from
the permanent list of
voters giving the name,
address and the precinct
of the challenged voter,
accompanied by proof of
notice to the Board and
to the challenged voter
Within ten (10) days
from its filing
The Board shall, upon
receipt of the final
decision, remove the
voter's registration
record from the
corresponding book of
voters, enter the order of
exclusion therein, and
thereafter place the
record in the inactive file.
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Petition for Petition for
Inclusion of Voters Exclusion of
in the List Voters in the List
[Sec. 9.3, R.A. 9189 [Sec. 9.1, R.A. 9189
as inserted by R.A. as inserted by R.A.
10590] 10590]
When to File
Within ten (10) days Not later than one
from receipt of notice hundred eighty (180)
denying the MR, with days before the start of
the proper MTC in the the overseas voting
City of Manila or where period with the proper
the overseas voter MTC in the City of
resides in the Manila or where the
Philippines, at the overseas voter resides
petitioner’s option in the Philippines, at the
Note: If the application petitioner’s option
has been disapproved,
the applicant or his
authorized
representative may file
a Motion for
Reconsideration (MR)
before the Resident
Election Registration
Board (RERB) within a
period of five (5) days
from receipt of the
notice of disapproval.
The MR shall be
decided within five (5)
days after its filing but
not later than one
hundred twenty (120)
days before the start of
the overseas voting
period. The resolution of
the Resident Election
Registration Board
(RERB) shall be
immediately executory,
unless reversed or set
aside by the Court.
Who may File
Applicant Any interested person
Period to Decide
Within 15 days after its Within 15 days after its
filing, but not later than filing, but not later than
120 days before the 120 days before the
start of the overseas start of the overseas
voting period. voting period.
Should the Court fail to Should the Court fail to
render a decision within render a decision within

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the prescribed period, the prescribed period,
the RERB ruling shall the ruling of the RERB
be considered affirmed. shall be considered
affirmed.
4. Local and overseas absentee
voting
General Rule: A person must be physically
present in the polling place whereof he is a
registered voter to be able to vote.
Exceptions
a. Members of the Board of Election
Inspectors [Sec. 169, Omnibus Election
Code]
b. Government officials and employees,
including members of AFP and PNP, who,
by reason of public functions and duties, is
not in his/her place of registration on
election day, may vote in the
city/municipality where he/she is assigned
on election day. Provided, that he/she is a
duly registered voter. [Sec. 1, EO 157 or
the Absentee Voting by Officers and
Employees of Government]
c. Members of media, media practitioners,
including the technical and support staff
who are duly registered voters and who, on
election day, may not be able to vote due
to the performance of their functions in
covering and reporting on the elections.
Provided, that they shall be allowed to vote
only for the positions of President, Vice
President, Senators, and Party-List
Representative. [Sec. 2, R.A. 10380 or An
Act Providing for Local Absentee Voting for
Media]
d. Citizen of the Philippines who is qualified to
register and vote under R.A. 10590, not
otherwise disqualified by law.
Overseas Voting
Process by which qualified citizens of the
Philippines abroad exercise their right to vote
[Sec. 3a, R.A. 9189, The Overseas Absentee
Voting Act, as amended by R.A. 10590, The
Overseas Voting Act of 2013].
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Overseas Voter
Citizen of the Philippines who is qualified to
register and vote under this Act, not otherwise
disqualified by law, who is abroad on the day of
elections [Sec. 3 (f), R.A. 9189, as amended by
Sec. 2, R.A. 10590].
An overseas voter is presumed to be abroad
until she/he applies for transfer of her/his
registration records or requests that her/his
name be cancelled from the NROV [Sec. 12,
R.A. 9189, as amended by Sec. 11, R.A.
10590].
Covered Elections
Elections for president, vice- president,
senators and party-list representatives, as well
as in all national referenda and plebiscites
[Sec. 4 , R.A. 9189, as amended by R.A.
10590]
Personal Overseas Registration and/or
Certification
Registration and/or certification as an overseas
voter shall be done in person at any post
abroad or at designated registration centers
outside the post or in the Philippines approved
by the Commission [Sec. 6, R.A. 9189, as
amended by R.A. 10590]
National Registry of Overseas Voters
(NROV)
The consolidated list prepared, approved and
maintained by the COMELEC, of overseas
voters whose applications for registration as
absentee voters, including those registered
voters under R.A. 8189 who have applied to be
certified as absentee voters, have been
approved by the Election Registered Board,
indicating the post where the overseas voter is
registered [Sec. 3 (e), R.A. 9189, as amended
by R.A. 10590]
Resident Election Registration Board
(RERB)
The in-house Election Registration Board in
every post and in the Office for Overseas
Voting, which processes, approves or
disapproves all applications for registration
and/or certification as overseas voters,
including the deactivation, reactivation and

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cancellation of registration records. [Sec. 3 (m),
R.A. 9189, as amended by R.A. 10590]
Qualifications
a. Filipino citizen;
b. Abroad on the day of the election;
c. At least 18 years of age on the day of
the election; and
d. Not otherwise disqualified by law [Sec.
3(f)-4, R.A. 9189, as amended by R.A.
10590]
Disqualifications
a. Lost their Filipino citizenship in
accordance with Philippine laws
b. Expressly renounced their Philippine
citizenship and who have pledged
allegiance to a foreign country [Sec. 5,
R.A. 9189, as amended by R.A. 10590]
Except: those who have reacquired or
retained their Philippine citizenship
under Republic Act No. 9225,
otherwise known as the 'Citizenship
Retention and Reacquisition Act of
2003′
c. Committed and are convicted in a final
judgment by a Philippine court or
tribunal of an offense punishable by
imprisonment of not less than one (1)
year
Except: if such disability has been
removed by plenary pardon or amnesty
Provided that: the right to vote shall be
automatically reacquired upon the
expiration of five (5) years after service
of sentence
d. Citizen previously declared insane or
incompetent by competent authority in
the Philippines or abroad, as verified by
the Philippine embassies, consulates
or Foreign Service establishments
concerned.
Except: if such competent authority
subsequently certifies that such person
is no longer insane or incompetent
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Note: R.A. 10590 removed the
disqualification under RA No. 9189 of
an immigrant or a permanent resident
who is recognized as such in the host
country unless he/she executes, upon
registration, an affidavit prepared for
the purpose by the Commission
declaring that:
a. He/she shall resume actual
physical permanent residence
in the Philippines not later than
three (3) years from approval of
his/her registration;and
b. He/she has not applied for
citizenship in another country.
5. Detainee voting
Detainee voting (either through the special
polling place inside jails or escorted voting)
may be availed of by any registered detainee
whose registration record is not transferred /
deactivated / cancelled / deleted. [Sec. 1, Rule
1, COMELEC Resolution No. 9371 (2012)]
Detainee
Any person:
a. confined in jail, formally charged for any
crime/s and awaiting/undergoing trial;
b. serving a sentence of imprisonment for
less than one (1) year; or
c. whose conviction of a crime involving
disloyalty to the duly constituted
government such as rebellion, sedition,
violation of the firearms laws or any crime
against national security or for any other
crime is on appeal. [Sec. 2, Rule 1,
COMELEC Resolution No. 9371 (2012)]
Detainees who shall be eighteen years of age
on the day of election and/or are committed
inside the detention centers for at least six (6)
months immediately preceding the election day
may be registered as a voter. [Sec. 3, Rule 2,
COMELEC Resolution No. 9371 (2012)]
Detainees who are already registered voters
may apply for transfer of registration records as

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warranted by the circumstances. [Sec. 3, Rule
2, COMELEC Resolution No. 9371 (2012)]
Special Polling Place Inside Jail
The polling places established in jails where
detainee voters cast their votes. [Sec. 2, Rule
1, COMELEC Resolution No. 9371 (2012)]
Escorted Voting
Voting mechanism (i) for detainee voters who
are residents/ registered voters of
municipalities/cities other than the town/city of
incarceration; and/or (ii) for detainee voters in
jail facilities where no special polling places are
established. [Sec. 2, Rule 1, COMELEC
Resolution No. 9371 (2012)]
Requirements for Escorted Voting
a. Detainee voters obtained court orders
allowing them to vote in the polling place
where they are registered.
b. It is logistically feasible on the part of the
jail/prison administration to escort the
detainee voter to the polling place where
he is registered.
c. Reasonable measures shall be undertaken
by the jail/prison administration to secure
the safety of detainee voters, prevent their
escape and ensure public safety. [Sec. 1,
Rule 7, COMELEC Resolution No. 9371
(2012)]
B. POLITICAL PARTIES
Sec. 6, Art. IX-C, 1987 Constitution. A free and
open party system shall be allowed to evolve
according to the free choice of the people.
Sec. 7, Art. IX-C, 1987 Constitution. No votes cast
in favor of a political party, organization, coalition
shall be valid, except for those registered under the
party-list system.
Purpose: To enable Filipino citizens belonging
to marginalized and underrepresented sectors,
organizations and parties, and who lack well-
defined political constituencies but who could
contribute to the formulation and enactment of
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appropriate legislation that will benefit the
nation as a whole, to become members of the
House of Representatives [Sec. 2, R.A. 7941,
Party-List System Act].
Definitions
Sec. 3, R.A. 7941.
Section 3. Definition of Terms.
(a) The party-list system is a mechanism of
proportional representation in the election of
representatives to the House of Representatives
from national, regional and sectoral parties or
organizations or coalitions thereof registered with
the Commission on Elections (COMELEC).
Component parties or organizations of a coalition
may participate independently provided the coalition
of which they form part does not participate in the
party-list system.
(b) A party means either a political party or a
sectoral party or a coalition of parties.
Sec. 3, COMELEC Resolution 9366
SEC. 3. Who may participate. – The following
organized groups may participate in the party-list
election:
a. Sectoral party – an organized group of citizens
whose principal advocacy pertains to the special
interests and concerns of the following sectors:
Labor; Peasant; Urban Poor; Indigenous Cultural
Communities; Elderly; Handicapped; Women;
Youth; Overseas Workers; Fisherfolk; Veterans;
and Professionals;
The enumeration of marginalized and under-
represented sectors is not exclusive. The crucial
element is not whether a sector is specifically
enumerated, but whether a particular organization
complies with the requirements of the Constitution
and RA 7941 [Ang Ladlad LGBT Party v.
COMELEC, G.R. No. 190582 (2010)].
Sectoral parties or organizations may either be
“marginalized and underrepresented” or “lacking in
well-defined political constituencies.” It is enough
that their principal advocacy pertains to the special
interest and concerns of their sector. [Atong
Paglaum v COMELEC. G.R. No. 2037066 (2013)]
b. Sectoral organization – a group of qualified
voters bound together by similar physical attributes
or characteristics, or by employment, interests or
concerns;
c. Political Party – an organized group of qualified
voters pursuing the same ideology, political ideas

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and principles for the general conduct of the
government;
It is a national party when its constituency is spread
over the geographical territory of at least a majority
of the regions.
It is a regional party when its constituency is spread
over the geographical territory of at least majority of
the cities and provinces comprising the region.
d. Coalition – an aggrupation of duly-registered
national, regional. Sectoral parties or organizations
for political and/or election purposes.
Component parties or organizations of a
coalition may participate independently
provided the coalition of which they form part
does NOT participate in the party-list system
[Sec. 3 (a), RA 7941]
1. Jurisdiction of the
Commission on Elections
over Political Parties
a. Registration
1. For political parties – Secs. 60-62,
B.P. Blg. 881
Section 60. Political party. - "Political party" or
"party", when used in this Act, means an organized
group of persons pursuing the same ideology,
political ideas or platforms of government and
includes its branches and divisions. To acquire
juridical personality, quality it for subsequent
accreditation, and to entitle it to the rights and
privileges herein granted to political parties, a
political party shall first be duly registered with the
Commission. Any registered political party that,
singly or in coalition with others, fails to obtain at
least ten percent of the votes cast in the
constituency in which it nominated and supported a
candidate or candidates in the election next
following its registration shall, after notice and
hearing be deemed to have forfeited such status as
a registered political party in such constituency.
Section 61. Registration. - Any organized group of
persons seeking registration as a national or
regional political party may file with the Commission
a verified petition attaching thereto its constitution
and by-laws, platform or program of government
and such other relevant information as may be
required by the Commission. The Commission shall,
after due notice and hearing, resolve the petition
within ten days from the date it is submitted for
decision.
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No religious sect shall be registered as a political
party and no political party which seeks to achieve
its goal through violence shall be entitled to
accreditation.
Section 62. Publication of petition for registration or
accreditation. - The Commission shall require
publication of the petition for registration or
accreditation in at least three newspapers of general
circulation and shall, after due notice and hearing,
resolve the petition within fifteen days from the date
it is submitted for decision.
2. Party-lists – Secs. 5-7, R.A. 7941,
Party-List System Act
Section 5. Registration. Any organized group of
persons may register as a party, organization or
coalition for purposes of the party-list system by
filing with the COMELEC not later than ninety (90)
days before the election a petition verified by its
president or secretary stating its desire to participate
in the party-list system as a national, regional or
sectoral party or organization or a coalition of such
parties or organizations, attaching thereto its
constitution, by-laws, platform or program of
government, list of officers, coalition agreement and
other relevant information as the COMELEC may
require: Provided, That the sectors shall include
labor, peasant, fisherfolk, urban poor, indigenous
cultural communities, elderly, handicapped, women,
youth, veterans, overseas workers, and
professionals.
The COMELEC shall publish the petition in at least
two (2) national newspapers of general circulation.
The COMELEC shall, after due notice and hearing,
resolve the petition within fifteen (15) days from the
date it was submitted for decision but in no case not
later than sixty (60) days before election.
Section 6. Refusal and/or Cancellation of
Registration. The COMELEC may, motu propio or
upon verified complaint of any interested party,
refuse or cancel, after due notice and hearing, the
registration of any national, regional or sectoral
party, organization or coalition on any of the
following grounds:
(1) It is a religious sect or
denomination, organization or
association, organized for
religious purposes;
(2) It advocates violence or unlawful
means to seek its goal;
(3) It is a foreign party or
organization;
(4) It is receiving support from any
foreign government, foreign
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political party, foundation, 2. Registration of Political

organization, whether directly or
through any of its officers or
members or indirectly through
third parties for partisan election
purposes;
(5) It violates or fails to comply with
laws, rules or regulations relating
to elections;
(6) It declares untruthful statements
in its petition;
(7) It has ceased to exist for at least
one (1) year; or
(8) It fails to participate in the last two
(2) preceding elections or fails to
obtain at least two per centum
(2%) of the votes cast under the
party-list system in the two (2)
preceding elections for the
constituency in which it has
registered.
Section 7. Certified List of Registered Parties. The
COMELEC shall, not later than sixty (60) days
before election, prepare a certified list of national,
regional, or sectoral parties, organizations or
coalitions which have applied or who have
manifested their desire to participate under the
party-list system and distribute copies thereof to all
precincts for posting in the polling places on election
day. The names of the part y-list nominees shall not
be shown on the certified list.
b. Resolution of Intra-Party Disputes
Parties
a. Purpose of Registration
1. To acquire juridical personality;
2. To qualify for subsequent
accreditation;
3. To entitle it to rights and privileges
granted to political parties [Sec. 61,
B.P. Blg. 881]; and
4. To participate in the party-list system
[Sec. 5, R.A. 7941].
b. Registration under the Party-List
system
Any organized group of persons may register
as a party, organization or coalition for
purposes of the party-list system.
File with the COMELEC not later than 90 days
before the election a petition verified by its president
or secretary stating its desire to participate in the
party-list system as a national, regional or sectoral
party or organization or a coalition of such parties or
organizations attaching thereto its constitution, by-
laws, platform or program of government, list of
officers, coalition agreement and other relevant
information as the COMELEC may require.

“[T]he COMELEC’s powers and functions
under Section 2, Article IX-C of the
Constitution, "include the ascertainment of the
identity of the political party and its legitimate
officers responsible for its acts."
[T]he COMELEC’s power to register political
parties necessarily involved the determination
of the persons who must act on its behalf.
Thus, the COMELEC may resolve an intra-
party leadership dispute, in a proper case
brought before it, as an incident of its power to
register political parties” [Atienza v.
COMELEC, G.R. No. 188920 (2010)].
c. Other petitions fileable by political parties
(i.e. Petition to Deny Due Course or Cancel,
Petition for Disqualification)
COMELEC shall publish the petition in at least 3
national newspapers of general circulation
COMELEC shall, after due notice and hearing,
resolve the petition within 15 days from the date it
was submitted for decision, but in no case later than
60 days before elections
[Sec. 5, R.A. 7941]
c. Groups which Cannot be Registered as
Political Parties
1. Religious denominations and sects;
2. Those which seek to achieve their
goals through violence or unlawful
means;
3. Those which refuse to uphold and
adhere to the Constitution; or
4. Those supported by foreign
governments [Sec. 2(5), Art. IX-C,
1987 Constitution]

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d. Grounds for Refusal/Cancellation of
Registration
The COMELEC may, motu proprio or upon
verified complaint of any interested party,
refuse or cancel, after due notice and hearing,
the registration of any national, regional or
sectoral party, organization or coalition on any
of the following grounds:
1. Religious sect or denomination,
organization or association, organized
for religious purposes;
2. Advocates violence or unlawful means
to seek its goal;
3. Foreign party or organization;
4. Receives support from any foreign
government, foreign political party,
foundation, organization, whether
directly or through any of its officers or
members or indirectly through third
parties for partisan election purposes;
5. Violates or fails to comply with laws,
rules or regulations relating to
elections;
6. Declares untruthful statements in its
petition;
7. Ceased to exist for at least 1 year;
8. Fails to participate in the last 2
preceding elections; or
9. Fails to obtain at least 2% of the votes
cast under the party-list system in the 2
preceding elections for the
constituency in which it has registered.
[Sec. 6, R.A. 7941]
“[T]he disqualification for failure to garner 2%
party- list votes in two preceding elections
should now be understood, in light of the Banat
ruling, to mean failure to qualify for a party-list
seat in two preceding elections for the
constituency in which it has registered[,]” and
not failure to garner 2% per se [Phil. Guardians
Brotherhood v. COMELEC, G.R. No. 190529
(2010)].
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e. Certified List of Registered Parties
Sec. 7, R.A. 7941. Certified List of
Registered Parties. – The COMELEC
shall, not later than sixty (60) days before
election, prepare a certified list of national,
regional, or sectoral parties, organizations or
coalitions which have applied or who have
manifested their desire to participate under
the party-list system and distribute copies
thereof to all precincts for posting in the
polling places on election day. The names of
the party-list nominees shall not be shown
on the certified list.
The portion of Section 7 stating that the “names
of the party-list nominees shall not be shown
on the certified list” is not in itself
unconstitutional, but it cannot be used by the
COMELEC to justify its refusal to disclose the
nominees upon proper request. COMELEC
has a constitutional duty to disclose and
release the names of the nominees (when
requested) in light of the right to information
and the constitutional policy of full disclosure
and transparency in government [Bantay
Republic Act 7941 v. COMELEC, G.R. No.
177271 (2007)].
f. Guidelines as to Who May Participate in
the Party-List Elections
1. Three different groups may participate in
the party-list system: (1) national parties or
organizations, (2) regional parties or
organizations, and (3) sectoral parties or
organizations.
2. National parties or organizations and
regional parties or organizations do not
need to organize along sectoral lines and
do not need to represent any “marginalized
and underrepresented” sector.
3. Political parties can participate in party-list
elections provided they register under the
party- list system and do not field
candidates in legislative district elections.
A political party, whether major or not, that
fields candidates in legislative district

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elections can participate in party-list
elections only through its sectoral wing that
can separately register under the party-list
system. The sectoral wing is by itself an
independent sectoral party, and is linked to
a political party through a coalition.
4. Sectoral parties or organizations may
either be “marginalized and
underrepresented” or lacking in “well-
defined political constituencies.” It is
enough that their principal advocacy
pertains to the special interest and
concerns of their sector. The sectors that
are “marginalized and underrepresented”
include labor, peasant, fisherfolk, urban
poor, indigenous cultural communities,
handicapped, veterans, and overseas
workers. The sectors that lack “well-
defined political constituencies” include
professionals, the elderly, women, and the
youth.
5. A majority of the members of sectoral
parties or organizations that represent the
“marginalized and underrepresented” must
belong to the “marginalized and
underrepresented” sector they represent.
Similarly, a majority of the members of
sectoral parties or organizations that lack
“well-defined political constituencies” must
belong to the sector they represent. The
nominees of sectoral parties or
organizations that represent the
“marginalized and underrepresented,” or
that represent those who lack “well-defined
political constituencies,” either must belong
to their respective sectors, or must have a
track record of advocacy for their
respective sectors. The nominees of
national and regional parties or
organizations must be bona-fide members
of such parties or organizations. [Abang-
Lingkod Party-list v COMELEC, G.R. No.
206952 (2013)]
6. National, regional, and sectoral parties or
organizations shall not be disqualified if
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some of their nominees are disqualified,
provided that they have at least one
nominee who remains qualified [Atong
Paglaum v. COMELEC, G.R. No. 203766
(2013)].
g. Nomination of Party-List
Representatives
Each registered party, organization or coalition
shall submit to the COMELEC not later than 45
days before the election a list of names, not
less than 5, from which party-list
representatives shall be chosen in case it
obtains the required number of votes.
A person may be nominated:
1. In 1 list only;
2. If he/she has given his/her consent in
writing;
2. Is not a candidate for any [other] elective
office;
3. Has not lost his bid for an elective office in
the immediately preceding election.
No change of names or alteration shall be
allowed after the same shall have been
submitted to the COMELEC except when:
1. the nominee dies;
2. the nominee withdraws his nomination;
3. the nominee becomes incapacitated.
Incumbent sectoral representatives in the
House of Representatives who are nominated
in the party-list system shall not be considered
resigned [Sec. 8, R.A. 7941]
A COMELEC resolution adding to the above
grounds the withdrawal of the nomination by
the political party is invalid for being ultra vires.
Moreover, there is a clear legislative intent to
deprive the party-list organization of the right to
change its nominee (once submitted to the
COMELEC), for the “allowing the party-list
organization to change its nominees through
withdrawal of their nominations, or to alter the
order of the nominations after the submission
of the list of nominees circumvents the voters’
demand for transparency” [Lokin v.
COMELEC, G.R. No. 179431 (2010)].

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Qualifications of a party-list nominee
1. Natural-born citizen of the Philippines
2. A registered voter
3. A resident of the Philippines for a period of
not less than one (1)year immediately
preceding the day of the election
4. Able to read and write
5. A bona fide member of the party or
organization which he seeks to represent
for at least ninety (90) days preceding the
day of the election, and
6. Is at least twenty-five (25) years of age on
the day of the election.
In case of a nominee of the youth sector, he
must at least be twenty-five (25) but not more
than thirty (30) years of age on the day of the
election.
Any youth sectoral representative who attains
the age of thirty (30) during his term shall be
allowed to continue in office until the expiration
of his term. [Sec. 9, R.A. 7941]
h. Manner of Voting
Four parameters of the party-list system
[Banat v. COMELEC, G.R. No. 179271 (2009)]:
1. 20% Allocation
20% of the total number of the
membership of the House of
Representatives is the maximum number
of seats available to party- list
organizations.
2. 2% Threshold
Garnering 2% of the total votes cast in the
party-list elections guarantees a party- list
organization one (1) seat.
3. Additional Seats
The additional seats, that is, the remaining
seats after allocation of the guaranteed
seats, shall be distributed to the party-list
organizations including those that received
less than two percent of the total votes.
N.B. The continued operation of the 2%
threshold to the allocation of the additional
seats is unconstitutional because this
threshold mathematically and physically
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prevents the filling up of the available party-
list seats.
4. 3-Seat Cap
The three-seat cap is constitutional.
N.B. It is intended by the Legislature to
prevent any party from dominating the
party-list system. There is no violation of
the Constitution because the 1987
Constitution does not require absolute
proportionality for the party-list system.
Rules on Computation of Seats
Two-Round Allocation
Step 1: Compute total number of seats
allocated for party-list representatives
Step 2: Rank all party-list candidates from
highest to lowest based on the number of votes
they garnered
Step 3: Compute for each party-list candidate’s
percentage of votes garnered in relation to the
total number of votes cast for party-list
candidates.
Step 4: Round 1 – Allocate one (1) seat each
for party- list that garnered at least 2% of the
total number of votes.
Step 5: Round 2 – Assign additional seats from
the balance (i.e. total number of party-list seats
minus Round 1 allocations) by:
a. Allocating one (1) seat for every whole
integer (e.g. if a party garners 2.73% of the
vote, assign it two [2] more seats; if 1.80%,
assign it one [1] more seat); then
b. Allocating the remaining seats (i.e. total
seats minus Round 1 and Round 2a
allocations) to those next in rank until all seats
are completely distributed.
Step 6: Apply the 3-Seat Cap, if necessary.
i. Effect of Unimplemented Term- Sharing
Agreement
The fact that the nominees of a party to the
party-list elections entered in a term-sharing
agreement is not a sufficient ground for the
cancellation of the party’s registration and
accreditation if such agreement was not
implemented [Senior Citizens’ Party-List v.
COMELEC, G.R. No. 206844-45 (2013)].

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j. Effect of Change of Affiliation
Any elected party-list representative who
changes his political party or sectoral affiliation:
1. During his term of office shall forfeit his
seat; or
2. Within 6 months before an election
shall not be eligible for nomination as
party-list representative under his new
party or organization [Sec. 15, R.A.
7941]
“Section 15 covers changes in both political
party and sectoral affiliation. And the latter may
occur within the same party since multi-
sectoral party-list organizations are qualified to
participate in the Philippine party-list system.
Hence, a nominee who changes his sectoral
affiliation within the same party will only be
eligible for nomination under the new sectoral
affiliation if the change has been effected at
least six months before the elections” [Amores
v. HRET, G.R. No. 189600 (2010)].
C. CANDIDACY
1. Qualifications and
disqualifications of
candidates
Candidate
Any person who files his certificate of
candidacy within the prescribed period shall
only be considered as a candidate at the start
of the campaign period for which he filed his
certificate of candidacy [Sec. 15, R.A. 9369].
This includes any registered national, regional,
or sectoral party, organization or coalition
thereof that has filed a manifestation to
participate under the party-list system which
has not withdrawn or which has not been
disqualified before the start of the campaign
period [COMELEC Res. 8758, Feb. 4, 2010].
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a. Qualifications
Qualifications prescribed by law are continuing
requirements and must be possessed for the
duration of the officer's active tenure [Frivaldo
v. COMELEC, supra; Labo v. COMELEC,
supra].
Constitutional Officers
1. For President and Vice-President [Sec. 2-3
Art. VII]
a. Natural-born citizen
b. Registered voter
c. Able to read and write
d. 40 years old on day of election
e. Resident of the Philippines for at least
10 years immediately preceding
election day;
2. For Senator [Sec. 3, Art. VI]
a. Natural-born citizen
b. 35 years old on election day
c. Able to read and write
d. Registered voter
e. Resident of the Philippines for at least
2 years immediately preceding election
day;
3. For Members of the House of
Representatives [Sec. 6, Art. VI]
a. Natural-born citizen
b. 25 years old on election day
c. Able to read and write
d. Registered voter in district in which he
shall be elected
e. Resident thereof for not less than one
year immediately preceding election
day;
4. Local Elective [Sec. 39, LGC]
a. Citizen of the Philippines
b. Registered voter in the Barangay,
municipality, city or province, or district
where he intends to be elected
c. Resident therein for at least one year
immediately preceding election day
d. Able to read and write Filipino or any
other local language or dialect
e. Age requirement: [See table below]
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Summary of Qualifications (including term limits)

Position PRESIDENT VP SENATE HOUSE LOCAL

Citizenship Natural Born Citizen Citizen
Registration Registered voter Registered where intends to be elected
Gov/ VG/ M/ Sangg SK
Sangg VM Plungsod
Plalawigan/ (ICC, (ICC,
Mayor CC, CC,
(HUC) / VM Muni) Muni);
(HUC) Sangg
Sangg Bayan;
Plungsod PBrgy;
(HUC) Sangg
Brgy
15-
21
40 y.o 25 y.o 25 y.o 23 y.o. 18 y.o. 21
y.o.
Age y.o.
Resident 10 years 2 years 1 year
Qualifications Able to read and write
Term 6 years 3 years
No. of terms No re- 2 2 3
election

On Citizenship
The law does not specify any particular date or
time when the candidate must possess
citizenship unlike that for residence and age. It
must be possessed upon proclamation or on
the day that the rem begins [Frivaldo v
COMELEC, supra]
On Residency
There is no hard and fast rule to determine a
candidate’s compliance with residency
requirement since the question of residence is
a question of intention. Still, jurisprudence has
laid down the following guidelines: (a) every
person has a domicile or residence
somewhere; (b) where once established, that
domicile remains until he acquires a new one;
and (c) a person can have but one domicile at
a time. [Jalosjos v COMELEC, G.R. No.
191970 (2012)]
b. Disqualifications
Under the Omnibus Election Code (B.P. Blg.
881)
Sec. 12—Disqualifications to be a candidate
and to hold any office:
Any person who has been
1. Declared by competent authority insane or
incompetent, or
2. Has been sentenced by final judgment
a. For subversion, insurrection, rebellion or
b. For any offense for which he has been
sentenced to a penalty of more than eighteen
months or
c. For a crime involving moral turpitude
N.B. As to disqualifications under Sec. 12:
● These will not apply if the person has been
given plenary pardon or amnesty.
● These are deemed removed upon
declaration by competent authority that the
insanity/incompetence has been removed,
or after the expiration of a period of five
years from service of sentence.

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Sec. 68— Disqualifications from continuing
as a candidate, or if he has been elected,
from holding the office
Any candidate who, in an action or protest in
which he is a party is declared by final decision
of a competent court guilty of, or found by the
Commission of
1. Having given money or other material
consideration to influence, induce or
corrupt voters or public officials performing
electoral functions;
2. Committed acts of terrorism to enhance his
candidacy;
3. Spent in his election campaign an amount
in excess of that allowed;
4. Solicited, received or made prohibited
contributions;
5. Violated provisions of the Omnibus
Election Code, specifically:
a. Engaged in election campaign or
partisan political activity outside the
campaign period and not pursuant to a
political party nomination [Sec. 80];
b. Removed, destroyed, defaced lawful
election propaganda [Sec. 83];
c. Engaged in prohibited forms of election
propaganda [Sec. 85];
d. Violated election rules and regulations
on election propaganda through mass
media [Sec. 86];
e. Threatened, intimidated, caused,
inflicted or produced any violence,
injury, punishment, damage, loss or
disadvantage upon any person or of
the immediate members of his family,
his honor or property, or used fraud to
compel, induce or prevent the
registration of any voter, or the
participation in any campaign, or the
casting of any vote, or any promise of
such registration, campaign, vote, or
omission therefrom [Sec. 261.e];
f. Unlawful electioneering [Sec. 261.k];
g. Violated the prohibition against
release, disbursement or expenditure
of public funds 45 days before a regular
election or 30 days before a special
election [Sec. 261.v];
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h. Solicited votes or undertook
propaganda on election day for or
against any candidate or any political
party within the polling place or within a
30m radius [Sec. 261.cc.6]; and
6. Is a permanent resident of or an immigrant
to a foreign country [unless he has waived
such status in accordance with the
residency requirement for the concerned
position];
Under the Local Government Code
1. Sentenced by final judgment for an offense:
a. involving moral turpitude or
b. punishable by at least 1-year
imprisonment.
The disqualification lasts for two years after
service of sentence. The provision “within
2 years after serving sentence” applies to
both scenarios. Those who have not
served their sentence by reason of the
grant of probation should not be
disqualified from running for a local elective
office because the 2-year period of
ineligibility does not even begin to run
[Moreno v. COMELEC, G.R. No. 168550
(2006)].
2. Removed from office as a result of an
administrative case.
This disqualification does not retroactively
apply to those who were removed from
office as a result of an administrative case
before the effectivity of the LGC [Grego v.
COMELEC, G.R. No. 125955 (1997)].
3. Convicted by final judgment for violating
the oath of allegiance to the Republic of the
Philippines.
4. Dual citizenship.
Dual citizenship as a disqualification must
refer to citizens with dual allegiance. For
candidates with mere dual citizenship, the
filing of certificate of candidacy is
considered as an election of Filipino

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citizenship and renunciation of foreign
citizenship [Mercado v. Manzano, supra].
For a natural born Filipino, who reacquired
or retained his Philippine citizenship under
RA 9225, to run for public office, he must:
(1) meet the qualifications for holding such
public office as required by the Constitution
and existing laws; and (2) make a personal
and sworn renunciation of any and all
foreign citizenships before any public
officer authorized to administer oath
[Japzon v. COMELEC, G.R. No. 180088
(2009)].
Based on jurisprudence, the mere filing of
certificate of candidacy is a sufficient form
of renunciation for dual citizens but not for
those who reacquired/retained Filipino
citizenship under R.A. 9225.
While the act of using a foreign passport is
not one of the acts constituting
renunciation and loss of Philippine
citizenship, it is nevertheless an act which
repudiates the very oath of renunciation
required for a former Filipino citizen who is
also a citizen of another country to be
qualified to run for a local elective position
[Maquiling v. COMELEC, G.R. 195649
(2013)].
5. Fugitive from justice in criminal and non-
political cases here and abroad.
“Fugitive from justice” includes (a) those
who flee after conviction to avoid
punishment and (b) those who, after being
charged, flee to avoid prosecution. This
presupposes knowledge by the fleeing
subject of either an already instituted
indictment or of a promulgated judgment of
conviction [Rodriquez v. COMELEC, G.R.
No. 120099 (1996)].
6. Insane or feeble-minded.
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Disqualification in Special Election
R.A. No. 8295, Sec. 4. Disqualification. — In
addition to the disqualifications mentioned in
Sec.s 12 and 68 of the Omnibus Election
Code and Sec. 40 of Republic Act No. 7160,
otherwise known as the Local Government
Code, whenever the evidence of guilt is strong,
the following persons are disqualified to run in
a special election called to fill the vacancy in an
elective office, to wit:
a) Any elective official who has resigned from
his office by accepting an appointive office or
for whatever reason which he previously
occupied but has caused to become vacant
due to his resignation; and
b) Any person who, directly or indirectly,
coerces, bribes, threatens, harasses,
intimidates or actually causes, inflicts or
produces any violence, injury, punishment,
torture, damage, loss or disadvantage to any
person or persons aspiring to become a
candidate or that of the immediate member of
his family, his honor or property that is meant
to eliminate all other potential candidate.
2. Filing of certificates of
candidacy
Sec. 73, B.P. Blg. 881. No person shall be
eligible for any elective public office unless he
files a sworn certificate of candidacy within the
period fixed herein.
Certificate of Candidacy
A certificate of candidacy is in the nature of a
formal manifestation to the whole world of the
candidate's political creed or lack of political
creed. It is a statement of a person seeking to
run for a public office certifying that he
announces his candidacy for the office
mentioned and that he is eligible for the office,
the name of the political party to which he
belongs, if he belongs to any, and his post-
office address for all election purposes being
as well stated. [Engle v COMELEC, G.R. No.
215995 (2016)]

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By who: The certificate of candidacy shall be
filed by the candidate (a) personally or (b) by
his duly authorized representative.
When: Any day from the commencement of
the election period but not later than the day
before the beginning of the campaign period. In
cases of postponement or failure of election, no
additional certificate of candidacy shall be
accepted except in cases of substitution of
candidates
a. Effect of filing
1. Appointive Officials
Officials holding appointive offices
including active members of the AFP and
officers of GOCCs shall be considered ipso
facto resigned upon the filing of his
certificate of candidacy [Sec. 66, B.P. Blg.
881]
2. Elective Officials
Any person holding an elective office or
position shall not be considered resigned
upon the filing of his certificate of
candidacy for the same or any other
elective office or position [Sec. 4, Comelec
Resolution No. 8678, Guidelines on the
Filing of Certificates of Candidacy and
Nomination of Official Candidates of
Registered Political Parties in Connection
with the May 10, 2010 National and Local
Elections].
SC upheld the validity of the COMELEC
Resolution in Sec. 67, B.P. Blg. 881— the
Court deemed the rule that elective officials
automatically resigned from office upon filing of
their certificate of candidacy, repealed by Sec.
14 R.A 9006, Fair Election Act. On the
allegation that the rule was violative of equal
protection, the Court found substantial
distinctions among appointive and elective
officials [Quinto v. COMELEC, G.R. No.
189698 (2010)].
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Effect of Filing of 2 Certificates of
Candidacy
No person shall be eligible for more than one
office to be filled in the same election.
If he files a certificate of candidacy for more
than one office he shall not be eligible for
either.
Exception: Before the expiration of the period
for the filing of certificates of candidacy, the
person who has filed more than one certificate
of candidacy, may:
1. Declare under oath the office for which he
desires to be eligible before the deadline
for filing of certificates of candidacy and
2. Cancel the certificate of candidacy for the
other office/s [Sec. 73, B.P. Blg. 881]
Ministerial Duty of COMELEC [Sec. 76, B.P.
Blg. 881]
General Rule: The COMELEC shall have the
ministerial duty to receive and acknowledge
receipt of the certificates of candidacy provided
said certificates are: under oath and contain all
the required data and in the form prescribed by
the Commission.
The COMELEC has no discretion to give or not
to give due course to a certificate of candidacy
filed in due form [Abcede v. Imperial, G.R. No.
L-13001 (1958)].
Exception: COMELEC may go beyond the
face of the certificate of candidacy:
1. Nuisance candidates
2. Petition to deny due course to or cancel a
certificate of candidacy [See Romualdez-
Marcos v. COMELEC, supra]
The Court also held that even without a petition
to deny course to or cancel a certificate of
candidacy, the COMELEC is under a legal duty
to cancel the COC of anyone suffering from the
accessory penalty of perpetual special
disqualification to run for public office by virtue
of a final judgment of conviction. The final
judgment of conviction is notice to the
COMELEC of the disqualification of the convict

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from running for public office [Jalosjos v.
COMELEC , G.R. No. 193237 (2012)].
Lone Candidate in a Special Election
R.A. 8295
Sec. 2. Proclamation of a lone candidate. —
Upon the expiration of the deadline for the
filing of the certificates of candidacy in a
special election called to fill a vacancy in an
elective position other than for President and
Vice President, when there is only one (1)
qualified candidate for such position, the lone
candidate shall be proclaimed elected to the
position by proper proclaiming body of the
Commission on Elections without holding the
special election upon certification by the
Commission on Elections that he is the only
candidate for the office and is thereby
deemed elected.
Sec. 3. Assumption of office. — In the
absence of any lawful ground to deny due
course or cancel the certificate of candidacy
in order to prevent such proclamation, as
provided for under Sec.s 69 and 78 of Batas
Pambansa Bilang 881 also known as the
Omnibus Election Code of the Philippines,
the candidate referred to in the preceding
paragraph shall assume office not earlier
than the scheduled election day. xxx
b. Substitution and withdrawal of
candidates
Withdrawal of Certificate of Candidacy
A person who has filed a certificate of
candidacy may, prior to the election, withdraw
the same by submitting to the office concerned
a written declaration under oath [Sec. 73, B.P.
Blg. 881].
Procedure
a. File a Statement of Withdrawal under oath
in 5 legible copies, with the office where the
Certificate of Candidacy was filed
b. At any time before Election Day subject to
Sec. 15
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c. Statement shall be accepted if filed by a
person other than the candidate himself or
if filed by mail, electronic mail, telegram, or
facsimile [Sec. 14, Comelec Resolution No.
9518, (Sept. 11, 2012)]
Any person who withdraws shall not be eligible
whether as a substitute candidate or not, for
any other position.
Effects of filing or withdrawal of a certificate
of candidacy
a. Filing or withdrawal shall not affect
whatever civil, criminal or administrative
liabilities which a candidate may have
incurred [Sec. 73, B.P. Blg. 881].
b. If the candidate who withdraws is the
official candidate of a registered or
accredited political party, “the same
political party may file a certificate of
candidacy to replace the candidate.” The
substitute must file his COC not later than
mid-day of election day [Sec. 77, B.P. Blg.
881].
Substitution
Grounds: If after the last day for filing of the
certificates of candidacy, an official candidate
of a registered political party
a. Dies,
b. withdraws or
c. is disqualified for any cause
he may be substituted by a candidate
belonging to and nominated by the same
political party.
When:
a. The substitute candidate nominated by the
political party concerned may file his
certificate of candidacy for the office
affected in accordance with the preceding
sections not later than mid-day of the day
of the election.
b. If the death, withdrawal or disqualification
should occur between the day before the
election and mid-day of election day said
certificate may be filed with any board of
election inspectors in the political

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subdivision where he is a candidate, or, in
the case of candidates to be voted for by
the entire electorate of the country, with the
Commission.
[Sec. 77, B.P. Blg. 881]
N.B. For there to be a valid substitution of a
candidate, the latter must have filed a valid
certificate of candidacy.
A person who is disqualified under Sec. 68
OEC is only prohibited from continuing as a
candidate but his COC remains valid. He may
therefore be substituted.
On the other hand, a person whose COC is
cancelled or denied due course under Sec. 78
for false material representation is considered
to have a COC that is void ab initio. Thus, he
cannot be validly substituted [Talaga v.
COMELEC, G.R. No. 196804 (2012)].
No substitute shall be allowed for any
independent candidate [Recabo, Jr. v.
COMELEC, G.R. No. 134293 (1999); Comelec
Resolution No. 10430]
c. Nuisance candidates
Sec. 69, B.P Blg. 881. The Commission may
motu proprio or upon a verified petition of an
interested party, refuse to give due course to
or cancel a certificate of candidacy if it is
shown that said certificate has been filed to
put the election process in mockery or
disrepute or to cause confusion among the
voters by the similarity of the names of the
registered candidates or by other
circumstances or acts which clearly
demonstrate that the candidate has no bona
fide intention to run for the office for which
the certificate of candidacy has been filed
and thus prevent a faithful determination of
the true will of the electorate.
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Grounds
Certificate of candidacy has been filed:
a. To put the election process in mockery or
disrepute or
b. To cause confusion among the voters by
the similarity of the names of the registered
candidates or
c. Clearly demonstrate that the candidate has
no bona fide intention to run for the office
for which the certificate of candidacy has
been filed and thus prevent a faithful
determination of the true will of the
electorate [Sec. 69, B.P. Blg. 881]
Procedure
R.A. 6646 (The Electoral Reforms Law of
1987) Sec. 5. Procedure in Cases of Nuisance
Candidates. -
a. A verified petition to declare a duly
registered candidate as a nuisance
candidate under Section 69 of Batas
Pambansa Blg. 881
i. Filed personally or through duly
authorized representative with the
Commission by any registered
candidate for the same office
ii. Within five (5) days from the last
day for the filing of certificates of
candidacy.
iii. Filing by mail shall not be allowed.
b. Within three (3) days from the filing of the
petition, the Commission shall issue
summons to the respondent candidate
together with a copy of the petition and its
enclosures, if any.
c. The respondent shall be given three (3)
days from receipt of the summons within
which to file his verified answer to the
petition, serving copy thereof upon the
petitioner.
i. Grounds for a motion to dismiss
may be raised as affirmative
defenses.
d. The Commission may designate any of its
officials who are lawyers to hear the case
and receive evidence. The proceeding
shall be summary in nature.

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i. In lieu of oral testimonies, the
parties may be required to submit
position papers together with
affidavits or counter-affidavits and
other documentary evidence.
ii. The hearing officer shall
immediately submit to the
Commission his findings, reports,
and recommendations within five
(5) days from the completion of
such submission of evidence.
iii. The Commission shall render its
decision within five (5) days from
receipt thereof.
e. The decision, order, or ruling of the
Commission shall, after five (5) days from
receipt of a copy thereof by the parties, be
final and executory unless stayed by the
Supreme Court.
f. The Commission shall within twenty-four
hours, through the fastest available means,
disseminate its decision or the decision of
the Supreme Court to the city or municipal
election registrars, boards of election
inspectors and the general public in the
political subdivision concerned.
Who may initiate
a. Comelec motu proprio
b. Any interested party
c. Any registered candidate for the same
office
The denial or cancellation of COCs of nuisance
candidates may be "motu proprio or upon a
verified petition of an interested party,""subject
to an opportunity to be heard." [Timbol v.
COMELEC, G.R. No. 206004 (2015)].
Rules on Counting Votes Cast for Nuisance
Candidates
a. If the person declared as a nuisance
candidate and whose certificate of
candidacy has been cancelled or denied
due course does not have the same
name and/or surname as a bona fide
candidate for the same office - the votes
cast for such nuisance candidate shall be
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deemed stray pursuant to Section 9 of Rule
23.
b. If the person declared as a nuisance
candidate and whose certificate of
candidacy has been cancelled or denied
due course has the same name and/or
surname as a bona fide candidate for
the same office - the votes cast shall not
be considered stray but shall be counted
and tallied for the bona fide candidate.
c. However, if there are two or more bona
fide candidates with the same name
and/or surname as the nuisance
candidate - the votes cast for the nuisance
candidate shall be considered as stray
votes.
[Comelec Resolution No. 9599, amending Sec.
5 of Rule 24 of the Comelec Rules of
Procedure, as amended by Comelec
Resolution No. 9523]
A petition to cancel or deny a COC under
Section 69 of the OEC should be distinguished
from a petition to disqualify under Section 68.
Hence, the legal effect of such cancellation of
a COC of a nuisance candidate cannot be
equated with a candidate disqualified on
grounds provided in the OEC and Local
Government Code.
d. Effect of disqualification
Disqualification under Sec. 68 differs from
grounds for Petition to Deny or Cancel under
Sec. 78 (See: Part F. Remedies on Petition to
Deny or Cancel Certificate of Candidacy)
N.B. Disqualification (under Sec. 68, among
others) does not void a certificate of candidacy
(COC), i.e. the candidate is merely prohibited
from continuing as a candidate. In contrast,
Cancellation (under Sec. 78) results in the
COC being void ab initio, i.e. the person was
never a valid candidate.
Rules if the Candidate is Disqualified
a. If the disqualification becomes final before
election day:

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i. Any candidate who has been
declared by final judgment to be
disqualified:
1. shall not be voted for and
2. the votes cast for him shall
not be counted.
ii. Hence, generally, if Candidate X
has already been disqualified
before election day but still
garnered the highest number of
votes, those votes are considered
as stray votes. The candidate with
the next highest number of votes
will be proclaimed [See Codilla v.
De Venecia, G.R. No. 150605
(2002)].
b. If the disqualification is not yet final on
election day:
i. If a candidate is not declared by
final judgment before any election
to be disqualified and he is voted
for and receives the winning
number of votes in such election:
1. the Court or COMELEC
shall continue with the trial
and hearing of the action,
inquiry, or protest and
2. upon motion of the
complainant or any
intervenor, may during the
pendency thereof, order
the suspension of the
proclamation of such
candidate whenever the
evidence of his guilt is
strong [Sec. 6, R.A. 6646].
c. 3. If the disqualification is adjudged and
becomes final after election day:
i. The second-placer in the vote
count is actually the first placer
among the qualified candidates, if
disqualified due to Sec. 75 or 78
(COC void ab initio).
Maquiling v. COMELEC (2013) abandoned the
rule in Labo, Jr. v. COMELEC (supra) that
when the voters are well aware within the realm
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of notoriety of a candidate’s disqualification
and still cast their votes in favor said candidate,
then the eligible candidate obtaining the next
higher number of votes may be deemed
elected.
The electorate’s awareness of the candidate’s
disqualification is not a prerequisite for the
disqualification to attach to the candidate. The
very existence of a disqualifying circumstance
makes the candidate ineligible. Knowledge by
the electorate of a candidate’s disqualification
is not necessary before a qualified candidate
who placed second to a disqualified one can be
proclaimed as the winner.
That the disqualified candidate has already
been proclaimed and has assumed office is of
no moment. The subsequent disqualification
based on a substantive ground that existed
prior to the filing of the certificate of candidacy
voids not only the COC but also the
proclamation.
Note: The purpose of a disqualification
proceeding is to prevent the candidate (a) from
running or, if elected, (b) from serving, or (c) to
prosecute him for violation of the election laws
[Ejercito v. COMELEC, G.R. No. 212398
(2014)].
Rule if the COC is Cancelled
A cancelled certificate of candidacy cannot
give rise to a valid candidacy, and much less to
valid votes. Whether the CoC is cancelled
before or after the elections is immaterial
because the cancellation on such ground
means he was never a candidate from the very
beginning, his certificate of candidacy being
void ab initio. [Aratea v. COMELEC, G.R. No.
195229 (2012); Jalosjos, Jr. v. COMELEC,
supra].
Decisions of the Court holding that the second-
placer cannot be proclaimed winner if the first-
placer is disqualified or declared ineligible
should be limited to situations where the
certificate of candidacy of the first-placer was
valid at the time of filing but subsequently had
to be cancelled because of a violation of law
that took place, or a legal impediment that took

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effect, after the filing of the certificate of
candidacy.
If the certificate of candidacy is void ab initio,
then legally the person who filed such void
certificate of candidacy was never a candidate
in the elections at any time. All votes for such
noncandidate are stray votes and should not
be counted. Thus, such noncandidate can
never be a first-placer in the elections
[Jalosjos, Jr. v. COMELEC, supra].
D. CAMPAIGN
Definition
The term "election campaign" or "partisan
political activity" refers to an act designed to
promote the election or defeat of a particular
candidate or candidates to a public office [Sec.
79, B.P. Blg. 881].
It includes:
(1) Forming organizations, associations, clubs,
committees or other groups of persons for the
purpose of soliciting votes and/or undertaking
any campaign for or against a candidate;
(2) Holding political caucuses, conferences,
meetings, rallies, parades, or other similar
assemblies, for the purpose of soliciting votes
and/or undertaking any campaign or
propaganda for or against a candidate;
(3) Making speeches, announcements or
commentaries, or holding interviews for or
against the election of any candidate for public
office;
(4) Publishing or distributing campaign
literature or materials designed to support or
oppose the election of any candidate; or
(5) Directly or indirectly soliciting votes,
pledges or support for or against a candidate.
Campaign does not include:
● Acts performed for the purpose of
enhancing the chances of aspirants for
nomination for candidacy to a public office
by a political party, aggroupment, or
coalition of parties [e.g. primaries,
conventions];
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● Public expressions of opinions or
discussions of probable issues in a
forthcoming election or on attributes or
criticisms of probable candidates proposed
to be nominated in a forthcoming political
party convention [Sec. 79, B.P. Blg. 881].
Regulation of Speech in the Context of
Electoral Campaigns [The Diocese of
Bacolod v. COMELEC (2015)]
● If made by candidates or the members of
their political parties or their political
parties it may be regulated as to time,
place, and manner.
● If made by persons who are not
candidates or who do not speak as
members of a political party which are,
taken as a whole, principally advocacies of
a social issue that the public must consider
during elections, such regulation is
unconstitutional.
● Regulation of election paraphernalia will
still be constitutionally valid if it reaches into
speech of persons who are not candidates
or who do not speak as members of a
political party if they are not candidates,
only if what is regulated is declarative
speech that, taken as a whole, has for its
principal object the endorsement of a
candidate only. The regulation (a) should
be provided by law, (b) reasonable, (c)
narrowly tailored to meet the objective of
enhancing the opportunity of all candidates
to be heard and considering the primacy of
the guarantee of free expression, and (d)
demonstrably the least restrictive means to
achieve that object.
Persons Prohibited from Campaigning:
● Members of the board of election
inspections [Sec. 173, B.P. Blg. 881]
● Civil service officers or employees [Sec. 2
(4), Art. IX-B, 1987 Constitution]
● Members of the military [Sec. 5 (3), Art.
XVI, 1987 Constitution]
● Foreigners, whether juridical or natural
persons. [Sec. 81, B.P. Blg. 881]
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Campaign Periods [Sec. 5, R.A. 7166] candidate only at the start of the campaign
period, and unlawful acts applicable to such
President, Vice- 90 days before the
candidate take effect only at the start of such
President, Senators day of the election
campaign period. Thus, a candidate is liable for
(i.e. offices with
an election offense only for acts done during
national
the campaign period, not before. Before the
constituencies)
start of the campaign period, such election
Members of the 45 days before the offenses cannot be committed and any
House of day of the election partisan political activity is lawful.
Representatives,
Elective Local Equal Access to Media Time and Space
Government Officials Print advertisements [Sec. 6.1, R.A. 9006]
(except Barangay ● shall not exceed 1/4 page, in broad sheet
Officials); Special and 1/2 page in tabloids thrice a week per
Election newspaper, magazine or other
publications.
Barangay Election 15 days before the
day of the election TV advertisements [Sec. 6.2, R.A. 9006]
In the preparation of the election calendar, the ● shall not exceed 120 mins for bona fide
Commission may exclude the day before the candidates and registered political parties
day of the election itself, Maundy Thursday and running for nationally elective office,
Good Friday. whether by purchase or donation
● shall not exceed 60 mins for bona fide
N.B. Election period is not the same with candidates and registered political parties
campaign period. The former includes the 30 running for locally elective office, whether
days after election while the latter can only by purchase or donation
include the 90 days prior to election day. [DE
LEON] Radio advertisements [Sec. 6.2, R.A. 9006]
● shall not exceed 180 mins for bona fide
1. Premature campaigning candidates and registered political parties
running for nationally elective office,
General Rule: Any election campaign or whether by purchase or donation
partisan political activity for or against any ● shall not exceed 90 mins for bona fide
candidate outside of the campaign period is candidates and registered political parties
prohibited and shall be considered as an running for locally elective office, whether
election offense [Sec. 80, B.P. Blg. 881].
by purchase or donation
Exception: Political parties may hold political
Right to Reply [Sec. 10, R.A. 9006]
conventions to nominate their official
All registered parties and bona fide candidates
candidates within 30 days before the start of
shall have the right to reply to charges
the period for filing a certificate of candidacy
published against them. The reply shall be
[Sec. 15, R.A. 9369].
given publicity by the newspaper, television
and/or radio station which first printed or aired
In Penera v. COMELEC [G.R. No. 181613
the charges with the same prominence or in the
(2009)], at the time the supposed premature
same page or section or in the same time slot
campaigning took place, Penera was not
as the first statement.
officially a “candidate” although she already
filed her certificate of candidacy. Under Section
N.B. The airtime rules are applied on a per
15 of R.A. 9369, a person who files his
station basis. COMELEC Resolution No. 9615,
certificate of candidacy is considered a

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which adopts the "aggregate-based" airtime
limits (i.e. applying the limits to all TV and radio
stations taken as a whole) unreasonably
restricts the guaranteed freedom of speech
and of the press [GMA Network, Inc. v.
Commission on Elections, G.R. No. 205357
(2014)].
Required Submissions to the Comelec [Sec.
6.2 and 6.3, R.A. 9006].
● Broadcast stations or entities - copies of
their broadcast logs and certificates of
performance for the review and verification
of the frequency, date, time and duration of
advertisement broadcast for any candidate
or political party
● All mass media entities - copy of all
contracts for advertising, promoting or
opposing any political party or the
candidacy of any person for public office
within 5 days after its signing.
No franchise or permit to operate a radio or TV
station shall be granted or issued, suspended
or cancelled during the election period. [Sec.
6.4, R.A. 9006]
Any mass media columnist, commentator,
announcer, reporter, on-air correspondent or
personality who is a candidate for any elective
public office or is a campaign volunteer for or
employed or retained in any capacity by any
candidate or political party shall:
1. Be deemed resigned, if so required by their
employer; or
2. Take a leave of absence from his/her work
as such during the campaign period. [Sec.
6.6, R.A. 9006]
No movie, cinematograph or documentary
shall be publicly exhibited in a theater,
television station or any public forum during the
campaign period which:
1. Portrays the life or biography of a
candidate [Sec. 6.7, R.A. 9006];
2. Is portrayed by an actor or media
personality who is himself a candidate
[Sec. 6.8, R.A. 9006].
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Election Surveys
Definition
The measurement of opinions and perceptions
of the voters as regards a candidate's
popularity, qualifications, platforms or a matter
of public discussion in relation to the election,
including voters' preference for candidates or
publicly discussed issues during the campaign
period.
N.B. Sec. 5.4 of RA 9006 providing that
surveys affecting national candidates shall not
be published 15 days before an election and
surveys affecting local candidates shall not be
published 7 days before an election is
unconstitutional because (1) it imposes a prior
restraint on the freedom of expression, (2) it is
a direct and total suppression of a category of
expression even though such suppression is
only for a limited period, and (3) the
governmental interest sought to be promoted
can be achieved by means other than the
suppression of the freedom of expression
[Social Weather Stations, Inc. v. COMELEC,
G.R. No. 147571 (2001)].
Exit polls may only be taken subject to the
following requirements:
1. Pollsters shall not conduct their surveys
within 50m from the polling place, whether
said survey is taken in a home, dwelling
place and other places;
2. Pollsters shall wear distinctive clothing;
3. Pollsters shall inform the voters that they
may refuse to answer; and
4. The result of the exit polls may be
announced after the closing of the polls on
election day and must clearly identify the
total number of respondents, and the
places where they were taken. Said
announcement shall state that the same is
unofficial and does not represent a trend
[Sec. 5, R.A. 9006].
.
The holding of exit polls and the dissemination
of their results through mass media constitute
an essential part of the freedoms of speech and
of the press. Hence, the Comelec cannot ban
them totally in the guise of promoting clean,
honest, orderly and credible elections [ABS-

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CBN Broadcasting Corp. v. COMELEC, G.R.
No. 133486 (2000)].
Application for Rallies, Meetings and Other
Political Activity
1. All applications for permits must
immediately be posted in a conspicuous
place in the city or municipal building, and
the receipt thereof acknowledged in
writing.
2. Applications must be acted upon in writing
by local authorities concerned within 3
days after their filing. If not acted upon
within said period, they are deemed
approved.
3. The only justifiable ground for denial of the
application is when a prior written
application by any candidate or political
party for the same purpose has been
approved.
4. Denial of any application for said permit is
appealable to the provincial election
supervisor or to the COMELEC whose
decision shall be made within 48 hours and
which shall be final and executory [Sec. 87,
B.P. Blg. 881].
2. Lawful and prohibited
election propaganda
Lawful Election Propaganda
1. Pamphlets, leaflets, cards, decals, stickers,
or other written or printed materials not
larger than 8.5x14 inches
2. Handwritten or printed letters urging voters
to vote for or against any political party or
candidate
3. Cloth, paper or cardboard posters, framed
or posted, not larger than 2x3 feet
4. Streamers not larger than 3x8 feet are
allowed at a public meeting or rally or in
announcing the holding of such. May be
displayed 5 days before the meeting or
rally and shall be removed within 24 hours
after such
5. Paid advertisements in print or broadcast
media
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• Bear and be identified by the
reasonably legible or audible words
“political advertisement paid for”
followed by the true and correct name
and address of the candidate or party
for whose benefit the election
propaganda was printed or aired [Sec.
4.1, R.A. 9006].
• If the broadcast is given free of charge
by the radio or TV station, identified by
the words "airtime for this broadcast
was provided free of charge by"
followed by the true and correct name
and address of the broadcast entity
[Sec. 4.2, R.A. 9006].
• Print, broadcast or outdoor
advertisements donated to the
candidate or political party shall not be
printed, published, broadcast or
exhibited without the written
acceptance by said candidate or
political party. Written acceptance must
be attached to the advertising contract
and submitted to the COMELEC within
5 days after its signing [Sec. 4.3, R.A.
9006, cf. Sec. 6.3, R.A. 9006].
6. All other forms of election propaganda not
prohibited by the Omnibus Election Code
or the Fair Election Act of 2001 [Sec. 3,
R.A. 9006].
Prohibited Acts
For any foreigner [Sec. 81, B.P. Blg. 881]
1. Aid any candidate or political party,
directly or indirectly
2. Take part or influence in any manner in
any election
3. Contribute or make any expenditure in
connection with any election campaign
or partisan political activity
For any person during the campaign period
[Sec. 83, B.P. Blg. 881]
1. Remove, destroy, obliterate or in any
manner deface or tamper with lawful
election propaganda
2. Prevent the distribution of lawful election
propaganda

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For any candidate, political party, organization
or any person [Sec. 89, B.P. Blg. 881]
1. Give or accept, directly or indirectly, free of
charge, transportation, food or drinks or
things of value during the five hours before
and after a public meeting, on the day
preceding the election, and on the day of
the election;
2. Give or contribute, directly or indirectly,
money or things of value for such purpose
Note: Sec. 85 “Prohibited Election
Propaganda” of B.P. Blg. 881 was repealed by
Sec. 14 of R.A. 9006.
3. Electoral Contributions
Definition [Sec. 94, B.P. Blg. 881]
Gift, donation, subscription, loan, advance or
deposit of money or anything of value, or a
contract, promise or agreement to contribute
(1) whether or not legally enforceable, (2)
made for influencing the results of the
elections.
● Excludes services rendered without
compensation by individuals volunteering
their time in behalf of a candidate or
political party
● Includes the use of facilities voluntarily
donated by other persons, the money value
of which can be assessed based on the
rates prevailing in the area
Prohibited Contributions [Sec. 95 and 96,
B.P. Blg. 881]
No contribution for purposes of partisan
political activity shall be made directly or
indirectly by any of the following:
● From Public or private financial institutions.
Unless:
1. The financial institutions are legally in
the business of lending money
2. The loan is made in accordance with
laws and regulations AND
3. The loan is made in the ordinary course
of business.
● Natural and juridical persons operating
a public utility or in possession of or
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exploiting any natural resources of the
nation
● Natural and juridical persons who hold
contracts or sub-contracts to supply the
government or any of its divisions,
subdivisions or instrumentalities, with
goods or services or to perform
construction or other works
● Grantees of franchises, incentives,
exemptions, allocations or similar
privileges or concessions by the
government or any of its divisions,
subdivisions or instrumentalities,
including GOCCs
● Grantees, within 1 year prior to the date
of the election, of loans or other
accommodations in excess of
P100,000 by the government or any of
its divisions, subdivisions or
instrumentalities including GOCCs
● Educational institutions which have
received grants of public funds
amounting to no less than P100,000
● Officials or employees in the Civil
Service, or members of the Armed
Forces of the Philippines
● Foreigners and foreign corporations,
including foreign governments
N.B. The underlying commonality is conflict of
interest in sensitive government operations, or
areas where government grants licenses and
special permits.
Prohibited Fund-Raising Activities [Sec. 97,
B.P. Blg. 881]
a. The following are prohibited if held for
raising campaign funds or for the support
of any candidate from the start of the
election period up to and including election
day:
1. Dances
2. Lotteries
3. Cockfights
4. Games
5. Boxing bouts
6. Bingo
7. Beauty contests

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8. Entertainments, or cinematographic,
theatrical or other performances
b. For any person or organization, civic or
religious, directly or indirectly, to solicit
and/or accept from (1) any candidate or (2)
from his campaign manager, agent or
representative, or (3) any person acting in
their behalf, any gift, food, transportation,
contribution or donation in cash or in kind
from the start of the election period up to
and including election day
Except: Normal and customary religious
stipends, tithes, or collections on Sundays
and/or other designated collection days
Prohibited Donations [Sec. 104. B.P. Blg.
881]
What: whether made directly or indirectly -
● Donations, contribution or gift in cash or in
kind;
● Undertaking or contribution to the
construction or repair of roads, bridges,
school buses, puericulture centers,
medical clinics and hospitals, churches or
chapels cement pavements, or any
structure for public use or for the use of any
religious or civic organization.
Who: Made by a candidate, spouse, relative
within 2nd civil degree of consanguinity or
affinity, campaign manager, agent or
representative; treasurers, agents or
representatives of political party
When: During campaign period, day before
and day of the election
Exceptions:
● Normal and customary religious dues or
contributions
● Periodic payments for legitimate
scholarships established and school
contributions habitually made before the
prohibited period
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Campaign Expenditures
Definition [Sec. 94, B.P. Blg. 881]
Payment of money or anything of value or a
contract, promise or agreement to make an
expenditure for the purpose of influencing the
results of the election.
Includes the use of facilities personally owned
by the candidate, the money value of the use
of which can be assessed based on the rates
prevailing in the area
Lawful Expenditures [Sec. 102, B.P. Blg.
881]
a. For travelling expenses of the
candidates and campaign personnel in the
course of the campaign and for personal
expenses incident thereto;
b. For compensation of campaigners,
clerks, stenographers, messengers, and other
persons actually employed in the campaign;
c. For telegraph and telephone tolls,
postage, freight and express delivery charges;
d. For stationery, printing and distribution
of printed matters relative to candidacy;
e. For employment of watchers at the
polls;
f. For rent, maintenance and furnishing of
campaign headquarters, office or place of
meetings;
g. For political meetings and rallies and
the use of sound systems, lights and
decorations during said meetings and rallies;
h. For newspaper, radio, television and
other public advertisements;
i. For employment of counsel
j. For copying and classifying list of
voters, investigating and challenging the right
to vote of persons registered in the lists
k. For printing sample ballots in such
color, size and maximum number as may be
authorized by the Commission
N.B:
1. The cost of (i), (j), (k) shall not be taken into
account in the computation of the
candidate’s allowable limit of election
expenses [Sec. 102, B.P. Blg. 881]

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2. The amount contributed by a donor shall be
included in the computation of the
candidate’s allowable limit of election
expenses [Ejercito v. Comelec, G.R. No.
212398 (2014)]
4. Limitations on
expenses [Sec. 13, R.A. 7166]
For Candidates
1. President and VP: P10 for every voter
currently registered
2. Other candidates: P3 for every voter
currently registered in the constituency
where he filed his certificate of candidacy
Except: A candidate without any political
party and without support from any political
party may be allowed to spend P5 for every
such voter
For political parties
P5 for every voter currently registered in the
constituency or constituencies where it has
official candidates
5. Statement of contributions
and expenses (SOCE)
Definition [Sec. 14, R.A. 7166]
● The full, true and itemized statement of all
contributions and expenditures in
connection with the election
● Filed by every candidate and treasurer of
the political party
● Filed with the COMELEC in duplicate
within 30 days after the day of the election
Section 14 of R.A. 7166 states that "every
candidate" has the obligation to file his
statement of contributions and expenditures.
xxx the term "every candidate" must be
deemed to refer not only to a candidate who
pursued his campaign, but also to one who
withdrew his candidacy. [Pilar v. Comelec,
G.R. No. 115245 (1995)]
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Effect of Failure to File Statement [Sec. 14,
R.A. 7166]
1. The person elected to any public office
cannot enter upon the duties of his office
2. N.B. The same prohibition applies if the
political party which nominated the winning
candidate fails to file the statements.
3. Imposition of administrative Fines (except
candidates for elective barangay office)
● 1st offense
o P1,000-P30,000 in the
discretion of the Commission
o To be paid within 30 days from
receipt of notice of failure to file;
Otherwise, it shall be
enforceable by a writ of
execution issued by the
Commission against the
properties of the offender
● 2nd or subsequent offense
o P2,000-P60,000 in the
discretion of the Commission
o Perpetual disqualification to
hold public office
It shall be the duty of every city or municipal
election registrar to advise in writing, by
personal delivery or registered mail, within five
(5) days from the date of election all candidates
residing in his jurisdiction to comply with their
obligation to file their statements of
contributions and expenditures.
E. BOARD OF ELECTION
INSPECTORS AND BOARD OF
ELECTION CANVASSERS
Automated Election System (AES): A system
using appropriate technology which has been
demonstrated in the voting, counting,
consolidating, canvassing, and transmission of
election result, and other electoral processes
[Sec. 2 par. 1, R.A. 9369 (2007)]

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Board of Election Inspectors
a. Composition of Board of Election
Inspectors
Composition [Sec. 13, R.A. 6646 (The
Electoral Reforms Law of 1987); Sec. 5,
COMELEC Resolution No. 10460, Dec. 2018]
1. Chairman
2. Poll Clerk
3. One other member
All of whom shall be public school teachers,
giving preference to those with permanent
appointments. In case there are not enough
public school teachers, teachers in private
schools, employees in the civil service, or other
citizens of known probity and competence who
are registered voters of the city or municipality
may be appointed for election duty.
Right of Preference—In the appointment of the
Members of the EB (Electoral Board, meaning
the Board of Election Inspectors), the
Commission through the Election Officers shall
give preference to public school teachers who
are qualified, willing and available to render
election service. [Sec. 6, COMELEC
Resolution No. 10460]
Qualifications [Sec. 166, B.P. Blg. 881]
1. Good moral character and irreproachable
reputation
2. Registered voter of the city or municipality
3. Never been convicted of any election
offense or any other crime punishable by
more than 6 months of imprisonment, and
there is no information pending against him
for any election offense
4. Speak, read and write English or the local
dialect
5. At least 1 member of the BEI shall be an
information technology-capable person
who is trained and certified by the DOST to
use the Automated Elections System
(“AES”) (where AES shall be adopted)
[Sec. 3, RA 9369]
Disqualifications [Sec. 167, B.P. Blg. 881]
1. Related within 4th degree of consanguinity
or affinity to any member of the BEI
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2. Related within 4th degree of consanguinity
or affinity to any candidate to be voted for
in the polling place or his spouse
3. Engaged in any partisan political activity or
take part in the election (except to
discharge his duties as such and to vote)
[Sec. 173, B.P. Blg. 881]
Appointment of Substitutes [Sec. 13,
COMELEC Reso 10460]:
Grounds: In case there are not enough public
school teachers, who are qualified, willing and
available, in either of the following cases:
a. There is a lack of public school teachers to
be constituted as members of the EB
based on the certified list submitted by the
DepEd official to the EO vis-a-vis the
number of clustered precincts in the
district, city or municipality; or
b. One or more of the public school teachers
in the certified list has or have been
disqualified by the EO and there are no
other public school teachers in the locality
who are qualified, willing and available to
be appointed as substitute/s.
Deployment of Substitutes: Substitutes shall be
on-call on election day. The EO shall cause the
deployment of substitute in case any member
of the EB fails to report in their designated
polling place. The members of the EB who are
present may appoint a qualified nonpartisan
registered voter, who shall serve until the
regular or substitute member appears.
Except in the following instances where there
is a need to fill a temporary vacancy:
a. There is considerable distance between
the residence of the substitute and the
location of the polling place;
b. Lack or difficulty of means of
transportation; and
c. Inability of the EB to inform the EO of the
non - appearance of any of the member.

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Temporary Vacancies in the Electoral
Board [Sec. 23, COMELEC Reso 10460]
If, at the time of the meeting of the EB:
a. Any member is absent, or a position in the
EB is still vacant, the members present
shall call upon— the substitute of the
absent members to perform the duties of
the latter,
b. In case such substitute cannot be found—
any qualified nonpartisan registered voter
of the polling place to temporarily fill said
vacancy until the absent member appears
or the vacancy is filled.
c. In case there are two or more members
present—they shall act jointly.
Arrest of Absentee Member [Sec. 24,
COMELEC Reso 10460]:
The member or members of the EB present
may order the arrest of any member or
substitute thereof, who in the member's or
members' judgment, is absent with intention of
obstructing the performance of duties of the
EB.
b. Powers of Board of Election
Inspectors [Sec. 19, COMELEC
Reso 10460]:
1. Conduct the final testing and sealing of the
Vote Counting Machine (VCM);
2. Verify the identity of a voter using the
Election Day Computerized Voters’ List;
3. Conduct the voting in the polling place and
administer the electronic counting of votes;
4. Print the election returns and transmit
electronically the election results, through
the use of the VCM;
5. Maintain order within the polling place and
its premises to keep access thereto open
and unobstructed, prohibit the use of
cellular phones and camera by the voters,
and to enforce obedience to its lawful
orders.
If any person refuses to obey the lawful
orders of the EB or conducts in a disorderly
manner in its presence or within its hearing
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and thereby interrupts or disturbs its
proceedings, the EB may issue an order in
writing directing any peace officer to take
such person into custody until the
adjournment of the meeting, but such order
shall not be executed as to prevent such
person from voting.
In the absence of any peace officer, such
order may be executed by any other
competent and able person deputized by
the EB in writing. A copy of such written
order shall be attached to the Minutes;
6. Furnish watchers copies of the Certificate
of Votes (CEF No. 13) upon request; and
7. Perform such other functions prescribed by
law or by the rules and regulations
promulgated by the Commission
Board of Canvassers
Definitions and Function
Canvass: The process by which the results in
the election returns are tallied and totaled.
Certificate of canvass - a document in
electronic and printed form containing the total
votes in figures obtained by each candidate in
a city/municipality/district/province as the case
may be. The electronic certificates of canvass
shall be the official canvass results in the
aforementioned jurisdictions;
[Sec. 2 (6), R.A. 9369]
Function of the BOC: The BOC shall canvass
the votes by consolidating the electronically
transmitted results or the results contained in
the data storage devices used in the printing of
the election returns [Sec. 20, R.A. 9369].
a. Composition of Board of Canvassers
Composition of National BOC
1. National BOC for Senators and Party-
list representatives- COMELEC en
banc
2. National BOC for the President and
Vice President- The Senate and the
House of Representatives in joint
public session
[Sec. 20, R.A. 9369]
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Composition of Local BOCs

[COMELEC Reso 10485, Feb 2019] Regional BOC in the ARMM.
Provincial City Board Municipalit The RBOC in the ARMM shall be composed of
Board of of y Board of 1. Regional Election Director (RED) of the
Canvassers Canvassers Canvasser ARMM or a lawyer of the Commission, as
(PBOC) (CBOC) s (MBOC) Chairperson;
Chairman 2. A representative of equivalent rank from
Provincial City Election Municipal the Department of Justice, as Vice-
Election Officer or a Election Chairperson; and
Supervisor or lawyer of the Officer or a 3. A representative, likewise, of equivalent
a lawyer of Commission representati
rank from the Department of Education, as
the ve of the
Member-Secretary.
Commission *When there Commission
are more
than 1 EO in: For Newly Created Political Subdivisions:
-cities within The RED concerned shall constitute the BOC
NCR & other and appoint the members for the first election
HUCs— in a newly created province, city or municipality
Regional in case the officials who shall act as members
Election thereof have not yet assumed their duties and
Director functions.
(RED) shall
designate Substitutions [Sec. 5, COMELEC Reso
-cities 10485] In case of non-availability, absence,
outside disqualification due to relationship or incapacity
NCR— for any cause, of the Chairperson and
Members of the BOC, the following shall
Provincial
Election appoint the substitute:
Supervisor 1. The PES, for the CBOC and MBOC in the
(PES) shall province;
designate 2. The RED, for the PBOC in the region;
Vice-Chairman 3. The RED of NCR, for the DBOC, CBOC,
Provincial City Municipal and MBOC in the region;
Prosecutor Prosecutor Treasurer 4. The RED of other highly urbanized cities for
CBOC in the region; and
Member- Secretary 5. Chairperson of the Commission, for the
Schools Schools The District RBOC.
Division Division School
Superintend Superintend Supervisor, In case of substitution of the Chairperson of the
ent ent or in the BOC, an official of the Commission shall be
absence of appointed.
the latter,
the most With respect to the other members of the BOC,
senior the following shall be appointed as substitute in
Principal of the following order of preference:
the school In the case of the PBOC:
district 1. The Provincial Auditor;
2. The Register of Deeds;

Additional BOCs in COMELEC Reso 10485

(2019):

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3. The Clerk of Court nominated by the
Executive Judge of the Regional Trial
Court; and
4. Any other available appointive provincial
official.
In the case of the CBOC, the officials in the city
corresponding to those enumerated above.
In the case of the MBOC:
1. The Municipal Administrator;
2. The Municipal Assessor;
3. The Clerk of Court of the Municipal Trial
Court; or
4. Any other available appointive municipal
officials.
In case of the RBOC, their substitutes shall
come from the same office where the
substituted members came from.
Prohibitions on BOC [Secs. 222-224, B.P.
Blg. 881]
1. Chairman and members shall not be
related within the 4th civil degree of
consanguinity or affinity to any of the
candidates whose votes will be canvassed
by said board, or to any member of the said
board
2. No member or substitute member shall be
transferred, assigned or detailed outside of
his official station, nor shall he leave said
station without prior authority of the
COMELEC during the period beginning
election day until the proclamation of the
winning candidates
3. No member shall feign illness to be
substituted on election day until the
proclamation of the winning candidates.
Feigning of illness constitutes an election
offense
b. Powers and functions of the BOC
Functions of National BOCs
Senate as National BOC for President and Vice
President
1. Upon receipt of the certificates of canvass,
the President of the Senate shall, not later
than 30 days after the day of the election,
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open all the certificates in the presence of
the Senate and the House of
Representatives in joint public session.
2. Congress upon determination of the
authenticity and the due execution thereof
in the manner provided by law shall:
a. canvass all the results for president
and vice- president and
b. proclaim the winning candidates
[Sec. 22, R.A. 9369]
COMELEC en banc as National BOC for
Senators and Party List Representatives
It shall canvass the results by consolidating the
certificates of canvass electronically
transmitted. Thereafter, the national board
shall proclaim the winning candidates for
senators and party-list representatives [Sec.
23, R.A. 9369].
Powers and Functions of Local BOCs [Sec.
23, COMELEC Reso 10485]
Powers:
1. The BOC shall have full authority to keep
order within the canvassing room or hall
including its premises and enforce
obedience to its lawful orders.
2. If any person refuses to obey any lawful
order of the BOC or acts in such disorderly
manner as to disturb or interrupt its
proceedings, the BOC may order in writing
a peace officer to take such person into
custody until adjournment of the meeting.
3. In the absence of any peace officer, any
other competent and able person
deputized by the BOC in writing may
execute such order.
Functions:
Further, the BOC shall:
1. Canvass/consolidate the electronically
transmitted results;
2. Generate and print the Certificates Of
Canvass, Certificates of Canvass and
Proclamations and Statement of Votes;
3. Electronically transmit the results;
4. Proclaim the winning candidates; and

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5. Perform such other functions as may be
directed by the Commission.
For canvassing process: See Sec. 39, R.A.
9369
Proclamation:
Proclamation shall be after the canvass of
election returns, in the absence of a perfected
appeal to the COMELEC. The BOC shall
proclaim the candidates who obtained the
highest number of votes cast in the province,
city, municipality or barangay, on the basis of
the certificates of canvass.
Failure to comply with this duty constitutes an
election offense [Sec. 231, B.P. Blg. 881].
F. REMEDIES
1. Petition to deny due course or
cancel certificate of
candidacy
a. For any false material representation
[Sec. 78, OEC]
Definition
A verified petition to deny due course or to
cancel a certificate of candidacy exclusively on
the ground that any material representation
contained therein as required under Section 74
hereof is false.
When to file
Any time not later than 25 days from the time
of the filing of the certificate of candidacy
How decided
After due notice and hearing, not later than
fifteen days before the election
b. For nuisance candidates [Sec. 69, OEC]
Definition
A verified petition of an interested party or a
motu proprio decision of the Commission to
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deny due course or cancel a certificate of
candidacy if it is shown that said certificate has
been filed:
1. To put the election process in mockery or
disrepute
2. To cause confusion among the voters by
the similarity of the names of the registered
candidates or by other circumstances or
acts which clearly demonstrate that the
candidate has no bona fide intention to run
for the office for which the certificate of
candidacy has been filed and thus prevent
a faithful determination of the true will of the
electorate
2. Petition for disqualification
An action or protest filed against any candidate
where he/she may be declared by final
decision of a competent court guilty of, or found
by the Commission of being disqualified based
on the grounds below. In effect, he/she shall be
disqualified from continuing as a candidate, or
if he/she has been elected, from holding the
office.
a. Grounds under Par. 1, Sec. 68, OEC
1. Given money or other material
consideration to influence, induce or
corrupt the voters or public officials
performing electoral functions;
2. Committed acts of terrorism to
enhance his candidacy;
3. Spent in his election campaign an
amount in excess of that allowed by
this Code;
4. Solicited, received or made any
contribution prohibited under Sections
89, 95, 96, 97 and 104; or
5. Violated any of Sections 80, 83, 85, 86
and 261, paragraphs d, e, k, v, and cc,
subparagraph 6
b. Ground under Par. 2, Sec. 68, OEC
Any person who is a permanent resident of or
an immigrant to a foreign country, unless said
person has waived his status as permanent

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resident or immigrant of a foreign country in
accordance with the residence requirement
provided for in the election laws.
c. Grounds under Sec. 12, OEC
1. Any person who has been declared by
competent authority insane or
incompetent
2. Any person who has been sentenced
by final judgment for:
a. Subversion;
b. Insurrection;
c. Rebellion;
d. Any offense for which he has
been sentenced to a penalty of
more than 18 months; or
e. A crime involving moral
turpitude.
Exception: if the person has been given
plenary pardon or granted amnesty
N.B. The disqualifications to be a candidate
under this section shall be deemed removed:
1. Upon the declaration by competent
authority that said insanity or
incompetence had been removed; or
2. After the expiration of a period of 5 years
from his service of sentence, unless within
the same period he again becomes
disqualified.
d. Grounds under Sec. 40, LGC for Local
Elective Positions
1. Sentenced by final judgment for an
offense involving moral turpitude or for
an offense punishable by one (1) year
or more of imprisonment, within two (2)
years after serving sentence;
2. Removed from office as a result of an
administrative case;
3. Convicted by final judgment for
violating the oath of allegiance to the
Republic;
4. With dual citizenship;
5. Fugitives from justice in criminal or
non-political cases here or abroad;
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6. Permanent residents in a foreign
country or those who have acquired the
right to reside abroad and continue to
avail of the same right after the
effectivity of the LGC; and
7. Insane or feeble-minded.
A prior court judgment is not required before
the remedy under Sec. 68 of the OEC can
prosper. This is highlighted by the provision
itself, which contemplates of two scenarios:
first, there is a final decision by a competent
court that the candidate is guilty of an election
offense and second, it is the Commission itself
that found that the candidate committed any of
the enumerated prohibited acts. Noteworthy is
that in the second scenario, it is not required
that there be a prior final judgment; it is
sufficient that the Commission itself made the
determination. The conjunction "or" separating
"competent court" and "the Commission" could
only mean that the legislative intent was for
both bodies to be clothed with authority to
ascertain whether or not there is evidence that
the respondent candidate ought to be
disqualified. [Francisco v. COMELEC, G.R. No.
230249 (2018)]
N.B. In Francisco, the court rectified its ruling in
Poe-Llamanzares v. COMELEC [G.R. Nos.
221697 & 221698-700 (2016)] where it held
that to disqualify a candidate there must be a
declaration by a final judgment of a competent
court and that the COMELEC has no
jurisdiction to determine the qualification of a
candidate.
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3. Failure of election; call for

Petition for Petition to Deny special election
Disqualification Due Course or
(Sec. 68) Cancel COC
(Sec. 69 and 78) Postponement of election [Sec. 5, OEC]
There is postponement of election when:
Grounds 1. Sec. 68, 1. False material 1. The following grounds are present:
OEC representation a) Violence
2. Sec. 12, in the COC
b) Terrorism
OEC 2. Nuisance
3. Sec. 40, candidate
c) Loss or destruction of election
LGC paraphernalia or records
d) Force majeure
Effect Person is Person is not e) Any serious cause analogous to the
prohibited to treated as a
foregoing
continue as a candidate at all, as
candidate or if if he/she never filed 2. As a result of the above grounds, the
he/she has been COC. holding of a free, orderly and honest
elected, he is election should become impossible in any
prohibited from
political subdivision.
holding the
office.
Failure of election [Sec. 5, OEC]
Substitu Allowed (Rule of Not allowed There is failure of elections when:
tion succession shall (Candidate with the 1. The following grounds are present:
be observed) second highest
number of votes
a) Force majeure
shall assume office) b) Violence
c) Terrorism
Period Any time before 1. For false d) Fraud
for Filing proclamation of material
the winning e) Other analogous causes
representation
candidate in the COC - 2. The grounds resulted in any of the
within 25 days following:
from filing of a) Election has not been held on the date
COC fixed;
2. For nuisance b) Election had been suspended before
candidates -
the hour fixed by law for the closing of
within 5 days
from the last the voting; or
day of filing c) Election had been suspended after the
COCs voting and during the preparation and
the transmission of the election returns
or in the custody or canvass thereof.
3. In any of such cases, the failure or
suspension would affect the result of the
election

Call for Special Election

Any interested party may file a verified petition
to call for special elections. In case of
postponement, the Commission may take
action motu proprio. In both cases, there shall
be due notice and hearing. After which, the
Commission shall call for the holding or

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continuation of the election not held,
suspended or which resulted in a failure to
elect.
Special elections may also be called in the
following cases [Sec. 7, OEC]:
1. In case a vacancy arises in the Batasang
Pambansa 18 months or more before a
regular election
- The Commission shall call a
special election to be held within 60
days after the vacancy occurs to
elect the Member to serve the
unexpired term.
2. In case of the dissolution of the Batasang
Pambansa
- The President shall call an election
which shall not be held earlier than
45 nor later than 60 days from the
date of such dissolution.
The date of the special election shall be
reasonably close to the date of the election not
held, suspended or which resulted in a failure
to elect. The date shall not be later than 30
days after the cessation of the cause of such
postponement or suspension of the election or
failure to elect.
Declaration of failure of election
It is neither an election case nor a pre-
proclamation controversy [Borja v. Comelec,
G.R. No. 133495 (1996)].
The COMELEC does not exercise its quasi-
judicial functions when it declares a failure of
elections pursuant to R.A. No. 7166. Rather,
the COMELEC performs its administrative
function when it exercises such power [Abayon
v. HRET, G.R. No. 222236 (2016)].
The grounds for failure of election clearly
involve questions of fact. It is for this reason
that they can only be determined by the
COMELEC en banc after due notice and
hearing to the parties. [Loong v. COMELEC,
G.R. No. 133676 (1999)]
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Jurisdiction
The postponement, declaration of failure of
election and the calling of special elections
shall be decided by the Commission sitting en
banc by a majority vote of its members. The
causes for the declaration of a failure of
election may occur before or after the casting
of votes or on the day of the election. [Sec. 4,
R.A. 7166]
Conditions
The following must concur:
1. No voting has taken place in the precincts
concerned on the date fixed by law, or even
if there was voting, the election
nonetheless resulted in a failure to elect;
and
2. The votes not cast would affect the results
of the election.
Procedure
1. Petitioner files verified petition with the Law
Department of the COMELEC.
2. Unless a shorter period is deemed
necessary by circumstances, within 24
hours, the Clerk of Court concerned serves
notices to all interested parties, indicating
therein the date of hearing, through the
fastest means available.
3. Unless a shorter period is deemed
necessary by the circumstances, within 2
days from receipt of the notice of hearing,
any interested party may file an opposition
with the Law Department of the
COMELEC.
4. The COMELEC proceeds to hear the
petition. The COMELEC may delegate the
hearing of the case and the reception of
evidence to any of its officials who are
members of the Philippine Bar.
5. The COMELEC then decides whether to
grant or deny the petition. This lies within
the exclusive prerogative of the
COMELEC.

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4. Pre-proclamation
controversy
Definition [Sec. 241, B.P. Blg. 881]
Any question pertaining to or affecting the
proceedings of the board of canvassers which
may be raised by any candidate or by any
registered political party or coalition of political
parties before the board or directly with the
Commission, or any matter raised under the
following sections in relation to the preparation,
transmission, receipt, custody and appreciation
of the election returns:
a. Sec. 233 [delayed, lost, or destroyed
election returns];
b. Sec. 234 [material defects in the election
results];
c. Sec. 235 [tampered with or falsified
election returns]; and,
d. Sec. 236 [discrepancies in election
returns].
Issues that May be Raised in a Pre-
Proclamation Controversy
In Rule 3, Sec. 1 of COMELEC Resolution No.
8804 (promulgated March 22, 2010) there are
only 2 issues covered in a pre-proclamation
controversy:
(1) illegal composition of the BOC, and
(2) illegal proceedings of the BOC.
1. Illegal composition of the Board of
Canvassers
There is illegal composition of the BOC
when, among other similar circumstances,
any of the members do not possess legal
qualifications and appointments. The
information technology capable person
required to assist the BOC by Republic Act
No. 9369 shall be included as among those
whose lack of qualifications may be
questioned. [Sec. 1, Rule 4, COMELEC
Reso No. 8804]
2. Illegal Proceedings of the Board of
Canvassers
There is illegal proceedings of the BOC
when the canvassing is a sham or mere
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ceremony, the results of which are pre-
determined and manipulated as when any
of the following circumstances are present:
a) precipitate canvassing;
b) terrorism;
c) lack of sufficient notice to the members
of the BOC's;
d) Improper venue [Sec. 2, Rule 4,
COMELEC Reso No. 8804]
Jurisdiction [Sec. 2, Rule 3, COMELEC
Resolution No. 8804]
COMELEC has exclusive jurisdiction in pre-
proclamation controversies arising from
national, regional or local elections.
A pre-proclamation controversy may be raised
by any candidate or by any registered political
party, organization, or coalition of political
parties before the BOC, or directly with the
Commission.
Issues affecting the composition or
proceedings of the Boards may be initiated by
filing a verified petition before the Board or
directly with the Commission.
If the petition is filed directly with the Board, its
decision may be appealed to the Commission
within three (3) days from issuance thereof.
However, if commenced directly with the
Commission, the verified petition shall be filed
immediately when the board begins to act
illegally, or at the time of the appointment of the
member of the board whose capacity to sit as
such is objected to.
Nature of Proceedings
Heard summarily by the COMELEC after due
notice and hearing. This is because canvass
and proclamation should be delayed as little as
possible.
When Not Allowed [Sec. 15, R.A. 7166 as
revised by R.A. 9369]
For the positions of President, Vice-President,
Senator, and Member of the House of
Representatives.

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Exceptions
a. However, this does not preclude the
authority of the appropriate canvassing
body motu propio or upon written complaint
of an interested person to correct manifest
errors in the certificate of canvass or
election returns before it. [Sec. 15, RA
7166 as revised by R.A. 9369]
b. Questions affecting the composition or
proceedings of the board of canvassers
may be initiated in the board or directly with
the Commission in accordance with
Section 19 hereof. [Sec. 15, R.A. 7166 as
revised by R.A. 9369]
c. The procedure on pre-proclamation
controversies shall be adopted when it
appears that any certificate of canvass or
supporting statement of votes by
city/municipality or by precinct bears
erasures or alterations which may cast
doubt as to the veracity of the number of
votes stated herein and may affect the
result of the election [Sec. 30, R.A. 7166 as
revised by R.A. 9369]
- Upon request of the presidential, vice-
presidential or senatorial candidate
concerned or his party
- Congress or the Commission en banc, as
the case may be, shall, for the sole purpose
of verifying the actual number of votes cast
for President and Vice-President or
senator, count the votes as they appear in
the copies of the election returns submitted
to it.
It is clear from Sec. 15 of R.A. 7166 that "pre-
proclamation cases (are) not allowed in
elections for President, Vice-President,
Senator and Member of the House of
Representatives.'' What is allowed is the
correction of "manifest errors in the certificate
of canvass or election returns." To be manifest,
the errors must appear on the face of the
certificates of canvass or election returns
sought to be corrected and/or objections
thereto must have been made before the board
of canvassers and specifically noted in the
minutes of their respective proceedings.
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[Chavez v. COMELEC, G.R. No. 105323
(1992), but note: correction of manifest errors
is no longer part of the grounds for pre-
proclamation controversy as per COMELEC
Reso 8804 (2010)].
A pre-proclamation case under Section 30 is
allowed only as an exception to the prohibition
under Section 15 of Republic Act No. 7166, as
amended by Republic Act No. 9369. xxx And,
in this case, the exception applies only to
Congress or the COMELEC en banc acting
as the NBC, and not to local boards of
canvassers who must still be deemed
covered by the prohibition on pre-
proclamation controversies. [Pimentel III v.
COMELEC, G.R. No. 178413 (2008)]
Issues that Cannot be Raised
1. Appreciation of ballots, as this is performed
by the BEI at the precinct level and is not
part of the proceedings of the BOC
[Sanchez v. COMELEC, G.R. No. 78461
(1987)]
2. Technical examination of the signatures
and thumb marks of voters [Matalam v.
COMELEC, G.R. No. 123230 (1997)]
3. Prayer for re-opening of ballot boxes
[Alfonso v. COMELEC, G.R. No. 107847
(1994)]
4. Padding of the Registry List of Voters of a
municipality, massive fraud and terrorism
[Ututalum v. COMELEC, G.R. No. 84843-
44 (1990), citing Espaldon v. COMELEC,
G.R. No. L-78987 (1987)]
5. Challenges directed against the Board of
Election Inspectors [Ututalum v.
COMELEC, supra]
6. Fraud, terrorism and other illegal electoral
practices. These are properly within the
office of election contests over which
electoral tribunals have sole, exclusive
jurisdiction [Loong v. COMELEC , G.R. No.
133676 (1996)].
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When and Where to File Pre-Proclamation Commission of its resolution.

Controversy Thereafter, the Commission shall make
Ground Where to When to File the appropriate action thereon.
File iv. In no case shall the receipt by the BOC
of the electronically transmitted
precinct, municipal, city, or provincial
Compo In the BOC The petition questioning
sition or or directly the illegality, or the results, be suspended by the filing of
Procees with the composition and/or said petition.
ings of Commissi proceedings of the BOC v. The petitioner may appeal an adverse
the on, with a shall be filed resolution by the BOC to the
Board verified immediately when the COMELEC, by notifying the BOC of his
of petition, BOC begins to act as
Canvas clearly such, or at the time of the or her intent to appeal, through a
sers stating the appointment of the verbal, and a written and verified
specific member whose capacity Notice of Appeal. The notice on the
ground/s to sit as such is objected BOC shall not suspend the formal
for the to, if it comes after the proclamation of the official results of
illegality of canvassing of the Board,
the or immediately when the
the election, until the final resolution of
compositio proceedings become the appeal.
n and/or illegal. [Sec. 4, Rule 4, vi. Within forty-eight (48) hours from such
proceedin COMELEC Reso 8804] notice to the BOC, the petitioner shall
gs of the submit before the Board a
board.
[Sec. 3,
Memorandum on Appeal stating the
Rule 4, reasons why the resolution being
COMELE questioned is erroneous and should be
C Reso reversed.
8804] vii. Upon receipt by the BOC of the
petitioner's memorandum on appeal,
the Board shall forward the entire
No law provides for a reglementary period records of the petition at the expense
within which to file a petition for the annulment of the petitioner.
of an election if there is as yet no proclamation viii. Upon receipt of the records herein
[Loong v. COMELEC, supra]. referred to, the petition shall be
docketed by the Clerk of Commission
Procedure for Contested Composition or
and submitted to the COMELEC en
Proceedings of the Board [Rule 4, Sec. 5,
COMELEC Reso 8804] banc for consideration and decision.
a) In case the petition is filed before the BOC: ix. Within five (5) days therefrom the
i. Upon receipt of the verified petition, the COMELEC en banc shall render its
BOC shall immediately announce the decision on the appeal.
fact of the filing of said petition and the
ground/s raised therein.
ii. The BOC shall immediately deliberate
on the petition, and within a period of
twenty-four (24) hours, make a prompt
resolution thereon, which resolution
shall be reduced into writing.
iii. Should the BOC decide in favor of the
petition, it shall immediately inform the

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b) If filed directly with the Commission: The
petition shall be heard by the
COMELEC en banc under the following
procedures. Upon receipt of the petition by
the COMELEC, the Clerk of the
Commission shall docket the same and
forthwith send summons to the BOC
concerned with an order directing it to
submit, through the fastest verifiable
means available, its answer within forty-
eight (48) hours.
The COMELEC en banc shall resolve the
petition within fire (5) days from the filing of
the answer, or upon the expiration of the
period to file the same.
Effect of Filing of Pre-Proclamation
Controversy
The filing with the Commission of a petition to
annual or to suspend the proclamation of any
candidate shall suspend the running of the
period within which to file an election protest or
quo warranto proceedings. [Sec. 248, B.P. Blg.
881]
The recourse by certiorari to the Supreme
Court, which is a right secured to the defeated
party under Section 7, Title A, Article IX of the
1987 Constitution, is part of the annulment
proceeding. The case is not over until the
Supreme Court has given its verdict, hence,
the computation of the ten-day-period for filing
an election contest does not begin until that
verdict has been handed down by the Supreme
Court [Gallardo v. Rimando, G.R. No. 91718
(1990)].
The right of the prevailing party in the pre-
proclamation contest to the execution of
COMELEC’s decision does not bar the losing
party from filing an election contest [Gallardo v.
Rimando, supra].
Partial Proclamation
Despite the pendency of a pre-proclamation
contest, the COMELEC may, motu proprio or
upon the filing of a verified petition and after
due notice and hearing order the proclamation
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of other winning candidates whose election will
not be affected by the outcome of the
controversy [Sec. 247, B.P. Blg. 881].
Effect of Proclamation of Winning
Candidate
General Rule: A pre-proclamation controversy
shall no longer be viable after the proclamation
and assumption into office by the candidate
whose election is contested. The remedy is an
election protest before the proper forum.
However, the prevailing candidate may still be
unseated even though he has been proclaimed
and installed in office if:
1. The opponent is adjudged the true winner
of the election by final judgment of court in
an election contest;
2. The prevailing party is declared ineligible or
disqualified by final judgment of a court in
a quo warranto case; or
3. The incumbent is removed from office for
cause.
When the proclamation is null and void, since
the proclamation is no proclamation at all and
the proclaimed candidate's assumption of
office cannot deprive the COMELEC of the
power to declare such nullity and annul the
proclamation.
Illegal Proceedings Discovered After
Proclamation [Sec. 4, Rule 4, COMELEC
Reso 8804]
If the illegality of the proceedings of the BOC is
discovered after the official proclamation of the
supposed results, a verified petition to annul
the proclamation may be filed before the
COMELEC within ten (10) days after the day of
proclamation. Upon receipt of the verified
petition, the Clerk of the Commission shall
have the same docketed and forthwith issue
summons to the parties to be affected by the
petition, with a directive for the latter to file their
answer within five (5) days from receipt.
Thereafter the case shall be deemed submitted
for resolution, which shall not be later than
seven (7) days from receipt of the answer.

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5. Election Contest
Definition
A contest between the defeated and winning
candidates on the ground of frauds or
irregularities in the casting and counting of the
ballots, or in the preparation of the returns. It
raises the question of who actually obtained
the plurality of the legal votes and therefore is
entitled to hold the office [Samad v.
COMELEC, G.R. No. 107854 (1993)].
General Rule: The filing of an election protest
or a petition for quo warranto precludes the
subsequent filing of a pre-proclamation
controversy, or amounts to the abandonment
of one earlier filed, thus depriving the
COMELEC of the authority to inquire into and
pass upon the title of the protestee or the
validity of his proclamation.
The reason is that once the competent tribunal
has acquired jurisdiction of an election protest
or a petition for quo warranto, all questions
relative thereto will have to be decided in the
case itself and not in another proceeding.
[Samad v. COMELEC, supra].
Exceptions
a. The board of canvassers was improperly
constituted;
b. Quo warranto was not the proper remedy;
c. What was filed was not really a petition for
quo warranto or an election protest but a
petition to annul a proclamation;
● The filing of a quo warranto petition or
an election protest was expressly
made without prejudice to the pre-
proclamation controversy or was made
ad cautelam; and
● The proclamation was null and void
[Samad v. COMELEC, supra].
Nature
Summary proceeding of a political character
[Gardiner v Romulo, G.R. No. L-8921 (1914)]
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Purpose
To ascertain the candidate lawfully elected to
office [De Castro v Ginete, G.R. No. L-30058
(1969)]
Laws governing election contests must be
liberally construed to the end that the will of the
people in the choice of public officials may not
be defeated by mere technical objections.
[Saquilayan v. COMELEC, G.R. No. 157249
(2003)]
Kinds of Election Contest:
a. Election Protest
b. Quo Warranto
A. Election Protest [Rule 6, COMELEC
Reso 8804]
A petition contesting the elections or returns of
an elective regional, provincial, or city official
shall be filed with the Commission by any
candidate who was voted for in the same office
and who Commission by any candidate who
was voted for in the same office and who
received the second or third highest number of
votes or, in a multi-slot position, was among the
next four candidates following the last ranked
winner duly proclaimed, as reflected in the
official results of the election contained in the
Statement of Votes. The party filing the protest
shall be designated as the protestant; the
adverse party shall be known as the protestee.
Who May File
A candidate who has duly filed a certificate of
candidacy and has been voted for the same
office
When
Within 10 days after the proclamation of the
results of the election
N.B. This prescriptive period is suspended
during the pendency of a pre-proclamation
controversy between the same parties
Grounds
1. Fraud
2. Terrorism
3. Irregularities
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4. Illegal acts committed before, during, or
after the casting and counting of votes
Payment of Docket fee
Protestant has to pay a docket fee of P300 and
an additional docket fee if there is a claim for
damages. Failure to pay the basic docket fee
shall result to the dismissal of the protest
[Soller v. COMELEC, G.R. No. 139853 (2000)].
second case, the court determines who has
been legally appointed and can and ought to
declare who is entitled to occupy the office.
[Nuval v. Guray, GR No. L-30241 (1928)]
Distinction between Election Protest and
Quo Warranto [Lokin v. COMELEC, G.R. No.
179431-32 and G.R. No. 180443 (2010)]
Election Protest Quo Warranto

B. Quo warranto [Section 253, BP 881] Strictly a contest Refers to questions

A sworn petition that can be filed by any voter between the of disloyalty or
to contest the election of any member of defeated and ineligibility of the
Congress or local government official on the winning candidates winning candidate.
ground of ineligibility or of disloyalty to the based on grounds of
Republic of the Philippines [Sec. 253, B.P. Blg. election frauds or It is a proceeding to
881]. irregularities as to unseat the ineligible
who actually person from office,
It is a proceeding to unseat the respondent obtained the majority but not to install the
from office but not necessarily to install the of the legal votes and protestant in place.
petitioner in his place [Samad v. COMELEC, therefore is entitled
supra]. to hold the office

In a quo warranto proceeding, the petitioner is Can only be filed by a Can be filed by any
not occupying the position in dispute. [Samad candidate who has voter.
v. COMELEC, supra]. duly filed a certificate
of candidacy and has It is not considered a
Who May File been voted for contest where the
Any voter parties strive for
supremacy.
When to File
Within 10 days after the proclamation of the A protestee may be While the
results of the election ousted and the respondent may be
protestant seated in unseated, the
Grounds the office vacated petitioner will not be
1. Ineligibility seated
2. Disloyalty to the Republic
Execution Pending Appeal
In quo warranto proceedings referring to offices COMELEC Rules of Procedure, Section 2,
filled by election, what is to be determined is Rule 39 of the Rules of Court allows Regional
the eligibility of the candidate elect, while in quo Trial Courts to order execution pending appeal
warranto proceedings referring to offices filled upon good reasons stated in a special order
by appointment, what is determined is the which may be made to apply suppletorily or by
legality of the appointment. In the first case analogy to election cases decided by them.
when the person elected is ineligible, the court While execution pending appeal may be
cannot declare that the candidate occupying allowed under the foregoing rule, the said
the second place has been elected, even if he provision must be strictly construed against the
were eligible, since the law only authorizes a movant as it is an exception to the general rule
declaration of election in favor of the person on execution of judgments. Following civil law
who has obtained a plurality of votes, and has jurisprudence, the reason allowing for
presented his certificate of candidacy. In the

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immediate execution must be of such urgency a. RTC decision may be appealed to

as to outweigh the injury or damage of the the COMELEC within 5 days from
losing party should it secure a reversal of the promulgation or receipt of a copy
judgment on appeal. [Camilian v. COMELEC, thereof by the aggrieved party
G.R. No. 124169 (1997)] [Sec. 22, R.A. 7166]
b. COMELEC shall decide the appeal
The trial court may grant a motion for execution
within 60 days after it is submitted
pending appeal based on “valid and special
for decision, but not later than 6
reasons,” i.e.:
1. The public interest is involved or the will of months after the filing of the
the electorate; appeal, which decision shall be
2. The shortness of the remaining portion of final, unappealable and executory.
the term; [Sec. 22, R.A. 7166]
3. The length of time that the election contest 5. MTC: Over election contests involving
has been pending. [Santos v. COMELEC, barangay officials [Sec. 252, B.P. Blg. 881]
G.R. No. 155618 (2003)] a. MTC should decide within 15 days
after the filing
Actual or Compensatory Damages b. MTC decision may be appealed to
Actual or compensatory damages may be the RTC within 10 days from
granted in all election contests or in quo receipt of a copy thereof by the
warranto proceedings in accordance with law. aggrieved party
[Sec. 259, B.P. Blg. 881] c. RTC should decide the appeal
within 30 days after filing
Effect of Filing Petition to Annul or to
Suspend the Proclamation Summary of Rules on Jurisdiction
The filing with the Commission of a petition to
ELECTIVE ELECTION APPEAL CERTIOR
annul or to suspend the proclamation of any POSITION PROTEST/ ARI
candidate shall suspend the running of the QUO
WARRANT
period within which to file an election protest or O
quo warranto proceedings [Sec. 248, B.P. Blg.
881]. President PET N/A SC
and Vice
Jurisdiction on Election Contests President
1. SC (acting as PET): Over all contests
relating to the election, returns, and Senators SET N/A SC
qualifications of the President or Vice
President [Sec. 4, Art VII, 1987 Members of HRET N/A SC
the House of
Constitution]
Representat
2. HRET/SET: Over all contests relating to
ives
the election, returns, and qualifications of
their respective Members [Sec. 17, Art VI, Regional/ COMEL N/A SC
1987 Constitution] Provincial/ EC
3. COMELEC: Over all contests relating to City Officials
the elections, returns and qualifications of
all elective regional, provincial and city Municipal RTC COMEL SC
Officials EC
officials [Sec. 250, B.P. Blg. 881]
4. RTC: Over contests involving municipal Barangay MTC COMEL SC
officials [Sec. 251, B.P. Blg. 881] Officials EC

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LOCAL GOVERNMENTS
POLITICAL LAW

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A. AUTONOMOUS REGION AND
THEIR RELATION TO THE
NATIONAL GOVERNMENT
Sec. 1, Art. X, 1987 Constitution. The
territorial and political subdivisions are the
provinces, cities, municipalities, and
barangays. There shall be autonomous
regions in Muslim Mindanao and the
Cordilleras as hereinafter provided.
The 1987 Constitution provides for
autonomous regions in Muslim Mindanao and
Cordilleras.
Sec. 11, Art. X, 1987 Constitution. The
Congress may, by law, create special
metropolitan political subdivisions, subject
to a plebiscite as set forth in Section 10
hereof. The component cities and
municipalities shall retain their basic
autonomy and shall be entitled to their own
local executive and legislative assemblies.
The jurisdiction of the metropolitan authority
that will thereby be created shall be limited
to basic services requiring coordination.
Sec. 15, Art. X, 1987 Constitution. There
shall be created autonomous regions in
Muslim Mindanao and in the Cordilleras
consisting of provinces, cities,
municipalities, and geographical areas
sharing common and distinctive historical
and cultural heritage, economic and social
structures, and other relevant
characteristics within the framework of this
Constitution and the national sovereignty
as well as territorial integrity of the Republic
of the Philippines.
The autonomous regions must consist of
provinces, cities, municipalities and
geographical areas sharing:
a) Common and distinctive historical
and cultural heritage
b) Economic and social structures
c) Other relevant characteristics
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Sec. 16, Art. X, 1987 Consitution. The
President shall exercise general
supervision over autonomous regions to
ensure that laws are faithfully executed
[Sec. 16, Art. X].
Sec. 18, Art. X, 1987 Consitution.. The
Congress shall enact an organic act for
each autonomous region with the
assistance and participation of the regional
consultative commission composed of
representatives appointed by the President
from a list of nominees from multisectoral
bodies. The organic act shall define the
basic structure of government for the region
consisting of the executive department and
legislative assembly, both of which shall be
elective and representative of the
constituent political units. The organic acts
shall likewise provide for special courts with
personal, family, and property law
jurisdiction consistent with the provisions of
this Constitution and national laws.
Sec. 17, Art. X, 1987 Constitution. All
powers, functions, and responsibilities not
granted by this Constitution or by law to the
autonomous regions shall be vested in the
National Government
Sec. 21, Art. X, 1987 Constitution. The
preservation of peace and order within the
regions shall be the responsibility of the
local police agencies which shall be
organized, maintained, supervised, and
utilized in accordance with applicable laws.
The defense and security of the regions shall
be the responsibility of the National
Government.
An autonomous region is created via the
enactment of an organic act by Congress
with participation of the regional consultative
commission. The organic act shall:
a. Define the basic structure of
government for the region consisting
of the executive department and
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legislative assemblies, both of which i. Such other matters as may be authorized

shall be elective and representative of
the constituent political units; and,
b. Provides for special courts with
personal, family, and property law
jurisdiction [Sec. 18, Art. X,
Constitution].
Plebiscite Requirement for Autonomous
Regions
by law for the promotion of the general
welfare of the people of the region [Sec. 20,
Art. X, Constitution].
N.B. The autonomous governments of
Mindanao are subject to the jurisdiction of our
national courts. [Limbona v. Mangellin, G.R.
No. 80391 (1989)]

Par. 2, Sec. 18, Art. X, 1987 Constitution.

B. PUBLIC
The creation of autonomous region shall be CORPORATIONS
effective when approved by a majority of
the votes cast by the constituent units in a 1. Concept; Distinguished from
plebiscite called for the purpose. However,
only provinces, cities, and geographic Government-Owned or
areas voting favorably in such plebiscite Controlled Corporations
shall be included in the autonomous
region. Corporation: An artificial being created by
operation of law, having the right of succession
An autonomous region is considered a and the powers, attributes and properties
form of local government in Section 1, expressly authorized by law or incident to its
Article X of the Constitution. existence [Sec. 2, Corp. Code; Sec. 2, Act No.
1459]
From the perspective of the Constitution,
autonomous regions are considered one of the Public Corporation: One formed or organized
forms of local governments, as evident from for the government of a portion of the state. Its
Article X of the Constitution entitled “Local purpose is for the general good and welfare
Government.” Autonomous regions are [Sec. 3, Act No. 1459].
established and discussed under Sections 15
to 21 of this Article—the article wholly devoted Private Corporation: One formed for some
to Local Government. That an autonomous private purpose, benefit, aim, or end [Sec. 3,
region is considered a form of local Act No. 1459].
government is also reflected in Section 1,
Article X of the Constitution [Kida v. Senate, a. Public Corporation vs Private
G.R. No. 196271 (2011)]. Corporation [MARTIN]
The organic act of autonomous regions shall Public Private
provide for legislative powers over:
a. Administrative organization; Purpose For the For some
b. Creation of sources of revenues; government private
c. Ancestral domain and natural resources; of a portion of purpose,
d. Personal, family, and property relations; the state, and benefit, aim,
e. Regional urban and rural planning the general or end [Sec.
development; good and 3, Act No.
f. Economic, social, and tourism welcome 1459]
development; [Sec. 3, Act
g. Educational policies; No. 1459]
h. Preservation and development of cultural
heritage; and

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Creation By the state, By the will of 2(13), Admin.

either by the Code]
general or incorporators
special act , with the
recognition of
the state

b. Test to Identify Public or Private Creation By law By special

Character charters or
under the
“The true criterion […] is the totality of the Corporation
relation of the corporation to the State. If the Code
corporation is created by the State as the
[State’s] own agency or instrumentality to help
it in carrying out its governmental functions, Ownership Formed and Owned by the
then the corporation is considered public; organized by Government
otherwise, it is private.” the state directly or
through its
Hence, “provinces, chartered cities, and instrumentaliti
barangays can best exemplify public es either
corporations.” On the other hand, the wholly, or,
Philippine Society for the Prevention of Cruelty where
to Animals, while created by Act No. 1285, is a applicable as
private corporation as (1) it is not subject to in the case of
state control, and (2) its powers to arrest stock
offenders of animal welfare laws and to serve corporations,
processes have been withdrawn by C.A. No. to the extent of
148 [Philippine Society for the Prevention of at least 51% of
Cruelty to Animals v. COA, G.R. No. 169752 its capital
(2007)]. stock
Sec. 2(13),
c. Public Corporation v. GOCC Admin. Code]
Public GOCC Nature and Constituted Organized as
Status by law and a stock or non-
Purpose For the An agency possessed of stock
government organized as a substantial corporation
of a portion stock or non- control over [Sec. 2(13),
of the state, stock its own Admin. Code;
and the corporation, affairs; MIAA v. CA,
general good vested with autonomous G.R. No.
and welfare functions in the sense 155650
[Sec. 3, Act. relating to that it is (2006)]
No. 1459] public needs given more
whether powers, Independent
governmental authority, agency of the
or proprietary responsibiliti government
in nature [Sec. es, and for
resources

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administrative • Not possessed with powers and liabilities

purposes of self-governing corporations; and
• Take charge of some public or state work
Has corporate for the general welfare (other than
powers to be government of a community) [MARTIN]
exercised by • Include Quasi-Municipal Corporations (e.g.
its board of water districts)
directors, and
its own assets • A quasi-public corporation is a species of
and liabilities private corporations, but the qualifying
[Nat’l factor is the type of service the former
Waterworks & renders to the public: if it performs a public
Sewerage service, then it becomes a quasi-public
Authority v. corporation [Philippine Society for the
NWSA Prevention of Cruelty to Animals v. COA,
Consolidated supra].
Unions, G.R.
No. L18939 b. Municipal Corporations
(1964)]
A municipal corporation is an agency of the
The mere fact that the Government happens to State to regulate or administer the local affairs
be a majority stockholder does not make it a of the town, city, or district which is
public corporation [National Coal Co. v. CIR, incorporated [Nat’l Waterworks & Sewerage
G.R. No. L-22619 (1924)] Authority v. NWSA Consolidated Unions,
supra].
By becoming a stockholder of a corporation,
the Government divests itself of its sovereign i. Elements
character so far as respects the transactions of
the corporation [Bacani v. Nat’l Coconut Corp., a. Legal creation or incorporation;
G.R. No. L-9657 (1956)]. b. Corporate name by which the entity is
known and in which all corporate acts
Vesting of corporate powers on a government are done;
instrumentality does not make it a GOCC if it is
c. Population which is invested with the
not organized as a stock or non-stock
powers of the corporation through duly
corporation [MIAA v. CA, G.R. No. 155650
(2006)]. constituted officers and agents; and
d. Territory within which the local
government exercises civil and
2. Classifications corporate functions [MARTIN]
There are two kinds of public corporation,
ii. Nature and Functions
namely, municipal and non-municipal [Nat’l
Waterworks & Sewerage Authority v. NWSA
Consolidated Unions, supra]. a. Dual Nature
Sec. 15, LGC. Political and Corporate
a. Quasi-corporations Nature of Local Government Units. –
Every LGU created under this Code is a
• Public corporations created as agencies of body politic and corporate. It shall exercise
powers both as a political subdivision of the
the State for a narrow and limited purpose;
National Government, and as a corporate

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entity representing the inhabitants of its

territory.

b. Dual Function
The powers of a municipality are twofold in
character: public, governmental, or political on
the one hand, and corporate, private, or
proprietary on the other [Torio v. Fontanilla
G.R. No. L-29993 (1978)]. iii. Requisites for creation, conversion,
division, merger or dissolution
Political/ Corporate/
Governmental Proprietary Sec. 1, Art. X, 1987 Constitution. The
Exercised in Exercised for the territorial and political subdivisions are the
administering the special benefit and provinces, cities, municipalities, and
powers of the state advantage of the barangays. There shall be autonomous
and promoting the community and regions in Muslim Mindanao and the
public welfare and include those which Cordilleras as hereinafter provided.
they include the are ministerial,
legislative, judicial, private, and Sec. 10, Art. X, 1987 Constitution. No
public, and political corporate [Torio v. province, city, municipality, or barangay may
[Torio v. Fontanilla, Fontanilla, supra] be created, divided, merged, abolished, or
supra] its boundaries substantially altered, except
in accordance with the criteria established in
Concern health, Seek to obtain the Local government code and subject to
safety, advancement special corporate approval by a majority of the votes cast in a
of public good and benefits or earn plebiscite called for the purpose in the
welfare as affecting pecuniary profit. political unit or units directly affected.
the public generally. [Republic v. City of
[Republic v. City of Davao, supra] General Requirements
Davao, G.R. No. 1. Law or Ordinance
148622 (2002)] A local government unit may be created,
divided, merged, abolished, or its boundaries
LGU acts as an agent LGU acts as agent substantially altered EITHER:
of the national of the community in a. By law enacted by Congress in the
government. administration of case of provinces, cities,
[Republic v. City of local affairs municipalities, and any other political
Davao, supra] [Republic v. City of subdivision; OR
Davao, supra] b. By ordinance passed by the
Sangguniang Panlalawigan or
Examples Examples Sangguniang Panlungsod in the case
● Regulations ● Municipal of a barangay within its territorial
against fire, waterworks, jurisdiction [Sec. 6, LGC].
disease; markets,
● Preservation of wharves, N.B. In the case of the creation of barangays
public peace; fisheries; by the Sangguniang Panlalawigan, the
● Establishment of ● Maintenance of recommendation of the Sangguniang Bayan
schools, public parks, concerned shall be necessary. [Sec. 385, LGC]
offices, etc. cemeteries, golf
courses, etc. Power of creation is legislative in nature

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● The authority to create municipal
corporations is essentially legislative in
nature [Pelaez v. Auditor General, G.R. No.
L-23825 (1965).]
● The enactment of a LGC is not a sine qua
non for the creation of a municipality, and
before the enactment of such, the power
remains plenary except that creation
should be approved in a plebiscite
[Torralba v. Sibagat, G.R. No. L-59180
(1987)].
To whom and what power may be delegated
● To local legislative bodies: “Under its
plenary legislative powers, Congress can
delegate to local legislative bodies the
power to create local government units,
subject to reasonable standards and
provided no conflict arises with any
provision of the Constitution” [Sema v.
COMELEC, G.R. No. 177597 (2008)].
N.B. Note that it has done so by delegating the
power to create barangays.
● Not to the President: The power is
inherently legislative, and to grant the
President the power to create or abolish
municipal corporations would allow him to
exercise over LGUs the power of control
denied to him by the Constitution [Pelaez v.
Auditor General, supra].
● Power to create provinces cannot be
delegated: Section 19, Article VI of RA
9054 is unconstitutional insofar as it grants
to the ARMM Regional Assembly the
power to create provinces and cities.
Congress’ delegation of the power to
create a province includes the creation of a
legislative district, which is
unconstitutional, since legislative districts
may be created or reapportioned only by
an Act of Congress [Sema v. COMELEC,
supra].
2. Plebiscite
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When a Plebiscite is Required: When an
LGU is created, divided, merged, abolished, or
its boundaries substantially altered. [Sec. 10,
LGC]
This includes:
a. Conversion (e.g. from a city to a highly
urbanized city) [Sec. 453, LGC; see also
Tobias v. Abalos, G.R. No. 114783 (1994)]
b. Downgrading (e.g. from an independent
component city to a component city)
[Miranda v. Aguirre, G.R. No. 133064
(1999), on the downgrading of Santiago
City, Isabela]
General Rule: The plebiscite shall be
conducted by the COMELEC within 120 days
from the date of effectivity of the law or
ordinance, unless said law or ordinance fixes
another date [Sec. 10, LGC].
Exception: The Constitution recognizes that
the power to fix the date of elections is
legislative in nature. But the Court upheld the
COMELEC’s broad power or authority to fix
other dates for a plebiscite, as in special
elections, to enable the people to exercise their
right of suffrage. The COMELEC thus has
residual power to conduct a plebiscite even
beyond the deadline prescribed by law [Cagas
v. COMELEC, G.R. No. 209185 (2013)].
When Plebiscite is NOT Required:
There is no need for any plebiscite in the
creation, dissolution, or any other similar action
on the following:
a. Legislative Districts: Legislative districts
are not political subdivisions through which
functions of the government are carried out
[Bagabuyo v. COMELEC, G.R. No. 176970
(2008)].
b. Administrative Regions: Administrative
regions are not territorial and political
subdivisions. The power to create and
merge administrative regions is
traditionally vested in the President.
Hence, the merger of provinces that did not
vote for inclusion in the ARMM into existing

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administrative regions does not require a
plebiscite [See Abbas v. COMELEC, G.R.
No. 89651 (1989)].
Where a Plebiscite is Held: The plebiscite
must be “in the political units directly affected”
● When the law states that the plebiscite
shall be conducted “in the political units
directly affected,” it means that the
residents of the political entity who would
be economically dislocated by the
separation of a portion thereof have the
right to vote in said plebiscite [Padilla v.
COMELEC, G.R. No.103328 (1992)].
● “Material Change” as standard: If the
creation, division, merger, abolition or
substantial alteration of boundaries of an
LGU will cause a material change in the
political and economic rights of a political
unit, the residents of such political unit
should have the right to participate in the
required plebiscite [Miranda v. Aguirre,
supra].
● In the conversion of a component city to a
highly urbanized city, the residents of the
province must participate. The conversion
of the city will, among others, result in
reduction in taxing jurisdiction and reduced
economic viability of the province [Umali v.
COMELEC, G.R. No. 203974 (2014)].
● The inhabitants of a neighboring city (e.g.
San Juan) are properly excluded from a
plebiscite concerning the conversion of a
city (e.g. Mandaluyong) to a highly
urbanized city [see Tobias v. Abalos,
supra].
PLEBISCITE REQUIREMENT FOR
AUTONOMOUS REGIONS
Par. 2, Sec. 18, Art. X, 1987 Constitution.
The creation of the autonomous region shall
be effective when approved by a majority of
the votes cast by the constituent units in a
plebiscite called for the purpose. However,
only provinces, cities, and geographic areas
voting favorably in such plebiscite shall be
included in the autonomous region.
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Majority Requirement: What is required by
the Constitution is a simple majority of votes
approving the Organic Act in individual
constituent units.
A double majority [in (1) all constituent units put
together, (2) as well as in the individual
constituent units] is not required [Abbas v.
COMELEC, supra].
Sole province cannot validly constitute an
autonomous region: An autonomous region
cannot be created if only one province
approved of its creation in the plebiscite called
for the purpose [Ordillo v. COMELEC, G.R. No.
93054 (1990), on the plebiscite concerning the
Cordilleras].
Not all amendments require plebiscite: Only
amendments to, or revisions of, the Organic
Act constitutionally essential to the
creation of autonomous regions —those
aspects specifically mentioned in the
Constitution which Congress must provide for
in the Organic Act—require ratification through
a plebiscite.
Rationale: If all amendments to the Organic Act
have to undergo the plebiscite requirement
before becoming effective, this would hamper
the ARMM’s progress by impeding Congress
from enacting laws that timely address
problems as they arise in the region, as well as
weighing down the ARMM government with the
costs that unavoidably follow the holding of a
plebiscite [Abas Kida v. Senate, G.R. No.
196271 (2011)].
Specific Requirements
The creation of a local government unit or its
conversion from one level to another level shall
be based on verifiable indicators of viability and
projected capacity to provide services, which
include:
1. Income,
2. Population, and/or
3. Land Area [Sec. 7, LGC]
Which Requirements Must be Satisfied:
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3. Sufficient to provide for such basic services

Province/City 1. Income; AND
and facilities to meet the requirements of its
2. EITHER population OR
populace [Sec. 7(c), LGC].
land area

Municipality 1. Income; Land Area Requirements; Exceptions

2. Population; AND Need not Need not be
3. Land Area follow land contiguous
area
Barangay 1. Population; AND
2. Territorial contiguity Province Under the 1)
LGC: No Composed
INCOME exception. of 2 or more
Income must be sufficient to provide for all islands; OR
essential government facilities and services Under the 2) Separated
and special functions commensurate with the LGC IRR: by cities
size of its population [Sec. 7(a), LGC]. composed of which do not
1 or more contribute to
What is included in average annual income: islands [Art. the income of
Income accruing to the general fund, exclusive 9(2), LGC the province
of special funds, transfers, and non-recurring IRR; Navarro [Sec. 461(b),
income [Secs. 442, 450, 461, LGC]. v. Ermita, LGC]
G.R. No.
The internal revenue allotment (IRA) forms part 180050
of the income of the LGU. The funds generated (2011)]
from local taxes, IRA, and national wealth
City Composed of Composed
utilization proceeds accrue to the general fund
1 or more of 2 or more
of the LGU [Alvarez v. Guingona, G.R. No.
islands [Sec. islands [Sec.
118303 (1996)].
450(b), LGC] 450(b), LGC]
Exception: Component cities created under
R.A. 9009, which mandates that the income Municipality Composed of Composed
requirement be satisfied through locally 1 or more of 2 or more
generated revenue of at least P100M. [League islands [Sec. islands [Sec.
of Cities v. COMELEC, G.R. No. 176961 442(a), LGC] 442(b), LGC]
(2008)]

POPULATION Barangay No Composed

Population shall be determined as the total requirement of 2 or more
number of inhabitants within the territorial islands [Sec.
jurisdiction of the local government unit [Sec. 386(b), LGC]
7(b), LGC].

LAND AREA (Territory)

The land area must be:
1. Contiguous, unless it comprises of two or
more islands or is separated by an LGU
independent of the others;
2. Properly identified by metes and bounds with
technical descriptions; and

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Summary of Verifiable Indicators of Viability

Income Population Land Area

Average annual Total number of Generally, must be

income for the last 2 inhabitants within contiguous
consecutive years LGU’s territory

Compliance attested Department of Finance National Statistics Land Management

by: Office Bureau

Province P20M (1991 prices) 250,000 2,000 sq. km.

[Sec. 461, LGC]

Highly Urbanized City P50M (1991 prices) 200,000 100 sq. km.
[Sec. 452, LGC]

Component City P100M (2000 prices) 150,000 100 sq. km

[Sec. 450, LGC, as
amended by R.A.
9009]

Municipality P2.5M (1991 prices) 25,000 50 sq. km.

[Sec. 442, LGC]

Barangay No requirement 2,000; OR no requirement except

[Sec. 386, LGC] 5,000 (if in Metro for contiguity
Manila or HUCs)
General Rule: All requirements are minimum

Other LGUs The scope of the MMDA's function is limited to

1. Special Metropolitan Political
Subdivisions
A special metropolitan political subdivision is:
a. Created by Congress,
b. Subject to a plebiscite,
c. Whose component cities and municipalities
retain their basic autonomy and are entitled
to their own local executive and legislative
assemblies, and
d. Whose jurisdiction shall be limited to basic
services requiring coordination.
N.B. The MMDA is not an LGU, much less a
special metropolitan political subdivision. “The
MMDA is a ‘development authority’ which is a
‘national agency, not a political government
unit’” [MMDA v. Bel-Air, G.R. No. 135962
(2000)].
the delivery of [7 basic services enumerated in
its charter.] There is no syllable in R.A. No.
7924 that grants the MMDA police power, let
alone legislative power. Even the Metro Manila
Council has not been delegated any legislative
power. Unlike the legislative bodies of the local
government units, there is no provision in R.A.
No. 7924 that empowers the MMDA or its
Council to "enact ordinances, approve
resolutions appropriate funds for the general
welfare" of the inhabitants of Metro Manila.
[MMDA v. Bel-Air, supra].
2. Independent Component Cities and
Highly Urbanized Cities
Sec. 12, Art. X, 1987 Constitution. Cities
that are highly urbanized, as determined by
law, and component cities whose charters
prohibit their voters from voting for provincial
elective officials, shall be independent of the

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province. The voters of component cities
within a province, whose charters contain no
such prohibition, shall not be deprived of
their right to vote for elective provincial
officials.
Independent Component Cities are those
whose charters prohibit their voters from voting
for provincial elective officials. They shall be
independent of the province [par. 2, Sec. 451,
LGC].
Highly Urbanized Cities are cities with a
minimum population of two hundred thousand
(200,000) inhabitants as certified by the
National Statistics Office, and with an annual
income of at least Fifty Million Pesos
(P50,000,000.00) based on 1991 constant
prices, as certified by the city treasurer [Sec.
452(a), LGC].
3. Autonomous Regions
Sec. 15, Art. X, 1987 Constitution. There
shall be created autonomous regions in
Muslim Mindanao and in the Cordilleras
consisting of provinces, cities,
municipalities, and geographical areas
sharing common and distinctive historical
and cultural heritage, economic and social
structures, and other relevant characteristics
within the framework of this Constitution and
the national sovereignty as well as territorial
integrity of the Republic of the Philippines.
Sec. 11, Art. X, 1987 Constitution. The
Congress may, by law, create special
metropolitan political subdivisions, subject to
a plebiscite as set forth in Section 10 hereof.
The component cities and municipalities
shall retain their basic autonomy and shall
be entitled to their own local executive and
legislative assemblies. The jurisdiction of the
metropolitan authority that will thereby be
created shall be limited to basic services
requiring coordination.
Sec. 16, Art. X, 1987 Constitution. The
President shall exercise general supervision
over autonomous regions to ensure that
laws are faithfully executed.
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Sec. 17, Art. X, 1987 Constitution. All
powers, functions, and responsibilities not
granted by this Constitution or by law to the
autonomous regions shall be vested in the
National Government
Sec. 21, Art. X, 1987 Constitution. The
preservation of peace and order within the
regions shall be the responsibility of the local
police agencies which shall be organized,
maintained, supervised, and utilized in
accordance with applicable laws. The
defense and security of the regions shall be
the responsibility of the National
Government.
An autonomous region is created via the
enactment of an organic act by Congress with
participation of the regional consultative
commission. The organic act shall:
a. Define the basic structure of government
for the region consisting of the executive
department and legislative assemblies,
both of which shall be elective and
representative of the constituent political
units; and,
b. Provides for special courts with personal,
family, and property law jurisdiction [Sec.
18, Art. X, 1987 Constitution].
An autonomous region is considered a
form of local government in Section 1,
Article X of the Constitution.
From the perspective of the Constitution,
autonomous regions are considered one of the
forms of local governments, as evident from
Article X of the Constitution entitled “Local
Government.” Autonomous regions are
established and discussed under Sections 15
to 21 of this Article—the article wholly devoted
to Local Government. That an autonomous
region is considered a form of local
government is also reflected in Section 1,
Article X of the Constitution [Kida v. Senate,
G.R. No. 196271 (2011)].
The organic act of autonomous regions shall
provide for legislative powers over:
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a. Administrative organization; b. Commenced by the Solicitor General

b. Creation of sources of revenues; or the fiscal when directed by the
c. Ancestral domain and natural President; and
resources; c. Timely raised [Municipality of San
d. Personal, family, and property Narciso v. Mendez, G.R. No. 103702
relations; (1994)].
e. Regional urban and rural planning
development; LGC’s Conversion of De Facto Municipal
f. Economic, social, and tourism Corporations to De Jure
development; Sec. 442 (d), LGC. Municipalities existing as
g. Educational policies; of the date of the effectivity of this Code shall
h. Preservation and development of continue to exist and operate as such.
Existing municipal districts organized
cultural heritage; and
pursuant to presidential issuances or
i. Such other matters as may be
executive orders and which have their
authorized by law for the promotion of respective set of elective municipal officials
the general welfare of the people of the holding office at the time of the effectivity of
region [Sec. 20, Art. X, Constitution]. this Code shall henceforth be considered as
regular municipalities.
N.B. The autonomous governments of
Mindanao are subject to the jurisdiction of our 5. Sub-Provinces
national courts. [Limbona v. Mangellin, G.R.
No. 80391 (1989)] LGC’s Conversion of Sub-Provinces to
Provinces
4. De Facto Municipal Corporations 1st sentence, par. 1, Sec. 462, LGC.
De Facto Municipal Corporations are formed Existing sub-provinces are hereby converted
when there is defect in the creation of a into regular provinces upon approval by a
municipal corporation but its legal existence majority of the votes cast in a plebiscite to be
has been recognized and acquiesced publicly held in the said sub-provinces and the
and officially. original provinces directly affected.

Requisites: N.B. There are currently no more existing sub-

a. Apparently valid law under which the
corporation may be formed;
b. Attempt in good faith to organize the
corporation;
c. Colorable compliance with law; and
d. Assumption of corporate powers
[Municipality of Malabang v. Benito,
G.R. No. L-28113 (1969)].
Collateral Attacks are NOT Allowed: The
action to attack its personality is reserved to the
state in a proceeding for quo warranto or any
other direct proceeding. The proceeding must
be:
a. Brought in the name of the Republic of
the Philippines;
provinces in the Philippines.
Other Material Changes
1. Division and Merger
Requirements: Division and merger shall
comply with the same requirements prescribed
for the creation of an LGU [Sec. 8, LGC].
Limitations
● Division shall not reduce the income,
population, or land area of the LGU or
LGUs concerned to less than the
minimum requirements prescribed;
● The income classification of the original
LGU or LGUs shall not fall below its
current classification prior to the
division [Sec. 8, LGC].

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No Automatic Abolition: The fact that nobody

Effects resides in an LGU does not result in its
● Under the old Revised Administrative automatic cessation. The Congress or the
Code, the effect of division and merger sanggunian concerned must pass a law or an
are determined by the law effecting ordinance for the abolition of such LGU,
such [Sec. 68]. There is no equivalent subject to the mandatory requirement of a
provision in either the 1987 plebiscite [Sultan Usman Sarangani v.
Administrative Code, the LGC, or the COMELEC, G.R. No. 135927 (2000)].
Dissolution does not occur due to:
LGC IRR.
a. Non-user or surrender of charter;
b. Failure to elect municipal officers;
The following effects are taken from common
law: c. Change of sovereignty; or
d. Change of name or boundaries
Effects of Merger Effects of Division [MARTIN].

Legal existence and Legal existence of 3. Downgrading

right of office of the the original LGU is Downgrading falls within the meaning of
annexed LGU are extinguished. creation, division, merger, abolition, or
terminated substantial alteration; hence ratification in a
plebiscite is necessary. There is a material
Ordinances of the change in the political and economic rights of
annexing LGU shall the LGU's inhabitants as well as its budget, and
prevail thus reasonable to require the consent of the
affected population.
Title to property is Successor LGUs
acquired and debts acquire property, The effects of downgrading from independent
are assumed by the rights, powers, and component city to component city are:
annexing LGU. obligations falling a. The city mayor will be placed under the
within their administrative supervision of the
respective territorial Governor;
limits. b. Resolutions and ordinances passed by
[MARTIN] the City Council will have to be
reviewed by the Provincial Board; and,
2. Abolition c. Taxes will have to be shared with the
province [Miranda v. Aguirre, supra].
Ground: An LGU may be abolished when its
income, population, or land area has been N.B. Power to create, divide, merge, abolish
irreversibly reduced to less than the minimum or substantially alter boundaries: The power
standards prescribed for its creation as to create, divide, merge, abolish or
certified by the national agencies concerned to substantially alter boundaries of provinces,
the Congress or the sanggunian [Sec. 9, LGC]. cities, municipalities or barangays, is
essentially legislative in nature. The framers of
Resulting Merger: The law or ordinance the Constitution have, however, allowed for the
abolishing an LGU shall specify the province, delegation of such power in Sec. 10, Art. X of
city, municipality, or barangay with which the the Constitution as long as (1) the criteria
LGU sought to be abolished will be prescribed in the LGC is met and (2) the
incorporated or merged [Sec. 9, LGC]. creation, division, merger, abolition or the
substantial alteration of the boundaries is
subject to the approval by a majority vote in a

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plebiscite. With the twin criteria of standard and Decentralization refers to either (1)
plebiscite satisfied, the delegation to LGUs of decentralization of administration or to (2)
the power to create, divide, merge, abolish or decentralization of power.
substantially alter boundaries has become a
recognized exception to the doctrine of non-
delegation of legislative powers [Umali v.
COMELEC, G.R. No. 203974 (2014)].
Decentralization of Decentralization of
C. PRINCIPLES OF LOCAL Administration Power
AUTONOMY Occurs when the Abdication of political
central government power in favor of
Sec. 2, Art. X, 1987 Constitution. - The delegates LGUs declared to be
territorial and political subdivisions shall administrative autonomous regions,
enjoy local autonomy. powers to political making the latter no
subdivisions in order longer accountable
Sec. 2, LGC. Declaration of Policy. to make it more to the National
a. It is hereby declared the policy of the State responsive. government, but to
that the territorial and political subdivisions of [Limbona v. its constituency.
the State shall enjoy genuine and Mangellin, supra] [Ganzon v. CA, G.R.
meaningful local autonomy to enable them to No. 93252 (1991)]
attain their fullest development as self-reliant
communities and make them more effective
Devolution is the act by which the national
partners in the attainment of national goals.
government confers power and authority upon
Toward this end, the State shall provide for
the various local government units to perform
a more responsive and accountable local
specific functions and responsibilities [Sec. 17,
government structure instituted through a
LGC].
system of decentralization whereby local
government units shall be given more
The principle of local autonomy under the 1987
powers, authority, responsibilities, and
Constitution simply means decentralization
resources. The process of decentralization
[Basco v. PAGCOR, G.R. No. 91649 (1991)].
shall proceed from the national government
to the local government units.
N.B. Basco was decided prior to the LGC.
b. It is also the policy of the State to ensure
Basco holds that the Constitution guarantees
the accountability of local government units
decentralization, but says nothing which
through the institution of effective
precludes devolution. The Court later
mechanisms of recall, initiative and
recognized that “the centerpiece of LGC is the
referendum.
system of decentralization[.] Indispensable
c. It is likewise the policy of the State to
thereto is devolution and the LGC expressly
require all national agencies and offices to
provides that ‘[a]ny provision on a power of a
conduct periodic consultations with
local government unit shall be liberally
appropriate local government units,
interpreted in its favor, and in case of doubt,
nongovernmental and people's
any question thereon shall be resolved in favor
organizations, and other concerned sectors
of devolution of powers and of the lower local
of the community before any project or
government unit’” [Tano v. Socrates, G.R. No.
program is implemented in their respective
110249 (1997), citing Sec. 5(a), LGC].
jurisdictions.
The Constitution provides for political
a. Decentralization v. Devolution
autonomy (and not merely administrative

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autonomy) for autonomous regions [Cordillera general supervision over local governments.
Broad Coalition v. COA, G.R. No. 79956 Provinces with respect to component cities
(1990)]. and municipalities, and cities and
municipalities with respect to component
N.B. Local Autonomy and National barangays, shall ensure that the acts of their
Accountability component units are within the scope of their
Where there is no express power in the charter prescribed powers and functions.
of a municipality authorizing it to adopt
ordinances regulating certain matters which The Constitution confines the President's
are specifically covered by a general statute, a power over local governments to one of
municipal ordinance, insofar as it attempts to general supervision.
regulate the subject which is completely
covered by a general statute of the legislature,
Power of Power of Control
may be rendered invalid. Where the subject is
Supervision
of statewide concern, and the legislature has
appropriated the field and declared the rule, its Overseeing; the Power of an officer to
declaration is binding throughout the State. A power or authority of alter or modify or
reason advanced for this view is that such an officer to see that nullify or set aside
ordinances are in excess of the powers granted subordinate officers what a subordinate
to the municipal corporation [Batangas CATV perform their duties officer has done in
Inc. v. CA, G.R. No. 138810 (2004)]. the performance of
his duties
N.B. Local Autonomy and Decision Making
Police power is the power to prescribe If a subordinate fails, If a subordinate fails,
regulations to promote the health, morals, the superior may the superior may
peace, education, good order, safety, and take such action or substitute the
general welfare of the people. As an inherent step as prescribed judgment of the latter
attribute of sovereignty, police power primarily by law to make them for that of the former
rests with the State. In furtherance of the perform their duties.
State's policy to foster genuine and meaningful
local autonomy, the national legislature Supervising officials Officers in control lay
delegated the exercise of police power to local merely see to it that down the rules in the
government units (LGUs) as agents of the the rules are performance or
State. Such delegation can be found in Section followed, but they accomplishment of
16 of the LGC, which embodies the general themselves do not an act. If these rules
welfare clause. Since LGUs exercise lay down such rules, are not followed, they
delegated police power as agents of the State, nor do they have the may, in their
it is incumbent upon them to act in conformity discretion to modify discretion, order the
to the will of their principal, the State. or replace them. If act undone or redone
Necessarily, therefore, ordinances enacted the rules are not by their subordinates
pursuant to the general welfare clause may not observed, they may or even decide to do
subvert the State's will by contradicting national order the work done it themselves.
statutes [City of Batangas v. Phil. Shell or redone, but only to
Petroleum Corp., G.R. No. 195003 (2017)]. conform to such
rules. They may not
b. President’s Power Of Supervision Over prescribe their own
Local Governments manner of execution
of the act.
Sec. 4, Art. X, 1987 Constitution. - The [Pimentel v. Aguirre, G.R. No.132988 (2000)]
President of the Philippines shall exercise

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c. Local Fiscal Autonomy
Sec. 5, Art. X, 1987 Constitution. - Each
local government unit shall have the power
to create its own sources of revenues and to
levy taxes, fees, and charges subject to such
guidelines and limitations as the Congress
may provide, consistent with the basic policy
of local autonomy. Such taxes, fees, and
charges shall accrue exclusively to the local
governments.
Fiscal Autonomy and Self–Reliance: In
order to fully secure to the LGUs the genuine
and meaningful autonomy that would develop
them into self-reliant communities and effective
partners in the attainment of national goals,
Section 17 of the Local Government Code
vested upon the LGUs the duties and functions
pertaining to the delivery of basic services and
facilities. Paragraph (c) of the same provision
provides a categorical exception of cases
involving nationally-funded projects, facilities,
programs and services.
The essence of this express reservation of
power by the national government is that,
unless an LGU is particularly designated as the
implementing agency, it has no power over a
program for which funding has been provided
by the national government under the annual
general appropriations act, even if the program
involves the delivery of basic services within
the jurisdiction of the LGU [Pimentel Jr. v.
Executive Secretary, G.R. No. 195770 (2012)].
Under existing laws, LGUs enjoy not only
administrative autonomy, but also local fiscal
autonomy.
This means that LGUs have the power to
create their own sources of revenue in addition
to their equitable share in the national taxes
released by the national government, as well
as the power to allocate their resources in
accordance with their own priorities.
It extends to the preparation of their budgets,
and local officials in turn have to work within the
constraints thereof. They are not formulated at
the national level and imposed on local
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governments, whether they are relevant to
local needs and resources or not [Pimentel v.
Aguirre, supra].
a. Sources of LGU Funds
1. Taxes, fees, and charges which accrue
exclusively for their use and disposition
2. Just share in national taxes which shall
be automatically and directly released
to them
3. Equitable share in the proceeds from
utilization and development of national
wealth and resources within their
territorial jurisdiction [Sec. 18, LGC]
b. Internal Revenue Allotments
Sec. 6, Art. X, 1987 Constitution. - Local
government units shall have a just share, as
determined by law, in the national taxes
which shall be automatically released to
them.
General Rule
LGUs shall have a 40% share in the national
internal revenue taxes based on the collection
of the third fiscal year preceding the current
fiscal year [Sec. 284(c), LGC].
Exception
When the national government incurs an
unmanageable public sector deficit, the
President is authorized to reduce the IRA to
30% [Par. 2, Sec. 284, LGC].
Requisites for the Exception
1. Unmanageable public sector deficit;
2. Recommendation of the Secretaries of
a. Finance,
b. Internal and Local Government,
and
c. Budget and Management; and
3. Consultation with
a. heads of both Houses of Congress,
and
b. presidents of the liga. [par. 2, Sec.
284, LGC]

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Automatic Release
The share of each LGU shall be released,
without need of any further action, directly to
the respective treasurer on a quarterly basis
within five (5) days after the end of each
quarter, and which shall not be subject to any
lien or holdback that may be imposed by the
national government for whatever purpose
[Sec. 286(a), LGC].
Sec. 4 of A.O. 372, withholding 10% of the
LGUs' IRA "pending the assessment and
evaluation by the Development Budget
Coordinating Committee of the emerging fiscal
situation" is invalid and unconstitutional. The
“temporary” nature of the retention by the
national government does not matter. Any
retention is prohibited [Pimentel v. Aguirre,
supra].
Since under Sec. 6, Art X of the Constitution,
only the just share of local governments is
qualified by the words “as determined by law,”
and not the release thereof, the plain
implication is that Congress is not authorized
by the Constitution to hinder or impede the
automatic release of the IRA [ACORD v.
Zamora, G.R. No. 144256 (2005)].
c. Consultations
Sec. 26, LGC. Duty of National
Government Agencies in the
Maintenance of Ecological Balance. – It
shall be the duty of every national agency or
GOCC authorizing or involved in the
planning and implementation of any project
or program that may cause pollution, climatic
change, depletion of non-renewable
resources, loss of cropland, rangeland, or
forest cover, and extinction of animal or plant
species, to consult with the LGUs, NGOs,
and other sectors concerned and explain the
goals and objectives of the project or
program, its impact upon the people and the
community in terms of environmental or
ecological balance, and the measures that
will be undertaken to prevent or minimize the
adverse effects thereof.
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Sec. 27, LGC. Prior Consultations
Required. – No project or program shall be
implemented by government authorities
unless the consultations in Sections 2(c) and
26 hereof are complied with, and prior
approval of the sanggunian concerned is
obtained.
Section 27 of the Code should be read in
conjunction with Section 26 thereof. Thus, the
projects and programs mentioned in Section 27
should be interpreted to mean projects and
programs whose effects are among those
enumerated in Sections 26 and 27, to wit, those
that: (1) may cause pollution; (2) may bring
about climatic change; (3) may cause the
depletion of non-renewable resources; (4) may
result in loss of crop land, rangeland, or forest
cover; (5) may eradicate certain animal or plant
species; and (6) other projects or programs
that may call for the eviction of a particular
group of people residing in the locality where
these will be implemented [Bangus Fry
fisherfolk v. Lanzanas, G.R. No. 131442
(2003)].
As to Subic Special Economic Zone (SSEZ):
Consultations are not required when the very
law unambiguously provides that the LGUs do
not retain their basic autonomy and identity
when it comes to matters specified by the law
as falling under the powers, functions and
prerogatives of the SBMA. Under R.A. No.
7227, the power to approve or disapprove
projects within the SSEZ is one such power
over which the SBMA’s authority prevails over
the LGU’s authority [Paje v. Casiño, G.R. No.
207257 (2015)].
d. Interpretation in Favor of Local
Autonomy
Sec. 5, LGC. Rules of interpretation. – In
the interpretation of the provisions of this
Code, the following rules shall apply:
a. Any provision on a power of a local
government unit shall be liberally
interpreted in its favor, and in case of
doubt, any question thereon shall be

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resolved in favor of devolution of powers
and of the lower local government unit.
Any fair and reasonable doubt as to the
existence of the power shall be
interpreted in favor of the local
government unit concerned;
b. In case of doubt, any tax ordinance or
revenue measure shall be construed
strictly against the local government unit
enacting it, and liberally in favor of the
taxpayer. Any tax exemption, incentive
or relief granted by any local government
unit pursuant to the provisions of this
Code shall be construed strictly against
the person claiming it;
c. The general welfare provisions in this
Code shall be liberally interpreted to give
more powers to local government units
in accelerating economic development
and upgrading the quality of life for the
people in the community;
d. Rights and obligations existing on the
date of effectivity of this Code and
arising out of contracts or any other
source of presentation involving a local
government unit shall be governed by
the original terms and conditions of said
contracts or the law in force at the time
such rights were vested; and
e. In the resolution of controversies arising
under this Code where no legal provision
or jurisprudence applies, resort may be
had to the customs and traditions in the
place where the controversies take
place.
D. POWERS OF LOCAL
GOVERNMENT UNITS
Sources of Power
1. 1987 Constitution
2. Local Government Code and special laws
3. Charter of the LGU
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Four Categories of Powers Exercised by
LGUs
1. Powers expressly granted
2. Powers necessarily implied therefrom
3. Powers necessary, appropriate, or
incidental for efficient and effective
governance
4. Powers essential to the promotion of the
general welfare [Sec. 16, LGC]
Within their respective territorial
jurisdictions, LGUs shall ensure and
support
1. Preservation and enrichment of culture
2. Promotion of health and safety
3. Enhancement of the right of the people to
a balanced ecology
4. Development of self-reliant scientific and
technological capabilities
5. Improvement of public morals
6. Enhancement of economic prosperity and
social justice
7. Promotion of full employment among
residents
8. Maintenance of peace and order
9. Preservation of the comfort and
convenience of its inhabitants [Sec. 16,
LGC]
1. General Welfare Clause
Nature
The police power of a municipal corporation
extends to all great public needs, and includes
all legislation and functions of the municipal
government. The drift is towards social welfare
legislation geared towards state policies to
provide adequate social services, the
promotion of general welfare, and social justice
[Binay v. Domingo, G.R. No. 92389 (1991)].
Two Branches of the General Welfare
Clause
a. General legislative power – Authorizes
municipal councils to enact ordinances and
make regulations not repugnant to law and
may be necessary to carry into effect and

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U.P. LAW BOC LOCAL GOVERNMENTS
discharge the powers and duties conferred
upon it by law
b. Police power proper – Authorizes the
municipality to enact ordinances as may be
proper and necessary for the health and
safety, prosperity, morals, peace, good
order, comfort and convenience of the
municipality and its inhabitants, and for the
protection of their property [Fernando v. St.
Scholastica’s College, G.R. No. 161107
(2013)].
Limitations
a. The General Welfare clause cannot be
used to justify an act not authorized by law.
b. The exercise must pass the test of a valid
ordinance. [Rural Bank of Makati v.
Municipality of Makati, G.R. No. 150763
(2004)].
Two-Pronged Test for an Ordinance to be
Considered a Valid Police Power Measure
[Mosqueda v. Pilipino Banana Growers &
Exporters Association, Inc., G.R. No. 189185
(2016)]
a. Formal
i. Enacted within the corporate
powers of the local government
unit, and
ii. Passed according to procedure
prescribed by law
b. Substantive
i. It must not contravene the
Constitution or any statute;
ii. It must be fair, not oppressive;
iii. It must not be partial or
discriminatory;
iv. It must not prohibit but may
regulate trade
v. It must be general and consistent
with public policy
vi. It must not be unreasonable
Illustrations of Valid Exercise of Police Power
● Prescribing zoning and classification of
merchandise sold in the public market;
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● Condemnation and demolition of
buildings found to be in dangerous or
ruinous condition;
● Regulation of operation of tricycles;
● Zoning regulations [Patalinghug v. CA,
G.R. No. 104786 (1994)];
● Providing burial assistance to the poor
[Binay v. Domingo, G.R. No. 92389
(1991)];
● Enforcement of fishery laws within LGU
waters [Tano v. Socrates, G.R. No.
110249 (1997)]
Illustrations of Invalid Exercise of Police Power
● Prohibition of operation of night clubs,
as it is a lawful trade or pursuit of
occupation [Dela Cruz v. Paras, G.R.
No. L-42571-72 (1983)];
● Rescinding of mayor's permits based
on arbitrary grounds [Greater Balanga
Dev’t Corp. v. Mun. of Balanga, G.R.
No. 83987 (1994)].
● Setting aside 6% of the total area of
private memorial type cemetery for
charity burial of deceased persons who
are paupers [City Government of
Quezon City v. Ericta, G.R. No. L-
34915 (1983)]
2. Eminent Domain
Nature
It is the government's right to appropriate, in
the nature of a compulsory sale to the State,
private property for public use or purpose.
Inherently possessed by the national
legislature, the power of eminent domain may
be validly delegated to local governments,
other public entities and public utilities. [Moday
v. CA, G.R. No. 107916 (1993)]
Requisites for the Exercise of Eminent
Domain by an LGU
a. An ordinance is enacted by the local
legislative council authorizing the local
chief executive, in behalf of the local
government unit, to exercise the power of

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eminent domain or pursue expropriation
proceedings over a particular private
property;
b. The power is exercised for public use,
purpose or welfare, or for the benefit of the
poor and the landless;
c. There is payment of just compensation
based on the fair market value of the
property at the time of taking; and
d. A valid and definite offer was previously
made to the owner of the property, but the
offer was not accepted [Heirs of Suguitan
v. City of Mandaluyong, G.R. No. 135087
(2000)].
Jurisdiction
An expropriation suit falls under the jurisdiction
of the RTCs. The subject of an expropriation
suit is the government’s exercise of eminent
domain, a matter that is incapable of pecuniary
estimation [Barangay San Roque v. Heirs of
Pastor, G.R. No. 138896 (2000)].
Public Use, Purpose, or Welfare
The very foundation of the right to exercise
eminent domain is a genuine necessity and
that necessity must be of a public character.
Moreover, the ascertainment of the necessity
must precede or accompany and not follow, the
taking of the land. Necessity does not mean an
absolute, but only a reasonable or practical
necessity, such as would combine the greatest
benefit to the public with the least
inconvenience and expense to the condemning
party and the property owner consistent with
such benefit [Masikip v. City of Pasig, G.R. No.
136349 (2006)].
Just Compensation
"Compensation" means an equivalent for the
value of the land (property) taken. The word
"just" is used to intensify the meaning of the
word "compensation;" to convey the idea that
the equivalent to be rendered for the property
taken shall be real, substantial, full, and ample.
"Just compensation," therefore, means a fair
and full equivalent for the loss sustained [The
City of Manila v. Estrada, G.R. No. 7749
(1913)].
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Just compensation is determined as of the time
of taking [Sec. 19, LGC].
Valid and Definite Offer
The offer must be complete, indicating with
sufficient clearness the kind of contract
intended and definitely stating the essential
conditions of the proposed contract. An offer
would require, among other things, a clear
certainty on both the object and the cause or
consideration of the envisioned contract [Jesus
is Lord Christian School Foundation Inc. v.
Municipality of Pasig, G.R. No. 152230 (2005)].
Requisites for the Immediate Entry by the
LGU
a. Filing of the complaint for expropriation
sufficient in form and substance; AND
b. Deposit of an amount equivalent to 15% of
the fair market value of the property to be
expropriated based on the current tax
declaration [Sec. 19, LGC]
Upon compliance with the requisites, the
issuance of a writ of possession becomes
ministerial. There is no need for a hearing for
the writ to issue [City of Iloilo v. Legaspi, G.R.
No. 154614 (2004)].
Returning the Property
When private land is expropriated for a
particular public use and that purpose is
abandoned, there is no “implied contract” that
the properties will be used only for the public
purpose for which they were acquired. Property
is to be returned only when it is expropriated
with the condition that when said purpose is
ended or abandoned, the former owner
reacquires the property so expropriated, and
not when the expropriation decree gives to the
entity a fee simple which makes the land the
expropriator the absolute owner of the property
[Air Transportation Office v. Gopuco, G.R. No.
158563 (2005)].
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Power of Eminent Domain: National c. Unregistered or abandoned and idle

Government v. Local Government Unit lands
National Local Government d. Lands within Areas for Priority
Government Unit Development
e. Unacquired BLISS sites
Inherent Power Delegated Power f. Private lands [Sec. 9]

No law is needed An ordinance is Furthermore, lands of small-property owners

always required are exempt from expropriation for purposes of
socialized housing. “Small-property owners”
Fair Market Value FMV determined at are defined by two elements:
(FMV) determined at the time of taking a. They are owners of real property which
the time of filing of consists of residential lands with an
the expropriation area of not more than 300 sq. meters in
case or the taking of highly urbanized cities, and 800 sq.
property, whichever meters in other urban cities; and
came first b. They do not own real property other
than the same [Sec. 3(q)].
Assessed value of 15% FMV required to
property required to be deposited in order
be to take immediate 3. Taxing Power
deposited in order to possession
take immediate Sec. 5, Art. X, 1987 Constitution. - Each
possession local government unit shall have the power
to create its own sources of revenues and to
No formal and A formal and definite levy taxes, fees, and charges subject to such
definite offer offer is required guidelines and limitations as the Congress
required may provide, consistent with the basic policy
of local autonomy. Such taxes, fees, and
Socialized Housing [Urban Development and charges shall accrue exclusively to the local
Housing Act, R.A. 7279] governments.
Under the Urban Development and Housing
Act, expropriation by an LGU for purposes of Fundamental Principles on Taxation by an
urban land reform and socialized housing shall LGU
occur only as a last resort. It must be shown by 1. Taxation shall be uniform;
the LGU that other methods of acquisition 2. Taxes, fees, and charges:
(community mortgage, land swapping, land a. Shall be equitable and based as far
assembly or consolidation, land banking, as practicable on the taxpayer's
donation to the Government, joint venture ability to pay;
agreements, and negotiated purchase) have b. Shall be levied and collected only
been exhausted [Sec. 10]. for a public purpose;
c. Shall not be unjust, excessive,
If all the other methods have been exhausted
oppressive, or confiscatory; and
and expropriation to continue, the LGU shall
acquire lands for socialized housing in the d. Shall not be contrary to law, public
following order: policy, national economic policy, or
a. Government lands in restraint of trade;
b. Alienable lands of the public domain 3. Collection shall in no case be left to any
private person;

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4. Revenue shall inure solely to the benefit of
the levying LGU, unless otherwise
specified; and
5. Each LGU shall, as far as practicable,
evolve a progressive system of taxation
[Sec. 130, LGC]
Withdrawal of Local Tax Exemption
Privileges
Unless otherwise provided in the LGC, tax
exemptions or incentives granted to, or
enjoyed by all persons, whether natural or
juridical, including government-owned or -
controlled corporations were withdrawn upon
the effectivity of the LGC [Sec. 193, LGC].
Tax exemption privileges of the following were
not withdrawn by the LGC:
1. Local water districts;
2. Cooperatives duly registered under
R.A. No. 6938;
3. Non-stock and non-profit hospitals; and
4. Educational institutions [Sec. 193 and
234, LGC].
Real Property Taxation
Annual ad valorem tax on real property may be
levied by a:
1. Province;
2. City; or
3. Municipality within the Metropolitan
Manila Area [Sec. 232, LGC]
Exemptions from Real Property Tax
The following are exempted from payment of
the real property tax:
1. Real property owned by the Republic of
the Philippines or any of its political
subdivisions EXCEPT when the
beneficial use thereof has been
granted, for consideration or otherwise,
to a taxable person;
2. Charitable institutions, churches,
parsonages or convents appurtenant
thereto, mosques, nonprofit or religious
cemeteries and all lands, buildings,
and improvements actually, directly,
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and exclusively used for religious,
charitable, or educational purposes;
3. All machineries and equipment that are
actually, directly and exclusively used
by local water districts and
government-owned or -controlled
corporations engaged in the supply
and distribution of water and/or
generation and transmission of electric
power;
4. All real property owned by duly
registered cooperatives as provided for
under R.A. No. 6938; and
5. Machinery and equipment used for
pollution control and environmental
protection [Sec. 234, LGC].
Other Limitations on Taxing Powers of
LGUs
Taxes Already Imposed by the National
Government
Generally, LGUs cannot impose taxes that are
already imposed by the National Government
(e.g. income tax, documentary stamp tax,
estate tax, customs duties, excise taxes under
the NIRC, VAT) [See Sec. 133, LGC].
Persons Exempted from LGU’s taxing power
LGUs cannot impose taxes, fees, and charges
on
1. Countryside and barangay business
enterprises;
2. Cooperatives duly registered under the
Cooperative Code; and
3. The National Government, its agencies
and instrumentalities, and local
government units [Sec. 133(n) to (o),
LGC].
An instrumentality of the State or National
Government is exempt from local taxation.
[Sec. 133(o), LGC] Hence, the Manila
International Airport Authority, being such an
instrumentality and not being a GOCC, is
exempt from local taxation [MIAA v. CA, G.R.
No. 155650 (2006)].
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However, GOCCs are [generally] not exempt c. Such ordinance must have provisions for
from local taxation [MIAA v. CA, supra] the maintenance of public safety therein;
and
4. Closure and Opening of d. If a freedom park is permanently closed,
Roads there must be a provision for its transfer or
relocation to a new site [Sec. 21(a),(b)].
Scope of LGU’s power to close [Sec. 21, e. Such property permanently withdrawn from
LGC] public use may be used or conveyed for
any purpose for Which other real property
Road, alley, park, or square is
belonging to the LGU may be lawfully used
NATIONAL LOCAL or conveyed [Sec. 21(b)].

Temporary closure Temporary or

only Permanent closure

Requisites for Temporary Closure

a. Via ordinance;
b. May be done due to:
i. Actual emergency;
ii. Fiesta celebrations;
iii. Public rallies;
iv. Agricultural or industrial fairs; or
v. Undertaking of public works and
highways, telecommunications,
and waterworks projects;
c. Duration of closure must be specified by
the local chief executive in a written order;
and
d. If for the purpose of athletic, cultural, or civil
activities, these must be officially
sponsored, recognized, or approved by the
local government [Sec. 21, LGC].

A City, Municipality, or Barangay may also

temporarily close and regulate the use of any
local street, road, thoroughfare or any other
public place where shopping malls, Sunday,
flea or night markets, or shopping areas may
be established for the general public [Sec.
21(d)]

Requisites for Permanent Closure

a. Via ordinance approved by at least 2/3 of
all members of the Sanggunian;
b. When necessary, an adequate substitute
for the public facility that is subject to
closure should be provided;

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Public Roads are Outside the Commerce of A third reading is A third reading is not
Man necessary necessary unless
A public road may not be the subject of lease decided otherwise by
or contract, as public roads are properties for a majority of all the
public use outside the commerce of man sanggunian
[Dacanay v. Asistio, G.R. No. 93654 (1992)]. members
As long as a property owner has reasonable [Garcia v. COMELEC, G.R. No. 111230
access to the general system of streets, he has (1994)]
no right to compensation for the closure of a
public street. The Constitution does not Presiding Officer
undertake to guarantee to a property owner the Legislative Body Presiding Officer
public maintenance of the most convenient
route to his door [Cabrera v. CA, G.R. No. Sangguniang Vice-Governor
78573 (1991)]. Panlalawigan

5. Legislative Power Sangguniang Vice-Mayor

Panlungsod
a. Requisites for a valid ordinance Sangguniang Bayan Vice-Mayor

See Two-Pronged Test for an Ordinance to be Sangguniang Punong Barangay

Considered a Valid Police Power Measure Barangay
under Police Power (General Welfare Clause)
above.
The presiding officer shall vote only to break a
tie [Sec. 49, LGC].
Local legislative power shall be exercised by
the:
Non-membership of Acting Governor: A Vice
1. Sangguniang panlalawigan for the
Governor who is concurrently an Acting
province;
Governor is actually a quasi-Governor. He is
2. Sangguniang panlungsod for the city; deemed a nonmember of the sanggunian for
3. Sangguniang bayan for the municipality; the time being and so cannot preside over its
and sessions. The procedure for the election of a
4. Sangguniang barangay for the barangay temporary presiding officer in case of inability
[Sec. 48, LGC] of the regular presiding officer shall apply in
such case [Gamboa v. Aguirre, G.R. No.
Ordinance v. Resolution 134213 (1999)].
Ordinance Resolution
Internal Rules of Procedure
Considered as law Mere declaration of On the first regular session following the
the opinion of the election of its members and within 90 days
lawmaking body thereafter, the sanggunian shall adopt or
update its existing rules of procedure [Sec. 50,
On matters applying On a specific matter LGC].
to persons or things
in general LGC, sec. 50 does not mandate that no other
business may be transacted on the first regular
Intended to Temporary in nature session [Malonzo v. Zamora, G.R. No. 137718
permanently direct (2000)].
and control

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The rules of procedure shall provide for:
1. Organization of the Sanggunian and the
election of its officers
2. Creation of Standing Committees
3. Order and calendar of business for each
session
4. The legislative process
5. Parliamentary procedures
6. Disciplinary rules for members for
disorderly behavior and absences without
justifiable cause for four (4) consecutive
sessions, for which they may be censured,
reprimanded, or excluded from the
session, suspended for not more than sixty
(60) days, or expelled: Provided, That the
penalty of suspension or expulsion shall
require the concurrence of at least two-
thirds (2/3) vote of all the sanggunian
members: Provided, further, That a
member convicted by final judgment to
imprisonment of at least one (1) year for
any crime involving moral turpitude shall be
automatically expelled from the
sanggunian; and
7. Such other rules as the sanggunian may
adopt [Sec. 50, LGC].
Quorum
The presence of a quorum is required to
transact official business. A majority of all
members of the Sanggunian who have been
elected and qualified shall constitute a quorum
[Sec. 53, LGC].
The presence of the presiding officer is
considered in determining the presence of a
quorum since a presiding officer is considered
a “member” of the sanggunian [La Carlota City
v. Rojo, G.R. No. 181367 (2012)].
Quorum shall be based on the total number of
members elected and qualified. The filing of a
leave of absence does not affect a member's
election to, and qualification as member of, a
local legislative body [Zamora v. Caballero,
G.R. No. 147767 (2004)].
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General rule: A majority of the members
present, there being a quorum is required for
the valid enactment of an ordinance or
resolution [Art. 107(g), LGC IRR].
Exception
When otherwise provided by the LGC:
• Any ordinance or resolution authorizing or
directing the payment of money or creating
a liability requires the approval of the
majority of all the sanggunian members
[Rule VII, Sec. 14 (g), LGC IRR].
• It is legally permissible for the sanggunian
to provide for a higher voting requirement
for the enactment or amendment of a
particular ordinance [Casiño v. CA, G.R.
No. 91192 (1991)].
When there is no quorum
The presiding officer may declare a recess until
such time as a quorum is constituted or a
majority of the members present may also
adjourn from day to day and may compel the
attendance of any member absent without
justifiable cause by designating a member of
the sanggunian to arrest the absent member
and present him at the session.
The member designated shall be assisted by a
member or members of the police force in the
territorial jurisdiction of the LGU concerned.
If there is still no quorum, no business shall be
transacted. The presiding officer, upon proper
motion duly approved by the members present,
shall then declare the session adjourned for
lack of quorum [Sec. 53, LGC].
SANGGUNIAN SESSIONS [Sec. 52, LGC]
1. Regular Sessions
First session following the election, the
Sanggunian shall, by resolution, fix the day,
time, and place of its regular sessions.
Minimum Number of Regular Sessions:
• Sangguniang Panlalawigan,
Panlungsod, and Bayan: Once a week

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• Sangguniang Barangay: Twice a
month
No two sessions, regular or special, may be
held in a single day.
General rule: All sessions shall be open to the
public.
Exception: Closed-door session is ordered by
majority of the members present, there being a
quorum, in the public interest or for reasons of
security, decency or morality.
2. Special Sessions
May be called by the local chief executive or by
majority of the Sanggunian.
Written notice to the members shall be served
personally at their usual place of residence at
least 24 hours before the special session is
held.
No other matters may be considered except
those stated in the notice unless otherwise
concurred in by 2/3 vote of those present, there
being a quorum.
No Subpoena And Contempt Powers
Local legislative bodies do not have the power
to subpoena witnesses and the power to
punish nonmembers for contempt in the
exercise of their legislative powers. They may
only invite resource persons who are willing to
supply information which may be relevant to
the proposed ordinance [Negros Oriental II
Electric Cooperative, Inc. v. Sangguniang
Panlungsod of Dumaguete, G.R. No. L-72492
(1987)]
APPROVAL AND VETO OF ORDINANCES
Approval
Local chief executive shall affix his signature
on each and every page of the ordinance [Sec.
54(a), LGC].
The signature of the local chief executive in the
approval of an ordinance or resolution is not a
mere ministerial act, as it requires the exercise
of analysis and judgment. This is part of the
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legislative process [De Los Reyes v.
Sandiganbayan, G.R. No. 121215 (1997)].
Disapproval (Veto)
The local chief executive may veto the
ordinance, stating his reasons in writing. The
local chief executive may veto an ordinance or
resolution only once [Sec. 55(a & c), LGC].
Grounds for Disapproval
Under the LGC, only two grounds:
1. Ultra vires; or
2. Prejudicial to public welfare [Sec. 55(a),
LGC]
Periods
The ordinance is returned with objections to the
Sanggunian within 15 days in the case of
Sangguniang Panlalawigan, or within 10 days
in the case of Sangguniang
Panlungsod/Bayan; otherwise, the ordinance
shall be deemed approved [Sec. 54, LGC].
Override
The veto may be overridden by the
Sanggunian upon a 2/3 vote of all its members
[Sec. 54, LGC].
Item veto
The local chief executive, except the punong
barangay, shall have the power to veto any
particular item or items of an:
1. Appropriations ordinance; or
2. Ordinance or resolution adopting the local
development plan or public investment
program; or
3. Ordinance directing the payment of money
or creating liability
In case of an item veto, the veto shall not affect
the items not objected to. If the veto is not
overridden, the items in the appropriations
ordinance of the previous year corresponding
to those vetoed shall be deemed re-enacted
[Sec. 55(b), LGC].
N.B. No veto for barangays.The veto power
cannot be exercised by the punong barangay
(since he is a member of the sangguniang
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barangay). The punong barangay signs the

(1) Posted at Unless otherwise
ordinances enacted by the sangguniang
prominent places in provided therein, the
barangay upon their approval. [Sec. 54(c)].
the provincial capitol ordinance shall take
or city, municipal or effect on the day
PUBLICATION AND EFFECTIVITY OF
barangay hall for a following its
ORDINANCES
minimum publication, or at the
The following rules apply to: period of 3 end of the period of
1. Ordinances and; consecutive weeks; posting, whichever
2. Resolutions approving the local (2) Gist of such penal occurs later.
government plan and public investment ordinance shall be
programs. published in a
newspaper of
Publication Effectivity general circulation
within the province
General Rule [Sec. 59(a), LGC] where the local
legislative body
Posted: 10 days after belongs;
(1) in a bulletin board posting, unless if none, posting shall
at the entrance of the otherwise stated in be made in all
provincial capitol or the ordinance municipalities and
city, municipal, or cities of the said
barangay hall, as the province
case may be; and (2)
in at least 2 other Tax Ordinances and Revenue Measures
conspicuous places [Sec. 188, LGC]

Highly Urbanized and Independent Within 10 days after 10 days after

Component Cities [Sec. 59 (d), LGC] their approval, publication or
certified true copies posting, unless
In addition to 10 days after shall be published in otherwise stated in
posting, main posting, unless full for 3 consecutive the ordinance
features of the otherwise stated in days (a) in a
ordinance shall be the ordinance newspaper of local
published once: (a) circulation, or, (b) if
in a local newspaper none, the same may
of general be posted in at least
circulation; or if 2 conspicuous
none, (b) in any publicly places and
newspaper of accessible
general circulation
N.B. Prior Hearing Requirement for Tax and
All Ordinances with Penal Sanctions Revenue Measures: Public hearings must
[Secs. 511, 59(c), LGC] be conducted prior to the enactment of a tax
ordinance or revenue measure. [Sec. 187-
188, LGC]

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REVIEW OF ORDINANCES AND

Effect if Grounds are Present
RESOLUTIONS (approving local
development plans and public investment Reviewing Reviewing
programs) [secs. 56 and 57, LGC] sanggunian shall sanggunian shall
Sanggunian of Sangguniang declare such return the ordinance
Component Cities Barangay ordinance or with its comments for
and Municipalities resolution invalid in adjustment,
whole or in part amendment,
What Or modification, in
which case, the
(1) Ordinances All barangay effectivity of the
(2) Resolutions ordinances barangay ordinance
approving programs is suspended.
local development
plans and public Period

By Whom 30 days; if no action 30 days; if no action

after 30 days, after 30 days,
Sangguniang Sangguniang presumed consistent deemed approved
Panlalawigan Panlungsod or with law and valid
Sangguniang Bayan

When Note: Any attempt to enforce any ordinance or

resolution approving the local development
Within 3 days from Within 10 days from plan or public investment program, after the
approval, forwarded approval, forwarded disapproval thereof, shall be sufficient ground
by the Secretary of by the for the suspension or dismissal of the official or
the Sanggunian Sangguniang employee concerned [Sec. 58, LGC].
Barangay
REVIEW OF TAX ORDINANCES BY THE
How SECRETARY OF JUSTICE [Sec. 187, LGC]
Within 30 days from the effectivity of tax
Sangguniang The concerned ordinances or revenue measures, questions on
Panlalawigan shall sanggunian shall their constitutionality or legality may be raised
examine the examine the on appeal to the Secretary of Justice.
documents or ordinance
transmit them first to Sec. of Justice shall render a decision within 60
the Provincial days from receipt of appeal.
Attorney (if none, to
Provincial The appeal shall not have the effect of
Prosecutor) suspending the effectivity of the ordinance and
for comments and the accrual of the tax, fee or charge.
recommendations
Within 30 days from receipt of Sec. of Justice’s
Grounds
decision or the lapse of the 60-day period
If beyond the power Whether consistent without the Sec. of Justice taking action, the
conferred upon the with law and the city aggrieved party may file action with a
Sanggunian and municipal competent court.
concerned ordinances

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Sec. 187, LGC is valid as it is merely an Limitations on 1. Local initiative

exercise of the power of supervision [Drilon v. Power of Initiative shall not be
Lim, G.R. No. 112497 (1994)]. exercised more than
once a year.
b. Local Initiative and Referendum 2. Initiative shall
extend only to
LOCAL INITIATIVE subjects or matters
Initiative has been described as an instrument which are within the
of direct democracy whereby the citizens legal powers of the
directly propose and legislate laws as it is the sanggunians to
citizens themselves who legislate the laws, enact.
direct legislation through initiative (along with Note: The Court
referendum) is considered as an exercise of dismissed an
original legislative power, as opposed to that of initiative
derivative legislative power which has been petition, which
delegated by the sovereign people to proposed the
legislative bodies such as the congress creation of a
[Marmeto v. COMELEC, G.R. No. 213953 separate local
(2017)]. legislative body, for
being ultra vires
Definition Legal process [Marmeto v.
whereby the COMELEC, G.R. No.
registered voters of 213953 (2017)]
an LGU may directly
Limitations upon Any proposition or
propose, enact, or
amend an ordinance Sanggunians ordinance approved
through the system
[Sec. 120, LGC]
of initiative and
Exercised by All registered voters referendum: 1. Shall
of the provinces, not be repealed,
cities, municipalities, modified, or
and barangays [Sec. amended by the
121, LGC] sanggunian
Concerned within six
Effectivity 15 days after (6) months from the
Certification by the date of its approval;
COMELEC that the and
proposition is 2. May be amended,
approved by a modified, or repealed
majority of the votes by the sanggunian
cast [Sec. 123, LGC] within three (3) years
thereafter by a vote
of three-fourths (3/4)
of all its members

In case of
barangays, the
period shall be

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eighteen (18) months
[Sec. 125, LGC]
Procedure [Sec. 122, LGC]
1. File petition with local legislature. Not less
than 1,000 registered voters in case of
provinces and cities, 100 in case of
municipalities, and 50 in case of
barangays, may file a petition with the local
legislative body, proposing the adoption,
enactment, repeal, or amendment, of any
ordinance or resolution.
2. Invoke initiative by giving notice. If no
favorable action thereon is made by local
legislative body within 30 days from its
presentation, the proponents through their
duly authorized and registered
representatives may invoke their power of
initiative, giving notice thereof to the local
legislative body concerned.
Two or more propositions may be
submitted in an initiative.
3. Collection of signatures. Proponents shall
have 90 days in case of provinces and
cities, 60 days in case of municipalities,
and 30 days in case of barangays, from
notice to collect the required number of
signatures.
The petition shall be signed before the
Election Registrar, or his designated
representative, in the presence of a
representative of the proponent and a
representative of the local legislative body
concerned in a public place in the LGU.
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4. Certification of COMELEC and setting of
date of vote. The COMELEC shall certify
that the required number of signatures has
been obtained and shall set a date for
approval of the proposition within 60 days
from the date of certification by the
COMELEC in case of provinces and cities,
45 days in case of municipalities, and 30
days in case of barangays.
5. Voting and Results. The results of the
initiative shall be certified and proclaimed
by the COMELEC.
Initiative Covers Both Ordinances and
Resolutions: Sec. 124 of the LGC clearly does
not limit the application of local initiatives to
ordinances, but to all “subjects or matters
which are within the legal powers of the
Sanggunians to enact,” which undoubtedly
includes resolutions. This interpretation is
supported by section 125 of the same Code
[Garcia v. COMELEC, G.R. No. 111230
(1994)].
Power of COMELEC to review the
substance of the initiative propositions
The COMELEC in the exercise of its quasi-
judicial and administrative powers, may
adjudicate and pass upon such proposals
insofar as their form and language are
concerned, and it may be added, even as to
content, where the proposals or parts thereof
are patently and clearly outside the “capacity of
the local legislative body to enact” [SBMA v.
COMELEC, G.R. No. 125416 (1996)].
Power of Courts to declare null and void
any proposition
The power of the courts to nullify propositions
for being ultra vires extends only to those
already approved, i.e. those which have been
approved by a majority of the votes cast in the
initiative election called for the purpose. In
other words, the courts can review the terms
only of an approved ordinance [Marmeto v.
COMELEC, G.R. No. 213953 (2017)].
LOCAL REFERENDUM
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Legal process whereby the registered voters of and against body. [SBMA
the local government unit may approve, the wishes of v.
amend, or reject any ordinance enacted by the their elected COMELEC,
Sanggunian. It shall be held under the direction representativ G.R.
of COMELEC within 60 days in case of es. No. 125416
provinces and cities, 45 days in case of (1996)]
municipalities and 30 days in case of
barangays [Sec. 126].

Initiative Referendum
6. Ultra Vires Acts
How Initiated by Law-making Ultra Vires Contracts
Initiated the people body submits Every local government unit only derives its
directly. matter to the legislative authority from Congress. In no
registered instance can the local government unit rise
voters of its above its source of authority. As such, its
territorial ordinance cannot run against or contravene
jurisdiction. existing laws, precisely because its authority is
only by virtue of the valid delegation from
Objective To legislate, To approve Congress [Mosqueda v. Pilipino Banana
or Purpose because the or reject any Growers & Exporters Association, Inc., G.R.
lawmaking ordinance or No. 189185 (2016)].
body fails or resolution
refuses to which is duly Types of Ultra Vires Acts [Land Bank of the
enact the enacted or Philippines v. Cacayuran, G.R. No. 191667
ordinance or approved by (2013)]
resolution such
that they lawmaking Void Ultra Vires Ultra Vires Acts
desire or authority. Acts (Primary Subject to
because they Sense) Ratification/Validation
want to (Secondary Sense)
amend or
modify one Act is utterly Act is attended only by
already beyond the an irregularity but
existing. jurisdiction of a remains within
municipal municipality’s powers
Role of No role Legislative. corporation
Legislature [except for A
unfavorable referendum 1. Municipal 1. Municipal Contracts
action on the consists Contracts entered entered into by the
petition merely of the into beyond improper department,
submitted to electorate The express, board, officer, or agent;
it]. Initiative is approving or implied, or and
a process of rejecting powers of the 2. Do not comply with
lawmaking by what has LGU; and the
the people been drawn 2. Do not comply Formal requirements of
themselves up or with substantive a written contract (e.g.
without the enacted by a requirements of Statute of Frauds)
participation legislative law (e.g. if it

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performed in connection with official duties

involves
where they have acted ultra vires” [See Land
expenditure of
Bank v. Cacayuran, G.R. No. 191667 (2013)].
public funds, there
must be an
actual 7. Corporate Powers
appropriation and
certificate of a. To Sue and Be Sued
availability of
funds) Under Sec. 22 of the LGC, all local government
units may be sued. Paragraph 2 is a
Congressional grant of consent to be sued
Examples of void ultra vires municipal
[GATMAYTAN].
contracts
● A public street is property for public use;
Suability v. Liability
hence, outside the commerce of man.
The fact that they are suable does not
Being outside the commerce of man, it may necessarily mean that they are liable.
not be the subject of lease or other Reference must be had to the applicable law
contract. The city government, contrary to and established facts to determine their liability
law, has been leasing portions of the [San Fernando, La Union v. Firme, G.R. No.
streets. Such lease or license is null and 52179 (1991)].
void for being contrary to law [Dacanay v.
Asistio, G.R. No. 93654 (1992)]. Consent to be sued only means that the State
● Loan contract entered into by a gives up its immunity from suit. This does not
municipality for the purpose of funding the concede liability, but merely allows the plaintiff
conversion of the Agoo Plaza into a a chance to prove, if it can, that the State or its
commercial plaza, the former being a officials are liable [USA v. Guinto, G.R. No.
76607 (1990)].
property for public use, hence part of the
public dominion [Land Bank of the
b. To Acquire and Sell Property
Philippines v. Cacayuran, G.R. No. 191667
(2013)].
Nature and control
If the property is owned by the municipality in
Liability of public officials for ultra vires
its public and governmental capacity, the
acts
property is public and Congress has absolute
While a municipality cannot be bound by a
control over it. If the property is owned in its
contract which is void for being ultra vires,
private or proprietary capacity, then it is
“case law states that the [officers] who
patrimonial and Congress has no absolute
authorized the same can be held personally
control. The municipality cannot be deprived of
accountable for acts claimed to have been
it without due process and payment of just
performed in connection with official duties
compensation [Province of Zamboanga del
where they have acted ultra vires” [See Land
Norte v. City of Zamboanga, G.R. No. L-24440
Bank v. Cacayuran, G.R. No. 191667 (2013)].
(1968)].
Liability of public officials for ultra vires
To be considered public property: It is enough
acts:
that the property be held and devoted for
While a municipality cannot be bound by a
governmental purposes like local
contract which is void for being ultra vires,
administration, public education and public
“case law states that the [officers] who
health [Province of Zamboanga del Norte v.
authorized the same can be held personally
City of Zamboanga, G.R. No. L-24440 (1968)].
accountable for acts claimed to have been

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Property held in trust by the LGU for the
National Government
Regardless of the source or classification of
land in the possession of a municipality,
excepting those acquired with its own funds in
its private or corporate capacity, such property
is held in trust for the State for the benefit of its
inhabitants, whether it be for governmental or
proprietary purposes. It holds such lands
subject to the paramount power of the
legislature to dispose of the same, for after all
it owes its creation to it as an agent for the
performance of a part of its public work.
[Rabuco v. Villegas, G.R. No. L24661 (1974)].
c. To Enter into Contracts
Requisites
1. Entered into by the local chief executive in
behalf of the LGU;
2. Prior authorization by Sanggunian
concerned; and
3. Legible copy of contract posted at a
conspicuous place in the provincial capitol
or city, municipal or barangay hall [Sec. 22,
LGC]
The authorization need not be in the form of an
ordinance: A careful perusal of Section
444(b)(1)(vi) of the LGC shows that the
obligation which the said local executive is
authorized to enter into must be made pursuant
to a law or ordinance [Land Bank of the
Philippines v. Cacayuran, G.R. No. 191667
(2013)].
Appropriation ordinance as prior
authorization
Where the local government unit operates
under an annual as opposed to a re-enacted
budget, it should be acknowledged that the
appropriation passed by the sanggunian may
validly serve as the authorization required
under Sec. 22(c) of the LGC. After all, an
appropriation is an authorization made by
ordinance, directing the payment of goods and
services from local government funds under
specified conditions or for specific purposes.
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Separate Sanggunian Authorization
When required
When the appropriation ordinance describes
the projects in generic terms there is an
obvious need for a covering contract for every
specific project that in turn requires approval by
the sanggunian.
Specific sanggunian approval may also be
required for the purchase of goods and
services which are neither specified in the
appropriation ordinance nor encompassed
within the regular personal services and
maintenance operating expenses [Quisumbing
v. Garcia, G.R. No. 175527 (2008)].
When not required
No further authorization is required if the
appropriation ordinance already contains in
sufficient detail the project and cost of a capital
outlay such that all the local chief executive
needs to do after undergoing the requisite
public bidding is to execute the contract.
8. Liability of Local Government
Units
Statutory Liability
Sec. 24, LGC. Liability for Damages -
Local government units and their officials are
not exempt from liability for death or injury to
persons or damage to property.
Liability under the Civil Code
Art. 34, Civil Code. When a member of a
city or municipal police force refuses or fails
to render aid or protection to any person in
case of danger to life or property, such peace
officer shall be primarily liable for damages,
and the city or municipality shall be
subsidiarily responsible therefor. xxx
Art. 2180, Civil Code. xxx
The State is responsible in like manner when
it acts through a special agent; but not when

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U.P. LAW BOC LOCAL GOVERNMENTS
the damage has been caused by the official
to whom the task done properly pertains; in
which case what is provided in Article 2176
shall be applicable. xxx
Art. 2189, Civil Code. Provinces, cities and
municipalities shall be liable for damages for
the death of, or injuries suffered by, any
person of the defective condition of roads,
streets, bridges, public buildings, and other
public works under their control or
supervision.
Liability under Art. 2189 based on control or
supervision
For liability to arise under Art. 2189 of the Civil
Code, ownership of the roads, streets, bridges,
public buildings and other public works, is not
a controlling factor, it being sufficient that a
province, city or municipality has control or
supervision thereof [Municipality of San Juan v.
CA, G.R. No. 121920 (2005)].
Although the drainage hole which caused the
accident was located in a national road, the
City was still liable because their City Engineer
exercises control and supervision over said
national road [Guilatco v. City of Dagupan,
G.R. No. 61516 (1989)].
Political/ Corporate/
Governmental Acts Proprietary Acts
Liability
LGU generally not Can be held liable ex
liable unless a statute contractu or ex
provides otherwise delicto
Defense
No valid defense for Defense of due
non-performance diligence in the
selection and
supervision of its
officers
Personal Liability or Officers
Officers or agents Officers and agents
acting within official are like a) individuals;
duties are not liable or b) the directors
unless they acted and officers of a
willfully and private corporation
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maliciously [Mendoza (i.e. they are liable if
v. de Leon, G.R. No. they acted in bad
9596 (1916); but see faith or with gross
Sec. 24, LGC] negligence.)
Application of Respondeat Superior
Respondeat superior Respondeat Superior
does not apply applies [Mendoza v.
de Leon, supra]
Contractual Liability
General Rule: The LGU is liable only for
contracts that are validly entered into.
Exception: The Doctrine of Implied Municipal
Liability provides that an LGU may become
obligated upon an implied contract to pay
reasonable value of the benefits accepted by it
as to which it has the general power to contract
[Province of Cebu v. IAC, G.R. No. 72841
(1987), on the hiring of a private counsel by the
governor which was not repudiated by the
provincial board].
Torts Liability
Under jurisprudence, liability of the LGU would
depend on the nature of the act.
If in the performance of a governmental
function
LGU is not liable [Palafox v. Province of Ilocos
Norte, G.R. No. L-10659 (1958)].
If in the performance of a proprietary
function
LGU is liable, such as:
● The improper grant of a ferry service
franchise [Mendoza v. de Leon, supra]
● Deaths caused by a collapsed stage in
a town fiesta [Torio v. Fontanilla, supra]
Liability for back pay of employees
LGUs may be held liable for the back pay or
wages of employees or laborers illegally
separated from the service [Guillergan v.
Ganzon, G.R. No. L-20818 (1966)].
Personal Liability Of The Public Official
The public official is personally liable for
damages:
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a. In contracts and torts, if he acts: provinces

i. Beyond the scope of his concerned
powers; or Component n/a Jointly
ii. With bad faith [Rivera v. city or referred to
Maclang, G.R. No. L-15948 municipality respective
(1963)]; and v. highly sanggunians
b. For his refusal or neglect, without urbanized of the parties
city
justifiable cause, to perform his official
Between 2 or
duty. [Art. 27, Civil Code]
more highly
c. Municipal Mayor and Vice Mayor were urbanized
held liable for back wages for illegally cities
dismissing a Sanggunian Secretary
[Campol v. Balao-as and Sianen, G.R. N.B. The power of provincial boards to settle
No. 197634, (2016)]. boundary disputes is limited to implementing
the law creating a municipality. Thus, provincial
Liability of public officials for ultra vires boards do not have the authority to approve
acts: agreements which in effect amend the
While a municipality cannot be bound by a boundary stated in the creating statute
contract which is void for being ultra vires, [Municipality of Jimenez v. Baz, G.R. No.
“case law states that the officers who 105746 (1996)].
authorized the same can be held personally
accountable for acts claimed to have been
performed in connection with official duties
where they have acted ultra vires” [See Land
Bank v. Cacayuran, G.R. No. 191667 (2013)].

9. Settlement of Boundary
Disputes
Amicable Settlement
Boundary disputes between and among local
government units shall, as much as possible,
be settled amicably [Sec. 118, LGC]

Boundary Where Amicably

Dispute Settled By
Between
2 or more Same city or Sangguniang
barangays municipality Panlungsod
or
Sangguniang
Bayan
2 or more Same Sangguniang
municipalities province Panlalawigan
Municipalities Different Jointly
or provinces referred to
component sanggunians
cities of the

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FORMAL TRIAL territorial jurisdiction of the proposed barangay

Trial by Sanggunian would only be an exercise in futility [City of
In the event the Sanggunian fails to effect an Pasig v. COMELEC, G.R. No. 125646 (1999)].
amicable settlement within 60 days from
referral of the dispute: 10. Local Officials
a. It shall issue a certification to that
effect; and a. Vacancies and Succession
b. The dispute shall be formally tried by
the Sanggunian concerned, which shall Permanent Vacancy
decide the issue within 60 days from Occurs when an Elective Local Official
the date of the certification referred to a. Fills a higher vacant office;
above [Sec. 118(e), LGC]. b. Refuses to assume office;
c. Fails to qualify;
Trial by RTC d. Dies;
When the dispute between the LGUs do not fall e. Is removed from office;
under those enumerated in Sec. 118, LGC, the f. Voluntarily resigns; or
RTC shall exercise original jurisdiction over the g. Is otherwise permanently incapacitated
settlement of the boundary dispute
from discharging the functions of his office
[Municipality of Kananga v. Madrona, G.R. No.
[par. 2, Sec. 44, LGC].
141375 (2003), applying Sec. 19(6), B.P. Blg.
129].
Permanent Vacancy in the Local Chief
APPEAL Executive [Sec. 44, LGC]
Appeal of the Sanggunian Decision Vacant Positions Successors
When: Within the time and manner prescribed Governor Vice governor
by the Rules of Court Mayor Vice mayor
Vice governor or vice Highest-ranking
Where: Proper Regional Trial Court having mayor Sanggunian member
jurisdiction over the area in dispute [Sec. 119, Governor and vice Mayor; Second
LGC]. governor OR Mayor highest ranking
and vice mayor Sanggunian member
Maintenance of the Status Quo to become Vice
Pending final resolution of the dispute, the governor/ Vice
status of the affected area prior to the dispute mayor Subsequent
shall be maintained and continued for all vacancies filled
purposes [Art. 18, LGC IRR]. according to their
rank.
The conduct of a plebiscite on the creation of a Punong Barangay Highest-ranking
barangay should be suspended or cancelled in Sangguniang
view of a pending boundary dispute between Barangay Member
two local governments involving an area
covered by the proposed barangay. A requisite Ranking in the sanggunian: Determined on
for the creation of a barangay is for its territorial the basis of the proportion of votes obtained by
jurisdiction to be properly identified by metes each winning candidate to the total number of
and bounds or by more or less permanent registered voters in each district in the
natural boundaries. Precisely because immediately preceding local election [Sec.
territorial jurisdiction is an issue raised in the 44(d), LGC].
pending boundary dispute, until and unless
such issue is resolved with finality, to define the Resolution of ties: A tie between or among
highest ranking sanggunian members shall be

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resolved by the drawing of lots [Sec. 44(c),

LGC].

Permanent Vacancies in the Sanggunian [Fariñas v. Barba, G.R. No. 116763 (1996); Sec.
45, LGC]
Position Appointing If member who caused If member who
Authority vacancy was member of caused vacancy not
a political party a member of any
political party
Sangguniang President Nomination and Recommendation of
Panlalawigan through the Certification of the political the Sangguniang
Executive party of the member who Panlalawigan
Sangguniang Secretary caused the vacancy Recommendation of
Panlungsod (of highly issued by the highest the Sangguniang
urbanized and official of the political party Panlungsod
independent Rationale: To maintain
component cities) party representation as
willed by the people in the
election. [Navarro v. CA,
G.R. No. 141307 (2001)]
Sangguniang Governor Nomination and Recommendation of
Panlungsod (of Certification of the political Sangguniang
component cities) party of the member who Panglungsod
Sangguniang Bayan caused the vacancy Recommendation of
issued by the highest Sangguniang Bayan
official of the political party
Sangguniang City N/A Recommendation of
Barangay Sangguniang Sangguniang
Barangay There is no right to Barangay
Municipal Mayor nominate because the
members of the
Sangguniang Barangay
are not allowed to have
party affiliations.

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Appointment without nomination and

certification
Such is null and void ab initio and is a ground
for administrative action against the
responsible official [Sec. 45(b), LGC].
Power of appointment
The appointing authority is not bound to
appoint anyone recommended to him by the
sanggunian concerned.
On the other hand, neither is the appointing
authority vested with so large a discretion that
he can disregard the recommendation of the
sanggunian concerned. Since the
recommendation takes the place of nomination
by political party, the recommendation must
likewise be considered a condition sine qua
non for the validity of the appointment [Fariñas
v. Barba, supra].
Term of office of the appointee
The appointee under Sec. 45 serves the
unexpired term of the vacant office [Sec. 44(d),
LGC].
Exceptions
Resignation is deemed accepted when:
(a). Not acted upon: The resignation shall
be deemed accepted if not acted upon
by the authority concerned within 15
working days from the receipt thereof
[Sec. 82, LGC].
(b). Irrevocable resignations by
sanggunian members: Deemed
accepted upon presentation before an
open session of the sanggunian
concerned and duly entered in its
records [Sec. 82, LGC].
When law is silent as to who approves
resignation
Under established jurisprudence, resignations,
in the absence of statutory provisions as to
whom they should be submitted, should be
tendered to the appointing person or body
[Sangguniang Bayan of San Andres v. CA,
G.R. No. 118883 (1998)].

Vacancy in the barangay or youth Resignation not allowed in recall

representation in the Sanggunian: The
vacancy is automatically filled by the official
next in rank of the organization concerned
[Sec. 45(d), LGC]
Resignation of Elective Officials
General Rule
Deemed effective only upon acceptance of the
resignation by the following authorities: [Sec.
82, LGC]
The elective local official sought to be recalled
shall not be allowed to resign while the recall
process is in progress [Sec. 73, LGC].
Abandonment
Abandonment is “voluntary relinquishment of
an office by the holder, with the intention of
terminating his possession and control thereof”
[Sangguniang Bayan of San Andres v. CA,
G.R. No. 118883 (1998)].

Resignation by: Approved by: Resignation v. Abandonment

Governors and vice President Although a resignation is not complete without
governors; mayors an acceptance thereof by the proper authority,
and vice mayors of an office may still be deemed relinquished
HUCs and ICCs through voluntary abandonment which needs
Mayors and vice Governors no acceptance.
mayors of
component cities Abandonment of office is a species of
and municipalities resignation. While resignation in general is a
Sanggunian Sanggunian formal relinquishment, abandonment is a
members concerned voluntary relinquishment through nonuser.
Barangay officials City or municipal Nonuser refers to a neglect to use a privilege
mayor

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or a right or to exercise an easement or an designate a

office. successor

Requisites for Essential Elements Extent of Duty Exercised by Temporary

Resignation of Abandonment Successor
1. Intention to 1 Intent to Abandon
relinquish part of a 2. Overt act by which General Rule
term the intention is to be The successor shall automatically exercise the
relinquishment; carried into effect powers and perform the duties and functions of
2. Act of the local chief executive.
relinquishment
3. Acceptance by the Exception
proper authority The successor may exercise the power to
appoint/suspend/dismiss employees only if the
Succession In Temporary Vacancies period of incapacity exceeds 30 working days
[Sec. 46, LGC] [Sec. 46(a), LGC].
Temporary vacancy occurs when the local
chief executive is temporarily incapacitated to Designation by Local Chief Executive
perform his duties for physical or legal reasons General Rule
such as, but not limited to: The local chief executive can only authorize the
vice-governor, city/municipal vice mayor, or
a. Leave of absence; highest ranking sangguniang barangay
b. Traveling abroad; or member, as the case may be, to exercise
c. Suspension from office powers/duties/functions of his office [Sec.
46(e), LGC].
Office where Who temporarily
temporary vacancy succeeds in to Exception
occurs office If the local chief executive is traveling within the
Governor Vice governor, country but outside his territorial jurisdiction for
automatically a period not exceeding 3 consecutive days, he
Mayor Vice mayor, may designate in writing the officer-incharge.
automatically
Termination of Temporary Incapacity
Punong Barangay Highest-ranking
When temporary incapacity terminated
Sanggunian
Upon submission by the local chief executive
Member,
to the sanggunian of a written declaration that
automatically
he has reported back to office
Local Chief 1. The designated
Executive is person in
If the temporary incapacity is due to legal
travelling within the writing by the local
causes, the local chief executive must also
country but is chief executive; OR
submit the necessary documents showing that
outside his territorial 2. Vice governor,
the legal causes no longer exist [Sec. 46(b)].
jurisdiction for a Vice mayor, or
period not exceeding highest ranking
Leaves of Absence
three consecutive Sangguniang
Local Official LOA approved by
days Barangay Member,
on the 4th day of Governors and The President or his
absence, if local mayors of HUCs or duly authorized
chief executive fails ICCs representative
or refuses to

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Vice-Governors, The Local Chief 8. Such other grounds as may be

City/ Municipal Vice Executive provided in the LGC and other laws
mayors [Sec. 60(a), LGC].
City/Municipal The Governor
Mayors of
component cities
and municipalities
Sanggunian The Vice governor or
Panlalawigan, Vice mayor
Panglungsod, and
Bayan Members and
their employees
Punong Barangays The City/Municipal
Mayor
Sanggunian The Punong
Barangay Members Barangay

If the application for LOA is not acted upon

within 5 working days after receipt, the
application is deemed approved [Sec. 47(b),
LGC].

b. Discipline

i. Elective Officials

(a) Grounds

Grounds For Disciplinary Action

1. Disloyalty to the Republic of the
Philippines;
2. Culpable violation of the Constitution;
3. Dishonesty, oppression, misconduct in
office, gross negligence, or dereliction
of duty;
4. Commission of any offense involving
moral turpitude or an offense
punishable by at least prision mayor;
5. Abuse of authority;
6. Unauthorized absence for fifteen (15)
consecutive working days
○ Except in the case of members
of the local legislative bodies.
7. Application for, or acquisition of,
foreign citizenship or residence or the
status of an immigrant of another
country; and

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(b) Jurisdiction Who are salary grade 27 and above? [Secs.

443-486, LGC]
Administrative Complaints under the LGC Municipalities Municipal Mayor
[Sec. 61] Cities City mayor; Vice
Elective Local Complaint filed at mayor; and (for
Official of: highly-urbanized
Province, Highly Office of the cities) Sanggunian
urbanized city, President Panglungsod
independent members
component city, or Provinces Governor; Vice
component city governor; And
Municipality Sangguniang Sanggunian
Panlalawigan Panlalawigan
Barangay Sangguniang members.
Panglungsod or
Bayan The powers of the Ombudsman are not merely
recommendatory. Under R.A. 6770 and the
No investigation may be held within 90 days 1987 Constitution, the Ombudsman has the
immediately prior to any local election [Sec. 62, constitutional power to directly remove from
LGC]. government service an erring public official
other than members of Congress and the
Ombudsman Jurisdiction Judiciary [COA, Regional Office No. 13 v.
Primary Acts or omissions of Hinampas, G.R. No. 158672 (2007)].
Jurisdiction [Sec. a public officer or
15, R.A. 6770] employee in cases (c) Preventive Suspension
cognizable by the
Sandiganbayan (i.e. UNDER THE LGC
salary grade of 27 or Elective Local Suspension
higher) Official of: imposed by:
Concurrent Cases cognizable by Province, highly President
Jurisdiction [Sec. regular courts and urbanized city, or
61, LGC] other investigative independent
agencies of the component city
government Component city, or Governor
municipality
In administrative cases involving the Barangay Mayor
concurrent jurisdiction of two or more
disciplining authorities, the body in which the When Imposed
complaint is filed first, and which opts to take Any time (1) the issues are joined, (2) when the
cognizance of the case, acquires jurisdiction to evidence of the guilt is strong and (3) given the
the exclusion of other tribunals exercising gravity of the offense, there is great probability
concurrent jurisdiction [Office of the that the continuance in office of the respondent
Ombudsman v. Rodriguez, G.R. No. 172700 could influence the witnesses or threaten the
(2010)]. safety/integrity of the records or evidence [Sec.
63(b), LGC].

A preventive suspension is merely a

preliminary step in an administrative
investigation, and can be decreed on an official
under investigation after the charges are

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brought and even before the charges are heard
[Castillo-Co v. Barbers, G.R. No. 129952
(1998)].
Rules on Length of Preventive Suspension
a. Any single preventive suspension cannot
exceed 60 days;
b. Cannot be imposed within 90 days
immediately prior to any local election; if
imposed before said period but extends to
such, automatically lifted upon start of the
90-day period;
c. If there are several administrative cases
against an elective official, he cannot be
preventively suspended for more than 90
days within a single year on the same
ground/s existing and known at the time of
the first suspension;
d. Once lifted, official is deemed reinstated
without prejudice to the continuance of the
proceedings against him [Sec. 62-63,
LGC].
The penalty of suspension shall not exceed the
unexpired term of the respondent or a period of
6 months for every administrative offense. It
shall not be a bar to the candidacy of the
respondent so suspended [Sec. 66(b), LGC].
Rights of Respondent Pending Preventive
Suspension
a. No salary paid during period of suspension,
but if subsequently exonerated and
reinstated, he shall be paid full salary that
accrued during such suspension;
b. Accorded full opportunity to appear and
defend himself in person or by counsel, to
confront and cross-examine witnesses,
and require attendance of witnesses and
production of evidence through compulsory
process of subpoena or subpoena duces
tecum [Sec. 64-65, LGC].
UNDER THE OMBUDSMAN ACT [SEC. 24,
R.A. 6770]
Who may impose
Ombudsman or Deputy Ombudsman
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The Ombudsman’s power of preventive
suspension is governed by R.A. 6770 (The
Ombudsman Act of 1989) [Miranda v.
Sandiganbayan, G.R. No. 154098 (2005)].
Requisites for Preventive Suspension:
a. The evidence of guilt is strong; and
b. Any of the following is present:
i. The charge against such officer
or employee involves
dishonesty, oppression or
grave misconduct or neglect in
the performance of duty;
ii. The charges would warrant
removal from the service; or
iii. The respondent's continued
stay in office may prejudice the
case filed against him.
Length of Preventive Suspension
General Rule
Until the case is terminated by the Office of the
Ombudsman but not more than six (6) months
without pay.
Exception
When the delay in the disposition of the case
by the Ombudsman is due to the fault,
negligence or petition of the respondent, the
period of such delay shall not be counted in
computing the period of suspension.
N.B. The shorter period of suspension under
the LGC is intended to limit the period of
suspension that may be imposed by a mayor,
governor or the President, who may be
motivated by partisan political considerations.
In contrast, the Ombudsman is not likely to be
similarly motivated because it is a
constitutional body [Garcia v. Mojica, G.R. No.
139043 (1999)].

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Preventive suspension pursuant to an
Information on charges under R.A. 3019
Any incumbent public officer against whom any
criminal prosecution under a valid information
under R.A. 3019 or under Title 7, Book II of the
RPC or for any offense involving fraud upon
government or public funds or property is
pending in court shall be suspended from office
[Sec. 13, R.A. 3019].
The suspension pendente lite under Sec. 13,
R.A. 3019 is mandatory upon the filing of a
valid information against the erring official. This
is based on the presumption that unless the
public officer is suspended, he may frustrate
his prosecution or commit further acts of
malfeasance or both.
The suspension is not automatic, but requires
the determination of the presence of a valid
information Upon determination of validity, it is
the court's ministerial duty to issue an order of
preventive suspension [Segovia v.
Sandiganbayan, G.R. No. 124067 (1998)].
The term “office” in Sec. 13, R.A. 3019 applies
to any office which the officer might currently
be holding and not necessarily the particular
office in relation to which he is charged
[Segovia v. Sandiganbayan, supra].
Sandiganbayan Jurisdiction
Exclusive original jurisdiction over violations of
R.A. 3019, R.A. 1379 and Chapter II, Sec. 2,
Title VII, Book II of the RPC (Bribery) and other
offenses or felonies in relation to public office
where one or more of the accused are officials
occupying positions corresponding to salary
grade 27 or higher.
Where none of the accused are occupying
positions corresponding to salary grade 27 or
higher, exclusive original jurisdiction shall be
vested in the proper RTC or first level court as
the case may be. The Sandiganbayan in such
case shall exercise exclusive appellate
jurisdiction over final judgments or orders of
RTCs in the exercise of their original or
appellate jurisdiction [Sec. 4, P.D. 1606 as
amended].
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(d) Removal
An elective local official may be removed from
office by order of the proper court [Sec. 60,
LGC].
The penalty of removal from office as a result
of administrative investigation shall be
considered a bar to the candidacy of the
respondent for any elective position [Sec.
66(c), LGC].
A suspension for multiple offenses does not
amount to a removal if each suspension
corresponding to each offense does not
exceed 6 months [Salalima v. Guingona, G.R.
No. 117589 (1996)].
Proper Court Order
Local legislative bodies and/or the Office of the
President cannot validly impose the penalty of
dismissal or removal from service on erring
local elective officials. It is clear from Sec. 60 of
LGC that an elective local official may be
removed from office on the grounds
enumerated only by order of the proper court.
Art. 124 (b), Rule XIX of the Rules and
Regulations Implementing the LGC, which
states that “an elective local official may be
removed from office by order of the proper
court or the Disciplining Authority whichever
first acquires jurisdiction to the exclusion of the
other” is void for being repugnant to Sec. 60,
LGC.
But if the official concerned is an appointive
official, the Office of the President may remove
him [Pablico v. Villapando, G.R. No. 147870
(2002)].
(e) Administrative Appeal
Period for appeal under the LGC: 30 days
from receipt of the decision
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To whom appealable execution [Calingin v. CA, G.R. No. 154616

Decision of: Appeal to: (2004)].
Sangguniang Sangguniang Decisions of the Ombudsman
Panglungsod of Panlalawigan General Rule: A decision of the Ombudsman
component cities; is not immediately executory.
and Sangguniang
Bayan Exception: The decision is final, immediately
Sangguniang Office of the executory, and unappealable in the following
Panglalawigan; President cases:
Sangguniang 1. Where the respondent is absolved of
Panglungsod of the charge;
HUCs/ICCs 2. Where the penalty imposed is:
Office of the N/A (decision is final a. Public censure;
President and executory) b. Reprimand;
c. Suspension of not more than
Decisions are immediately executory: one month; or
Appeals shall not prevent a decision from being d. Fine not equivalent to one
final and executory.
month's salary.
The phrase “decision shall be final and
executory” simply means that the
In all other cases, the decision shall become
administrative appeal shall not prevent the
final after the expiration of 10 days from receipt
enforcement of the Sanggunian decision.
thereof by the respondent, unless a motion for
reconsideration or an appeal is filed by him to
The decision is immediately executory but the
the Court of Appeals [Sec. 7, Rule III, Rules of
respondent may appeal to the Office of the
Procedure of the Ombudsman].
President or the Sangguniang Panlalawigan,
as the case may be [Don v. Lacsa, G.R. No.
(f) Doctrine of Condonation
170810 (2007)].

Sec. 6, Admin. Order No. 18 which authorizes
the President to stay the execution of the
decision pending appeal remains valid despite
the enactment of the LGC. The execution of
decisions pending appeal is procedural and in
the absence of a clear legislative intent to
remove from reviewing officials the authority to
order a stay of execution, such authority can be
provided in the rules and regulations governing
the appeals of elective officials in
administrative cases [Berces, Sr. v. Guingona,
Jr., G.R. No. 112099 (1995)].
The decisions of the Office of the President are
final and executory. No motion for
reconsideration is allowed by law but the
parties may appeal the decision to the Court of
Appeals. The appeal, however, does not stay
the execution of the decision. Thus, the DILG
Secretary may validly move for its immediate
A public official cannot be removed for
administrative misconduct committed during a
prior term, since his re-election to office
operates as a condonation of the officer's
previous misconduct to the extent of cutting off
the right to remove him therefor [Aguinaldo v.
Santos, G.R. No. 94115 (1992)].
Not applicable where:
1. There is already a final determination
of guilt. Subsequent re-election cannot
be deemed a condonation if there was
already a final determination of his guilt
before the re-election [Reyes v.
COMELEC, G.R. No. 120905 (1996)].
2. Criminal cases. The doctrine finds no
application to criminal cases, as these
are violations against the state itself
[Aguinaldo v. Santos, supra].

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Overturned would warrant his removal from service

This doctrine has been overturned in Carpio- [Sec. 85, LGC].
Morales v. CA, where the Court held that
election is not a mode of condoning an
administrative offense. The doctrine cannot be
11. Recall
sanctioned under our present Constitution,
Sec. 69, LGC. By Whom exercised. - The
which upholds the concept that a public office
power of recall for loss of confidence shall be
is a public trust and the corollary requirement
exercised by the registered voters of a local
of accountability to the people at all times
government unit to which the local elective
[Carpio-Morales v. CA, G.R. No. 217126
office subject to such belongs.
(2015)].

ii. Appointive Officials Ground Loss of confidence [Sec.

for recall 69, LGC]
Right Registered voters of a LGU to
The power to discipline is specifically granted
by the Administrative Code to heads of given to which the local elective official
subject to recall belongs [Sec.
departments, agencies, and instrumentalities,
69, LGC]
provinces, and cities. The appointing authority
is generally the disciplinary authority. Initiation By a petition of a registered
of recall voter supported by:
Disciplinary Authority process ● 25% of registered
Except as otherwise provided, the local chief voters if LGU has a
executive may impose: voting population of not
1. Removal from service more than 20,000.
2. Demotion in rank ● 20% of registered
3. Suspension for not more than 1 year voters if LGU has a
without pay voting population of
a. If less than 30 days, 20,000 to 75,000. In no
unappealable case shall petitioners
b. If 30 days or more, appealable be less than 5,000.
to the CSC ● 15% of registered
4. Fine not exceeding 6 months’ pay voters if LGU has a
5. Reprimand; and voting population of
6. Otherwise discipline subordinate 75,000 to 300,000. In
official and employees under his no case shall
jurisdiction [Sec. 87, LGC]. petitioners be less than
15,000.
Preventive Suspension Of Appointive ● 10% of registered
Officials voters if LGU has a
May be imposed by the local chief executive for voting population of
a period not exceeding 60 days if more than 300,000. In
no case shall
1. The charge against the official involves petitioners be less than
dishonesty, oppression or grave 45,000. [Sec. 70, LGC]
misconduct or neglect in the When Barangay, city, or municipal
performance of duty; OR recall officials: not later than 30 days
2. If there is reason to believe that the election from completion
respondent is guilty of charges which is held

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Provincial officials: not later b. Failure to obtain the required

than 45 days from completion number shall result in the
[Sec. 71, LGC] automatic nullification of the
Effects on Automatically considered as petition.
official candidate and is entitled to be 3. Notice, Publication, and Posting.
sought to voted upon [Sec. 71, LGC] a. Within 3 days from certification of
be sufficiency, COMELEC shall:
recalled Not allowed to resign while
i. Provide the official subject
recall process is in progress
of recall with a copy of the
[Sec. 73, LGC]
Effectivity Upon election and petition;
of recall proclamation of a successor or ii. Cause the publication of
the candidate receiving the the petition for 3 weeks in a
highest number of votes cast national newspaper and a
during the election on recall local newspaper of general
[Sec. 72, LGC] circulation; and
iii. Cause its posting for 10 to
Signature Requirement: The law states “upon 20 days at conspicuous
petition of at least 25% of registered voters” places.
and not “signed by 25% of the registered 4. Verification and Authentication of
voters.” The petition must be filed not by one Signatures
person but at least by 25% of the total number
a. COMELEC verifies and
of registered voters. While the initiatory recall
authenticates the signatures.
petition may not yet contain the signatures of at
least 25% of the total number of registered 5. Filing of Candidacies.
voters, the petition must contain the names of a. COMELEC announces the
at least 25% of the total number of registered acceptance of candidates for the
voters in whose behalf only one person may recall election, the official subject of
sign the petition in the meantime [Angobung vs the recall being automatically
COMELEC, G.R. No. 126576 (1997)]. included in the list.
6. Setting of Election.
Note: The Angobung decision is likely no a. COMELEC shall set the election
longer good law as it was decided under the within 30 days upon completion of
LGC’s original provisions on recall. As the above procedure in barangays,
amended by R.A. No. 9244, Sec. 70 of the LGC cities, and municipalities; or within
seems to require that the petition already
45 days in provinces.
contains the required number of signatures
upon the filing thereof [GATMAYTAN].
Limitations
1. Any local elective official may be the
Procedure
1. Petition filed by a registered voter in the subject of recall election only once during
LGU concerned to the COMELEC, his term of office for loss of confidence
supported by the necessary number of [Sec. 74(a), LGC].
registered voters. 2. No recall election shall take place within
2. COMELEC’s Certification of Sufficiency. one (1) year from the date of the official’s
a. Within 15 days from filing of the assumption to office or one (1) year
petition, the COMELEC must immediately preceding a regular local
certify the sufficiency of the election [Sec. 74(b), LGC].
required number of signatures.

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The phrase “regular local election” refers to an
election where the office held by the local
elective official sought to be recalled will be
contested and be filled by the electorate [Paras
v. COMELEC, G.R. No. 123169 (1996)].
As used in Sec. 74(b), LGC, “recall” refers to
the election itself by means of which voters
decide whether they should retain their local
official or elect his replacement. Hence, recall
proceedings may be initiated within 1 year from
the official’s assumption of office as long as the
recall election is set outside such period
[Claudio v. COMELEC, G.R. No. 140560
(2000)].
12. Term Limits
a. Length of Term
Sec. 8, Art. X, 1987 Constitution. The term
of office of local elective officials, except
barangay officials, which shall be determined
by law, shall be three years xxx
R.A. 9164: SYNCHRONIZED BARANGAY
AND SANGGUNIANG KABATAAN
ELECTIONS (2002)
Term of office of barangay and sangguniang
kabataan officials: 3 years
No barangay elective official shall serve for
more than 3 consecutive terms in the same
position
1. Reckoned from the 1994 barangay
elections
2. Voluntary renunciation of office for any
length of time shall not be considered as an
interruption [Sec. 2]
A Sangguniang Kabataan official who, during
his or her term of office, shall have passed the
age of twenty-four (24) years shall be allowed
to serve the remaining portion of the term for
which he or she was elected. [Sec. 11, R.A.
10742]
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R.A. 9006: FAIR ELECTIONS ACT
No “deemed resigned” rule for elective officials:
An elective official running for any office other
than the one which he is holding in a
permanent capacity, is no longer considered
ipso facto resigned from his office upon the
filing of his certificate of candidacy [Sec. 14].
“Deemed resigned” rule retained for appointive
officials. Sec. 14 of R.A. 9006 did not repeal
Sec. 66 of the Omnibus election Code, leaving
intact Sec. 66 thereof which imposes a
limitation to appointive officials and considers
them ipso facto resigned from office upon filing
of their certificate of candidacy.
The classification justifying Sec. 14 of R.A.
9006, i.e., elected officials vis-à-vis appointive
officials, is anchored upon material and
significant distinctions (e.g. elective officials
occupy their office by virtue of the mandate of
the electorate, appointive officials are
prohibited from engaging in partisan political
activity except to vote). [Fariñas v. Executive
Secretary, G.R. No. 147387 (2003)].
b. Limitation of Consecutive Terms
What constitutes a term of office
The term limit for elective officials must be
taken to refer to the right to be elected as well
as the right to serve in the same elective
position. Consequently, it is not enough that an
individual has served three consecutive terms
in an elective local office, he must also have
been elected to the same position for the same
number of times before the disqualification can
apply [Borja v. COMELEC, G.R. No. 133495
(1998)].
The interruption of a term that would prevent
the operation of the three-term rule involves
“no less than the involuntary loss of title to
office [or the right to hold on to an office]” or “at
least an effective break from holding office”
[Aldovino, Jr. v. COMELEC, G.R. No. 184836
(2009)].

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Two conditions for the application of the
disqualification
1. Elected for three consecutive times for the
same position; and
2. Fully served three consecutive terms [Borja
v. COMELEC, supra]
Prevailing doctrines on issues affecting
consecutiveness of terms and/or
involuntary interruption [Abundo, Sr. v.
COMELEC, G.R. No. 201716 (2013)]
1. Assumption of Office by Operation of
Law: When a permanent vacancy occurs in an
elective position pursuant to the rules of
succession under the LGC:
For the office assumed: The successor’s
service for the unexpired portion of the term of
the replaced official is not treated as one full
term and is not counted in the application of
any term limit [Borja v. COMELEC, supra].
For the office held before succession: The
successor’s assumption by operation of law to
the higher office (e.g. vice-mayor) is
considered an involuntary severance or
interruption of the office he previously held
(e.g. councilor), i.e. it is not counted in the
application of any term limit [Montebon v.
COMELEC, G.R. No. 180444 (2008)].
2. Recall Elections: An elective official, who
has served for three consecutive terms and
who did not seek the elective position for what
could be his fourth term, but later won in a
recall election, had an interruption in the
continuity of his service. For, he had become in
the interim [i.e. from the end of the 3rd term up
to the recall election] a private citizen [Adormeo
v. COMELEC, G.R. No. 147927 (2002);
Socrates v. COMELEC, G.R. No. 154512
(2002)].
3. Conversion: The abolition of an elective
local office due to the conversion of a
municipality to a city does not, by itself, work to
interrupt the incumbent official’s continuity of
service [Latasa v. COMELEC, G.R. No.
154829 (2003)]
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4. Preventive Suspension: Preventive
suspension is not a term-interrupting event as
the elective officer’s continued stay and
entitlement to the office remain unaffected
during the period of suspension, although he is
barred from exercising the functions of his
office [Aldovino, Jr. v. COMELEC, supra].
5. Losing in an Election Protest: When a
candidate is proclaimed a winner for an
elective office and assumes office, his term is
interrupted when he loses in an election protest
and is ousted from office, thus disenabling him
from serving what would otherwise be the
unexpired portion of his term of office had the
protest been dismissed [Lonzanida v.
COMELEC, G.R. No. 135150 (1999) and Dizon
v. COMELEC, G.R. No. 182088 (2009)].
However, when an official loses in an election
protest and said decision becomes final after
said official had served the full term for said
office, then his loss in the election contest does
not constitute an interruption since he
managed to serve the term from start to finish.
His full service should be counted in the
application of the term limits [Ong v. Alegre,
G.R. No. 163295 (2006) and Rivera III v.
COMELEC, G.R. No. 167591 (2007)].
6. Effect of Winning in an Election Protest:
The period during which the winner of an
election protest is unable to assume office as it
was occupied by his opponent is considered to
be an involuntary interruption in the service of
his term and therefore bars the application of
the three-term limit rule [Abundo, Sr. v.
COMELEC, supra].
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PUBLIC INTERNATIONAL
LAW
POLITICAL LAW

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Two Special Types of Obligations under

Public International Law:
A. CONCEPTS
1. Obligations Erga Omnes
Obligations Erga Omnes are “obligations of a
Public International Law is a body of
State towards the international community as a
principles, norms and processes which
whole,” which are the “concern of all States”
regulate the relations of States and other
and for whose protection all States have a
international persons, and governs their
“legal interest” [Barcelona Traction Case, (ICJ,
conduct affecting the interests of the
1970)]
international community of States as a whole
[MAGALLONA].
Erga Omnes literally means “flowing to all.”
Private International Law is the body of rules
Examples
of the domestic law of a State that is applicable
• Prohibition of acts of aggression;
when a legal issue contains a foreign element,
• Prohibition of genocide;
and it has to be decided whether a domestic
• Obligations concerning the protection of
rule should apply foreign law or relinquish
basic human rights [see also Barcelona
jurisdiction to a foreign court [AUST].
Traction Case (ICJ, 1970)];
• Obligations relating to self-determination
Public Private [see also East Timor Case (ICJ, 1995);
International International Palestinian Wall Advisory Opinion (ICJ,
Law Law 2004)];
• Obligations relating to the environment of
Nature International in National or common spaces. [Institut de Droit
nature. municipal in
character
International (“IDI”), Resolution on
Obligations erga omnes in International
Sources 1. Treaties and Domestic laws Law (2005) (hereinafter “IDI Resolution”)]
international for legal issues
conventions containing Standing to Bring Suit: Other States have
2. Customary foreign elements standing to bring a claim to the International
international
Court of Justice (ICJ) or other international
law
3. General judicial institution in relation to a dispute
principles of concerning compliance with that obligation [Art.
law [Art. 4, IDI Resolution].
38(1), ICJ
Statute] 2. Jus Cogens
A jus cogens is a norm accepted and
Subjects 1. States; Individuals
2. International (private persons) recognized by the international community of
organizations; States as a whole as a norm from which no
3. Individuals derogation is permitted and which can be
modified only by a subsequent norm of general
international law having the same character
[Art. 53 of the Vienna Convention on the Law
of Treaties (hereinafter referred to as “VCLT”)]

Jus Cogens is also known as a peremptory

norm of general international law.

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Examples
• The prohibition against the use of force
under the UN Charter [Nicaragua Case
(ICJ, 1986)]; Sources 1. Erga From customary
• Law on genocide; Omnium: From international law
custom, it is (See later part of
• Prohibition against apartheid;
one that is Reviewer). There
• Self-determination; owed to all. All must be state
• Crimes against humanity; States have the practice and opinion
• Prohibition against slavery and slave trade; standing to juris.
• Piracy [BROWNLIE; MAGALLONA]. bring suit.

It can be that
Erga Omnes Jus Cogens there is a jus
cogens norm
As a Pertains to the Pertains to the legal that is also erga
omnes. Jus
concept non- interest of a State in
derogability of a the violation of a Cogens norms
norm and the norm. give rise to erga
validity of rules omnes
and acts that obligations.
conflict with it
2. Erga Omnes
Effect All States have It is an obligation Partes: From a
standing to that cannot be multilateral
bring a suit to contravened in any Treaty. All
enforce that matter. parties to the
obligation. treaty have
A treaty will be standing to
void: “A treaty is bring suit
void if, at the time of
its conclusion, it
conflicts with a Caveat on examples of the two special
peremptory norm of types of obligations:
general There is no authoritative listing of jus cogens
international law” norms and erga omnes obligations. The
(i.e. a jus cogens commentaries of the ILC provide that they
norm) [Art. 53,
VCLT].
didn’t want to make it an exclusive list. Only the
prohibition on the use of force has been
Does not confer declared by the ICJ as a jus cogens norm.
jurisdiction: In
Armed Activities, it Concept of Ex Aequo et Bono (From the
held that the fact
Article 38 (2) of the ICJ Statute)
that a rule has the
status of jus cogens
This means, literally, “what is equitable and
does not confer good.” It denotes that a court may decide a
upon the Court a case on the basis of justice and equity, and not
jurisdiction which it be bound by technical legal rules [PELLET].
would not otherwise
possess (Armed The court may apply this standard to decide a
Activities on the
Territory of the
case when the parties to the dispute agree
Congo (New thereto [Art. 38(2), ICJ Statute]. However, this
Application: 2002) should not be confused with the ability of the
(Democratic ICJ to apply equitable principles in a case.
Republic of the
Congo v. Rwanda),

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Responsibili- Collective Generally

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

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How International Law Becomes part of
Philippine Law
1. Doctrine of Incorporation: The
Philippines adopts the “generally accepted
principles of international law” (customary
international law) as part of the law of the
land [Sec. 2, Art. II, 1987 Constitution].
They are deemed as national law whether
or not they are enacted as statutory or
legislative rules [MAGALLONA].
By the doctrine of incorporation, the
country is bound by generally accepted
principles of international law, which are
considered to be automatically part of our
own laws. [Tañada v. Angara, G.R. No.
118295. May 2, 1997]
2. Doctrine of Transformation: Treaties or
international agreements shall become
valid and effective upon concurrence by at
least two-thirds of all the Members of the
Senate [Sec. 21, Art. VII, 1987
Constitution]. These rules of international
law are not part of municipal law unless
they are transformed via legislation
[MAGALLONA].
Special Case for the presence of certain
foreign troops in the Philippines [Sec. 25,
Art. XVIII, 1987 Constitution]
After the expiration in 1991 of the Agreement
between the Republic of the Philippines and
the United States of America concerning
Military Bases, foreign military bases, troops,
or facilities shall not be allowed in the
Philippines except under a treaty duly
concurred in by the Senate and, when the
Congress so requires, ratified by a majority of
the votes cast by the people in a national
referendum held for that purpose, and
recognized as a treaty by the other contracting
State.
Philippine Domestic Law in Public
International Law
General Rule: A State cannot invoke its own
national law to resist an international claim or
excuse itself from breach of duty under
international law [Art. 6, VCLT; Polish
Nationals in Danzig Case (PCIJ, 1932); Art. 32,
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Articles on State Responsibility (hereinafter
“ASR”)].
A party may not invoke the provisions of its
internal law as justification for its failure to
perform a treaty. This rule is without prejudice
to article 46 [Art. 27, VCLT].
Exception: A State may invoke the fact that its
consent to be bound by a treaty has been
expressed in violation of a provision of its
internal law regarding competence to conclude
treaties as invalidating its consent if that
violation was manifest and concerned a rule of
its internal law of fundamental importance [Art.
46, VCLT].
C. SOURCES OF
INTERNATIONAL LAW
Listing is found in Article 38 (1 (a) – (d)) of the
ICJ Statute:
Article 38 of the ICJ Statute
1. The Court, whose function is to decide in
accordance with international law such
disputes
as are submitted to it, shall apply:
a. international conventions, whether
general or particular, establishing
rules expressly recognized by the
contesting states;
b. international custom, as evidence of
a general practice accepted as law;
c. the general principles of law
recognized by civilized nations ;
d. subject to the provisions of Article
59, judicial decisions and the
teachings of the most highly qualified
publicists of the various nations, as
subsidiary means for the
determination of rules of law.
2. This provision shall not prejudice the
power of the Court to decide a case ex
aequo et bono, if the parties agree thereto.
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Shorthand Terms for sources of PRIMARY SOURCES

international law:
• 1(a) refers to CONVENTIONAL
INTERNATIONAL LAW
• 1(b) refers to CUSTOMARY
INTERNATIONAL LAW (hereinafter
referred to as CIL)
• 1(c) refers to GENERAL PRINCIPLES OF
LAW (hereinafter referred to as GPL)
• 1(d) refers to JUDICIAL DECISIONS and
TEACHINGS of the most highly qualified
publicists
Types of Sources of International Law
1. Primary Sources
a. Conventional International Law
b. Customary International Law
c. General Principles of Law
2. Subsidiary Sources
a. Judicial Decisions
b. Teachings of the most highly
qualified publicists
The relation between the primary sources
and the subsidiary sources
1. Primary sources create law (what is the
law) while subsidiary sources are merely
evidence of what the law is (tell us what is
in the law)
2. There is no stare decisis in international
law, i.e. no binding precedent. All decisions
of the ICJ are only binding as between the
parties. Therefore, the decisions of the ICJ
only serve as subsidiary sources of
international law.
The decision of the Court has no binding
force except between the parties and in
respect of that particular case. (Article 59
of the ICJ Statute
Relation between the three Substantive
Sources of International Law
There is no established hierarchy between the
three. However, it is recognized that
Conventional and Customary international law
apply first, and GPL is resorted to when there
is an absence of Conventional or Customary
International Law.
1. Conventional International Law
Definition of Treaty
A treaty is an international agreement
concluded between states in written form and
governed by international law, whether
embodied in a single instrument or in two or
more related instruments and whatever its
particular designation” [Art. 2(1)(a), VCLT].
Requisites
1. Written Form
● Note that it does not require any
specific form, as long as it is written.
(See Maritime Delimitations and
Territorial Questions between Qatar
and Bahrain, Qatar v. Bahrain, July 1,
1994)
2. Between States
3. Governed by international Law
Basic Principles of Treaties
1. The primary body of law governing treaties
is the Vienna Convention on the Law of
Treaties, which is considered binding as
Customary International law.
2. It is based on consent
a. Treaty obligation is based on
consent. No state may be bound by
a treaty obligation unless it has so
consented [Art. 34, VCLT].
b. Consent is Manifested by:
signature, exchange of instruments
constituting a treaty, ratification,
acceptance, approval or
accession, or by any other means
if so agreed. [Art. 11, VCLT, but
see Article 12-14 of VCLT for
specific rules governing giving
consent by exchange of
instruments, signature or
ratification]
3. Pacta Sunt Servanda
Every treaty in force is binding upon the
parties to it and must be performed by them
in good faith [Art. 26, VCLT].

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Note: This is considered as customary
international law and applies to all
obligations contained in a treaty.
4. Generally Not Binding on Third States, i.e.
non-contracting parties.
General Rule: A treaty does not create
either obligations or rights for a third State
without its consent [Art. 34, VCLT].
Exceptions:
a. When the third party accepts a
provision establishing an obligation
for that third party. (Art. 35, VCLT)
b. When the third party accepts a right
provided for and exercises such
right in accordance with the
conditions established in the treaty.
( Art. 36, VCLT)
5. Treaties are Non-Retroactive
Note: Unless a different intention appears
from the treaty or is otherwise established,
its provisions do not bind a party in relation
to any act or fact which took place or any
situation which ceased to exist before the
date of the entry into force of the treaty with
respect to that party [Art. 28, VCLT].
Reservations to Treaties
A reservation is a unilateral statement,
however phrased or named, made by a State,
when signing, ratifying, accepting, approving or
acceding to a treaty, whereby it purports to
exclude or to modify the legal effect of certain
provisions of the treaty in their application to
that State [Art. 2 (d), VCLT];
General Principles on Reservations
1. Generally they are allowed when the State
is signing, ratifying, accepting, approving or
acceding to a treaty, unless they are (1)
Prohibited by the treaty (2) Only specified
reservations are allowed by the treaty or (3)
The reservation is incompatible with the
object and purpose of the treaty [Art. 19,
VCLT].
2. To be considered binding on the other
contracting state to the treaty, that State
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must accept the reservation. A reservation
is presumed to be accepted. A reservation
is deemed unaccepted when another
contracting state objects. [See Art. 20,
VCLT]
Grounds for Terminating a Treaty (Articles
46-53 and 60-62 of VCLT)
1. Provisions of Internal Law Regarding
Competence to Conclude Treaties [Art. 46]
2. Specific Restrictions on Authority to
Express Consent of a State [Art. 47]
3. Error [Art. 48]
4. Fraud [Art. 49]
5. Corruption of a Representative of a State
[Art. 50]
6. Coercion of a Representative [Art. 51]
7. Coercion of a State by Threat or Use of
Force [Art. 52]
8. Treaties Conflicting with Jus Cogens [Art.
53]
9. Termination or Suspension of a Treaty as
a Consequence of its Breach [Art. 60]
10. Supervening Impossibility of Performance
[Art. 61]
11. Fundamental Change of Circumstances
[Art. 62]
2. Customary International Law (CIL)
Definition
General Practice Accepted as law [Art. 38 (1)
(b), ICJ Statute].
Elements
1. State Practice
2. Opinio Juris
Before a norm may become customary
international law binding on all States, there
must be state practice and opinio juris sive
necessitates. [North Sea Continental Shelf
Cases (ICJ, 1969)]
State Practice
The practice must be consistent and general.
Consistency requires substantial uniformity
and not necessarily complete uniformity in
practice [Asylum Case (ICJ, 1950)]. Generality
does not require universality.

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This means that the practice is virtually uniform
and extensive and established, widespread,
consistent, representative (good number of
states) [THIRLWAY].
State practice means that it pertains to the
actions of a STATE only, not of individuals.
The following acts may evidence state practice
[HARRIS]:
1. Diplomatic correspondence;
2. Policy statements;
3. Press releases;
4. Opinions of official legal advisers;
5. Official manuals on legal decisions
(executive decisions and practices, and
government comments on drafts by the
ILC);
6. International and national judicial
decisions;
7. Recitals in treaties and international
instruments;
8. Practice of international organs
Opinio Juris
This refers to the belief on the part of states that
a particular practice is required by law, and not
because of courtesy or political expediency
[North Sea Continental Shelf Cases (ICJ,
1969)]. (i.e. the State acts in such a manner
because it believes it is obligated to do so)
Binding Effect of CIL
General Rule: Customary International Law is
binding on all states.
Exception: Persistent Objector - When a State
has continuously objected to a new customary
norm at the time when it is yet in the process of
formation, by such persistent objection the
norm will not be applicable as against that state
[MAGALLONA and Asylum Case (ICJ, 1950)]
Note however that the ICJ has recognized the
possibility of regional custom in the Asylum
Case (ICJ, 1950) and of bilateral custom in
the Right of Passage over Indian Territory
Case (ICJ, 1960).
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Duality of Norms
It is possible for a norm of international law to
exist both as a customary norm and a
conventional norm [e.g. prohibition against the
use of force]. Such norms are said to be of dual
character.
Norms of dual character come into being when:
a. a treaty provision simply restates a
customary norm;
b. a treaty provision constitutes evidence of
custom; or
c. a treaty provision crystallizes into a
customary norm.
For a treaty provision to crystallize into custom,
the provision must be norm-creating or law-
making, creating legal obligations which are
not dissolved by their fulfillment [North Sea
Continental Shelf Cases (ICJ, 1969)].
The customary norm retains a separate identity
even if its content is identical with that of a
treaty norm. Thus, a State that cannot hold
another State responsible for a breach of a
treaty obligation can still hold the erring state
responsible for the breach of the identical
customary norm [Nicaragua Case (ICJ, 1986)].
Philippine Practice
The Supreme Court has identified the following
customary norms:
a. Rules and principles of land warfare and of
humanitarian law under the Hague
Convention and the Geneva Convention
[Kuroda v. Jalandoni, G.R. No. L-2662
(1949)];
b. Pacta sunt servanda [La Chemise Lacoste
v. Fernandez, G.R. No. L-63796-97
(1984)];
c. Human rights as defined under the
Universal Declaration of Human Rights
[Reyes v. Bagatsing, G.R. No. L-65366
(1983)];
d. The principle of restrictive sovereign
immunity [Sanders v. Veridiano, G.R. No.
L-46930 (1988)];
e. The principle in diplomatic law that the
receiving state has the special duty to
protect the premises of the diplomatic

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mission of the sending state [Reyes v.
Bagatsing, G.R. No. L-65366 (1983)];
f. The right of a citizen to return to his own
country [Marcos v. Manglapus, G.R. No.
88211 (1989)];
g. The principle that “a foreign army allowed
to march through friendly country or to be
stationed in it, by permission of its
government or sovereign, is exempt from
criminal jurisdiction of the place” [Raquiza
v. Bradford, G.R. No. L-44 (1945)];
h. The principle that judicial acts, not of a
political complexion of a de facto
government established by the military
occupant in an enemy territory, are valid
under international law [Montebon v.
Director of Prisons, G.R. No. L-1352
(1947)];
i. The principle that private property seized
and used by the enemy in times of war
under circumstances not constituting valid
requisition does not become enemy
property and its private ownership is
retained, the enemy having acquired only
its temporary use [Noceda v. Escobar,
G.R. No. L-2939 (1950)];
j. The principle that a State has the right to
protect itself and its revenues, a right not
limited to its own territory but extending to
the high seas [Asaali v. Commissioner,
G.R. No. L-24170 (1968)].
3. General Principles of Law (GPL)
Definition: These refer to those general
principles in municipal law (particularly those of
private law) that may be appropriated to apply
to the relations of states [OPPENHEIM].
Function of GPL: To avoid a non liquet, i.e.
when a court does not have a treaty or
customary norm to decide on.
Examples of General Principles of Law
1. Estoppel ([Temple of Preah Vihear Case
(ICJ, 1962)].
2. Res Judicata
3. Res Inter Alios Acta
4. Prescription
5. Duty to Make Reparations [Chorzow
Factory Case (PCIJ, 1927)]
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6. Abuse of Rights
7. Good Faith
8. Principle of Reciprocity
9. Circumstantial Evidence
Circumstantial evidence is admitted as
indirect evidence in all systems of law and
its use is recognized by international
decisions. Such circumstantial evidence,
however, must consist of a series of facts
or events that lead to a single conclusion
[Corfu Channel Case (ICJ, 1949)].
SUBSIDIARY SOURCES
Judicial Decisions and Teachings of Highly
Qualified Publicists
Function: These two sources listed in Article
38 (1 (d)) of the ICJ Statute tell us what the law
is. They are evidence of what international law
is.
Judicial Decisions
Includes decisions of international tribunals
and those of municipal courts. There is no
binding precedent in international law pursuant
to Article 59 of the ICJ Statute
Highly Qualified Publicists
No clear definition of what is a highly qualified
publicist.
The difference between Judicial Decisions
and Writings of Highly Qualified Publicists
It is not so much that judicial decisions
necessarily possess a higher intrinsic value
than the teachings of publicists, but that they
have ‘a more direct and immediate impact on
the realities of international life. BORDA]
United Nations Declaration
General Rule: General Assembly resolutions
are not binding on member states.
But when they are concerned with general
norms of international law, acceptance by all or
most members constitutes evidence of the
opinions of governments in what is the widest
forum for the expression of such opinions.

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Resolutions may satisfy the subjective element
opinio juris by expressly articulating a belief
concerning the existence of principles and
rules of international law. [HARRIS]
State practice may also be evidenced either in
declarations of general principle or in
resolutions dealing with particular cases.
General Assembly resolutions may contribute
to the formation of custom as a kind of
collective state practice. These resolutions can
be considered the collective equivalent of
unilateral general statements.
In some cases, a resolution may have the
effect of an authoritative interpretation and
application of the principles of the UN Charter
[CRAWFORD]
Exception: Certain UN organizational matters
Security Council Resolutions
The Security Council is empowered to issue
binding legal standards when acting under
Chapter VII of the UN Charter concerning
action with respect to threats to peace,
breaches of the peace, and acts of aggression.
The Security Council may decide what
measures involving the use of armed force are
to be employed to give effect to its decisions.
When the Security Council decides not to
resort to recommendations but to issue
decisions, these are binding on the strength of
Article 25 of the UN Charter.
Actions of organs of international
organizations created by treaty
The treaty constituting an international
organization may entrust a body of the
organization to adopt binding legal standards
The rules enacted shall be binding only to the
member states of the organization. It cannot
bind third states. [CASSESE]
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D. SUBJECTS OF
INTERNATIONAL LAW
Definition of Subjects of International Law:
Entities which are:
1. Capable of possessing international rights
and duties; and
2. Having the capacity to maintain these
rights by bringing international claims
[Reparations for Injuries Advisory Opinion
(ICJ, 1949)].
Subjects of International Law:
1. States;
2. International organizations; and
3. Natural or Juridical Persons
Note: States are generally considered as the
primary subjects of international law.
Rationale: ”xxx the world is today organized on
the basis of the co-existence of States, and that
fundamental changes will take place only
through State action, whether affirmative or
negative’. The States are the repositories of
legitimated authority over peoples and
territories. It is only in terms of State powers,
prerogatives, jurisdictional limits and law-
making capabilities that territorial limits and
jurisdiction, responsibility for official actions,
and a host of other questions of co-existence
between nations can be determined.”
[FRIEDMANN]
Objects of international law are persons or
things in respect of which rights are held and
obligations are assumed by the subject. They
are not directly governed by the rules of
international law. Their rights (e.g. human
rights of individuals) may be asserted and their
responsibilities imposed indirectly, through the
instrumentality of an intermediate agency (e.g.
state).
This distinction between objects and subjects
of International Law has been criticized as
unhelpful, as non-state actors already have
standing to bring suits in the fields of
international criminal law and international
human rights law.

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The United Nations has an objective
international personality [Reparations for
Injuries Advisory Opinion (ICJ, 1949)].
1. States
A state exists when it complies with the four (4)
requisites listed in the Montevideo Convention,
which is considered as customary international
law for defining the requisites of statehood.
FOUR REQUISITES TO BE A STATE:
Montevideo Convention, Article 1
The state as a person of international law should
possess the following qualifications: (a) a permanent
population; (b) a defined territory; (c) government;
and (d) capacity to enter into relations with the other
states.
a. Permanent Population
It refers to a permanent population and
intended to be used in association with that of
territory, and connotes a stable community.
b. Defined Territory
State territory is that defined portion of the
surface of the globe, which is subjected to the
sovereignty of the State [OPPENHEIM].
A state must exercise control over a certain
area. It need not be exactly defined by metes
and bounds, so long as there exists a
reasonable certainty of identifying it. No
minimum land area is required.
Modes of Acquiring Territory
● Occupation
o Occupation refers not to mere
discovery, but to effective
exercise of sovereignty over a
territory that is terra nullius (i.e.,
not subject to the sovereignty of
any other state).
o Effective occupation means
continued display of authority. It
involves:
o the intention and will to act as
sovereign or animus occupandi;
and
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o some actual exercise or display of
such authority [Eastern Greenland
Case (PCIJ, 1933)].
● Prescription
o Through prescription, title is
acquired by continuous and
undisturbed exercise of
sovereignty over a period of time.
o In contrast [to occupation],
prescription is the acquisition of
territory that is not terra nullius,
obtained by means that may
initially have been of doubtful
legality but is uninterrupted and
uncontested for a long time. Timely
protests by the ‘former’ sovereign
will usually bar the claim [AUST].
● Accession or Accretion
o Accession or accretion is the
natural process of land formation
resulting in the increase of territory.
● Cession
o Cession means the transfer of
territory from one state to another
by treaty (derivative). It is the only
bilateral mode of acquiring
territorial sovereignty.
c. Government
Denotes a “stable political community
supporting a legal order to the exclusion of
another in a given area”.
The existence of effective government, with
centralized administrative and legislative
organs, is the best evidence of a stable political
community. It is a centralized structure capable
of exercising effective control over a human
community living in a given territory.
State practice suggests that the requirement of
a “stable political organization” in control of the
territory does not apply during a civil war or
where there is a collapse of law and order in a
state that already exists.
Under the rules on succession of States, even
changes of entire governments do not affect
the identity and personality of the state. Once
statehood is established, neither invasion nor

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disorder alone can remove its character as a
state [BROWNLIE].
Types of Government
De Jure: Government from law, that is, one
with a color of legitimacy.
De Facto: One that governs without a mandate
of law. So long as it is in place, it may command
obedience from the inhabitants of the occupied
area. The de facto ruler may suspend laws and
enact new ones.
● De Facto Proper/Government by
Revolution: That which usurps, either by
force or the will of the majority, the legal
government and maintains control against
it;
● Government by Paramount Force/by
Occupation: Results from the occupation of
a state or a part thereof by invading forces
in time of war; and
● Government by Secession: Government
established as an independent government
by inhabitants of a country who rise in
insurrection against the parent state [See
Co Kim Cham v. Valdez Tan Keh, G.R. No.
L-5 (1945)].
d. Capacity To Enter Into Relations With
Other States/Independence
A state must be free from outside control in
conducting foreign and internal affairs, i.e.
sovereign and independent.
The State is the sole executive and legislative
authority. It must be independent of other state
legal orders, and any interference by such legal
orders, or by an international agency, must be
based on a title of international law.
Independence is the decisive criterion of
statehood. This concept of independence is
represented by the requirement of capacity to
enter into relations with other states.
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Concepts Relating to Statehood:
a. Recognition
Recognition is an act by which a state
acknowledges the existence of another state,
government or belligerent community and
indicates willingness to deal with the entity as
such under international law.
As a public act of state, recognition is an
optional and political act, and there is no legal
duty in this regard.
Effect of Recognition
● Declaratory School: Recognition is a
mere declaration or acknowledgement of
an existing state of law and fact, legal
personality having been previously
conferred by operation of law. This is the
prevailing view [BROWNLIE].
○ Montevideo Convention, Article 3:
The political existence of the
state is independent of
recognition by the other states.
Even before recognition the state
has the right to defend its integrity
and independence, to provide for
its conservation and prosperity,
and consequently to organize itself
as it sees fit, to legislate upon its
interests, administer its services,
and to define the jurisdiction and
competence of its courts. The
exercise of these rights has no
other limitation than the exercise of
the rights of other states according
to international law.
● Constitutive School: The political act of
recognition is a precondition to the
existence of legal rights of a state. In its
logical extreme, this is to say that the very
personality of a state depends on the
political decision of other states. This is the
minority view [BROWNLIE]
b. Failed States
States in which institutions and law and order
have totally or partially collapsed under the
pressure and amidst the confusion of erupting
violence, yet which subsist as a ghostly
presence on the world map. xxx Though
retaining legal capacity, has for all practical
purposes, lost the ability to exercise it.

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However, they are continued to be recognized
as states during their time of failure
c. Secession
Secession is the effort of a group or section of
a state to withdraw itself from the political and
constitutional authority of that state, with a view
to achieving statehood for a new territorial unit
on the international plane [In re Secession of
Quebec (Can., 1998)].
Grounds for Secession:
(1) Colonization;
(2) Alien subjugation, domination, or
exploitation outside the colonial
context;
(3) Remedial Secession: When a people is
blocked from the meaningful exercise
of its right to self-determination
internally, it is entitled, as a last resort,
to exercise it by secession [In re
Secession of Quebec (Can., 1998)].
d. The Principle of Continuity and
Obligations Contracted by De Facto
Governments
The state is bound by engagements entered
into by governments that have ceased to exist;
the restored government is generally liable for
the acts of the usurper.
A general government de facto having
completely taken the place of the regularly
constituted authorities in the state binds the
nation. So far as its international obligations
are concerned, it represents the state. It
succeeds to the debts of the regular
government it has displaced and transmits its
own obligations to succeeding titular
governments. Its loans and contracts bind the
state and the state is responsible for the
governmental acts of the de facto authorities.
In general its treaties are valid obligations of
the state. It may alienate the national territory
and the judgments of its courts are admitted to
be effective after its authority has ceased.
[Tinoco Arbitration; (1 U.N. Rep. Int’l Arb.
Awards 369, 1923)]
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2. International Organizations
An organization established by a treaty or other
instrument governed by international law and
possessing its own international legal
personality. International organizations may
include as members, in addition to States,
other entities. [Draft Articles on the
Responsibility of International Organizations,
Art. 2(a)]
General rule: International organizations have
special personality. The status and powers of
an international organization is determined by
agreement and not by general or customary
international law. They are considered subjects
of international law “if their legal personality is
established by their constituent instrument.”
Thus, legal personality in this context is a
relative concept [MAGALLONA].
Exception: United Nations, which has
objective international personality. The UN’s
personality is binding on the whole
international community, including States who
are not UN members [Reparations for Injuries
Advisory Opinion (ICJ, 1949)].
3. Natural Or Juridical Persons
In general, individuals, whether natural or
juridical, do not have international legal
personalities.
However, individuals may assume the status of
subjects of international law only on the basis
of agreement by states and in specific context,
not in accordance with general or customary
international law.
Examples of Instances where natural
juridical persons are granted personality
● Art. 187(c)-(e), UNCLOS provides for
jurisdiction of the Sea-Bed Disputes
Chamber of the ITLOS over disputes
between parties to contracts relating to the
exploitation of marine resources. Parties to
such contracts may be natural or juridical
persons.

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● The London Agreement of the International
Military Tribunal at Nuremberg, relating to
crimes against peace, war crimes and
crimes against humanity, imposed duties
and liabilities upon individuals as well as
upon states.
● Art. VI of the Convention on the Prevention
and Punishment of the Crime of Genocide
defined “parties charged with genocide” as
including individuals [MAGALLONA].
● The International Criminal Court has
jurisdiction over individuals who commit
genocide, crimes against humanity and
war crimes, subject to conditions of the ICC
Statute [Art. 25(1), ICC Statute, in relation
to Art. 5].
4. Others
E. JURISDICTION OF
STATES
Jurisdiction means the power of a state under
international law to govern persons and
property by its municipal law. This may be
criminal or civil, and may be exclusive or
concurrent with other states [HARRIS].
Types of Jurisdiction:
a. Prescriptive Jurisdiction: This refers to
the power of a State to make its law
applicable to the activities, relations, or
status of persons, or the interests of
persons in things, whether by legislation,
by executive act or order, by administrative
rule or regulation, or by determination by a
court.
b. Adjudicative Jurisdiction: This refers to
the State’s jurisdiction to subject persons
or things to the process of its courts or
administrative tribunals, whether in civil or
in criminal proceedings, whether or not the
state is a party to the proceedings.
c. Enforcement Jurisdiction: This refers to
the State’s jurisdiction to enforce or compel
compliance or to punish noncompliance
with its laws or regulations, whether
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through the courts or by use of executive,
administrative, police, or other nonjudicial
action.
1. Basis of Jurisdiction
a. Territoriality Principle: Jurisdiction is
determined by reference to the place
where the act occurred or was committed.
A State takes jurisdiction over persons or
events within its territory. [MAGALLONA]
Usually refers to criminal jurisdiction.
b. Nationality Principle: A State may
exercise jurisdiction over an offender by
virtue of his being its national, without
regard as to where he was at the time the
offense was committed and without respect
to the nature of the offense
[MAGALLONA].
c. Protective Principle: A State may
exercise jurisdiction over an offense
committed outside its territory by its
national or non-national, by reason of
protecting its security or vital interests
d. Universality Principle: A State may
exercise jurisdiction over crimes committed
without respect to the nationality of the
offender, on the ground that such crimes
are declared as international crimes by the
international community as a whole and
thus are prohibited by international law
[MAGALLONA]. Example: Jurisdiction is
asserted with respect to acts considered
committed against the whole world [e.g.
piracy, see People v. Lol-lo and Saraw,
G.R. No. 17958 (1922)].
e. Passive Personality Principle: A State
may exercise jurisdiction against foreign
nationals who commit acts to the injury of
its nationals within the territory of another
State [MAGALLONA]. A court has
jurisdiction if the offended party of the act
is a national of the forum state [S.S. Lotus
Case (PCA, 1927)].
Conflict of Jurisdiction
This arises when two or more states can
exercise jurisdiction based on one or more
different principles of jurisdiction (ex:
Universality v. Territoriality)

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2. Exemptions from Jurisdiction
a. Acts of State Doctrine
State Immunity
General Rule: This refers to a principle by
which a state, its agents, and property are
immune from the jurisdiction of another state
[MAGALLONA].
This principle is premised on the juridical
equality of states, according to which a state
may not impose its authority or extend its
jurisdiction to another state without the consent
of the latter, through a waiver of immunity.
Thus, domestic courts must decline to hear
cases against foreign sovereigns out of
deference to their role as sovereigns.
Exception: When a state waives the immunity
or consents to being sued.
Types of State Immunity
1. Rationae Materiae: Attaches to the official
acts of State officials and is determined by
reference to the nature of the acts in
question rather than by reference to the
particular office of the official.
a. Doctrine of Restrictive Immunity
divides this immunity into two
categories:
i. Acts performed jure
imperii: that is, private or
commercial transactions of
States, are subject to
foreign jurisdiction.
ii. Acts performed jure
gestionis: the foreign State
in its capacity as a
sovereign, are immune.
2. Rationae Personae: Attaches to the office
itself. However, in contrast, it covers official
and personal acts.
The Nature of State Immunity
1. It is preliminary in nature and does not
depend on the obligation breached by
the State.
2. It is a customary norm.
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3. Such immunity applies even if the claim
against the state is for violation of a jus
cogens norm in international law.
“Immunity from jurisdiction is an immunity not
merely from being subjected to an adverse
judgment but from being subjected to the trial
process. It is, therefore, necessarily
preliminary in nature. […]In addition, there is
a substantial body of State practice from other
countries which demonstrates that customary
international law does not treat a State’s
entitlement to immunity as dependent upon
the gravity of the act of which it is accused or
the peremptory nature of the rule which it is
alleged to have violated.” [Jurisdictional
Immunities of the State, Germany v. Italy (ICJ,
2012)]
b. International Organizations and
their Officers
The rapid growth of international organizations
under contemporary international law has
paved the way for the development of the
concept of international immunities.
There are 3 propositions underlying the grant
of international immunities to international
organizations. These principles, contained in
the ILO Memorandum are stated thus:
(1) International institutions should have a
status which protects them against
control or interference by any one
government in the performance of
functions for the effective discharge of
which they are responsible to
democratically-constituted
international bodies in which all the
nations concerned are represented;
(2) No country should derive any national
financial advantage by levying fiscal
charges on common international
funds; and
(3) The international organization should,
as a collectivity of States members, be
accorded the facilities for the conduct
of its official business customarily
extended to each other by its individual
member States.

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International immunity is not concerned with
the status, dignity or privileges of individuals,
but with the elements of functional
independence necessary to free international
institutions from national control and enable
them to discharge their responsibilities
impartially on behalf of all their members. The
raison d’etre for these immunities is the
assurance of unimpeded performance of
their functions by the agencies concerned
[International Catholic Immigration
Commission v. Calleja, G.R. No. 85750
(1990)].
F. DIPLOMATIC AND
CONSULAR LAW
1. Diplomatic Law
Definition: Rules regulating the various
aspects of diplomatic relations.
Nature: The rules of diplomatic law “constitute
a self-contained regime, which on the one
hand, lays down the receiving state’s
obligations regarding the facilities, privileges
and immunities to be accorded to diplomatic
missions and, on the other, foresees their
possible abuse by members of the mission and
specifies the means at the disposal of the
receiving state to counter any such abuse.”
(US Diplomatic and Consular Staff in Tehran)
Relevant Convention: Vienna Convention on
Diplomatic Relations (“VCDR”)
Diplomatic Intercourse/Right of legation
The right of a state to send and receive
diplomatic missions, which enables states to
carry on friendly intercourse.
Diplomatic relations and diplomatic missions
are separately established by mutual consent
(See Art. 2, VCDR)
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a. Agents of Diplomatic Relations
i. Diplomatic Corps
This refers to the collectivity of all diplomatic
envoys accredited to a state composed of:
1. Head of mission, classified into:
a. Ambassadors or nuncios
accredited to the heads of
State, and other heads of
mission of equivalent rank;
b. Envoys, ministers, and
internuncios accredited to the
heads of State;
c. Charges d’affaires accredited
to Ministers of Foreign Affairs
[Art. 14, VCDR];
2. Diplomatic staff, engaged in diplomatic
activities and are accorded diplomatic
rank [Art. 1(d), VCDR];
3. Administrative and technical staff,
those employed in the administrative
and technical service of the mission
[Art. 1(f), VCDR];
4. Service staff, engaged in the domestic
service of the mission [Art. 1(g), VCDR]
[Nachura].
In the Philippines, the President appoints,
sends, and instructs the diplomatic and
consular representatives [Sec. 16, Art. VII,
1987 Constitution].
ii. Heads of State
The head of State represents the sovereignty
of the State and enjoys the right to special
protection for his physical safety and the
preservation of his honor and reputation.
The head of State is immune from criminal and
civil jurisdiction, except when he himself is the
plaintiff, and is not subject to tax or exchange
or currency restrictions. Upon the principle of
extraterritoriality, his quarters, archives,
property, and means of transportation are
inviolate.

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iii. Foreign Office
This is the body entrusted with the conduct of
actual day-to-day foreign affairs.
It is headed by a secretary or a minister who,
in proper cases, may make binding
declarations on behalf of his government
[Eastern Greenland Case (PCIJ, 1933)].
b. Functions and Duties of Agents
1. Represent the sending State in the
receiving State [Art. 3(1)(a), VCDR];
2. Protect in the receiving State the
interests of the sending State and its
nationals, within the limits allowed by
international law [Art. 3(1)(b), VCDR];
3. Negotiate with the government of the
receiving State [Art. 3(1)(c), VCDR];
4. Ascertain, by all lawful means, the
conditions and developments in the
receiving State and reporting the same
to the sending State [Art. 3(1)(d),
VCDR];
5. Promote friendly relations between the
sending State and receiving State, and
developing their economic, cultural and
scientific relations [Art. 3(1)(e), VCDR];
6. If diplomatic relation is severed, entrust
the protection of its nationals to the
diplomatic mission of a third state
acceptable to the receiving state [Art.
45, VCDR]; and
7. May protect the interest of a third State
by agreement with the receiving State,
if there are no diplomatic relations
between the third state and the
receiving state [Art. 46, VCDR]
[Magallona].
c. Diplomatic Immunities and Privileges
Theoretical Bases
Diplomatic immunities and privileges have
been justified under the following theories:
• Extraterritoriality theory: The premises of
the diplomatic mission represent a sort of
extension of the territory of the sending
State.
• Representational theory: The diplomatic
mission personifies the sending State.
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• Functional necessity theory: The
privileges and immunities are necessary to
enable the diplomatic mission to perform
its functions. This theory was adopted by
the ILC when it drafted the draft articles of
the VCDR [MAGALLONA].
i. Personal Inviolability
General Rule: The person of a diplomatic
agent shall be inviolable. He shall not be liable
to any form of arrest or detention. [Art. 29,
VCDR]
Exception: The diplomatic envoy may be
arrested temporarily in case of urgent danger,
such as when he commits an act of violence
which makes it necessary to put him under
restraint for the purpose of preventing similar
acts [Diplomatic and Consular Staff in Tehran
Case (ICJ, 1980)].
The receiving State shall treat him with due
respect and shall take all appropriate steps to
prevent any attack on his person, freedom or
dignity. [Art. 29, VCDR]
The duty to treat him with due respect and
protect his person, freedom or dignity from
physical interference by other persons [Art. 22,
VCDR].
Scope
1. The private residence of a diplomatic agent
shall enjoy the same inviolability and
protection as the premises of the mission.
2. His papers, correspondence and, except
as provided in paragraph 3 of article 31
3. His property shall likewise enjoy
inviolability. [Art. 30 VCDR]
ii. Inviolability of Premises of the
Mission and the Archives
The term “premises of the mission” means the
buildings or parts of the buildings and the land
ancillary thereto used for the purposes of the
mission including the residence of the
diplomatic agent [Art. 1(i), VCDR]. This is
irrespective of the ownership of the premises
[Magallona, citing ILC Yearbook].

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Rule
1. The premises of the mission shall be
inviolable. The agents of the receiving
State may not enter them, except with the
consent of the head of the mission.
2. The receiving State is under a special duty
to take all appropriate steps to protect the
premises of the mission against any
intrusion or damage and to prevent any
disturbance of the peace of the mission or
impairment of its dignity.
3. The premises of the mission, their
furnishings and other property thereon and
the means of transport of the mission shall
be immune from search, requisition,
attachment or execution. [Art. 22, VCDR]
Continuing Duty
If diplomatic relations are broken off between
two States, or if a mission is permanently or
temporarily recalled:
1. The receiving State must, even in case
of armed conflict, respect and protect
the premises of the mission, together
with its property and archives;
2. The sending State may entrust the
custody of the premises of the mission,
together with its property and archives,
to a third State acceptable to the
receiving State;
3. The sending State may entrust the
protection of its interests and those of
its nationals to a third State acceptable
to the receiving State. [Art. 45, VCDR].
iii. Right to Official Communication
Rule: The envoy is entitled to fully and freely
communicate with his government.
1. The receiving state shall permit and protect
free communication on the part of the
mission for all official purposes;
2. The mission may employ all appropriate
means to send and receive messages by
any of the usual modes of communication
or by diplomatic courier, which shall enjoy
inviolability;
3. The official correspondence of the mission
is inviolable; and
4. The diplomatic bag shall not be opened or
detained [Art. 27, VCDR].
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iv. Immunity from Local
Jurisdiction
Persons Entitled
1. Diplomatic agent and family: Diplomatic
agent and members of the family of the
diplomatic agent forming part of his
household, who are not nationals of the
receiving state [Art. 31, VCDR];
2. Administrative and technical staff:
a. As to criminal jurisdiction,
members of the administrative and
technical staff of the diplomatic
mission, as well as members of
their families forming part of their
respective households, who are
not nationals of or permanent
residents in the receiving state;
b. As to civil and administrative
jurisdiction, immunity shall not
extend to acts performed outside
the course of their duties [Art. 37,
VCDR]; and
3. Service staff: Members of the service staff
of the diplomatic mission, who are not
nationals of or permanent residents in the
receiving state, with respect to acts
performed in the course of their duties [Art.
37, VCDR].
Duration of Immunities and Privileges
Immunities and privileges begin from the
moment the person enters the territory of the
receiving state to take up his post or, if already
in its territory, from the moment when his
appointment is notified to the Ministry of
Foreign Affairs.
They come to an end when he:
1. exits the country, or
2. upon expiration of a reasonable period in
which to leave the country [Art. 39, VCDR].

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Waiver of Immunity from Jurisdiction
In proceedings, whether criminal, civil or
administrative, the waiver must be:
1. made by the sending State itself; and
2. express [Art. 32, VCDR].
State practice indicates that the authority to
exercise the waiver rests with the sovereign
organs, and not the diplomatic agent or official
himself [MAGALLONA].
A diplomatic agent is not obliged to give
evidence as a witness. [Art. 31, VCDR]
(a) Criminal Jurisdiction
Rule : A diplomatic agent enjoys immunity from
criminal jurisdiction of the receiving State [Art.
31, VCDR]. He may not be arrested,
prosecuted, prosecuted or punished for any
offense he may commit, unless his immunity is
waived.
Note: The immunity of a diplomatic agent from
the jurisdiction of the receiving State does not
exempt him from the jurisdiction of the sending
State. [Art. 31(4) VCDR]
(b) Civil and Administrative Jurisdiction
General Rule: An agent shall enjoy immunity
from its civil and administrative jurisdiction.
[Art. 31, VCDR]
Exceptions
1. A real action relating to private immovable
property situated in the territory of the
receiving State, unless he holds it on behalf
of the sending State for the purposes of the
mission;
2. An action relating to succession in which
the diplomatic agent is involved as
executor, administrator, heir or legatee as
a private person and not on behalf of the
sending State;
3. An action relating to any professional or
commercial activity exercised by the
diplomatic agent in the receiving State
outside his official functions. [Art. 31,
VCDR]
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No measures of execution may be taken in
respect of a diplomatic agent except in the
cases where he comes under the above
exceptions and provided that the measures
concerned can be taken without infringing the
inviolability of his person or of his residence.
[Art. 31, VCDR]
2. Consular Relations
Definition: These are the relations which come
into existence between two States by reason of
the fact that consular functions are exercised
by authorities of one State in the territory of the
other [MAGALLONA].
Relevant Convention: Vienna Convention on
Consular Relations (VCCR)
Consular relations are established by mutual
consent. The consent given to the
establishment of diplomatic relations between
two States implies consent to the
establishment of consular relations, unless
otherwise stated but the severance of
diplomatic relations shall not ipso facto involve
the severance of consular relations. [Art. 2,
VCCR].
a. Consuls
Definition: Consuls are state agents residing
abroad with certain functions (see b.)
Ranks:
● Consul general – heads several consular
districts, or one exceptionally large
consular district;
● Consul – in charge of a small district or
town or port;
● Vice Consul – assists the consul;
● Consular agent – one entrusted with the
performance of certain functions by the
consul.
b. Functions and Duties
The functions and duties of Consuls include but
are not limited to the ff:
(a) protecting in the receiving State the
interests of the sending State and of its

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nationals, both individuals and bodies
corporate, within the limits permitted by
international law;
(b) issuing passports and travel
documents to nationals of the sending
State, and visas or appropriate
documents to persons wishing to travel
to the sending State;
(c) helping and assisting nationals, both
individuals and bodies corporate, of the
sending State;
(d) acting as notary and civil registrar and
in capacities of a similar kind, and
performing certain functions of an
administrative nature, provided that
there is nothing contrary thereto in the
laws and regulations of the receiving
State;
(e) safeguarding the interests of nationals,
both individuals and bodies corporate,
of the sending States in cases of
succession mortis causa in the territory
of the receiving State, in accordance
with the laws and regulations of the
receiving State;
(f) performing any other functions
entrusted to a consular post by the
sending State which are not prohibited
by the laws and regulations of the
receiving State or to which no objection
is taken by the receiving State or which
are referred to in the international
agreements in force between the
sending State and the receiving State.
[Art. 5, VCCR]
c. Right to Consular Assistance
Diplomatic Protection
Right of a state to claim rights for its nationals
abroad.
States have a positive duty to accord consular
privileges to sending states whose nationals
have run into trouble in the jurisdiction of the
receiving states [Avena Case (ICJ, 2004) and
LaGrand Case (ICJ, 2001)].
See Art. 36(1), VCCR, which gives consular
officers the right to communicate with nationals
of the sending state and to have access to
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them, and give consular officers the right to visit
a national of the sending state who is in prison,
custody or detention [LaGrand Case (ICJ,
2001)].
However, the VCCR violation does not
automatically result in the partial or total
annulment of conviction or sentence [Avena
Case (ICJ, 2004)].
d. Immunities and Privileges
i. Personal Inviolability
Rule
(a) They are not liable to arrest or detention
pending trial, except in case of a grave
crime and pursuant to a decision of a
competent judicial authority; and
(b) shall not be committed to prison nor be
subject to any other form of restriction to
personal freedom, except in the case of
grave crime pursuant to a decision of
competent judicial authority, or in the
execution of a final judicial decision
(c) If criminal proceedings are instituted
against a consular officer, he must appear
before the competent authorities but the
proceedings shall be conducted with the
respect due to him by reason of his official
position and, except in par. 1, in a manner
which will hamper the exercise of consular
functions as little as possible.
(d) When, in the circumstances mentioned in
paragraph 1 it has become necessary to
detain a consular officer, the proceedings
against him shall be instituted with the
minimum of delay. [Art. 41, VCCR].
ii. Inviolability of Consular
Premises
The term “consular premises” refers to “the
buildings or parts of buildings and the land
ancillary thereto, irrespective of ownership,
used exclusively for the purposes of consular
post” [Art. 1(j), VCCR].
Rule
(a) The authorities of the receiving State shall
not enter that part of the consular premises
which is used exclusively for the purpose of
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the work of the consular post except with
the consent of the head of the consular
post or of his designee or of the head of the
diplomatic mission of the sending State.
The consent of the head of the consular
post may, however, be assumed in case of
fire or other disaster requiring prompt
protective action.
(b) The receiving State is under a special duty
to take all appropriate steps to protect the
consular premises against any intrusion or
damage and to prevent any disturbance of
the peace of the consular post or
impairment of its dignity.
(c) The consular premises, their furnishings,
the property of the consular post and its
means of transport shall be immune from
any form of requisition for purposes of
national defense or public utility. If
expropriation is necessary for such
purposes, all possible steps shall be taken
to avoid impeding the performance of
consular functions, and prompt, adequate
and effective compensation shall be paid to
the sending State. [Art. 31, VCDR]
iii. Inviolability of Archives
The inviolability of archives is unconditional.
They shall be inviolable at all times and
wherever they may be [Art. 33, VCCR].
(b) In communicating with the Government,
the diplomatic missions and other consular
posts, wherever situated, of the sending
State, the consular post may employ all
appropriate means, including diplomatic or
consular couriers, diplomatic or consular
bags and messages in code or cipher.
However, the consular post
(c) The official correspondence of the consular
post shall be inviolable. Official
correspondence means all
correspondence relating to the consular
post and its functions. [Art. 35, VCCR]
The Consular Bag
General Rule
The consular bag shall neither be opened nor
detained. [Art. 35 VCCR]
Exception
The receiving state may, however, request that
the consular bag be opened if the authorities
have serious reasons to believe that the bag
contains something other than
correspondence, documents or articles
intended exclusively for official use. If the
request is accepted, the bag may be opened in
the presence of the authorized representative
of the sending state; If the request is refused,
the bag shall be returned to its place of origin
[Art. 35, VCCR].

The consular archives and documents of a v. Immunity from Local

consular post headed by an honorary consular
officer shall be inviolable at all times and
wherever they may be, provided that they are
kept separate from other papers and
documents and, in particular, from the private
correspondence of the head of a consular post
and of any person working with him, and from
the materials, books or documents relating to
their profession or trade. [Art. 66, VCCR]
iv. Freedom of Communication
Rule
(a) The receiving State shall permit and
protect freedom of communication on the
part of the consular post for all official
purposes.
Jurisdiction
General rule: Consular officers and
employees are entitled to immunity from the
jurisdiction of administrative and judicial
authorities in the receiving state. [Art. 43,
VCCR]
Exceptions
This immunity shall not apply to a civil action
either:
1. Arising out of a contract by a consular
officer or employee, which he did not
conclude expressly or impliedly as an
agent of the sending state; or
2. By a third party for damage arising from an
accident caused by vehicle, vessel or

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aircraft in the receiving state [Art. 43,
VCCR].
Liability to Give Evidence
1. Members of a consular post may be called
upon to attend as witnesses in the course
of judicial or administrative proceedings.
a. A consular employee or a member
of the service staff shall not, except
in the cases mentioned in
paragraph 3, decline to give
evidence.
b. If a consular officer should decline
to do so, no coercive measure or
penalty may be applied to him.
2. The authority requiring the evidence of a
consular officer shall avoid interference
with the performance of his functions. It
may, when possible, take such evidence at
his residence or at the consular post or
accept a statement from him in writing.
3. Members of a consular post are under no
obligation to give evidence concerning
matters connected with the exercise of
their functions or to produce official
correspondence and documents relating
thereto. They are also entitled to decline to
give evidence as expert witnesses with
regard to the law of the sending State. [Art.
44, VCCR]
G. NATIONALITY AND
STATELESSNESS
NATIONALITY
Definition
Nationality is the tie that binds an individual to
his state, from which he can claim protection
and whose laws he is obliged to obey. It is
membership in a political community with all its
concomitant rights and obligations.
Importance
Nationality is important in international law
because an individual ordinarily can participate
in international relations only through the
instrumentality of the state to which he
belongs, as when his government asserts a
claim on his behalf for injuries suffered by him
in a foreign jurisdiction. This remedy would not
be available to a stateless individual.
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Acquisition of Nationality
1. Birth
a. Jus Sanguinis: where a person
acquires the nationality of the state
where he is born.
b. Jus Soli: where a person acquires
the nationality of his parents.
2. Naturalization
Naturalization is a process by which a person
acquires a nationality after birth by any means
provided by the law [COQUIA AND AGUILING-
PANGALANGAN]
There are 2 types of naturalization
a. Direct:
● By individual proceedings, usually
judicial, under general naturalization
laws;
● By special act of legislature;
● By collective change of nationality as a
result of cession or subrogation
(naturalization en masse);
● By adoption (in some cases)
b. Derivative, usually subject to stringent
restrictions and conditions:
● On the wife of the naturalized husband;
● On the minor children of the naturalized
parent;
● On the alien upon marriage to a
national.
CONCEPTS ON NATIONALITY
Multiple Nationality
Multiple nationality is acquired as the result of
the concurrent application to an individual of
the conflicting municipal laws of two or more
states claiming him as their national.
Example: Dual Citizenship in Philippine Law,
such as when a child is born in the United
States of Filipino parents would be an
American national under jus soli and a Filipino
national under jus sanguinis, or when a Filipino
citizen marries a foreigner and acquires
derivative citizenship but does not lose Filipino
citizenship unless by act or omission they are
deemed to have renounced it [See Sec. 4, Art.
IV of the 1987 Constitution].
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Indelible Allegiance nationality. [Art. 2, Hague Convention of

An individual may be compelled to retain his 1930]
original nationality notwithstanding that he has
already renounced or forfeited it under the laws 2. Loss of Nationality
of a second state whose nationality he has a. Voluntary
acquired [NACHURA]. i. Renunciation which may be
express or implied
Principle of Effective Nationality ii. Request for release
Within a third state, a person having more than b. Involuntary
one nationality shall be treated as if he has only i. Forfeiture as the result of some
one. The third state shall recognize disqualification or prohibited act.
conclusively in its territory either the nationality ii. Substitution of one nationality for
of the country in which he is habitually and another.
principally present or the nationality of the
country with which he appears to be in fact STATELESSNESS
most closely connected. The courts of third Definition
states resolve the conflict by having recourse For the purpose of this Convention, the term
to international criteria, and their prevailing “stateless person” means a person who is not
tendency is to prefer the real and effective considered as a national by any State under
nationality [Nottebohm Case (ICJ, 1955)] the operation of its law. [Art. 1, Convention
Relating to the Status of Stateless Persons
Nationality in Philippine Law (1960)]
The Philippine Constitution applies the jus
sanguinis principle which means the rule of Statelessness is the condition or status of an
descent or blood. [U.S. v. Wong Kim Art, 169 individual who is born without any nationality or
U.S. 649 (1898)] who loses his nationality without retaining or
acquiring another [CRUZ].
Types of Citizens Under Article IV of the
1987 Philippine Constitution Rights of A Stateless Person
(1) Those who are citizens of the Philippines at 1. The right to religion and religious
the time of the adoption of this Constitution; instruction
(2) Those whose fathers or mothers are 2. Access to courts
citizens of the Philippines; 3. Elementary education
(3) Those born before January 17, 1973, of 4. Public relief and assistance and rationing
Filipino mothers, who elect Philippine of products in short supply
citizenship upon reaching the age of majority; 5. Treatment no less favorable than that
and accorded to aliens
(4) Those who are naturalized in accordance 6. Right of Association
with law.
Note: That the Convention Relating to the
Rules on Nationality Status of Stateless persons does not in any
1. Determination of Nationality - Any way enumerate an exclusive listing of rights
question as to whether a person possesses granted to stateless persons.
the nationality of a particular state shall be
determined in accordance with the law of Right to Nationality under the Universal
that state. These laws shall be recognized Declaration on Human Rights (UDHR)
by other states so long as they are 1. Everyone has the right to a nationality.
consistent with international conventions, 2. No one shall be arbitrarily deprived of his
international customs and the principles of nationality nor denied the right to change
law generally recognized with regard to his nationality [Art. 15]

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Right to Nationality under the International
Convention on Civil and Political Rights
(ICCPR)
1. Every child shall have, without any
discrimination as to race, colour, sex,
language, religion, national or social origin,
property or birth, the right, to such
measures of protection as are required by
his status as a minor, on the part of his
family, society and the State.
2. Every child shall be registered immediately
after birth and shall have a name.
3. Every child has the right to acquire a
nationality [Art. 24].
Nationality of Foundlings
Definition
A deserted or abandoned infant or child whose
parents, guardian or relatives are unknown; or
a child committed to an orphanage or
charitable or similar institution with unknown
facts of birth and parentage and registered in
the Civil Register as a "foundling” [A.M. No. 02-
6-02-SC, Resolution Approving The Proposed
Rule on Adoption (Domestic and Inter-
Country)]
The common thread of the UDHR, UNCRC
and ICCPR is to obligate the Philippines to
grant nationality from birth and ensure that
no child is stateless. This grant of nationality
must be at the time of birth. These
circumstances, including the practice of jus
sanguinis countries, show that it is a generally
accepted principle of international law to
presume foundlings as having been born of
nationals of the country in which the foundling
is found [Poe-Llamanzares v. COMELEC, G.R.
No. 221697 (2016)].
H. GENERAL PRINCIPLES
OF TREATY LAW
Note:
● Please also See "Section C. Sources of
law" above for a discussion on Treaty Law
● Vienna Convention on the Law of Treaties
is referred to as “VCLT:
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Definition of Treaty
A treaty, under international Law is:
a. An international agreement;
b. concluded between states;
c. in written form;
d. governed by international law;
e. whether embodied in a single
instrument or in two or more related
instruments; and
f. whatever its particular designation
[Art. 2(1)(a), VCLT].
However, the definitions under the VCLT are
“without prejudice to the use of those terms or
to the meanings which may be given to them in
the internal law of any State” [Art. 2(2), VCLT].
Requisites for a Valid Treaty
1) Treaty Making Capacity (refers to states
which have international legal personality,
see Section D above on subjects of
international law and Article 6 of VCLT
specifically provides that states have the
capacity to enter into treaties)
2) Competence of the representative giving
consent
3) Consent freely given
4) Object and Subject Matter
5) Ratification
In addition to the constitutional requirement,
ratification is likewise necessary under
international law when:
1. The treaty provides for consent to be
expressed by means of ratification;
2. It is otherwise established that the
negotiating states agreed that ratification
should be required;
3. The representative of the state has signed
the treaty subject to ratification; or
4. The intention of the State to sign the treaty
subject to ratification appears from the full
powers of its representative, or was
expressed during the negotiation [Art.
14(1), VCLT].
Treaty-Making Process
1. Authorization. Two modes where a
person is considered as representing their
state: (a) with full powers and (b) without
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i. A person is considered as
representing a State in the treaty-
making process if he produces
appropriate full powers. [Art. 7 (1(a,b)),
VCLT].
ii. In virtue of their functions and without
having to produce full powers, the
following are considered as
representing their State:
a. Heads of State, Heads of
Government and Ministers for
Foreign Affairs, for the purpose
of performing all acts relating to
the conclusion of a treaty;
b. Heads of diplomatic missions,
for the purpose of adopting the
text of a treaty between the
accrediting State and the State
to which they are accredited;
c. Representatives accredited by
States to an international
conference or to an
international organization or
one of its organs, for the
purpose of adopting the text of
a treaty in that conference,
organization or organ. [Art. 7 (2
(a-c)), VCLT]
2. Negotiation. The state representatives
discuss the terms and provisions of the
treaty.
3. Adoption. When the form and content
have been settled by the negotiating
states, the treaty is adopted. This is only
preparatory to (1) the authentication of the
text of the treaty, and (2) the signing thereof
[Art. 9, VCLT].
4. Authentication. A definitive text of the
treaty is established as the correct and
authentic one [Art. 10, VCLT].
5. Expression of consent. The state parties
express their consent to be bound by the
terms of the treaty. The modes of such
expression are by (i) signature, (ii)
exchange of instruments constituting a
treaty, (iii) ratification, (iv) acceptance, (v)
approval or (vi) accession, or (vii) by any
other means if so agreed. [Art. 11, VCLT]
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Note: See Articles 12-17 of VCLT for in
detail explanations of each manner of
expressing consent
6. Registration. The treaty is then registered
with the Secretariat of the United Nations
[Art. 80, VCLT]. Otherwise, the treaty may
not be invoked before any UN organ [Art.
102(2), UN Charter], including the ICJ.
Important Concepts in Treaty law
1. Pacta Sunt Servanda
Every treaty in force is binding upon the parties
to it and must be performed by them in good
faith [Art. 26, VCLT].
Note: This is considered as customary
international law and applies to all obligations
contained in a treaty, whether or not the state
is a party to the VCLT. [Gabcikovo-Nagymaros
Project (ICJ, 1997)]
2. Reservations
A reservation is a unilateral statement,
however phrased or named, made by a State,
when signing, ratifying, accepting, approving or
acceding to a treaty, whereby it purports to
exclude or to modify the legal effect of certain
provisions of the treaty in their application to
that State [Art. 2 (d), VCLT]
Exceptions: A reservation shall not operate to
modify or exclude the provisions of a treaty:
a. Where the treaty expressly prohibits
reservations in general;
b. Where the treaty expressly prohibits that
specific reservation being made; or
c. Where the reservation is incompatible with
the object and purpose of the treaty [Art.
19, VCLT; Reservation to the Genocide
Conventions Advisory Opinion (ICJ,
1951)].
To be considered binding on the other
contracting state to the treaty, that State must
accept the reservation. A reservation is
presumed to be accepted. A reservation is
deemed unaccepted when another contracting
state objects. [See Art. 20, VCLT]

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3. Amendment and Modification of
Treaties
General rule for multilateral treaties:
Consent of all the parties is required.
Exception: If the treaty itself so allows, two
states may modify a provision only insofar as
their relationship inter se.
4. Non-Binding on third states; exceptions
A treaty does not create either obligations or
rights for a third State without its consent [Art.
34, VCLT].
Exceptions:
a. When the third party accepts a provision
establishing an obligation for that third
party. [Art. 35, VCLT]
b. When the third party accepts a right
provided for and exercises such right in
accordance with the conditions established
in the treaty. [Art. 36, VCLT]
5. Non-retroactivity
Unless a different intention appears from the
treaty or is otherwise established, its provisions
do not bind a party in relation to any act or fact
which took place or any situation which ceased
to exist before the date of the entry into force of
the treaty with respect to that party [Art. 28,
VCLT].
Invalid Treaties
A treaty is invalid:
a. If consent was given in violation of
provisions of internal law regarding
competence to conclude treaties,
provided that:
1. The violation is manifest; and
2. It concerned a rule of fundamental
importance [Art. 46, VCLT].
b. If the representative consented in violation
of specific restrictions on authority,
provided the restriction was notified to the
other negotiating states prior to the
representative expressing such consent
[Art. 47, VCLT];
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c. Error of fact or situation, provided that:
1. Such formed an essential basis of a
state’s consent to be bound;
2. The State did not contribute by its own
conduct to the error; and
3. The circumstances were not such as to
put that State on notice of a possible
error [Art. 48, VCLT].
d. If consent was obtained through
fraudulent conduct of another negotiating
state [Art. 49, VCLT];
e. If the representative of a state was
corrupted to consent by another
negotiating state [Art. 50, VCLT];
f. If the representative of a State was
coerced through acts or threats directed
against him [Art. 51, VCLT];
g. If the conclusion of a treaty is procured by
threat or use of force [Art. 52, VCLT];
h. If it violates a jus cogens norm of
international law [Art. 53, VCLT].
Grounds for Termination of the Treaty
a. Termination of the treaty or withdrawal of a
party in accordance with the provisions of
the treaty or by consent of all the parties
[Art. 54, VCLT]
b. Denunciation or desistance by a party in
accordance with the provisions of the
treaty, or if the treaty does not so provide:
1. The parties intended to admit the
possibility of denunciation or
withdrawal; or
2. A right of denunciation or withdrawal
may be implied from the nature of the
treaty [Art. 56, VCLT].
c. Conclusion of a subsequent inconsistent
treaty [Art. 59, VCLT];
d. Material breach or Termination or
Suspension of a Treaty as a Consequence
of its Breach [Art. 60, VCLT] Either:
1. A repudiation of the treaty not
sanctioned by the present Convention;
or
2. The violation of a provision essential to
the accomplishment of the object or
purpose of the treaty. [Art. 60 (3),
VCLT]
e. Supervening Impossibility of Performance
[Art. 61, VCLT]
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General Rule: The impossibility results g. Severance of Consular or Diplomatic

from the permanent disappearance or
destruction of an object indispensable for
the execution of the treaty. If the
impossibility is temporary, it may be
invoked only as a ground for suspending
the operation of the treaty
Exception: If the impossibility is the result
of a breach by that party either of an
obligation under the treaty or of any other
international obligation owed to any other
party to the treaty.
f. Fundamental Change of Circumstances
[Art. 62, VCLT] otherwise known as rebus
sic stantibus
The doctrine of rebus sic stantibus is a
principle in customary international law
providing that where there has been a
fundamental change of circumstances
since an agreement was concluded, a
party to that agreement may withdraw from
or terminate it. Article 62 of the VCLT is
considered as a codification of customary
international law [(Gabcikovo-Nagymaros
Project (ICJ, 1997)]
Relations if the relations were
indispensable for the application of the
treaty [Art. 63, VCLT]
h. Emergence of a new peremptory norm of
general international law (Jus Cogens) [Art.
64, VCLT]
Treaties under Philippine Law
Note: see also “B. Relationship between
International law and Philippine Domestic Law”
above
Philippine law makes a distinction between
treaties and executive agreements. Both are
equally binding, but treaties require the
concurrence of the Senate to be effective,
while executive agreements do not.
Under international law, there is no difference
between treaties and executive agreements in
terms of their binding effects on the contracting
states concerned, as long as the negotiating
functionaries have remained within their
powers. [Bayan Muna v. Romulo, G.R. No.
159618, 2011]

Requisites [Art. 62 (1), VCLT]: Treaties have to be transformed in order to be

1. The existence of those circumstances part of Philippine law. A treaty is “transformed”
constituted an essential basis of the when it is ratified by the Senate [Sec. 21, Art.
consent of the parties to be bound by VII, 1987 Constitution]. After ratification, a
the treaty; and treaty shall be deemed as if legislated by our
2. The effect of the change is radically to legislature.
transform the extent of obligations still
to be performed under the treaty The Department of Foreign Affairs has the
3. The change of circumstances was not power to determine whether an international
foreseen. agreement is a treaty or an executive
agreement [Sec. 9, E.O. 459].
When Fundamental Change of
Circumstances cannot be invoked (Art. Executive Agreements differentiated from
62 (2), VCLT): Treaties
1. If the treaty establishes a boundary; or TREATIES EXECUTIVE
2. If the fundamental change is the result AGREEMENT
of a breach by the party invoking it S
either of an obligation under the treaty As to Political Transitory
or of any other international obligation Subject issues; effectivity;
owed to any other party to the treaty. Matte Changes in
national Adjusts details
policy; to carry out

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well
Involves established The fact that international law has been
agreements national made part of the law of the land does not
of a policies and pertain to or imply the primacy of
permanent traditions; international law over national or municipal
character law in the municipal sphere.
Temporary;
The doctrine of incorporation, as applied in
Implements most countries, decrees that rules of
treaties, international law are given equal standing with,
statutes, but are not superior to, national legislative
policies enactments. Accordingly, the principle lex
As to Requires Does not posterior derogat priori takes effect [and] a
Ratificatio ratification require Senate treaty may repeal a statute and a statute may
n by two- Concurrence repeal a treaty.
thirds (2/3)
of the In states where the Constitution is the highest
Senate law of the land, such as the Republic of the
[Sec. 21, Philippines, both statutes and treaties may be
Art. VII, invalidated if they are in conflict with the
1987 constitution [Secretary of Justice v. Lantion,
Constitution G.R. No. 139465 (2000)].
]
As to Can repeal Cannot amend I. DOCTRINE OF STATE
Effect on a statute or repeal a
Municipal and prior law and RESPONSIBILITY
Law can be cannot prevail
repealed by over a General Principles
a subsequent la Relevant Text: Articles on State Responsibility
statute (“ASR”)

When there is Conflict between a Treaty
and Municipal Law
The doctrine of incorporation is applied
whenever municipal tribunals are confronted
with situations in which there appears to be a
conflict between a rule of international law and
the provisions of the constitution or statute of
the local state. Efforts must be done to give
effect to both since it is to be presumed that
municipal law was enacted with proper regard
for the generally accepted principles of
international law in observance of the
Incorporation Clause.
In a situation, however, where the conflict is
irreconcilable and a choice has to be made
between a rule of international law and
municipal law, jurisprudence dictates that
municipal law should be upheld by the
municipal courts.
Every internationally wrongful act of a state
entails the international responsibility of that
State [Art. 1, ASR].
Elements of an Internationally Wrongful Act:
There is an internationally wrongful act of a
state when the conduct consisting of an action
or omission:
a. Is attributable to the State under
international law; and
b. Constitutes a breach of an international
obligation of a State [Art. 2, ASR].
The characterization of an act of a state as
internationally wrongful is governed by
international law. Such characterization is not
affected by the characterization of the same act
as lawful by internal law [Art. 4, ASR].
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With respect to state responsibility, the theory
provides that fault is unnecessary for State
responsibility to be incurred.
ATTRIBUTION
Attribution or imputability is a legal construct
whereby an internationally unlawful conduct of
a State organ acting in that capacity is
regarded as the conduct of the State itself,
making that State responsible for it as an
internationally wrongful act.
It proceeds from the theory that as an abstract
entity, the State can physically act only through
individuals or groups of individuals performing
"acts of the State" on its behalf (Differences
Relating to Immunity from Legal Processes of
a Special Rapporteur of the Commission of
Human Rights (38 International Legal Materials
873. 1999]).
a. Conduct of organs of a state [Article 4,
ASR]
The conduct of any State organ shall be
considered an act of that State whether the
organ exercises legislative, executive, judicial
or any other functions, whatever position it
holds in the organization of the State.
An organ includes any person or entity which
has that status in accordance with the internal
law of the State.
b. Conduct of persons or entities
exercising elements of governmental
authority [Article 5, ASR]
The conduct of a person or entity (not falling
under a) but is empowered by the law of that
State to exercise elements of the governmental
authority shall be considered an act of the
State, provided the person or entity is acting in
that capacity.
c. Conduct of organs placed at the
disposal of a State by another State
[Article 6, ASR]
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An act of the former State under international
law if the organ is acting in the exercise of
elements of the governmental authority of the
State at whose disposal it is placed.
d. Excess of authority or contravention of
instructions [Article 7, ASR]
If the organ, person or entity acts in that
capacity, even if it exceeds its authority or
contravenes instructions. Unauthorized or Ultra
Vires acts.
e. Conduct directed or controlled by a
State [Article 8, ASR]
If the person or group of persons is in fact
acting on the instructions of, or under the
direction or control of, that State in carrying out
the conduct.
Effective Control
Under the law on state responsibility, a State is
responsible only for the acts of its organs and
over non-state actors over which it exercised
effective control [Nicaragua case (ICJ,
1986)]. This means that it should have given
instructions or provided the direction pursuant
to which the perpetrators of the wrongful act
acted.
Overall Control
In the Application of the Convention on the
Prevention and Punishment of the Crime of
Genocide Case (ICJ, 2007), the ICJ ruled that
the “over-all control test” was only relevant in
so far as the question of characterization of the
Yugoslav conflict as an international armed
conflict, or whether or not the conflict has been
internationalized; it is not relevant to the task of
determining whether a state is responsible for
the acts of certain non-state organs involved in
that same international armed conflict.
Effective Control Overall Control
Control must have Control must have
been exercised in gone “beyond the
respect to each mere financing and
individual act or equipping of such
omission which forces” and must
have “participation in
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constitutes the the planning and This is without prejudice to the attribution to a
breach. supervision of State of any conduct, however related to that of
The private persons military operations.” the movement concerned, which is to be
or groups must have considered an act of that State by virtue of
been mere agents of articles 4 to 9.
the state who were
told what had to be h. Conduct acknowledged and adopted by
done at all stages. a State as its own [Article 11, ASR]
This provides a This presents a
higher threshold for lower threshold for Conduct shall be considered an act of that
attribution. attribution. State if and to the extent that the State
A general situation of There need not be a acknowledges and adopts the conduct in
dependence and showing of actual or question as its own.
support would thus direct control.
be insufficient to CIRCUMSTANCES PRECLUDING
justify attribution. WRONGFULNESS (Defenses)
This refers to the This refers to the
matter of state matter of individual Although a State which fails to act in conformity
responsibility. criminal with an international obligation will typically be
responsibility and subject to international responsibility for the
the application of the wrongful act, the State may be excused from
rules of international performance of an international obligation
humanitarian law if circumstances precluding wrongfulness
[e.g. Prosecutor v. are present.
Tadic (ICTY Appeals
Chamber, 1995)]. a. Consent [Article 20, ASR]

f. Conduct carried out in the absence or
default of the official authorities [Article
9, ASR]
If the person or group of persons exercise
elements of the governmental authority in the
absence or default of the official authorities and
in circumstances such as to call for the
exercise of those elements of authority.
g. Conduct of an insurrectional or other
movement [Article 10, ASR]
The conduct of an insurrectional movement
which becomes the new Government of a State
shall be considered an act of that State.
The conduct of a movement, insurrectional or
other, which succeeds in establishing a new
State in part of the territory of a pre-existing
State or in a territory under its administration
shall be considered an act of the new State.
Valid consent by a State to the commission of
a given act by another State precludes the
wrongfulness of that act in relation to the former
State to the extent that the act remains within
the limits of that consent.
b. Self-Defense [Article 21, ASR]
If the act constitutes a lawful measure of self-
defense taken in conformity with the Charter of
the United Nations.
c. Countermeasures [Article 22, ASR]
If and to the extent that the act constitutes a
countermeasure taken against the latter State
in accordance with the ASR.
d. Force Majeure [Article 23, ASR]
General Rule: If the act is due to force
majeure, that is the occurrence of an irresistible
force or of an unforeseen event, beyond the
control of the State, making it materially

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impossible in the circumstances to perform the
obligation.
Exception
The above rule does not apply if:
1) The situation of force majeure is due, either
alone or in combination with other factors,
to the conduct of the State invoking it; or
2) The State has assumed the risk of that
situation occurring.
e. Distress [Article 24, ASR]
General Rule: If the author of the act in
question has no other reasonable way, in a
situation of distress, of saving the author’s
life or the lives of other persons entrusted
to the author’s care.
Exceptions
i. The situation of distress is due,
either alone or in combination with
other factors, to the conduct of the
State invoking it; or
ii. The act in question is likely to
create a comparable or greater
peril.
f. Necessity [Article 25, ASR]
Elements
1. It is the only way for the State to
safeguard an essential interest against
a grave and imminent peril; and
2. It does not seriously impair an essential
interest of the State or States towards
which the obligation exists, or of the
international community as a whole.
Cannot be invoked if:
1. the international obligation in question
excludes the possibility of invoking
necessity; or
2. the State has contributed to the
situation of necessity.
Other Principles
The responsible State may not rely on the
provisions of its internal law as justification for
failure to comply with its obligations under this
part. [Article 32, ASR]
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None of the circumstances listed from a) to f)
precludes the wrongfulness of any act of a
State which is not in conformity with an
obligation arising under a peremptory norm of
general international law. [Article 26, ASR]
CONSEQUENCES OF AN
INTERNATIONALLY WRONGFUL ACT
The international responsibility of a State which
is entailed by an internationally wrongful act
involves legal consequences. [Article 28, ASR]
The legal consequences of an internationally
wrongful act under this part do not affect the
continued duty of the responsible State to
perform the obligation breached. [Article 29,
ASR]
a. Cessation and non-repetition
The State responsible for the wrongful act is
under the obligation to:
1. Cease the act if it is still continuing; and
2. Offer appropriate assurances and
guarantees of non-repetition, if
circumstances so require [Art. 30, ASR].
b. Reparation
The responsible State is under an obligation to
make full reparation for the injury caused by the
internationally wrongful act.
Injury includes any damage, whether material
or moral, caused by the internationally wrongful
act of a State.
“Full reparation” means that the responsible
State must endeavor to wipe out all the
consequences of the illegal act and reestablish
the situation which would, in all probability,
have existed if that act had not been committed
[Factory at Chorzów (PCIJ, 1928)]. This may
be achieved by one form of reparation only or
by a combination of the different forms [ASR
Draft Articles].
“Material” Damage: refers to damage to
property or other interests of the State and its

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nationals which is assessable in financial
terms.
“Moral” Damage: includes such items as
individual pain and suffering, loss of loved ones
or personal affront associated with an intrusion
on one’s home or private life. (ASR Draft
Articles)
FORMS
Full reparation for the injury caused by the
internationally wrongful act shall take the form
of restitution, compensation and satisfaction,
either singly or in combination. (Article 34,
ASR)
1. Restitution [Article 35, ASR]
A State responsible for an internationally
wrongful act is under an obligation to make
restitution, that is, to re-establish the situation
which existed before the wrongful act was
committed, provided and to the extent that
restitution:
(a) is not materially impossible;
(b) does not involve a burden out of all
proportion to the benefit deriving fro
restitution instead of compensation.
Restitution consists only in re-establishing
the status quo ante, i.e. the situation that
existed prior to the occurrence of the wrongful
act, and does not require a hypothetical inquiry
into what the situation would have been if the
wrongful act had not been committed.
Restitution in this narrow sense may therefore
have to be completed by compensation to
ensure full reparation for the damage caused
[ASR Draft Articles].
2. Compensation [Article 36, ASR]
The State responsible is under an obligation to
compensate for the damage caused thereby,
insofar as such damage is not made good by
restitution.
Compensation corresponds to the financially
assessable damage suffered by the injured
State or its nationals. It is not concerned to
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punish the responsible State, nor does
compensation have an expressive or
exemplary character [ASR Draft Articles].
3. Satisfaction [Article 37, ASR]
The State responsible is under an obligation to
give satisfaction for the injury caused by that
act insofar as it cannot be made good by
restitution or compensation.
Satisfaction may consist in an
acknowledgement of the breach, an
expression of regret, a
formal apology or another appropriate
modality.
Satisfaction shall not be out of proportion to the
injury and may not take a form humiliating to
the responsible State.
Satisfaction is of exceptional character. It is
only in cases where restitution or
compensation have not provided full reparation
that satisfaction may be required [ASR Draft
Articles].
It is the remedy for injuries not financially
assessable. These injuries are frequently of a
symbolic character, arising from the very fact of
the breach of the obligation, irrespective of its
material consequences for the State
concerned [Id.].
Other Principles
Interest on any principal sum due under this
chapter shall be payable when necessary in
order to ensure full reparation. The interest rate
and mode of calculation shall be set so as to
achieve that result. [Article 38, ASR]
Contribution to the Injury
In the determination of reparation, account
shall be taken of the contribution to the injury
by willful or negligent action or omission of the
injured State or any person or entity in relation
to whom reparation is sought. [Article 39, ASR]

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J. REFUGEES
General Principles
Reference Treaty: The 1951 Convention
Relating to the Status of Refugees (“1951
Convention”), the 1967 Protocol Relating to the
Status of Refugees (“1967 Protocol”).
Definition
A person outside the country of his
nationality owing to a well-founded fear of
being persecuted for reasons of race, religion,
nationality, membership of a particular social
group or political opinion, is and is unable or,
owing to such fear, is unwilling to avail himself
of the protection of that country; or who, not
having a nationality and being outside the
country of his former habitual residence as a
result of such events, is unable or, owing to
such fear, is unwilling to return to it. [Article 1A
(1), 1951 Convention].
The term “the country of his nationality” shall
mean each of the countries of which he is a
national, and a person shall not be deemed to
be lacking the protection of the country of his
nationality if, without any valid reason based on
well-founded fear, he has not availed himself of
the protection of one of the countries of which
he is a national.
Refugees v. Internally Displaced Persons
Refugees are people as defined above while
internally displaced persons are those who
have been forced to flee their homes, suddenly
or unexpectedly in large numbers as a result of
armed conflict, internal strife, systematic
violation of human rights, or natural or man-
made disaster, and, who are within their
territory of their country. (Analytical Report of
the United Nations’ Secretary-General on
Internally Displaced Persons, February 14,
1992)
The convention will not apply to refugees if:
a. He has voluntarily re-availed himself of the
protection of the country of his nationality;
b. Having lost his nationality, he has
voluntarily re-acquired it; or
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c. He has acquired a new nationality, and
enjoys the protection of the country of his
new nationality; or
d. He has voluntarily re-established himself in
the country which he left or outside which
he remained owing to fear of persecution;
or
e. He can no longer continue to refuse to avail
himself of the protection of the country of
his nationality because the circumstances
in connection with which he has been
recognized as a refugee have ceased to
exist;
f. Being a person who has no nationality he
is, able to return to the country of his former
habitual residence [Article 1, C, 1951
Convention]
General Obligations of Refugees
Every refugee has duties to the country in
which he finds himself, which require in
particular that he conform to its laws and
regulations as well as to measures taken for
the maintenance of public order. [Article 2,
1951 Convention]
Non-Discrimination
States shall apply the provisions of this
Convention to refugees without discrimination
as to race, religion or country of origin. [Article
3, 1951 Convention]
Personal Status
The personal status of a refugee shall be
governed by the law of the country of his
domicile or, if he has no domicile, by the law of
the country of his residence. [Article 12, 1951
Convention]
Rights previously acquired by a refugee and
dependent on personal status, more
particularly rights attaching to marriage, shall
be respected by a Contracting State, subject to
compliance, if this be necessary, with the
formalities required by the law of that State,
provided that the right in question is one which
would have been recognized by the law of that
State had he not become a refugee. [Article 12,
1951 Convention]
Rights of a Refugee

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Among those enumerated in the 1951
Convention are:
1. Non-discrimination of application (for
refugee status) based on race, religion, or
country of origin [Art. 3]
2. To be treated similar to nationals with
respect to the following: Right to Religion
[Art. 4]
a. Right to Religion [Art. 4]
b. Rationing system (when supplies
are short) [Art. 20]
c. Elementary education [Art 22(1)]
d. Public Relief [Art. 23]
e. Labour Legislation and Social
Security [Art. 24(1)]
f. Fiscal Charges [Art. 29]
3. To be accorded the same treatment as an
alien or foreign national with respect to the
following:
a. To have his personal status
respected [Art. 12]
b. To acquire movable and
immovable property [Art. 13]
c. Protection of industrial property
and rights in literacy, artistic, and
scientific works [Art. 14]
d. Right of Association [Art. 15]
e. Access to Courts [Art. 16]
f. Wage-earning employment [Art.
17]
g. Self-employment [Art. 18]
h. To practice liberal profession [Art.
19]
i. Housing [Art. 21]
j. Education other than elementary
[Art. 22(2)]
4. Administrative Assistance [Art. 25]
5. Freedom of movement [Art. 26]
6. To be issued travel documents [Art. 28(1)]
7. Be permitted to transfer their assets [Art.
30(1)]
8. Sympathetic considerations as regards the
following:
a. Extension of benefits similar to
death benefits or social security
[Art. 24(4)]
b. Issuance of travel documents to
refugees who are unable to obtain
a travel document from the country
of their lawful residence [Art. 28(1)]
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c. Permission to transfer assets
necessary for their resettlement in
another country [Art. 30(2)]
9. To not be expelled [Arts. 32 and 33]
10. To not be penalized for illegal entry until
their status in the country is regularized or they
obtain admission into another country [Art. 31]
Principle of Non-Refoulment
General Rule: No State shall expel or return
(“refouler”) a refugee in any manner
whatsoever to the frontiers of territories where
his life or freedom would be threatened on
account of his race, religion, nationality,
membership of a particular social group or
political opinion. [Article 33, 1951 Convention]
Exception: The benefit be claimed by a
refugee whom there are reasonable grounds
for regarding as a danger to the security of the
country in which he is, or who, having been
convicted by a final judgment of a particularly
serious crime, constitutes a danger to the
community of that country. [Article 33, 1951
Convention]
K. TREATMENT OF
ALIENS
The General Rule on Standard of Treatment
Flowing from its right to existence and as an
attribute of sovereignty, no state is under any
obligation to admit aliens. The state can
determine in what cases and under what
conditions it may admit such. Once it admits
aliens, under the international standard
of justice, which calls for compliance with the
ordinary norms of official conduct observed in
civilized jurisdictions, aliens should be
protected by certain minimum standards of
humane protection, however harsh the
municipal laws of a state may be.
Territorial sovereignty involves the exclusive
right to display the activities of a State. This
right has a corollary, a duty: the obligation to
protect within the territory the rights of other
States, in particular, their right to integrity and
inviolability in peace and in war, together with

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the rights which each State may claim for its
nationals in foreign territory [Island of Las
Palmas Arb. (PCA, 1928)].
However, an alien cannot claim a preferred
position vis-à-vis the national of the state [see
Calvo Clause, infra].
State Responsibility when it comes to
Treatment of Aliens
A state may be held responsible for:
a. An international delinquency;
b. Directly or indirectly imputable to it;
c. Which causes injury to the national of
another state
Liability will attach to the state where its
treatment of the alien falls below the
international standard of justice or where it is
remiss in according him the protection or
redress that is warranted by the circumstances.
The propriety of governmental acts should be
put to the test of international standards. The
treatment of an alien, in order to constitute an
international delinquency, should amount to
an outrage, to bad faith, to willful neglect of
duty, or to an insufficiency of governmental
action so far short of international
standards that every reasonable and
impartial man would readily recognize its
insufficiency [Neer Case (PCIJ, 1926)].
How To enforce the International
Responsibility arising from the
International Delinquency
There must be:
a. Exhaustion of local (refers to the State
where the international delinquency
happened) administrative remedies; and
b. Representation of the alien by his own
state (this refers to the exercise of
diplomatic protection) in the international
claim for damages.
Rules on Diplomatic Protection from the
Draft Articles on Diplomatic Protection
(ADP), 2006:
Definition of Diplomatic Protection [Art. 1,
ADP]
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Diplomatic protection consists of the invocation
by a State, through diplomatic action or other
means of peaceful settlement, of the
responsibility of another State for an injury
caused by an internationally wrongful act of
that State to a natural or legal person that is a
national of the former State with a view to the
implementation of such responsibility.
Who is entitled to exercise Diplomatic
Protection [Art. 3, ADP]
1. The State of nationality
2. Notwithstanding paragraph 1, diplomatic
protection may be exercised by a State in
respect of a person that is not its national
in accordance with draft article 8.
Requirement of exhaustion of local
remedies before presentation of
international claim [Art. 14, ADP]:
1. A State may not present an international
claim in respect of an injury to a national
or other person before the injured
person has exhausted all local
remedies.
2. “Local remedies” means legal remedies
which are open to an injured person before
the judicial or administrative courts or
bodies, whether ordinary or special, of the
State alleged to be responsible for causing
the injury.
3. Local remedies shall be exhausted where
an international claim, or request for a
declaratory judgement related to the claim,
is brought preponderantly on the basis of
an injury to a national or other person.
Exception to requirement of Exhaustion of
Local Remedies [Art. 15, ADP]:
Local remedies do not need to be exhausted
where:
a. there are no reasonably available local
remedies to provide effective redress, or
the local remedies provide no reasonable
possibility of such redress;
b. there is undue delay in the remedial
process which is attributable to the State
alleged to be responsible;
c. there was no relevant connection between
the injured person and the State alleged to
be responsible at the date of injury;

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d. the injured person is manifestly precluded
from pursuing local remedies; or
e. the State alleged to be responsible has
waived the requirement that local
remedies be exhausted
The Calvo Clause
Definition
This refers to a stipulation which states that the
foreign party must rely exclusively on local
remedies and not seek any diplomatic
protection.
1. Extradition
Definition
Extradition is the surrender by one nation to
another of an individual accused or convicted
of an offense outside of its own territory, and
within the territorial jurisdiction of the other,
which, being competent to try and to punish
him, demands the surrender. [Government of
Hongkong Special Administrative Region v.
Muñoz, G.R. No. 207342 (2016)]
Extradition has thus been characterized as the
right of a foreign power, created by treaty, to
demand the surrender of one accused or
convicted of a crime within its territorial
jurisdiction, and the correlative duty of the other
state to surrender him to the demanding state.
[Government of Hong Kong Special
Administrative Region v. Olalia, G.R. No.
153675 (2007)]
It also refers to the removal of an accused from
the Philippines with the object of placing him at
the disposal of foreign authorities to enable the
requesting state or government to hold him in
connection with any criminal investigation
directed against him in connection with any
criminal investigation directed against him or
the execution of a penalty imposed on him
under the penal or criminal law of the
requesting state or government [Section 2(a),
P.D. 1069]
Requisites for Extradition to be exercised
1. There must be an extradition treaty in force
between the HKSAR and the Philippines;
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2. The criminal charges that are pending in
the HKSAR against the person to be
extradited;
3. The crimes for which the person to be
extradited is charged are extraditable
within the terms of the treaty;
4. The individual before the court is the same
person charged in the HKSAR;
5. The evidence submitted establishes
probable cause to believe that the person
to be extradited committed the offenses
charged; and
6. The offenses are criminal in both the
HKSAR and the Philippines (double
criminality rule).
[Government of Hongkong Special
Administrative Region v. Muñoz, G.R. No.
207342 (2016)]
a. FUNDAMENTAL PRINCIPLES ON
EXTRADITION
i. The duty to extradite must be
based on treaty
It is not part of customary international law,
although the duty to extradite exists only for
some international crimes. Thus, a state must
extradite only when obliged by treaty to do so.
[Government of Hongkong Special
Administrative Region v. Muñoz, G.R. No.
207342 (2016)]
Principle of specialty
A fugitive who is extradited may be tried only
for the crime specified in the request for
extradition and included in the list of offenses
in the extradition treaty [US v. Rauscher, 119
U.S. 407 (1886)].
Rule of Double Criminality
The act for which extradition is sought must be
punishable in both the requesting and
requested states. [Government of Hongkong
Special Administrative Region v. Muñoz, G.R.
No. 207342 (2016)]
ii. It is a sui generis proceeding
An extradition proceeding is sui generis. It is
not a criminal proceeding which will call into

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operation all the rights of an accused as
guaranteed by the Bill of Rights [Sec. of Justice
v. Lantion, G.R. No. 139465, (2000)]
iii. Bail may be granted to the
extraditee on the basis of clear
and convincing evidence that he
is not a flight risk
The potential extraditee must prove by “clear
and convincing evidence” that he is not a flight
risk and will abide with all the orders and
processes of the extradition court.
[Government of Hong Kong Special
Administrative Region v. Olalia, G.R. No.
153675 (2007)]
iv. There must be compliance with
procedural due process
b. PROCEDURE
1. A request for extradition is presented
through diplomatic channels to the state of
refuge with the necessary papers for
identification.
2. The request is received by the state of
refuge.
3. A judicial investigation is conducted by the
state of refuge to ascertain if the crime is
covered by the extradition treaty and if
there is a prima facie case against the
fugitive according to its own laws.
4. If there is a prima facie case, a warrant of
surrender will be drawn and the fugitive will
be delivered to the state of origin. The
evaluation process partakes the nature of
a criminal investigation, having
consequences which will result in
deprivation of liberty of the prospective
extraditee. A favorable action in an
extradition request exposes a person to
eventual extradition to a foreign country,
thus exhibiting the penal aspect of the
process.
The evaluation process itself is like a
preliminary investigation since both procedures
may have the same result: the arrest and
imprisonment of the respondent. [Secretary of
Justice v. Lantion, G.R. No. 139465 (2000)]
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c. Extradition v. Deportation
Extradition Deportation
Effected at the Unilateral Act of the
request of another State
State
Based on offenses Based on causes
committed in the arising in the local
state of origin state
Calls for the return of An undesirable alien
the fugitive to the may be deported to a
requesting state state other than his
own or his state of
origin.
The Obligation of aut dedere aut judicare (to
extradite or prosecute)
A conventional obligation of States found in
various treaties. A state subject to this
obligation is bound to extradite if it does not
prosecute, and to prosecute if it does not
extradite.
The effective fulfilment of the obligation to
extradite or prosecute requires
a. undertaking necessary national measures
to criminalize the relevant offences,
b. establishing jurisdiction over the offences
and the person present in the territory of
the State,
c. investigating or undertaking primary
inquiry,
d. apprehending the suspect, and submitting
the case to the prosecuting authorities
(which may or may not result in the
institution of proceedings)
OR
Extraditing, if an extradition request is
made by another State with the necessary
jurisdiction and capability to prosecute the
suspect. (Final Report of the International
Law Commission on the Obligation of Aut
dedere aut judicare (2014))
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L. INTERNATIONAL
1. The Universal Declaration of
HUMAN RIGHTS LAW Human Rights (“UDHR”)
Definition of Human Rights
The UDHR is the first comprehensive
Human rights are those fundamental and
catalogue of human rights proclaimed by an
inalienable rights which are essential for life as
international organization.
a human being. They are recognized by the
international community as a whole through
It is not a treaty. It has no obligatory character
their protection and promotion under
because it was adopted by the UN General
contemporary international law.
Assembly as Resolution 217A (III). As a
resolution, it is merely recommendatory.
Definition of International Human Rights
Law
Accordingly, it has been observed that the
International human rights law lays down the
Universal Declaration of Human Rights no
obligations of Governments to act in certain
longer fits into the dichotomy of “binding treaty”
ways or to refrain from certain acts, in order to
against “non-binding pronouncement”, but is
promote and protect human rights and
rather an authoritative statement of the
fundamental freedoms of individuals or groups.
international community. Thus, a Declaration
[United Nations, Global Issue]
creates an expectation of adherence, and
insofar as the expectation is gradually justified
Classifications of Human Rights
by State practice, a declaration may by custom
1. First generation rights consist of civil and
become recognized as laying down rules
political rights;
binding upon the States. Indeed, several
2. Second generation rights consist of
commentators have concluded that the
economic, social and cultural rights;
Universal Declaration has become, in toto, a
3. Third generation rights consist of the rights
part of binding, customary international law.
to development, to peace, and to
[Razon v. Tagitis, G.R. No. 182498 (2009)
environment [VASAK, KAREL]
citing Filartiga v. Pena-Irala, 630 F.2d 876 (2d
Cir. 1980)]
The distinction between first generation
and second generation human rights
In the Philippines, the UDHR is considered as
As to Obligatory Force customary international law. Universal
Declaration of Human Rights ("UDHR") has
1st Generation Rights are STRICTLY or
been interpreted by this Court as part of the
OBJECTIVELY OBLIGATORY, whatever the
economic condition or other conditions of the generally accepted principles of international
state obliged. 2nd Generation Rights are law and binding on the State. [Poe-
RELATIVELY or SUBJECTIVELY Llamanzares v. Comelec; G.R. No. 221697,
OBLIGATORY, states are required to (2016)]
progressively achieve the full realization of
these rights “to the maximum of their available The UDHR embodies both first and second
generation rights.
resources”.

As to derogation The civil and political rights (1st Generation

1st Generation rights are derogable only in
times of public emergency. 2nd Generation
Rights may be restricted for the general
welfare, with or without an “emergency that
threatens the independence or security of a
state party”.
Rights) enumerated in the UDHR include right
such as:
a. The right to life, liberty, privacy and security
of person;
b. Prohibition against slavery;

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c. The right not to be subjected to arbitrary
arrest, detention or exile;
d. The right to fair trial and presumption of
innocence;
e. The right to a nationality;
f. The right to freedom of thought,
conscience and religion;
g. The right to freedom of opinion and
expression;
h. The right to peaceful assembly and
association;
i. The right to take part in the government of
his country.
The Economic, social and cultural rights
enumerated in the UDHR include rights such
as:
a. The right to social security;
b. The right to work and protection against
unemployment;
c. The right to equal pay for equal work;
d. The right to form and join trade unions;
e. The right to rest and leisure.
Note: See Articles 3-28 of the UDHR for a
complete enumeration of the rights.
2. The International Covenant
on Civil and Political Rights
(“ICCPR”)
It embodies the first generation of human
rights, although it lists more rights than the
UDHR, namely:
a. The right to own property;
b. The right to seek in other countries asylum
from prosecution;
c. The right of members of ethnic, religious or
linguistic groups not to be denied to enjoy
their own culture, to profess and practice
their own religion, or to use their own
language;
d. The right to compensation in case of
unlawful arrest;
e. The right to legal assistance in criminal
prosecution;
f. The right against self-incrimination;
g. Protection against double jeopardy;
h. The right to review by higher tribunal in
case of criminal conviction;
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i. The right of every child to nationality;
j. The right to protection of a child as required
by his status as a minor;
k. The right of persons below 18 years old not
to be sentenced to death for crimes;
l. The right against the carrying out of death
sentence on the part of a pregnant woman.
The following are obligations of state parties
under the ICCPR:
a. State parties undertake to respect and to
ensure to all individuals within their territory
the rights enumerated therein, without
distinction of any kind, such as race, color,
sex, language, religion, political or other
opinion, national or social origin, birth or
other status.
b. State parties are required to take the
necessary steps to adopt legislative or
other measures that are necessary to give
effect to the rights recognized in the
ICCPR.
c. State parties must ensure that any person
whose rights or freedoms are violated have
an effective remedy, notwithstanding that
the violation has been committed by
persons action in an official capacity.
d. State parties must ensure that any person
claiming such remedy shall have his right
thereto determined by competent judicial,
administrative or legislative authority, and
that they shall enforce the remedy when
granted
e. To ensure that the competent authorities
shall enforce such remedies when granted.
3. The International Covenant
on Economic, Social and
Cultural Rights (“ICESCR”)
It embodies the second generation of human
rights, although it lists more rights than the
UDHR, namely:
a. The right to health;
b. The right to strike;
c. The right to be free from hunger;
d. The right to enjoy the benefits of scientific
progress;
e. Freedom for scientific research and
creativity.
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Committee has opined that

The obligation of a state party to the ICESCR the reference to “sex” in
is to undertake the necessary steps to the Article 26 should be
maximum of its available resources, with a construed to include
view to achieving progressively the full “sexual orientation”.
realization of the rights enumerated in the
covenant by all appropriate means. o On the right to nationality [Poe-
Llamanzares v. Comelec; G.R. No.
COMMON PROVISIONS IN THE ICCPR AND 221697, (2016)]:
ICESCR ○ The common thread of the
The common provisions of the two covenants UDHR, UNCRC and
deal with collective rights, namely: ICCPR is to obligate the
1. The right of self-determination of peoples; Philippines to grant
2. The right of peoples to freely dispose of nationality from birth and
their natural wealth and resources; and ensure that no child is
3. The right of peoples not to be deprived of stateless.
their own means of subsistence.

These rights were not covered by the UDHR.

M. INTERNATIONAL
HUMANITARIAN LAW
Philippine Jurisprudence on Human Rights
• On enforced disappearances (Razon v. International Humanitarian Law (hereinafter
Tagitis, G.R. No. 182498 (2009): “IHL”) is the branch of public international law
o Any act of enforced disappearance is which governs armed conflicts to the end that
an offence to dignity. It is condemned the use of violence is limited and that human
as a denial of the purposes of the suffering is mitigated or reduced by regulating
Charter of the United Nations and as a or limiting the means of military operations and
grave and flagrant violation of human by protecting those who do not or no longer
rights and fundamental freedoms participate in the hostilities.
proclaimed in the Universal Declaration
of Human Rights and reaffirmed and This used to be known as the Laws of War
developed in international instruments which provides for instances when the use of
in this field. armed force is justifiable (jus ad bellum) and
o On the principle of non-discrimination regulates the conduct of armed conflict (jus in
vis-à-vis the right to electoral bello).
participation [Ang Ladlad LGBT Party
vs. Commission on Elections; G.R. No.
IHL IHRL
190582, (2010)]
○ The principle of non- Application
discrimination requires that
laws of general application In situations of At all times; during
relating to elections be armed conflict war and peace time
applied equally to all
persons, regardless of Purpose
sexual orientation.
Although sexual orientation Protect people who Protect individuals
is not specifically do not or are no from arbitrary
enumerated as a status or longer taking part in behavior by their
ratio for discrimination in hostilities. own governments.
Article 26 of the ICCPR, the
ICCPR Human Rights

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Derogation
No derogations are Some HR treaties
permitted under IHL permit governments
to derogate from
certain rights, in
situations of public
emergency.
1. Categories of Armed Conflict:
a. International Armed Conflicts (IAC)
Definition: An international armed conflict
occurs when one or more states have recourse
to armed force against another state
[Prosecutor v. Tadic (ICTY Appeals Chamber,
1995)], regardless of the reasons or the
intensity of the confrontation.
b. Internal or Non-International
Armed Conflicts (NIAC)
Definition: This refers to conflicts between
governmental forces and non-governmental
armed groups, or between such groups only.
Basis: The Common Article 3, Geneva
Conventions, and Article 1, Additional Protocol
II.
Common Article 3 applies to “armed conflicts
not of an international character occurring in
the territory of one of the High Contracting
Parties.” These include armed conflicts in
which one or more non-governmental armed
groups are involved.
Article 1 develops Common Article 3. It applies
to:
1. All armed conflicts which take place in the
territory of a state party;
2. Between its armed forces and dissident
armed forces or other organized groups;
3. Which, under responsible command,
exercise such control over a part of its
territory;
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4. As to enable it to carry out sustained and
concerted military operations and to
implement the Protocol.
Armed conflict does not include internal
disturbances or tensions such as:
1. Riots;
2. Isolated and sporadic acts of violence; and
3. Other acts of a similar nature.
c. War of National Liberation
Armed conflicts in which people are fighting
against colonial domination and alien
occupation and against racist regimes in the
exercise of their right to self-determination
[Protocol I, Art. 1(4)].
Categories:
1. Colonial domination;
2. Alien occupation; and
3. Racist regimes when the peoples
oppressed by these regimes are fighting for
self-determination.
2. Core International Obligation
of States
In general, IHL defines the following
obligations:
a. Parties to an armed conflict, together with
their armed forces, do not have unlimited
choice of methods or means of warfare.
They are prohibited from employing
weapons or means of warfare that cause
unnecessary damage or excessive
suffering.
b. Parties to an armed conflict shall, at all
times, distinguish between civilian
population and the combatants (principle of
distinction). Civilians shall be spared from
military attacks which shall be directed only
against military objectives.
c. Persons hors de combat shall be protected
and treated humanely without any adverse
distinction. Their right to life and physical
and moral integrity shall be respected.
d. It is prohibited to kill or injure an enemy who
is hors de combat or who surrenders.

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e. The wounded and the sick shall be
protected and cared for by the party to the
conflict which has them in its power.
Protection shall also apply to medical
personnel, establishments, transports and
material.
f. Combatants and civilians who are captured
by authority of the party to a dispute are
entitled to respect for their right to life,
dignity, conviction, and other personal
rights. They shall be protected against acts
of violence or reprisals [Legality of the
Threat or Use of Nuclear Weapons
Advisory Opinion (ICJ, 1996)].
3. Principles of International
Humanitarian Law
Combatants
These are members of the armed forces of a
party to a conflict [Art. 3(2), Protocol 1]. They
have the right to participate directly and
indirectly in hostilities [Art. 43(2), Protocol 1].
Only combatants are allowed to engage in
hostilities.
Hors de Combat
Under Art. 41(2), Protocol I, a person is hors de
combat if:
1. He is in the power of an adverse party to
the conflict;
2. He clearly expresses an intention to
surrender; or
3. He has been rendered unconscious or is
otherwise incapacitated by wounds or
sickness and is therefore incapable of
defending himself; provided that in any of
these cases, he abstains from any hostile
act and does not attempt to escape.
Protected Persons
They are those who enjoy or are entitled to
protection under the Geneva Conventions.
Categories of protected persons include:
1. The wounded, the sick, and shipwrecked;
2. Prisoners of war; and
3. Civilians.
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a. Treatment of Civilians
For purposes of protection, civilians are further
classified as:
i. Civilians who are victims of conflict in
countries involved;
ii. Civilians in territories of the enemy;
iii. Civilians in occupied territories; and
iv. Civilians internees.
Martens Clause/Principle of Humanity
In cases not covered by other international
agreements, civilians and combatants remain
under the protection and authority of the
principles of international law derived from
established custom, from the principles of
humanity and from the dictates of public
conscience.
The Principle of Military Necessity
The belligerent may employ any amount of
force to compel the complete submission of the
enemy with the least possible loss of lives, time
and money.
The Principle of Proportionality
The legal use of force whereby belligerents
must make sure that harm caused to civilians
or civilian property is not excessive in relation
to the concrete and direct military advantage
from an anticipated attack or by an attack on
military objective.
b. Prisoners of War
Under Art. 4, Geneva Convention (III),
prisoners of war are persons belonging to one
of the following categories:
1. Members of the armed forces of a party to
the conflict, including militias or volunteer
corps;
2. Militias or volunteer corps operating in or
outside their own territory, even if such
territory is occupied, provided:
a. They are being commanded by a
person responsible for his
subordinates;
b. Have a fixed distinctive sign
recognizable at a distance;
c. Carry arms openly; and

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d. Conduct their operations in
accordance with the laws and
customs of war.
3. Members of regular armed forces who
profess allegiance to a government or
authority not recognized by the detaining
power;
4. Civilians who accompany the armed
forces, provided that they have received
authorization from the armed forces which
they accompany;
5. Members of crews of merchant marine and
the crews of civil aircraft of the parties to
the conflict;
6. Inhabitants of a non-occupied territory who
on the approach of the enemy
spontaneously take up arms to resist the
invading forces, without having had time to
form themselves into regular armed units,
provided they carry arms openly and
respect the laws and customs of war; and
7. Persons belonging to the armed forces of
the occupied territory.
Rights of prisoners of war
1. To be treated humanely;
2. Not to be subject to torture;
3. To be allowed to communicate with their
families;
4. To receive food, clothing, religious articles,
and medicine;
5. To bare minimum of information;
6. To keep personal belongings;
7. To proper burial;
8. To be grouped according to nationality;
9. To the establishment of an informed
bureau; and
10. To repatriation for sick and wounded (1949
Geneva Convention)
4. Law on Neutrality
It is the law governing a country’s abstention
from participating in a conflict or aiding a
participant of such conflict, and the duty of
participants to refrain from violating the
territory, seizing the possession, or hampering
the peaceful commerce of the neutral countries
[The Three Friends, 166 U.S. 1 (1587)].
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Neutrality is the legal status of a State in times
of war, by which it adopts impartiality in relation
to the belligerents with their recognition.
The Geneva Convention (III) allows neutral
powers to cooperate with the parties to the
armed conflict in making arrangements for the
accommodation in the former’s territory of the
sick and wounded prisoners of war.
The Hague Convention Respecting the Rights
and Duties of Neutral Powers (1907) governs
the status of neutrality by the following rules:
a. The territory of the neutral power is
inviolable.
b. Belligerents are forbidden to move troops
or munitions of war and supplies across the
territory of a neutral power.
c. A neutral power is forbidden to allow
belligerents to use its territory for moving
troops, establishing communication
facilities, or forming corps of combatants.
d. Troops of belligerent armies received by a
neutral power in its territory shall be
interned away from the theatre of war.
e. The neutral power may supply them with
food, clothing or relief required by
humanity.
f. If the neutral power receives escaped
prisoners of war, it shall leave them at
liberty. It may assign them a place of
residence if it allows them to remain in its
territory.
g. The neutral power may authorize the
passage into its territory of the sick and
wounded if the means of transport bringing
them does not carry personnel or materials
of war.
A protecting power is a state or an
organization:
a. Not taking part in the hostilities;
b. Which may be a neutral state;
c. Designated by one party to an armed
conflict with the consent of the other;
d. To safeguard or protect its humanitarian
interests in the conflict, the performance of
which IHL defines specific rights and
duties.

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N. LAW OF THE SEA
Definition
The United Nations Convention on Law of the
Sea (UNCLOS) is the body of treaty rules and
customary norms governing the use of the sea,
the exploitation of its resources, and the
exercise of jurisdiction over maritime regimes
[MAGALLONA].
It is the branch of public international law which
regulates the relations of states with respect to
the use of the oceans.
Nature of the UNCLOS treaty
UNCLOS III has nothing to do with the
acquisition (or loss) of territory. It is a
multilateral treaty regulating, among others,
sea-use rights over maritime zones [Magallona
v. Ermita, G.R. No. 187167 (2011)]
The UNCLOS is a product of international
negotiation that seeks to balance State
sovereignty (mare clausum) and the principle
of freedom of the high seas (mare liberum).
The freedom to use the world’s marine
waters is one of the oldest customary
principles of international law. The UNCLOS
gives to the coastal State sovereign rights in
varying degrees over the different zones of the
sea which are: 1) internal waters, 2) territorial
sea, 3) contiguous zone, 4) exclusive
economic zone, and 5) the high seas. [Arigo v.
Swift, G.R. No. 206510, 2014)]
1. Baselines
The line from which a breadth of the territorial
sea and other maritime zones, such as the
contiguous zone and the exclusive economic
zone, is measured. Its purpose is to determine
the starting point to begin measuring maritime
zones boundary of the coastal state.
The General Rule is that there are two types of
Baselines:
a. Normal Baseline: where the territorial sea
is the low-water line along the coast as
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marked on large-scale charts officially
recognized by the coastal state [Art. 5,
UNCLOS].
b. Straight Baseline: where the coastline is
deeply indented or cut into, or if there is a
fringe of islands along the coast in its
immediate vicinity, the method of straight
lines joining the appropriate points may be
employed in drawing the baseline from
which the breadth of the territorial sea is
measured [Art. 7, UNCLOS].
Special Baseline for Archipelagic States
a. Straight baselines join the outermost points
of the outermost islands and drying reefs of
an archipelago, provided that within such
baselines are included the main islands
and an area in which the ratio of the water
to the area of the land, including atolls, is
between 1 to 1 and 9 to 1.
b. The breadth of the territorial sea, the
contiguous zone, and the exclusive
economic zone, are measured from the
straight archipelagic baselines
2. Archipelagic States
It is a state made up of wholly one or more
archipelagos. It may include other islands [Art.
46, UNCLOS].
An archipelago is a group of islands, including
parts of islands, interconnecting waters and
other natural features which are so closely
related that such islands, waters and natural
features form an intrinsic geographical,
economic and political entity, or which
historically have been regarded as such.
Differentiating Island vs. Rocks
An island is a naturally formed area of land,
surrounded by water, which is above water at
high tide.
Rocks which cannot sustain human habitation
or economic life of their own shall have no
exclusive economic zone or continental shelf
[Art. 121, UNCLOS].
Types of Archipelagos

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Note: UNCLOS only applies to Mid-Ocean
archipelagos:
a. Coastal: situated close to a mainland and
may be considered part thereof (e.g.
Norway);
b. Mid-Ocean: situated in the ocean at such
distance from the coasts of firm land (e.g.
Philippines).
Archipelagic Waters
These are the waters enclosed by the straight
archipelagic baselines, regardless of their
depth or distance from the coast [Art 49(1),
UNCLOS].
They are subject to the sovereignty of the
archipelagic state, but subject to the right of
innocent passage for the ships of all states.
Rights in Archipelagic Waters
a. The right of Innocent passage is also
referred to as “archipelagic Sea Lanes
Passage”: It is the right of foreign ships and
aircraft to have continuous, expeditious
and unobstructed passage in sea lanes
and air routes through or over the
archipelagic waters and the adjacent
territorial sea of the archipelagic state, “in
transit between one part of the high seas or
an exclusive economic zone.” All ships and
aircraft are entitled to the right of
archipelagic sea lanes passage
[MAGALLONA; Art. 53(1) in relation to Art.
53(3) UNCLOS]. It is considered as part of
international customary law. [Magallona v.
Ermita, G.R. No. 187167 (2011)]
b. Rights under existing agreement on the
part of third states should be respected by
the archipelagic state.
c. Within its archipelagic waters, the
archipelagic state shall recognize
traditional fishing rights and other
legitimate activities of immediately
adjacent neighboring states.
d. The archipelagic state shall respect
existing submarine cables laid by other
states and “passing through its waters
without making a landfall.”
How the Archipelagic Sea Lanes are
determined The archipelagic state proposes it
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to the International Marine Organization, which
will then adopt the Sea Lanes through Art. 53
(9) of the UNCLOS.
Under Art. 1 of the 1987 Constitution, the
archipelagic waters of the Philippines are
characterized as forming part of “the internal
waters of the Philippines.” However, under the
UNCLOS, archipelagic waters consist mainly
of the “waters around, between, and
connecting the islands of the archipelago,
regardless of breadth or dimension.”
Moreover, under Art. 47, UNCLOS, it is not
mandatory upon concerned states to declare
themselves as archipelagic states. The
Philippines did so under its new baselines law,
R.A. No. 9522, which was upheld as
constitutional [Magallona v. Ermita, G.R. No.
187167 (2011)].
3. Internal waters
These are waters of lakes, rivers, and bays
landward of the baseline of the territorial sea.
Waters on the landward side of the baseline of
the territorial sea also form part of the internal
waters of the coastal state. However, in case of
archipelagic states, waters landward of the
baseline other than those rivers, bays and
lakes, are archipelagic waters [Art. 8(1),
UNCLOS].
They are considered as part of the state’s land
territory and are subject to full sovereignty.
4. Territorial Sea
These waters stretch up to 12 miles from the
baseline on the seaward direction. They are
subject to the jurisdiction of the coastal state,
which jurisdiction almost approximates that
which is exercised over land territory.
Rights that are available in Territorial Sea
a. Innocent Passage: refers to navigation
through the territorial sea without entering
internal waters, going to internal waters, or
coming from internal waters and making for
the high seas.
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international the proposal and

This is subject to two limitations: organization agreement of states
(i) It must Involve only acts that are bordering the straits
required by navigation or by
distress and 5. Contiguous Zone
(ii) Not prejudice the peace, security,
or good order of the coastal state.
The contiguous zone is that which is
contiguous to its territorial sea. It may not
b. Transit Passage: refers to the right to
extend beyond 24 nautical miles from the
exercise freedom of navigation and over
baselines from which the breadth of the
flight solely for the purpose of continuous
territorial sea is measured.
and expeditious transit through the
straights used for international navigation.
The powers of the Coastal state over the
The right cannot be unilaterally suspended
Contiguous Zone include:
by the coastal state.
a. Control to prevent infringement of its
customs, fiscal, immigration or sanitary
INNOCENT TRANSIT laws and regulations within its territory or
PASSAGE PASSAGE territorial sea; and
Pertains to Includes the right of b. Control to punish infringement of the above
navigation of overflight (i.e. laws and regulations committed within its
ships only pertains to territory or territorial sea.
navigation of aircraft)
Requires Submarines are
submarines and allowed to navigate 6. Exclusive Economic Zone
other underwater in (EEZ)
vehicles to navigate “normal mode” (i.e.
on the surface and submerged) The exclusive economic zone (EEZ) is the
show their flag stretch of area up to 200 miles from the
Can be suspended, Cannot be baselines. Within this zone, a State may
but under the suspended regulate non-living and living resources, other
condition that it does economic resources, artificial installations,
not discriminate scientific research, and pollution control.
among foreign ships,
and such The extent of the state’s rights in the EEZ
suspension is The UNCLOS gives the coastal State
essential for the sovereign rights over all economic resources of
protection of its the sea, seabed, and subsoil in an area
security, and extending not more than 200 nautical miles
suspension is beyond the baseline from which the territorial
effective only after sea is measured [Arts. 55 and 57, UNCLOS].
having been duly
published [Art. 25, Rights of the coastal state in the EEZ
UNCLOS] a. Establish and use of artificial islands,
In the designation of Designation of sea installations and structures;
sea lanes and traffic lanes and traffic b. Conduct scientific research;
separation schemes, separation schemes c. Preserve and protect its marine
the coastal state is subject to adoption environment;
shall only take into by competent d. Board and inspect a ship;
account the international e. Arrest a ship and its crew;
recommendations of organization upon f. Institute judicial proceedings against them.
the competent

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In detention of foreign vessels, the coastal
state has the duty to promptly notify the flag
state of the action taken
Rights of the non-coastal state
Under Art. 58, UNCLOS, all States enjoy the
freedom of navigation, over flight, and laying of
submarine cables and pipelines in the EEZ of
coastal states
Coastal States have the primary responsibility
to utilize, manage and conserve the living
resources within their EEZ (i.e. ensuring that
living resources are not endangered by
overexploitation), and the duty to promote
optimum utilization of living resources by
determining allowable catch.
There is a duty to share catch if the maximum
allowable catch is determined to be above the
capacity of the State to harvest.
The State shall give other States access to the
surplus by means of arrangements allowable
under the UNCLOS. The UNCLOS, however,
does not specify the method for determining
“allowable catch.”
The right of geographically disadvantaged
states or land locked states
General Rule: These states have the right to
participate, on equitable basis, in the
exploitation of the surplus of the living
resources in the EEZ of coastal states of the
same sub region or region.
Exception: A coastal state whose economy is
overwhelmingly dependent on the exploitation
of its EEZ, however, is not required to share its
resources.
7. Continental Shelf
Extended Continental Shelf
It is the seabed and subsoil of the submarine
areas extending beyond the territorial sea of
the coastal state throughout the natural
prolongation of its land territory up to:
a. The outer edge of the continental margin;
or
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b. A distance of 200 nautical miles from the
baselines of the territorial sea where the
outer edge of the continental margin does
not extend up to that distance.
Continental Margin
Submerged prolongation of the land mass of
the continental state, consisting of the
continental shelf proper, the continental slope,
and the continental rise
Continental Shelf
a. The juridical or legal continental shelf
covers the area until 200 nautical miles
from baselines.
b. The extended continental shelf covers the
area from the 200-mile mark to 350 nautical
miles from the baselines depending on
geomorphologic or geological data and
information.
c. The continental shelf shall not extend
beyond 350 nautical miles from the
baseline of the territorial sea, or 100
nautical miles from the 2,500- meter
isobath (i.e. the point where the waters are
2,500 meters deep).
Exclusive Rights of the Coastal State in the
Continental Shelf:
a. Sovereign rights with respect to the
exploration and exploitation of its natural
resources, including the mineral and other
non-living resources of the seabed and
subsoil together with living organisms
belonging to the sedentary species.
b. The coastal state has the exclusive right to
authorize and regulate oil-drilling on its
continental shelf.
Note: “Exclusive” means that if the coastal
does not explore or exploit its resources, no
other state can without the State’s consent.
Exclusive Continental Shelf
Economic Zone
Coastal state is No duty to manage
obliged to manage and conserve living
and conserve living resources
resources in the
EEZ.
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The extent of the The extent of the resources of the Area, including the
right of the coastal right of the coastal transporting, processing and marketing of
state to natural state to natural minerals.
resources (non- resources (non-
living) only extends living) covers both What may be done by the Enterprise in the
to the seabed and waters super Area
subsoil adjacent to the Mining activities directly; or By joint ventures
seabed and those of with (1) State parties; (2) State enterprises; or
the seabed and (3) Natural or juridical persons sponsored by
subsoil. state parties.
The extent of the The extent of the
right of the coastal right of the coastal 8. The International Tribunal for
state to living state to living
resources only resources does not
the Law of the Sea (ITLOS)
extends to sedentary extend to sedentary
The ITLOS is an independent judicial body
species species.
established by the Third United Nations
Convention on the Law of the Sea to adjudicate
The Area
disputes arising out of the interpretation and
The seabed and ocean floor and subsoil
application of the convention.
thereof, beyond the limits of national
jurisdiction.
Composition: Election of 21 members by the
state parties.
The Legal Status of the Area and the
resources therein:
The settlement of Disputes
a. No State shall claim or exercise
1. Peaceful Settlement of Disputes: Under
sovereignty or sovereign rights over any
Par. 3, Art. 2, UN Charter, States have the
part of the Area or its resources, nor shall
duty to settle disputes by peaceful means.
any State or natural or juridical person
This obligation extends to State parties of
appropriate any part thereof. [Art. 137,
the UNCLOS, underscoring the right of the
UNCLOS]
parties to resort to peaceful means of their
b. The Area and its resources are the
own choice on which they can agree any
common heritage of mankind [Art. 136,
time.
UNCLOS].
2. Compulsory Settlement of Disputes:
c. Activities in the Area shall be carried out for
Where no successful settlement can be
the benefit of mankind as a whole [Art. 140,
achieved, or if the parties are unable to
UNCLOS].
agree on the means of settlement of a
d. The Area shall be open to use exclusively
dispute concerning the application of
for peaceful purposes by all States [Art.
UNCLOS, such dispute may be governed
141, UNCLOS].
by the principle of compulsory settlement,
where procedures entail binding decisions.
The International Seabed Authority (ISA) is
the organization that organizes, carries out,
The parties may choose, through a written
and controls the activities of the Area on behalf
revocable and replaceable declaration, to
of mankind as a whole. The ISA is composed
submit the dispute to the following:
of:
a. ITLOS;
a. The Assembly: all state parties to the
b. ICJ;
UNCLOS
c. Arbitral tribunal; or
b. The Council: the executive organ whose 36
d. Special arbitral tribunal.
members are elected by the Assembly
c. The Enterprise: the organ directly engaged
in the exploration and exploitation of the

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U.P. LAW BOC PUBLIC INTERNATIONAL LAW
Jurisdiction of the ITLOS
a. Any dispute submitted to it concerning the
application or interpretation of UNCLOS; or
b. Any dispute concerning the interpretation
or application of an international
agreement:
i. Related to the purposes of the
UNCLOS; or
ii. When such dispute is submitted to
it in accordance with that
agreement
Sources of Law to be applied in ITLOS:
The court or tribunal shall apply the UNCLOS
and other rules of international law not
incompatible with the UNCLOS [Art. 293,
UNCLOS]. It may also decide a case ex aequo
et bono (what is equitable and just) if the
parties so agree.
O. INTERNATIONAL
ENVIRONMENTAL LAW
Definition
It is the branch of public international law
comprising those substantive, procedural, and
institutional rules which have as their primary
objective the protection of the environment
[SANDS].
The protection of the environment is a vital part
of contemporary human rights doctrine, for it is
a sine qua non for numerous human rights
such as the right to health, and the right to life
itself. [Danube Dam Case (ICJ, 1997)]
Basic Principles
1. Common but Differentiated
Responsibilities
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
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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 [Principle 7, Rio
Declaration].
2. Precautionary Principle
Where there are threats of serious or
irreversible damage, lack of full scientific
certainty shall not be used as a reason for
postponing cost-effective measures to
prevent environmental degradation
When it is uncertain as to the consequence
of the proposed activity to the environment,
doubts should be resolved on the side of
caution by taking measures to prevent or
avoid environmental degradation.
[Principle 15, Rio Declaration].
3. Sustainable Development
It is development that meets the needs of
the present without compromising the
ability of future generations to meet their
own needs [Gabcikovo-Nagymaros Project
(ICJ, 1997)].
No state has the right to use or permit the
use of its territory in such a manner as to
cause injury by fumes in or to the territory
of another or the properties or persons
therein, when the case is of serious
consequence and the injury is established
by clear and convincing evidence [Trail
Smelter Arbitration Case (1938)].
Two Fundamental Principles of liability for
transboundary pollution:
a. A state must show material damage
and causation to be entitled to legal
relief; and
b. A state has a duty to prevent, and may
be held responsible for pollution by
private parties within its jurisdiction if
such pollution results in demonstrable
injury to another state. [Trail Smelter
Case, US v. Canada, 1941]
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4. Sic Utere Tuo Ut Alienum Non Laedas or

the No-Harm Principle

States have, in accordance with the

Charter of the United Nations and the
principles of international law, the
sovereign right to exploit their own
resources pursuant to their own
environmental policies, and the
responsibility to ensure that activities within
their jurisdiction or control do not cause
damage to the environment of other States
or of areas beyond the limits of national
jurisdiction [Principle 21, Stockholm
Declaration].

Principle 21 as Custom:
“The Court recognizes that the
environment is daily under threat and that
the use of nuclear weapons could
constitute a catastrophe for the
environment. The existence of the general
obligation of States to ensure that activities
within their jurisdiction and control respect
the environment of other States or of areas
beyond national control is now part of the
corpus of international law relating to the
environment.”[ICJ Advisory Opinion on the
Legality of the Threat or Use of Nuclear
Weapons, July 8, 1996]

5. Protection of the Environment During

armed Conflict

Each State Party undertakes not to engage

in military or other hostile use of
environmental modification techniques
having widespread, long-lasting or severe
effects as the means of destruction,
damage or injury to any other Party State.
[Art. 1 Convention on the Prohibition of
Military or other Hostile Use of
Environmental Modification Techniques or
the Environmental Modification Convention
(ENMOD)]

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