Ateneo Central Political & International Law: Bar Operations 2022

ATENEO CENTRAL
BAR OPERATIONS 2022 POLITICAL & INTERNATIONAL LAW
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ATENEO CENTRAL
ADMINISTRATIVE COMMITTEE
CREATIVES FINANCE
NICOLE ANN C. PAGLICAWAN SERMAE ANGELA G. PASCUAL
JULIANNE BEATRICE N. ROSARIO PHOEBE TANSIONGKUN
KIM PATRIZ B. CAMPANILLA RUTH MARIE DISTOR MORALES
CHRISTINE C. TIAMZON ALLYSSA DANIELLE Y. NG
ERIKA THERESE C. BOLLOZOS
TECHNICAL
JOSEPH BILL P. QUINTOS
MARKETING
CHYLER BON AEHROLD S. GARMA KATHLEEN C. ROMINA
SAMANTHA J. MAGAOAY AARON C. CHENG
ISABELLE BEATRIZ DLS. GINEZ
PRISHA D. CRUZ
SPECIAL PROJECTS NORLENE JAE M. ANDAYA
AINA RAE L. CORTEZ RIANNA CO
JAYE MARIE C. MARTINEZ
ANNA MARIE GRACE M. ANTONIO
NORBERTO O. SARIGUMBA III
PUBLIC RELATIONS
JOHN TAN LUMINA ALINEA O. AQUINO
JAZZMIN A. BENJAMIN LUIS ENRICO BATARA
IMI LIZA B. ESPINA MIKAELA FRANCESCA K. BELEY
MARY STEPHANIE C. CRUZ REYNALDO M. REVECHE
RAYMIELLE CHRISTIE MAGCALAS GRACIELLA RACHEL D. ROBLES
YUUMEI MARIE B. ESMA
AIHRA NICOLE V. DIESTRO
IRISH MAE D. GARCIA INTERNALS
JEWEL M. CULALA
DANELLA DIANE D. DIMAPILIS
LOGISTICS MARC ANGELO M. GUIBONE
CHRISTIAN GIO R. SENARLO SHEILA MARIE GRACE DELOS ANGELES
PATRICIA ALYX D. ANG ALEXIS CAESAR E. SANCHEZ
BERNETTE ANELA S. CUEVAS CHRISTINE C. TIAMZON
DONN LIN ANGELIQUE P. LEDA
CELINA EUNICE CHEYENNE D. ABUEG
CLARISSE EVANGELINE G. CHOA
ANTHONY JEFFERSON JULIO
ZACKARY N. DUQUILLA
MAEDEN M. BORCELANGO
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TABLE OF CONTENTS
I. BASIC CONCEPTS UNDER THE 1987 CONSTITUTION ........................................................................... 17
A. DECLARATION OF PRINCIPLES AND STATE POLICIES ................................................................... 17

B. NATIONAL TERRITORY ................................................................................................................ 19
C. SEPARATION OF POWERS ........................................................................................................... 21
D. CHECKS AND BALANCES .............................................................................................................. 21
E. STATE IMMUNITY ....................................................................................................................... 21
F. DELEGATION OF POWERS ........................................................................................................... 25
G. FUNDAMENTAL POWERS OF THE STATE ..................................................................................... 27
1. POLICE POWER ......................................................................................................................... 28
2. EMINENT DOMAIN ................................................................................................................... 28
3. TAXATION ................................................................................................................................ 29
II. GENERAL PRINCIPLES OF TAXATION ................................................................................................. 31
A. DEFINITION, CHARACTERISTICS AND PURPOSE OF TAXATION .................................................... 31

1. DEFINITION .............................................................................................................................. 31
2. CHARACTERISTICS .................................................................................................................... 31
3. PURPOSE .................................................................................................................................. 32
B. DISTINGUISH: POWER OF TAXATION, POLICE POWER, AND EMINENT DOMAIN ........................ 33
C. SCOPE AND LIMITATIONS OF TAXATION ..................................................................................... 34
1. INHERENT AND CONSTITUTIONAL LIMITATIONS OF TAXATION ................................................. 34
2. TERRITORIALITY PRINCIPLE AND SITUS OF TAXATION ............................................................... 40
D. REQUISITES OF A VALID TAXATION ............................................................................................. 41
E. TAX AS DISTINGUISHED FROM OTHER FORMS OF EXACTIONS ................................................... 41
F. KINDS OF TAXES .......................................................................................................................... 42
G. DOCTRINES IN TAXATION............................................................................................................ 43
1. LIFEBLOOD THEORY .................................................................................................................. 43
2. CONSTRUCTION AND INTERPRETATION OF TAX LAWS, RULES AND REGULATIONS ................... 43
3. PROSPECTIVITY OF TAX LAWS ................................................................................................... 44
4. IMPRESCRIPTIBILITY OF TAXES .................................................................................................. 44
5. DOUBLE TAXATION................................................................................................................... 45
6. EXEMPTION FROM TAXATION .................................................................................................. 45
7. ESCAPE FROM TAXATION ......................................................................................................... 46
8. EQUITABLE RECOUPMENT........................................................................................................ 48
9. PROHIBITION ON COMPENSATION AND SET-OFF...................................................................... 48
III. LEGISLATIVE DEPARTMENT .............................................................................................................. 50
A. LEGISLATIVE POWER ................................................................................................................... 50

1. SCOPE AND LIMITATIONS ......................................................................................................... 50
2. PRINCIPLE OF NON-DELEGABILITY; EXCEPTIONS ....................................................................... 52
B. HOUSES OF CONGRESS; COMPOSITIONS AND QUALIFICATIONS ................................................ 52
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1. SENATE .................................................................................................................................... 52
2. HOUSE OF REPRESENTATIVES ................................................................................................... 53
a. District representatives and questions of apportionment .................................................. 53
b. Party-list system ................................................................................................................ 55
C. LEGISLATIVE PRIVILEGES, INHIBITIONS, AND DISQUALIFICATIONS ............................................. 60
D. QUORUM AND VOTING MAJORITIES .......................................................................................... 62
E. DISCIPLINE OF MEMBERS ............................................................................................................ 63
F. PROCESS OF LAW-MAKING ......................................................................................................... 64
G. APPROPRIATION AND RE-ALIGNMENT ....................................................................................... 67
H. LEGISLATIVE INQUIRIES AND OVERSIGHT FUNCTIONS ................................................................ 68
I. POWER OF IMPEACHMENT (PHIL. CONST., ART. XI.) ................................................................... 71
J. ELECTORAL TRIBUNALS AND THE COMMISSION ON APPOINTMENTS ........................................ 71
1. ELECTORAL TRIBUNALS ............................................................................................................ 71
2. COMMISSION ON APPOINTMENTS ........................................................................................... 73
K. INITIATIVE AND REFERENDUM.................................................................................................... 74
IV. EXECUTIVE DEPARTMENT ............................................................................................................... 77
A. QUALIFICATIONS, ELECTION, AND TERM OF PRESIDENT AND VICE-PRESIDENT .......................... 77

B. PRIVILEGES, INHIBITIONS, AND DISQUALIFICATIONS .................................................................. 78
C. POWERS OF THE PRESIDENT ....................................................................................................... 80
1. GENERAL EXECUTIVE AND ADMINISTRATIVE POWERS ............................................................. 81
2. POWER OF APPOINTMENT ....................................................................................................... 81
a. In General.......................................................................................................................... 81
b. Confirmation and by-passed appointments ....................................................................... 82
c. Midnight Appointments & Ad Interim Appointments ......................................................... 83
d. Power of Removal ............................................................................................................. 84
D. POWER OF CONTROL AND SUPERVISION .................................................................................... 85
1. DOCTRINE OF QUALIFIED POLITICAL AGENCY ........................................................................... 85
2. EXECUTIVE DEPARTMENTS AND OFFICES.................................................................................. 85
3. LOCAL GOVERNMENT UNITS .................................................................................................... 86
E. EMERGENCY POWERS ................................................................................................................. 86
F. MILITARY POWERS ...................................................................................................................... 87
1. CALLING OUT POWERS ............................................................................................................. 87
2. DECLARATION OF MARTIAL LAW AND SUSPENSION OF THE PRIVILEGE OF THE WRIT OF HABEAS
CORPUS; EXTENSION ................................................................................................................... 88
G. EXECUTIVE CLEMENCY ................................................................................................................ 90
1. FORMS AND LIMITATIONS ....................................................................................................... 90
H. DIPLOMATIC POWER................................................................................................................... 92
I. POWERS RELATIVE TO APPROPRIATION MEASURES................................................................... 93
J. RULES OF SUCCESSION ................................................................................................................ 94
V. JUDICIAL DEPARTMENT .................................................................................................................... 98
A. JUDICIAL POWER......................................................................................................................... 98
B. JUDICIAL REVIEW ........................................................................................................................ 99
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1. REQUISITES .............................................................................................................................. 99
2. POLITICAL QUESTION DOCTRINE ............................................................................................ 100
3. MOOT QUESTIONS ................................................................................................................. 101
4. OPERATIVE FACT DOCTRINE ................................................................................................... 103
C. JUDICIAL INDEPENDENCE AND FISCAL AUTONOMY .................................................................. 103
D. APPOINTMENTS TO THE JUDICIARY .......................................................................................... 105
1. QUALIFICATIONS.................................................................................................................... 105
2. JUDICIAL AND BAR COUNCIL .................................................................................................. 106
E. THE SUPREME COURT ............................................................................................................... 107
1. COMPOSITION ....................................................................................................................... 107
2. POWERS AND FUNCTIONS ..................................................................................................... 108
VI. CONSTITUTIONAL COMMISSIONS.................................................................................................. 115
A. COMMON PROVISIONS ............................................................................................................. 115

B. POWERS AND FUNCTIONS ........................................................................................................ 117
C. COMPOSITION AND QUALIFICATION OF MEMBERS .................................................................. 125
a. Civil Service Commission ........................................................................................................ 125
b. Commission on Elections ........................................................................................................ 125
c. Commission on Audit ............................................................................................................. 126
D. PROHIBITED OFFICES AND INTERESTS ....................................................................................... 127
E. JUDICIAL REVIEW OF FINAL ORDERS, RESOLUTIONS, AND DECISIONS ...................................... 127
IX. BILL OF RIGHTS .............................................................................................................................. 130
A. DUE PROCESS OF LAW .............................................................................................................. 131

1. PROCEDURAL AND SUBSTANTIVE ........................................................................................... 131
2. VOID-FOR-VAGUENESS ........................................................................................................... 133
3. JUDICIAL AND ADMINISTRATIVE DUE PROCESS ...................................................................... 134
B. EQUAL PROTECTION ................................................................................................................. 138
1. REQUISITES FOR VALID CLASSIFICATION ................................................................................. 138
2. TESTS TO DETERMINE THE REASONABLENESS OF A CLASSIFICATION ...................................... 141
a. Strict Scrutiny Test ........................................................................................................... 141
b. Intermediate Scrutiny Test............................................................................................... 141
c. Rational Basis Test ........................................................................................................... 141
C. ARRESTS, SEARCHES AND SEIZURES .......................................................................................... 141
1. REQUISITES OF A VALID WARRANT ......................................................................................... 141
a. Probable Cause................................................................................................................ 142
b. Personal Determination by the Judge .............................................................................. 142
c. Personal Examination of the Complainant and the Witnesses .......................................... 143
d. Facts Personally Known to the Applicant and the Witnesses ............................................ 143
e. Particularity of Description .............................................................................................. 144
2. WARRANTLESS ARRESTS AND DETENTION .............................................................................. 147
a. In Flagrante Delicto ......................................................................................................... 148
b. Hot Pursuit Arrest ............................................................................................................ 149
c. Waiver of Right................................................................................................................ 150
3. WARRANTLESS SEARCHES ...................................................................................................... 151
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a. Search Incidental to a Lawful Arrest ................................................................................. 152

b. Seizure of Evidence in Plain View ..................................................................................... 153
c. Exigent and Emergency Circumstances ............................................................................ 154
d. Search of a Moving Vehicle .............................................................................................. 154
e. Stop and Frisk Rule (Terry Search).................................................................................... 155
f. Customs Search ............................................................................................................... 156
a. Airport Searches .............................................................................................................. 157
b. Checkpoint Search ........................................................................................................... 157
c. Warrantless Search by a Private Individual....................................................................... 158
4. EXCLUSIONARY RULE .............................................................................................................. 159
D. PRIVACY OF COMMUNICATIONS AND CORRESPONDENCE ....................................................... 160
1. PRIVATE AND PUBLIC COMMUNICATIONS .............................................................................. 160
2. INTRUSION, WHEN ALLOWED................................................................................................. 161
a. Upon Lawful Order of the Court....................................................................................... 161
b. When Public Safety or Order Requires Otherwise as Prescribed by Law ........................... 161
3. EXCLUSIONARY RULE ............................................................................................................. 161
E. FREEDOM OF SPEECH AND EXPRESSION ................................................................................... 163
1. PRIOR RESTRAINT AND SUBSEQUENT PUNISHMENT............................................................... 163
2. CONTENT-BASED AND CONTENT NEUTRAL REGULATIONS...................................................... 165
3. FACIAL CHALLENGES AND OVERBREADTH DOCTRINE ............................................................. 165
4. TESTS TO DETERMINE THE VALIDITY OF GOVERNMENTAL REGULATION ................................. 167
a. Clear and Present Danger Test ......................................................................................... 167
b. Dangerous Tendency Rule ............................................................................................... 168
5. STATE REGULATION OF DIFFERENT TYPES OF MASS MEDIA .................................................... 169
6. UNPROTECTED SPEECH .......................................................................................................... 171
a. Hate Speech and Fighting Words ..................................................................................... 171
b. Defamation and Libel....................................................................................................... 172
c. Absolutely Privileged Communications ............................................................................ 173
d. Qualifiedly Privileged Communications ............................................................................ 173
e. Sedition and Speech in Relation to Rebellion ................................................................... 175
f. Obscenity/Pornography ................................................................................................... 176
F. FREEDOM OF RELIGION ............................................................................................................ 177
1. NON-ESTABLISHMENT CLAUSE AND FREE EXERCISE CLAUSES ................................................. 177
a. Voluntarism ..................................................................................................................... 177
b. Insulation of the Political Process From Interfaith Dissension ........................................... 178
c. Constitutionally Created .................................................................................................. 179
d. Jurisprudence .................................................................................................................. 179
2. BENEVOLENT NEUTRALITY AND CONSCIENTIOUS OBJECTORS ................................................ 183
3. TESTS TO DETERMINE THE VALIDITY OF GOVERNMENTAL REGULATION ................................. 184
G. LIBERTY OF ABODE AND FREEDOM OF MOVEMENT ................................................................. 185
1. SCOPE AND LIMITATIONS ....................................................................................................... 185
2. WATCH-LIST AND HOLD DEPARTURE ORDERS ........................................................................ 186
H. RIGHT TO INFORMATION .......................................................................................................... 186
1. SCOPE AND LIMITATIONS ....................................................................................................... 186
I. EMINENT DOMAIN .................................................................................................................... 189
1. CONCEPT................................................................................................................................ 189
2. JUST COMPENSATION ............................................................................................................ 192
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3. EXPROPRIATION BY LOCAL GOVERNMENT UNITS ................................................................... 196

J. RIGHT TO ASSOCIATION ............................................................................................................ 197
K. NON-IMPAIRMENT OF CONTRACTS .......................................................................................... 199
L. ADEQUATE LEGAL ASSISTANCE AND FREE ACCESS TO COURTS................................................. 199
M. RIGHTS UNDER CUSTODIAL INVESTIGATION ............................................................................. 200
1. MEANING OF CUSTODIAL INVESTIGATION.............................................................................. 200
2. RIGHTS OF A PERSON UNDER CUSTODIAL INVESTIGATION ..................................................... 202
3. REQUISITES OF A VALID WAIVER ............................................................................................ 204
4. EXCLUSIONARY DOCTRINE...................................................................................................... 204
N. RIGHTS OF THE ACCUSED .......................................................................................................... 206
1. CRIMINAL DUE PROCESS ........................................................................................................ 206
2. BAIL........................................................................................................................................ 207
3. PRESUMPTION OF INNOCENCE............................................................................................... 210
4. RIGHT TO COUNSEL ................................................................................................................ 211
5. RIGHT TO BE INFORMED OF THE NATURE AND CAUSE OF ACCUSATION ................................. 212
6. RIGHT TO SPEEDY, IMPARTIAL AND PUBLIC TRIAL................................................................... 213
7. RIGHT OF CONFRONTATION ................................................................................................... 214
8. RIGHT TO COMPULSORY PROCESSES ...................................................................................... 214
9. TRIAL IN ABSENTIA ................................................................................................................. 215
O. RIGHT TO SPEEDY TRIAL AND SPEEDY DISPOSITION OF CASES ................................................. 216
P. RIGHT AGAINST SELF-INCRIMINATION ...................................................................................... 217
1. EXTENT OF THE RIGHT ............................................................................................................ 218
2. IMMUNITY STATUTES ............................................................................................................. 221
Q. RIGHT AGAINST DOUBLE JEOPARDY ......................................................................................... 222
1. REQUISITES AND LIMITATIONS ............................................................................................... 222
R. RIGHT AGAINST INVOLUNTARY SERVITUDE .............................................................................. 226
S. RIGHT AGAINST EXCESSIVE FINES, AND CRUEL AND INHUMAN PUNISHMENTS ....................... 227
T. NON-IMPRISONMENT FOR DEBTS............................................................................................. 228
U. EX POST FACTO LAWS AND BILLS OF ATTAINDER...................................................................... 229
1. EX POST FACTO LAW .............................................................................................................. 229
2. BILL OF ATTAINDER ................................................................................................................ 230
V. WRITS OF HABEAS CORPUS, KALIKASAN, HABEAS DATA, AND AMPARO .................................. 230
1. WRIT OF HABEAS CORPUS ...................................................................................................... 230
2. WRIT OF KALIKASAN ............................................................................................................... 232
3. WRIT OF HABEAS DATA .......................................................................................................... 233
4. WRIT OF AMPARO .................................................................................................................. 233
VIII. CITIZENSHIP ................................................................................................................................. 236
A. WHO ARE FILIPINO CITIZENS ..................................................................................................... 236

B. MODES OF ACQUIRING CITIZENSHIP ......................................................................................... 239
a. C.A. No. 473..................................................................................................................... 239
b. R.A. No. 9139................................................................................................................... 240
c. Effects of Judicial Naturalization ...................................................................................... 240
C. LOSS AND REACQUISITION OF CITIZENSHIP .............................................................................. 241
a. Losing Citizenship ............................................................................................................ 241
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b. Reacquiring Citizenship.................................................................................................... 241

D. DUAL CITIZENSHIP AND DUAL ALLEGIANCE .............................................................................. 242
IX. LAW ON PUBLIC OFFICERS ............................................................................................................. 245
A. GENERAL PRINCIPLES ................................................................................................................ 245

B. KINDS OF APPOINTMENT .......................................................................................................... 247
C. DISABILITIES AND INHIBITIONS OF PUBLIC OFFICERS ................................................................ 253
D. POWERS AND DUTIES OF PUBLIC OFFICERS .............................................................................. 256
E. DISTINGUISH: DE FACTO AND DE JURE OFFICERS...................................................................... 258
F. CIVIL SERVICE ............................................................................................................................ 259
1. Scope ..................................................................................................................................... 259
2. Appointments to Civil Service ................................................................................................. 260
3. Personnel Actions................................................................................................................... 261
G. ACCOUNTABILITY OF PUBLIC OFFICERS ..................................................................................... 261
1. DISCIPLINE ............................................................................................................................. 261
a. GROUNDS........................................................................................................................ 261
b. JURISDICTION .................................................................................................................. 262
c. DISMISSAL, PREVENTIVE SUSPENSION, REINSTATEMENT AND BACK SALARIES ................. 263
d. CONDONATION DOCTRINE .............................................................................................. 266
REORGANIZATION ................................................................................................................ 267
2. IMPEACHMENT ...................................................................................................................... 270
3. THE OMBUDSMAN AND THE OFFICE OF THE PROSECUTOR .................................................... 271
4. THE SANDIGANBAYAN ............................................................................................................ 277
X. ADMINISTRATIVE LAW.................................................................................................................... 281
A. GENERAL PRINCIPLES ................................................................................................................ 281

B. POWERS OF ADMINISTRATIVE AGENCIES ................................................................................. 282
1. QUASI-LEGISLATIVE (RULE-MAKING) POWER.......................................................................... 283
a. Kinds of Administrative Rules and Regulations ................................................................. 286
b. Requisites for Validity ...................................................................................................... 287
2. QUASI-JUDICIAL POWER ......................................................................................................... 289
a. Administrative Due Process ............................................................................................. 292
b. Administrative Appeal and Review................................................................................... 295
c. Administrative Res Judicata ............................................................................................. 296
3. FACT-FINDING, INVESTIGATIVE, LICENSING, AND RATE-FIXING LAW POWERS ........................ 297
C. DOCTRINES OF PRIMARY JURISDICTION AND EXHAUSTION OF ADMINISTRATIVE REMEDIES .. 299
XI. ELECTION LAW ............................................................................................................................... 307
A. SUFFRAGE ................................................................................................................................. 307

1. QUALIFICATION AND DISQUALIFICATION OF VOTERS ............................................................. 307
2. REGISTRATIONS AND DEACTIVATION ..................................................................................... 308
3. INCLUSION AND EXCLUSION PROCEEDINGS............................................................................ 311
4. LOCAL AND OVERSEAS ABSENTEE VOTING ............................................................................. 311
5. DETAINEE VOTING .................................................................................................................. 313
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B. CANDIDACY ............................................................................................................................... 315

1. QUALIFICATIONS AND DISQUALIFICATIONS OF CANDIDATES .................................................. 315
2. FILING OF CERTIFICATES OF CANDIDACY ................................................................................ 319
a. Effect of Filing.................................................................................................................. 319
b. Substitution and Withdrawal of Candidates ..................................................................... 320
c. Nuisance Candidates ....................................................................................................... 321
d. Duties of the COMELEC .................................................................................................... 322
C. CAMPAIGN ................................................................................................................................ 328
1. PREMATURE CAMPAIGNING................................................................................................... 328
2. PROHIBITED CONTRIBUTIONS ................................................................................................ 329
3. LAWFUL AND PROHIBITED ELECTION PROPAGANDA .............................................................. 330
4. LIMITATIONS ON EXPENSES .................................................................................................... 334
5. STATEMENT OF CONTRIBUTIONS AND EXPENSES ................................................................... 335
D. REMEDIES AND JURISDICTION .................................................................................................. 336
1. PETITION NOT TO GIVE DUE COURSE OR CANCEL A CERTIFICATE OF CANDIDACY ................... 336
2. PETITION FOR DISQUALIFICATION .......................................................................................... 337
3. FAILURE OF ELECTION VERSUS ANNULMENT OF ELECTION RESULTS ...................................... 341
4. PRE-PROCLAMATION CONTROVERSY...................................................................................... 342
5. ELECTION PROTEST ................................................................................................................ 346
6. QUO WARRANTO ................................................................................................................... 350
XII. LOCAL GOVERNMENTS ................................................................................................................. 353
A. PRINCIPLES OF LOCAL AUTONOMY ........................................................................................... 354

1. CONSTITUTIONAL RULES AND PRINCIPLES .............................................................................. 354
2. DECLARATION OF POLICIES..................................................................................................... 354
3. THREE FACETS OF LOCAL AUTONOMY .................................................................................... 354
a. Fiscal Autonomy .............................................................................................................. 354
b. Administrative Autonomy ................................................................................................ 355
c. Political Autonomy .......................................................................................................... 355
4. DECENTRALIZATION ............................................................................................................... 356
a. Power vs. Administration ................................................................................................. 356
b. 4 Categories of Decentralization ...................................................................................... 357
c. President’s Power of General Supervision ........................................................................ 358
d. Power of Congress over LGUs .......................................................................................... 359
B. AUTONOMOUS REGIONS AND THEIR RELATION TO THE NATIONAL GOVERNMENT................. 361
1. 1987 CONSTITUTION .............................................................................................................. 361
2. RA 11054: ORGANIC LAW FOR THE BANGSAMORO AUTONOMOUS REGION IN MUSLIM
MINDANAO ............................................................................................................................... 363
C. LOCAL GOVERNMENT UNITS ..................................................................................................... 368
1. POWERS OF LOCAL GOVERNMENT UNITS, IN GENERAL .......................................................... 368
a. Sources of the powers of LGUs: ....................................................................................... 368
b. Four Categories of Powers Exercised by LGUs: ................................................................. 368
2. POLICE POWER (GENERAL WELFARE CLAUSE) ......................................................................... 368
a. Two Branches of the General Welfare Clause................................................................... 369
b. Requisites for Valid Exercise of Police Power ................................................................... 370
c. Barangay Police Power .................................................................................................... 371
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3. POWER OF EMINENT DOMAIN (EXPROPRIATION)................................................................... 371

a. Nature of the Power of LGU Eminent Domain .................................................................. 371
b. Requisites of Eminent Domain: (POJOC) .......................................................................... 371
c. Jurisdiction ...................................................................................................................... 372
d. Due Process Requirements .............................................................................................. 372
e. Judicial Review ................................................................................................................ 372
f. Just Compensation .......................................................................................................... 372
g. Requisites for the Immediate Possession by LGU ............................................................. 372
h. Returning the Property .................................................................................................... 374
4. POWER OF TAXATION (POWER TO GENERATE AND APPLY RESOURCES) ................................. 375
a. Constitutional Rules......................................................................................................... 375
b. Power of Taxation is Not Inherent in LGUs ....................................................................... 375
c. Fundamental Principles of Local Taxation ........................................................................ 377
d. Other limitations on taxing powers of LGUs ..................................................................... 380
5. CLOSURE AND OPENING OF ROADS ........................................................................................ 384
a. Power to Open or Close Roads ......................................................................................... 385
b. Requirements and Conditions for Permanent Closure ...................................................... 385
c. Requirements and Conditions for Temporary Closure ...................................................... 385
6. LEGISLATIVE POWER .............................................................................................................. 386
a. Requisites of a Valid Ordinance (CUP PUG) ...................................................................... 386
b. Local Initiative and Referendum ...................................................................................... 389
7. CORPORATE POWERS ............................................................................................................. 390
8. ULTRA VIRES ACTS/CONTRACTS ............................................................................................. 391
9. LIABILITY OF LOCAL GOVERNMENT UNITS .............................................................................. 392
a. Suability of LGUs.............................................................................................................. 392
b. Governmental Functions vs. Proprietary Functions .......................................................... 392
c. Liability on Contracts ....................................................................................................... 393
d. Liability for Torts.............................................................................................................. 394
e. Rules on Enforcing Money Claims vs. LGU ........................................................................ 394
f. Summary Rules on Liability for Damages.......................................................................... 395
10. SETTLEMENT OF BOUNDARY DISPUTES............................................................................ 396
a. Procedure After Failure of Amicable Settlement .............................................................. 396
11. VACANCIES AND SUCCESSION.......................................................................................... 396
a. Grounds for Permanent Vacancy: (F2VR2-DP) .................................................................. 396
b. Filling of Vacancy: ............................................................................................................ 396
c. Permanent Vacancies ...................................................................................................... 396
12. RECALL ............................................................................................................................ 399
a. Who May Exercise ........................................................................................................... 399
b. How Recall is Initiated ..................................................................................................... 399
c. Recall Process/Procedure ................................................................................................ 399
d. Conduct of Recall Election ............................................................................................... 400
13. TERM LIMITS ................................................................................................................... 401
a. Constitutional Rule .......................................................................................................... 401
b. Not an Interruption to the Full Term (3-Term Limit Applies – Hence, Barred): .................. 401
c. An Interruption to the Full Term (3-Term Limit does not Apply – Hence, Not Barred)....... 401
D. LOCAL TAXATION ...................................................................................................................... 402
1. FUNDAMENTAL PRINCIPLES OF LOCAL TAXATION AND REAL PROPERTY TAXATION ................ 402
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a. Local Taxation [ULIPE] ..................................................................................................... 402

b. Real Property Taxation [CUANE] ...................................................................................... 402
2. COMMON LIMITATIONS ON TAXING POWER OF THE LGU ...................................................... 403
3. REQUIREMENTS FOR A VALID TAX ORDINANCE ...................................................................... 404
4. PROCEDURE FOR APPROVAL AND EFFECTIVITY OF TAX ORDINANCES..................................... 405
5. EXEMPTIONS FROM REAL PROPERTY TAXES (Go-WatCh-ECo] (LGC, Sec. 234)......................... 406
XIII. NATIONAL ECONOMY AND PATRIMONY ..................................................................................... 412
A. REGALIAN DOCTRINE ................................................................................................................ 412

B. EXPLORATION, DEVELOPMENT, AND UTILIZATION OF NATURAL RESOURCES .......................... 415
C. FRANCHISES, AUTHORITIES, AND CERTIFICATES FOR PUBLIC UTILITY ....................................... 417
D. ACQUISITION, OWNERSHIP, AND TRANSFER OF PUBLIC AND PRIVATE LANDS ......................... 419
E. PRACTICE OF PROFESSIONS ...................................................................................................... 420
F. ORGANIZATIONS AND REGULATION OF PRIVATE AND PUBLIC CORPORATIONS....................... 420
G. MONOPOLIES, RESTRAINT OF TRADE, AND UNFAIR COMPETITION .......................................... 421
XIV. SOCIAL JUSTICE AND HUMAN RIGHTS ......................................................................................... 423
A. CONCEPT OF SOCIAL JUSTICE .................................................................................................... 423

B. ECONOMIC, SOCIAL, AND CULTURAL RIGHTS ........................................................................... 424
C. COMMISSION ON HUMAN RIGHTS ........................................................................................... 428
XV. AMENDMENTS OR REVISIONS OF THE CONSTITUTION ................................................................. 431
XVI. EDUCATION, SCIENCE, TECHNOLOGY, ARTS, CULTURE AND SPORTS ........................................... 436
A. ACADEMIC FREEDOM ................................................................................................................ 436

B. CONSTITUTIONAL TAX EXEMPTIONS FOR CERTAIN INSTITUTIONS ........................................... 437
XVII. PUBLIC INTERNATIONAL LAW ..................................................................................................... 440
A. CONCEPTS ................................................................................................................................. 441

1. WHAT ARE OBLIGATIONS ERGAOMNES? ................................................................................ 441
2. WHAT IS JUS COGENS? ........................................................................................................... 441
3. WHAT IS EX AEQUO ET BONO? ............................................................................................... 442
B. RELATIONSHIP BETWEEN INTERNATIONAL AND PHILIPPINES DOMESTIC LAW ......................... 443
C. SOURCES OF INTERNATIONAL LAW........................................................................................... 444
1. ARTICLE 38. INTERNATIONAL COURTOF JUSTICE STATUTE ...................................................... 444
a. Treaties ........................................................................................................................... 445
b. Custom ............................................................................................................................ 445
c. General Principles of Law ................................................................................................. 447
d. Judicial decisions ............................................................................................................. 448
e. Teachings of the Most Highly QualifiedPublicists........................................................... 448
2. EFFECT OF UNITED NATIONS DECLARATIONS, SECURITY COUNCIL RESOLUTIONS ................... 448
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3. EFFECT OF ACTIONS OF ORGANS OFINTERNATIONAL ORGANIZATION CREATED BY TREATY .... 449

D. SUBJECTS OF INTERNATIONAL LAW .......................................................................................... 449
1. STATES ................................................................................................................................... 450
2. INTERNATIONAL ORGANIZATIONS .......................................................................................... 452
3. INDIVIDUALS .......................................................................................................................... 453
E. REQUISITES OF STATEHOOD ..................................................................................................... 453
1. What is a state?...................................................................................................................... 453
a. A permanent population.................................................................................................. 453
b. A defined territory ........................................................................................................... 453
c. Government .................................................................................................................... 454
d. Capacity to enter into relations with other states ............................................................ 454
F. JURISDICTION OF STATES .......................................................................................................... 454
1. BASIS OF JURISDICTION .......................................................................................................... 454
2. EXEMPTION FROM JURISDICTION ........................................................................................... 456
G. GENERAL PRINCIPLES OF TREATY LAW ...................................................................................... 458
H. DOCTRINE OF STATE RESPONSIBILITY ....................................................................................... 463
I. REFUGEES ................................................................................................................................. 468
J. EXTRADITION ............................................................................................................................ 471
K. BASIC PRINCIPLES OF INTERNATIONAL HUMAN RIGHTS LAW .................................................. 473
L. BASIC PRINCIPLES OF INTERNATIONAL HUMANITARIAN LAW .................................................. 476
M. LAW OF THE SEA ....................................................................................................................... 484
1. BASELINES .............................................................................................................................. 484
2. ARCHIPELAGIC STATES ........................................................................................................... 484
3. Internal Waters ...................................................................................................................... 484
4. Territorial Sea......................................................................................................................... 485
5. Contiguous Zone .................................................................................................................... 485
6. Exclusive Economic Zone ........................................................................................................ 485
7. Continental Shelf.................................................................................................................... 486
8. International Tribunal for the Law of the Sea .......................................................................... 488
N. INTERNATIONAL ENVIRONMENTAL LAW .................................................................................. 489
1. Precautionary Principle .......................................................................................................... 489
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I. BASIC CONCEPTS UNDER THE 1987 A. DECLARATION OF PRINCIPLES AND

CONSTITUTION STATE POLICIES
Self-Executing and Non-Self Executing

TOPIC OUTLINE UNDER THE SYLLABUS: Provisions
- Self-Executing - provisions which are
A. DECLARATION OF PRINCIPLES AND complete in itself and become operative
STATE POLICIES without the aid of supplementary or enabling
legislation, or that which supplies a sufficient
B. NATIONAL TERRITORY rule by means of which the right it grants
may be enjoyed or protected (Manila Prince
C. SEPARATION OF POWERS Hotel v GSIS, G.R. No. 122156, Feb. 3,
1997).
D. CHECKS AND BALANCES
- Non-Self-Executing - provisions which lay
E. STATE IMMUNITY down a general principle.
F. DELEGATION OF POWERS General Rule: The provisions of the Constitution are
considered self-executing, and do not require future
G. FUNDAMENTAL POWERS OF THE legislation for their enforcement.
STATE
Exceptions:
1. The principles found in Article II are not
intended to be self-executing principles
ready for enforcement through the courts.
They are used by the judiciary as aids or as
guides in the exercise of its power of judicial
review, and by the legislature in its
enactment of laws (Tondo Medical v. Court
of Appeals, G.R. No. 167324, July 17, 2007).
2. The social and economic rights guaranteed
in Article XIII are also non-self-executing
provisions. (Bernas, Constitutional Rights
and Social Demands, 1, 2010).
Exceptions to the Exceptions:

1. Article II, Sec. 16 - The right to a balanced
and healthful ecology is self-executory and
does not need an implementing legislation
(Oposa v. Factoran, G.R. No. 101083, July
30, 1993).
2. Article II, Sec. 28 – The duty of full public
disclosure is self-executory (Province of
North Cotabato v. GRP, G.R. No. 183591,
Oct. 14, 2008).
3. Article II, Sec. 15 - The right to health is also
self-executing (Imbong v. Ochoa, G.R. No.
204819, Apr. 8, 2014).
NOTE: Whether or not a provision is self-executing

depends on the language of the provision. Most of
the provisions in Article II are couched in non-self-
executing language.
Principles
Binding rules which must be observed in the conduct
of government.
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Policies Exceptions to policy against nuclear weapons may

Guidelines for the orientation of the state. be made by political departments, but must be
justified by demands of national interest.
Generally Accepted Principles of International
Law Social Justice
Principles based on natural justice common to most The State shall promote social justice in all phases of
national systems of law. national development.
Examples: Social Justice has been defined as the humanization

1. The right of an alien to be released on bail of laws and the equalization of social and economic
while awaiting deportation when his failure forces by the State so that justice in its rational and
to leave the country is due to the fact that no objectively secular conception may at least be
country will accept him (Mejoff v. Director of approximated (Calalang v. Williams, G.R. No. 47800,
Prisons, G.R. No. L-4254, Sept. 26, 1951). Dec. 2, 1940).
2. The right of a country to establish military
commissions to try war criminals (Kuroda v. Protection of the Life of the Unborn
Jalandoni, G.R. No. L-2662, Mar. 26, 1949). It is not an assertion that the unborn is a legal person.
3. The Vienna Convention on Road Signs and It is not an assertion that the life of the unborn is
Signals (Agustin v. Edu, G.R. No. L-49112, placed exactly on the same level of the life of the
Feb. 2, 1979). mother. Hence, when it is necessary to save the life
4. Duty to protect the premises of embassies of the mother, the lie of the unborn may be sacrificed.
and legations (Reyes v. Bagatsing, G.R. No.
L-65366, Nov. 9, 1983). The Roe v. Wade doctrine allowing abortion up to the
5. Pacta sunt servanda – international 6th month of pregnancy cannot be adopted in the
agreements must be performed in good faith Philippines human lives are sacred from the moment
(Tañada v. Angara, G.R. No. 118295, May of conception, and that destroying those new lives is
2, 1997). never licit, no matter what the purported good
outcome would be (Imbong vs. Ochoa, G.R. No.
The Philippines renounces aggressive war as an 204819, April 8, 2014).
instrument of national policy, but allows for a
defensive war. Right to a Balanced and Healthful Ecology
The right to a balanced and healthful ecology is not
Civilian Authority less important than any of the civil and political rights
Article II, Section 3 of the Constitution states that enumerated in the Bill of Rights. The right to a
“[c]ivilian authority is, at all times, supreme over the balanced and healthful ecology carries with it an
military. The Armed Forces of the Philippines is the intergenerational responsibility to care for and
protector of the People and the State. Its goal is to protect the environment (Oposa v. Factoran, G.R.
secure the sovereignty of the State and the integrity No. 101083, Jul. 30, 1993).
of the national territory.”
In environmental cases, the precautionary
Civilian Authority - The head of the armed forces is principle is used when there is a lack of full scientific
a civilian president and the primary purpose of AFP certainty in establishing a causal link between human
is to serve and protect the people. activity and environmental effect. The precautionary
principle, as a principle of last resort, shifts the
Mark of Sovereignty - Positively, the military is the burden of evidence of harm away from those likely to
guardian of the people and of the integrity of the suffer harm and onto those desiring to change the
national territory and therefore ultimately of the status quo (International Service for the Acquisition
majesty of the law. Negatively, it is an expression of Agri-Biotech v. Greenpeace, G.R. No. 209271,
against military abuses. Dec. 8, 2015).
Freedom from Nuclear Weapons Elements for the Application of Precautionary

PROHIBITS DOES NOT PROHIBIT Principle: (UPP)
Possession, control and Peaceful use of nuclear 1. Uncertainty
manufacture of nuclear energy 2. Possibility of irreversible harm
weapons; nuclear arms 3. Possibility of serious harm
tests (International Service for the Acquisition of Agri-
Biotech v. Greenpeace, G.R. No. 209271, Dec. 8,
2015)
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Standing to file an action for violation of those areas included in the national territory
environmental laws and citizens must respect that. At the same
The enactment of the Rules of Procedure for time, citizens could demand its rights from
Environmental Cases enabled litigants enforcing the government under those areas.
environmental rights to file their cases as citizen
suits. It liberalized standing for all cases filed NOTE: It is only a municipal or local law. The
enforcing environmental laws and collapses the constitution is not definitive to claims of other states.
traditional rule on personal and direct interest, based But it has value, if in history, no one questions it, we
on the principle that humans are stewards of nature. can rely on the fact that it has not been challenged
The need to give animals legal standing in but it does not stop others from claiming it.
environmental cases has been eliminated by the
Rules since any Filipino citizen, as a steward of Archipelagic Doctrine
nature, is allowed to bring a suit to enforce
environmental laws (Resident Marine Mammals v. A body of water studded with islands, or the islands
Reyes, G.R. No. 180771, Apr. 21, 2015). surrounded with water, is viewed as a unity of islands
and waters together forming one integrated unit.
Requisites for the Issuance of Writ of Kalikasan [N.B. Embodied in Art. II, specifically by the mention
(CPE) of the “Philippine archipelago” and the specification
1. There is an actual or threatened violation of on “internal waters.”]
the Constitutional right to a balance and
healthful ecology; Application to the Philippines
2. The actual or threatened violation arises The waters around, between, and connecting the
from an unlawful act or omission of a Public islands of the archipelago, regardless of their breadth
official or employee, or private individual or and dimensions, form part of the internal waters of
entity; the Philippines. (PHIL. CONST., art. I, § 1)
3. The actual or threatened violation involves
or will lead to an Environmental damage of Treaty limits of the Philippine archipelago
such magnitude as to prejudice the life, 1. Treaty of Paris of 10 December 1898: “Spain
health or property of inhabitants in two or cedes to the United States the archipelago
more cities of provinces. (LNL Archipelago known as the Philippines Islands, and
Minerals Inc v. Agham Party List, GR comprehending the islands lying within the
209165, Apr. 12, 2016) following line” Article 3 of the said treaty
defines the metes and bounds of the
B. NATIONAL TERRITORY archipelago by longitude and latitude,
degrees and seconds. Technical
Provision on National Territory descriptions are made of the scope of the
The National Territory comprises the Philippine archipelago as this may be found on the
Archipelago, with all the islands and waters surface of the earth.
embraced therein, and all other territories over which 2. Treaty of Washington of 7 November 1900
the Philippines has sovereignty or jurisdiction, between the United States and Spain:
consisting of its terrestrial, fluvial, and aerial domains, Ceding Cagayan, Sibuto and Sulu.
including its territorial sea, the seabed, the subsoil, 3. Treaty of 12 January 1930 between the
the insular shelves, and other submarine areas. The United States and Great Britain: Ceding the
waters around, between, and connecting the islands Turtle and Mangsee Islands [BERNAS
of the archipelago, regardless of their breadth and (2003), cited in Justice Velasco’s concurring
dimension, form part of the internal waters of the opinion in Magallona v. Ermita (2011)].
Philippines (PHIL. CONST., art. I, § 1)
Composition of National Territory
Purpose of Article I 1. Philippine Archipelago, with all the islands
1. Initially it was to prevent the US from and waters embraced therein;
dismembering the Philippines, an 2. Internal Waters: waters around, between
acceptance by the US President of the and connecting the islands of the
Constitution would oblige the US to keep the archipelago, regardless of breadth and
integrity of the Philippine territory. dimension; and
3. All other territories over which the
2. Now, it is to determine the State’s jurisdiction Philippines has sovereignty or jurisdiction.
over which it can exercise its sovereignty.
The government can exercise its power over It consists of:
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1. Territorial sea, seabed, subsoil, insular meeting the requirements of Article 76, paragraphs
shelves, and other submarine areas; and 4-7, of the UNCLOS.
2. Terrestrial, fluvial, and aerial domains.
The Philippine archipelago and all other territories
Concept of Innocent Passage consist of the following domains: (TAFA)
Passage through territorial waters which is neither 1. Terrestrial;
prejudicial to the interests of the coastal state nor 2. Aerial;
contrary to recognized principles of international law. 3. Fluvial; and
Example: Entry into territorial waters by a cruise ship. 4. All other territories outside archipelago over
which RP has sovereignty or jurisdiction.
Future Acquisitions included in National Territory
The clause includes any territory presently belonging Normal Baseline Method
or those that might in the future belong to the The baseline is drawn following the low-water line
Philippines through any of the accepted international along the coasts as marked on large-scale charts
modes of acquiring territory. officially recognized by the coastal State. This line
follows the sinuosities of the coast and therefore
would normally not consist of straight lines (Section
Territories belonging to Philippines by historic
5, 1982 LOS; Bernas, 1987 Philippine Constitution: A
right or title
Commentary, 23, 2009).
The clause also includes what was referred to under
the 1973 Constitution as territories “belonging to the
Philippines by historic right or legal title,” that is, Straight Baseline Method
territories which, depending on available evidence, Consists of drawing straight lines connecting
might belong to the Philippines (e.g., Sabah, the appropriate points on the coast without departing to
Marianas, Freedomland) (Bernas, Constitutional any appreciable extent from the general direction of
Rights and Social Demands, 8, 2010). the coast, in order to delineate the internal waters
from the territorial waters of an archipelago.
Under Article 3 of the UNCLOS, “every state has the
right to establish the breadth of its territorial sea up to The Baseline Law (R.A. 9522, 2009)
a limit not exceeding 12 nautical miles, measured R.A. No. 9522–amended R.A. No. 3046, entitled "An
from the baselines.” Act to Define the Baselines of the Territorial Sea of
the Philippines;" specified that baselines of Kalayaan
Contiguous Zone Group of Islands and Bajo de Masinloc (Scarborough
It is an area of water which extends up to 24 nautical Shoal) shall be determined as “Regime of Islands”
miles from the baseline (12 nautical miles from the under the Republic of the Philippines, consistent with
Territorial Sea). Although not part of the territory, the the UNCLOS.
coastal State may exercise jurisdiction to prevent
infringement of customs, fiscal, immigration, or R.A. No. 9522 is constitutional:
sanitary laws. (a) It is a statutory tool to demarcate the
maritime zone and continental shelf of the
Exclusive Economic Zone Philippines under UNCLOS III, and does not
alter the national territory. Baselines laws are
This refers to the body of water extending up to 200
nothing but statutory mechanisms for
nautical miles beyond the baseline, within which the
UNCLOS III state parties to delimit with
state may exercise sovereign rights to explore, precision the extent of their maritime zones
exploit, conserve, and manage the natural resources.
and continental shelves. The law has nothing
to do with acquisition, enlargement, or
Extended Continental Shelf diminution of territory, as States may only
Portion of the continental shelf that lies beyond the acquire (or lose) territory through the
200 nautical mile limit. A coastal state may establish following modes: (CAPO) Cession,
a continental shelf beyond 200 nautical miles from its Accretion, Prescription, and Occupation
coastline. (Magallona v. Ermita, G.R. No. 187167,
2011).
The coastal state may establish the outer limits of its (b) The law also does not abandon the country’s
juridical continental shelf wherever the continental claim to Sabah, as it does not expressly
margin extends beyond 200 nautical miles by repeal the entirety of R.A. No. 5446.
establishing the foot of the continental slope, by (Magallona v. Ermita, G.R. No. 187167, Jul.
16, 2011)
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The law also does not convert internal waters into 2. BUT Scarborough Shoal ONLY has a
archipelagic waters (which allow the right of innocent Territorial Sea and Contiguous Zone.
passage). The Philippines still exercises sovereignty 3. There can be a Continental Shelf without an
over the body of water lying landward of the EEZ, but not an EEZ without a Continental
baselines including the air space over it and the Shelf.
submarine areas underneath. The political branches
of the Philippine government, in the competent C. SEPARATION OF POWERS
discharge of their constitutional powers, may pass
legislation designating routes within the archipelagic An allocation of the three great powers of
waters to regulate innocent and sea lanes passage government in the following manner: legislation to
(Magallona v. Ermita, G.R. No. 187167, Jul. 16, Congress, execution of laws to the Executive, and
2011). settlement of legal controversies to the Judiciary. It is
also an implicit limitation on their powers, preventing
The Baselines Law does not abandon the one from invading the domain of the others, but the
Philippines’ claim over Sabah under RA 5446. The separation is not total.
definition of the baselines of the territorial sea of the
Philippine Archipelago is without prejudice to the The principle of separation of powers ordains that
delineation of the baselines of the territorial sea each of the three great government branches has
around the territory of Sabah, situated in North exclusive cognizance of and is supreme in concerns
Borneo, over which the Philippines has acquired falling within its own constitutionally allocated sphere;
dominion and sovereignty (R.A. No. 556, § 2). e.g., the judiciary as Justice Laurel emphatically
asserted “will neither direct nor restrain executive [or
Maritime Zones legislative] action” (Republic v. Bayao, G.R. No.
179492, Jun 5, 2013).
TERRITORIAL 12 nautical Absolute
SEA miles from Sovereignty D. CHECKS AND BALANCES
baselines
CONTIGUOUS 24 nautical Enforcement A system operating between and among the three
ZONE miles from of customs, branches of government the net effect of which is that
baselines fiscal, no one department is able to act without the
immigration, cooperation of at least one of the other departments.
sanitation laws
Examples:
EXCLUSIVE 200 nautical Exploitation of
1. Legislation in the form of an enrolled bill
ECONOMIC miles from living and non-
needs final approval from the President to
ZONE baselines living
become a law;
resources
2. President must obtain the concurrence of
CONTINENTAL Submerged Sovereign Congress to complete certain acts (e.g.
SHELF prolongation of rights of granting of amnesty);
the land exploration 3. Money can be released from the Treasury
territory and only by authority of Congress;
exploitation of 4. Appropriation, revenue, tariff, increases in
living and non- public debt and private bills originate in
living House of Representatives;
resources of 5. SC can declare acts of Congress or the
the seabed Executive unconstitutional.
Regime of Islands E. STATE IMMUNITY

Under Article 121 of the UNCLOS III, any naturally
formed area of land surrounded by water, which is BASIS: Art. XVI, Sec. 3: “The state may not be sued
above water at high tides, qualifies under the without its consent.” This is based on the principle of
category of “regime of islands” whose islands equality of states — par in parem non habet
generate their own applicable maritime zones (e.g., imperium.
Kalayaan Islands and Scarborough Shoal).
1.
Kalayaan Islands has its own Territorial Sea,
Contiguous Zone, and Exclusive Economic
Zone.
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Doctrine of State Immunity

It refers to a principle by which a state, its agents, and A party who feels transgressed by anyone claiming
property are immune from the jurisdiction of another immunity may ask his own government to espouse
state (MAGALLONA). his cause through diplomatic channels.
Principle of Equality of States Extent of Immunity

This principle is premised on the juridical equality of Immunity from jurisdiction is enjoyed by both the
states, according to which a state may not impose its head of State and by the State itself. The State's
authority or extend its jurisdiction to another state diplomatic agents, including consuls to a certain
without the consent of the latter through a waiver of extent, are also exempt from the jurisdiction of local
immunity. Thus, domestic courts must decline to hear courts and administrative tribunals.
cases against foreign sovereigns out of deference to
their role as sovereigns. Restrictive Application of State Immunity
This traditional rule of State immunity which exempts
Kinds of Immunity a State from being sued in the courts of another State
1. Absolute sovereign immunity - where a without the former's consent or waiver has evolved
state cannot be sued in a foreign court no into a restrictive doctrine which distinguishes
matter what the act it is sued for; and sovereign and governmental acts (Jure imperii) from
private, commercial and proprietary acts (Jure
2. Restrictive sovereign immunity - where a gestionis). Under the restrictive rule of State
state is immune from suits involving immunity, State immunity extends only to acts jure
governmental actions (jure imperii), but not imperii. The restrictive application of State immunity
from those arising from commercial or non- is proper only when the proceedings arise out of
governmental activity (jure gestionis). commercial transactions of the foreign sovereign, its
commercial activities or economic affairs (Arigo v.
Summary Swift, G.R. No. 206510, Sept. 16, 2014).
General rule – The State cannot be sued.
Exception – The State consents to be sued. Scope of State Immunity
Jure Imperii - Immunity is granted only with respect
How a State gives its consent to their governmental acts
1. Express consent
a. General Law Jure Gestionis - Immunity is not granted with
b. Special Law respect to their commercial acts
2. Implied consent
a. When the State commences Difference between Jure Gestionis and Jure
litigation, it becomes vulnerable to a Imperii
counterclaim; (US v. Guinto, G.R. JURE GESTIONIS JURE IMPERII
No. 76590, Feb. 26, 1990) By right of economic or By right of sovereign
b. State enters into a business business relation power, in the exercise of
contract (thus exercising sovereign functions
proprietary functions); (Id.) May be sued May not be sued
c. When it would be inequitable for the
State to invoke immunity; Two Conflicting Concepts of Sovereign
d. In eminent domain cases. Immunity:
1. Classical or absolute theory – sovereign
State's Business Contracts cannot, without its consent, be made a
A State’s commercial activity is a descent to the level respondent in the courts of another
of individuals and there is a form of tacit consent to sovereign; and
be sued when it enters into business contracts with 2. Newer or restrictive theory – the immunity
others. of the sovereign is recognized only with
regard to public acts or acts jure imperii of a
However, not every contract entered into is a form of state but not with regard to private acts or
tacit consent to be sued. It depends upon whether the acts jure gestionis.
foreign state is engaged in the activity in the regular
course of business. If not, or if it is in pursuit of a A certification executed by the Economic Commercial
sovereign activity, it falls within the exemption of acts Office of the Embassy of the People’s Republic of
jure imperii especially when not intended for gain or China stating that a project is in pursuit of a sovereign
profit. activity is not the kind of certification that can
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establish entitlement to immunity from suit. It a. General Law: Authorizes any person who
unequivocally refers to the determination of the meets the conditions stated in the law to sue
Foreign Office of the state where it is used (China the government in accordance with the
National Machinery Equipment v. Santa Maria, G.R. procedure in the law (e.g. money claims
No. 185572, Feb. 7, 2012). arising from contract express or implied,
liability of local government units for torts)
When Suit is Considered against the State: (NUO) b. Special Law: may come in the form of a
1. The Republic is sued by Name private bill authorizing a named individual to
2. Suits against an Unincorporated bring a suit on a special claim.
government agency
3. Suit is against a government Official, but is IMPLIED (CBIP)
such that ultimate liability shall devolve on a. When the State Commences litigation, it
the government becomes vulnerable to counterclaim;
b. When the State enters into a Business
It produces adverse consequences to the public contract (in jure gestionis or proprietary
treasury in terms of disbursement of public funds and functions);
loss of government property. c. When it would be Inequitable for the State to
invoke its immunity; and
It cannot prosper unless the State has given its d. In instances when the State takes private
consent. property for Public use or purpose (Eminent
Domain).
When Not Against the State
It was held that the suit is not against the State: Specific Rules
1. When the purpose of the suit is to compel an a. When State Commences Litigation
officer charged with the duty of making payments Exception: When the State intervenes not for
pursuant to an appropriation made by law in the purpose of asking for any affirmative relief,
favor of the plaintiff to make such payment, since but only for the purpose of resisting the claim
the suit is intended to compel performance of a precisely because of immunity from suit (Lim v
ministerial duty (Begosa v. PVA, G.R. No. L- Brownell, GR No. L-8587, Mar 24 1960).
25916, Apr. 30, 1970);
2. When from the allegations in the complaint, it is b. When State enters a Business Contract
clear that the respondent is a public officer sued Types of Capacity of the State in entering into
in a private capacity; contracts:
3. When the action is not in personam with the 1. Acta jure gestionis - by right of economic
government as the named defendant, but an or business relations; commercial or
action in rem that does not name the government proprietary acts. The State may be sued (US
in particular. v. Guinto, GR. No. 76607, Feb. 26, 1990)
2. Acta jure imperii - by right of sovereign
Test to Determine if Suit is Against the State power and in the exercise of sovereign
Will the enforcement thereof (decisions rendered functions; there is no implied consent to be
against the public officer or agency impleaded) sued (US v. Ruiz, GR No. 35645, May 22,
require an affirmative act from the State, such as the 1985)
appropriation of the needed amount to satisfy the
judgment? If so, then it is a suit against the State c. When State Executes and Enters Private
(Sanders v Verdiano, G.R. No. L-46930, June 10, Contracts
1988). ● General Rule: The State may be sued if a
private contract is entered into by the proper
Duration of Immunity of Head of State office and within the scope of his authority.
Immunity of head of state for private acts lasts while ● Exception: When the private contract is
a person is still in office; for public acts, even after incidental to the performance of a government
office. function.
Consent to be Sued is Given by the State either Suits against Public Officers
EXPRESSLY or IMPLIEDLY General Rule: The doctrine of state immunity also
applies to complaints filed against officials of the
EXPRESS State for acts performed by them in the discharge of
The law expressly grants the authority to sue the their duties within the scope of their authority.
State or any of its agencies.
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Exception: The doctrine of immunity from suit will 4. To secure a Judgement that the officer
not apply and may not be invoked where the public impleaded may satisfy by himself without the
official is being sued in his: State having to do a positive act to assist him;
1. private and personal capacity as an ordinary 5. Where the Government itself has violated its
citizen own laws.
2. for acts without authority or in excess of the (Sanders v Verdiano, G.R. No. L-46930, Jun 10,
powers vested in him. (Lansang v. CA, G.R. 1988)
102667, Feb. 23, 2000)
Rules regarding Garnishment of Government
Rule on Liability of Public Officers (SGU) Funds
1. Acting beyond Scope of Authority: When a General Rule: Garnishment of government funds is
public officer acts in bad faith, or beyond the not allowed. Whether the money is deposited by way
scope of his authority, he can be held of general or special deposit, they remain
personally liable for damages. government funds and are not subject to
2. Acting in Good Faith: If a public officer acted garnishment.
pursuant to his official duties, without malice,
negligence, or bad faith, he is not personally Exceptions:
liable, and the suit is really one against the 1. Where a law or ordinance has been enacted
State appropriating a specific amount to pay a valid
3. Ultra Vires Act: Where a public officer has government obligation, then the money can be
committed an ultra vires act, or where there is garnished
showing of bad faith, malice, or gross 2. If the funds belong to a public corporation or a
negligence, the officer can be held personally GOCC which is clothed with a personality of its
accountable even if such acts were claimed to own, then the funds are not exempt from
have been performed in connection with garnishment (NHA v. Guivelando, G.R. No.
official duties (Wylie v. Rarang, G.R. No. 154411, Jun 19, 2003)
74135, May 28, 1992).
To enforce monetary decisions against the
Suits against Government Agencies Government, a person may file a claim with the
1. Incorporated: If the charter provides that the Commission on Audit. It is settled jurisprudence that
agency can sue and be sued, then suit will lie, upon determination of State liability, the prosecution,
including one for tort. The provision in the enforcement, or satisfaction thereof must still be
charter constitutes express consent on the pursued in accordance with the rules and procedures
party of the State to be sued (PNB v. CIR, G.R. laid down in P.D. No 1445 (Government Auditing
No. L-32667, Jan 31, 1978) Code of the Philippines). All money claims against
2. Unincorporated: the Government must first be filed with the
a. Performs governmental functions: Cannot Commission on Audit, which must act upon it within
be without State consent even if performing 60 days. Rejection of the claim will authorize the
proprietary function incidentally. Thus, claimant to elevate the matter to the Supreme Court
even in the exercise of proprietary on certiorari and in effect, sue the State thereby
functions, an unincorporated agency still (Department of Agriculture v NLRC, G.R. No 104269,
cannot be sued without its consent. Nov. 11, 1993; PD 1445, § 49-50)
b. Performs proprietary functions: Can be
sued except when the proprietary functions Consent to be Sued is Not Equivalent to Consent
are indispensable in the discharge of its to Liability
governmental functions (Mobil PHL - The fact that the State consented to being sued
Exploration v. Customs Arrastre Service, does not mean that the State will ultimately be
GR No. 23139, Dec 17, 1966) held liable (US v. Guinto, G.R. 76607, Feb. 26,
1990)
Case Law Exceptions when State/Public Officer - Even if the case is decided against the State,
May Be Sued without Prior Consent (RUPJuG) an award cannot be satisfied by writs of
1. To compel him to do an act Required by law; execution or garnishment against public funds.
2. To restrain him from enforcing an act claimed No money shall be paid out of the public
to be Unconstitutional treasury unless pursuant to an appropriation
3. To compel the Payment of damages from an made by law
already appropriated assurance fund or to
refund tax overpayments from a fund already
available for the purpose;
PAGE 24 of 490
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Payment of interest by the Government in Money General Rule: Any person who in performing an act
Judgment Against it: of the state, commits a criminal offense is immune
General Rule: Government cannot be made to pay from prosecution. This applies not only to ex-heads
interests of state and ex-ambassadors but to all state officials
who have been involved in carrying out the functions
Exceptions (EEG): of the state (Immunity Ratione Materiae/Functional
1. Eminent domain Immunity - “Immunity of the official”)
2. Erroneous collection of tax
3. Government agrees to pay interest pursuant to Exception: Functional Immunity of state officials of
law the foreing state could no longer be invoked in cases
of international crimes (Regina v. Bartle and the
Immunity from Jurisdiction Commissioner of Police, “Pinochet Case”)
General rule: The jurisdiction of a state within its
territory is complete and absolute Exception to the Exception: When the case is
brought against the State itself for liability to damages
Exceptions (SDH): (e.g. civil proceedings against a state), the rationale
1. Sovereign immunity for the judgment in the Pinochet case has no bearing.
2. Diplomatic immunity
3. Hostis Humanis Generis - enemy of all mankind NOTE: A state is not deprived of immunity by reason
or crimes justiciable by any state anywhere e.g. of the fact that it is accused of serious violations of
piracy (Filartiga v. Pena-Irala, 630 F.2d 876, international human rights law or the international law
1980) of armed conflict. The court distinguished between
immunity and substantive jus cogens rules of
Acts of State Immunity international law and held that a finding of immunity
Every state is bound to respect the independence of does not equal a finding that a state did not owe
every other sovereign state, and the courts of one reparations (Jurisdictional Immunities of the State:
country will not sit in judgment on the acts of the Germany v. Italy, 2012).
government of another, done within its own territory.
Redress of grievances by reason of such acts must F. DELEGATION OF POWERS
be obtained through the means open to be availed of
by sovereign powers as between themselves General Rule: Legislative power is vested in
Congress which consists of the Senate and the
This immunity is for the benefit of the State. Thus, House of Representatives by the sovereign Filipino
only the Sstate may waive it. people. Congress cannot delegate its legislative
power under the maxim delegata potestas non potest
Nothing in the complaint would require a court to delegari (delegated power may not be delegated).
pass judgment on any official act of the Philippine
government. Just as raising the specter of political
Exceptions: (PLATE)
issues cannot sustain dismissal under the political
1. Delegation to the People – To the extent
question doctrine, neither does a general invocation
reserved to the people by the provision on
of international law or foreign relations mean that an
initiative and referendum.
act of state is an essential element of a claim. It
cannot be thought that every case touching foreign 2. Delegation to Local Government Units – Local
relations lies beyond judicial cognizance. (Provincial legislative bodies are allowed by our Constitution
Government of Marinduque v. Placer Dome, Inc G.R. to legislate on purely public matters. Since what
No. 07-1630, 2009) was given to local legislative bodies are not
power to make rules and regulations but
The commission of a crime by a state official, which legislative power, the rules on valid delegation do
is an international crime against humanity and jus not apply. However, when what is given to local
cogens, is NOT an act done in an official capacity on legislative body is executive power, the rules
behalf of the state. As a matter of general customary applicable to the empowerment of administrative
international law, a head of state will PERSONALLY agencies also become applicable (Rubi v.
be liable to account if there is sufficient evidence that Provincial Board, G.R. No. L-14078, March 7,
he authorized or perpetrated serious international 1919).
crimes. Individuals who commit international crimes
are internationally accountable for them. a. The BPO issued by the Punong Barangay is
not an undue delegation of legislative power
for it merely orders the perpetrator to desist
from (a) causing physical harm to the
PAGE 25 of 490
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woman or her child; and (2) threatening to - Art. VI, § 28(2) authorizes Congress to
cause the woman or her child physical harm. delegate to the President the power to fix
Such function of the Punong Barangay is tariff rates, import and export quotas,
purely executive in nature, in pursuance of tonnage, wharfage dues, and other duties
his duty under the LGC to “enforce all laws and impost.
and ordinances,” and to “maintain public
order in the barangay.” (Garcia v. Drilon, 5. Emergency Powers
G.R. No. 179267, June 25, 2013) - Art. VI, § 23(2) authorizes Congress to give
the President the power necessary and
3. Delegation of Rule-Making Power to proper to carry out a declared national policy
Administrative Bodies – power to issue in times of war or other national emergency
supplementing rules and regulations provided pursuant to law.
that the delegation must be complete and must
prescribe sufficient standards. It also includes Test of Valid Delegation
the determination of the presence of the 1. Completeness Test — The law must state the
conditions for the law to take effect. policy that must be carried out or implemented
a. Rationale: and leave no room for the delegate to legislate;
1. Increasing complexity of the task of nor allow discretion on their part to say what the
government law is. A statute may be complete when the
2. Lack of technical competence on the subject, and the manner and the extent of its
part of Congress to provide for specific operation are stated in it such that when it
details of implementation reaches the delegate,there must be nothing left
3. Administrative agencies may fill in for the delegate to do but to enforce the law.
details of the statute for implementation 2. Sufficiency of Standard — There must be
4. Legislature may pass “contingent adequate guidelines or limitations in the law to
legislation “which leaves to another map out the boundaries of the delegate authority
body the business of ascertaining facts and prevent the delegation from running riot. The
necessary to bring the law into action” limits are sufficiently determinate and
(ABAKADA v. Ermita, G.R. No. determinable to which the delegate must
168056, Sept 1, 2005). conform in the performance of his actions.
a. If there was a valid delegation, Examples:

administrative rules and regulations are just i. Public interest (People v. Rosenthal, G.R.
binding as if they were written in the law. Nos. L-46076 and L-46077, Jun. 12,
b. Administrative agencies may not issue 1939);
regulations that contravene the law (Solicitor
ii. Fair and equitable employment practices
General v. Metro Manila Authority, G.R. No.
(Eastern Shipping Lines v. POEA, supra)
102782, Dec 11, 1991) nor may they add to
iii. Justice and equity;
the standards set by law (Tatad v. Secretary
of Energy, G.R. No. 124360, Nov. 5, 1997). iv. Public convenience and welfare;
c. Administrative rules and regulations may be v. Simplicity, economy, and efficiency.
penal in nature provided that:
1. such a violation is made a crime by the NOTE: Standards may be expressed or implied from
delegating law; the law taken as a whole (Edu v. Ericta, G.R. No. L-
2. penalty of such is provided in the 32096, Oct. 24, 1970). They can even be gathered in
statutes; another statute of the same subject matter
3. the regulation is published in full text. (Chongbian v. Orbos, G.R. No. 96754, June 6, 1995).
d. Powers of Congress which are not to be
delegated are those that are strictly or A law allowing a judge to inflict punishment of
inherently legislative. Purely legislative imprisonment in its discretion without any designated
power is the authority to make a complete limits is invalid (People v. Dacuycoy, G.R. No. L-
law - complete as to the time it shall take 45127, May 5, 1989).
effect or to whom it shall be applicable and
to determine the expediency of the Section 8 of PD 910 regarding the Malampaya funds
enactment provides: “all fees, revenues and receipt…under the
Petroleum Act of 1949; as well as the government
share…shall form part of a special fund to be used to
4. Tariff Powers
PAGE 26 of 490
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finance energy resource development and G. FUNDAMENTAL POWERS OF THE

exploitation programs and projects of the government STATE
and for such other purposes as may be hereafter
provided by the President.” This is not a valid Concept, Application, and Limits
delegation of legislative power. The provision The totality of governmental power is contained in
constitutes an undue delegation of legislative power three great powers: police power, power of eminent
insofar as it does not lay down a sufficient standard domain and power of taxation. These belong to the
to adequately determine the limits of the President‘s very essence of government, without which no
authority (Belgica v. Ochoa, G.R. No. 208566, Nov. government can exist. A constitution does not grant
19, 2013). such powers to government; a constitution can only
define and delimit them and allocate their exercise
Congress can only delegate, usually to administrative among various government agencies. (Bernas, The
agencies, rule-making power or law execution. 1987 Constitution of the Republic of the Philippines,
This involves either of two tasks for the administrative 2009)
agencies:
1. Subordinate Legislation: Filling in the POLICE EMINENT
details of an otherwise complete statute; or TAXATION
POWER DOMAIN
2. Contingent Legislation: Ascertaining the AUTHORITY WHICH EXERCISES THE POWER
fact necessary to put into effect, suspend, or May be exercised only by the May be
apply a “contingent” law. government or its political granted to
subdivisions public service
Any post-enactment congressional measure should companies or
be limited to scrutiny and investigation. In particular, public utilities
congressional oversight must be confined to the PURPOSE
following: (SAHM) The use of the The property The property is
1. Scrutiny based primarily on Congress’ property is (generally in the “taken” for
power of appropriation and the budget “regulated” for form of money) public benefit,
hearings conducted in connection with it the purpose of is taken for the hence, it must
2. Its power to ask heads of departments to promoting the support of be
Appear before and be Heard by either of its general government compensated.
Houses on any matter pertaining to their welfare,
departments and its power of confirmation hence it is not
and investigation compensable
3. Monitoring of the implementation of laws PERSONS AFFECTED
pursuant to the power of Congress to Usually - Operates on
conduct inquiries in aid of legislation operates an entity or an
upon a individual as
Any action or step beyond that will undermine the community of the owner of a
separation of powers guaranteed by the Constitution. a class of particular
Legislative vetoes fall in this class (Abakada v. entities or property
Purisima, G.R. No. 166715, Aug. 14, 2008). individuals
EFFECT
Reorganization “involves the reduction of personnel, There is no The money There is a
consolidation of offices, or abolition thereof by reason transfer of contributed in transfer of the
of economy or redundancy of functions.” The general title. At most, the concept of right to
rule has always been that the power to abolish a there is a taxes becomes property
public office is lodged with the legislature. The restraint on part of the whether it be
exception, however, is that as far as bureaus, the injurious public funds ownership or
agencies or offices in the executive department are use of the to a lesser
concerned, the President’s power of control may property right (e.g.
justify him to inactivate the functions of a particular possession)
office, or certain laws may grant him the broad BENEFIT
authority to carry out reorganization measures The person Person affected The person
(Malaria Employees v. Romulo, G.R. 160093, Jul 31, affected receives the affected
2007). receives no equivalent of receives the
direct and the tax in the full and fair
immediate form of market value
PAGE 27 of 490
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benefit but protection, of the property

only such as public taken from him Requisites
may arise improvements, 1. Reasonable Subject - The subject of the
from the and benefits he measure is within the scope of police, i.e.
maintenance receives from that the activity or property sought to be
of a healthy the government regulated affects the public welfare. The
economic as such. interest of the public, generally as compared
standard of Therefore, to a particular class requires interference by
society and is taxation may be the state.
often referred used as an 2. Reasonable Means - The means employed
to as damnum implementation are reasonably necessary for the
absque injuria of police power accomplishment of the purpose, and not
i.e. “damage (Lutz v. unduly oppressive on individuals. Both the
without injury” Araneta, 1955) end and the means must be legitimate (US
IMPOSITION v. Toribio, G.R. No. L-5060, Jan. 1, 1910)
The amount There is There is no
imposed generally no amount Nature
should not be limit to the imposed but Legislative but may be delegated to the following:
more than amount that rather the a. President
sufficient to may be owner is paid b. Administrative Bodies
cover the cost imposed the market c. Legislative Bodies of Local Government
of the license value of the Units
and the property taken
necessary 2. EMINENT DOMAIN
expense of
police The purpose of the taking must be public use. Just
surveillance compensation must be given to the private owner.
and (Bernas, The 1987 Constitution of the Republic of the
inspection, Philippines, 2009)
examination,
or regulation The State has a paramount interest in exercising its
as nearly as power of eminent domain for the general welfare and
can be that the superior right of the State to expropriate
estimated private property always takes precedence over the
EXTENT interest of private owners, provided that:
Regulates Affect only property rights a. the expropriation is for public use
both liberty b. the exercise of the right to eminent domain
and property complies with the guarantees of due process
(Estate of JBL Reyes v. City of Manila, G.R.
1. POLICE POWER Nos 132431 & 137146, Feb. 13, 2004).
Police Power in General The matter is legislative, however, “once authority is

a. Based on public necessity and the right of given to exercise the power, the matter ceases to be
the State and of the public to self-protection. wholly legislative. The executive authorities may then
For this reason, its scope expands and decide whether the power will be invoked and to what
contracts with changing needs. (Baseco v. extent” (Republic v. Juan, G.R. No. L-24740, Jul 30,
PCGG, G.R. No. 75885, May 27, 1987) 1979).
b. It is the power of the State to enact
regulations to promote the health, morals, It may be delegated to LGU’s, other public entities
peace and order, and welfare of the society and public utilities. The scope is narrower and may
(Ermita-Malate Hotel and Motel Operators v. be exercised only when authorized by Congress,
City of Manila, G.R. No. L-24693, Oct. 23, subject to its control and restraints imposed through
1967). These fall under “public necessity” the law conferring the power or in other legislations.
c. Police power has been properly Thus, the power of eminent domain delegated to an
characterized as the most essential, LGU is in reality not eminent but “inferior.” The
insistent and the least limitable of powers, national legislature is still the principal of the LGUs,
extending as it does to all great public the latter cannot go beyond the principal’s will or
needs. (Id.)
PAGE 28 of 490
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modify the same (Beluso v. Municipality of Panay, arrived at by the legislature should not be interfered
G.R. 153974, Aug. 7, 2006). with, unless there be a clear violation of some
constitutional inhibition (Sarasola v. Trinidad, G.R.
Requisites: No. 14595, Oct. 11, 1919).
1. Public Use — It means public usefulness,
utility, or advantage or what is productive of The legislature is free to select the subjects of
general benefit, so that any appropriation of taxation and it may determine within reasonable
private property by the state under its right of bounds what is necessary for its protection and
eminent domain, for purposes of great expedients for its promotion (Lutz v. Araneta, G.R.
advantage to the community, is a taking for No. L -7859, Dec. 22, 1955).
public use. (Bernas, The 1987 Constitution of
the Republic of the Philippines, 2009 citing Gohl General Rule: The power to tax is purely legislative
Realty Co. v. Hartford, 104 A.2d 365, 368-9 and it cannot be delegated
Conn,. 1954). What has emerged is a concept
of public use which is as broad as public Exceptions:
welfare. The scope of the power of eminent 1. As to the President — Congress may, by
domain has become as broad as the expansive law, authorize the President to fix within
and ever expanding scope of police power itself specific limits, and subject to such limitations
(Bernas, The 1987 Constitution of the Republic and restrictions as it may impose, tariff rates,
of the Philippines, 2009). import and export quotas, tonnage and
2. “Taking” requires: EPAP-D wharfage dues, and other duties or imposts
a. Expropriator must Enter the private within the framework of the national
property development program of the Government.
b. Entrance must not be for a momentary (PHIL. CONST., art. VI, § 28, ¶ 2. )
period, must be Permanent
c. Entry must be under warrant or color of 2. As to Local Government — Under the
legal Authority present Constitution, each local government
d. Property must be devoted to a Pubic use unit is now expressly given the power to
e. Utilization of property must Deprive owner create its own sources of revenue and to
of all beneficial enjoyment of the property levy taxes, subject to such guidelines and
(Republic v. Vda Castellvi, G.R. No. L- limitations as the Congress may provide,
20620, Aug. 15, 1974). consistent with the basic policy of local
3. Just Compensation — This includes not only autonomy (PHIL. CONST., art. X, § 5.)
the determination of the amount to be paid a. A municipal corporation has no
(market value) to the owner of the land but also inherent right to impose taxes Its
the payment of the and within a reasonable power to tax must always yield to a
period of time from its taking (Municipality of legislative act which is superior
Makati v. Court of Appeals, G.R. No. 89898-99, having been passed by the State
Oct. 1, 1990). It also includes interest in case of itself which has the inherent power
delay. (Republic v. Court of Appeals, G.R. No. to tax (Basco v. PAGCOR, G.R. No.
146587, Jul 2, 2002). 91649, May 14, 1991).
3. TAXATION 3. As to Administrative Agencies — When

the delegation relates merely to
The power of taxation is essentially a legislative administrative implementation which may
function. Taxation is an attribute of sovereignty. It is call for some degree of discretionary powers
the strongest of all powers of the government. There under a set of sufficient standards
is a presumption in favor of legislative determination. expressed by law (Maceda v. Macaraig,
Public policy decrees that since upon the prompt G.R. No. 88291, May 31, 1993)
collection of revenue depends the very existence of
government itself, whatever determination shall be ————- end of topic ————-
PAGE 29 of 490
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PAGE 30 of 490
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II. GENERAL PRINCIPLES OF TAXATION A. DEFINITION, CHARACTERISTICS AND

PURPOSE OF TAXATION
TOPIC OUTLINE UNDER THE SYLLABUS
1. DEFINITION
A. DEFINITION, CHARACTERISTICS AND
PURPOSE OF TAXATION Taxation is the power inherent in every sovereign
1. Definition State to impose a charge or burden upon persons,
2. Characteristics properties, or rights to raise revenues for the use and
3. Purpose support of the government to enable it to discharge
its appropriate functions.
B. DISTINGUISH: POWER OF TAXATION,
POLICE POWER, AND EMINENT DOMAIN Power by which an independent State, through its
lawmaking body, raises and accumulates revenue
C. SCOPE AND LIMITATIONS OF TAXATIO from its inhabitants to pay the necessary expenses of
1. Inherent and constitutional limitations of the government. (51 Am. Jur. 341)
taxation
2. Territoriality principle and situs of taxation Merely a way or mode of apportioning the cost of
government among those who in some measures are
D. REQUISITES OF A VALID TAX privileged to enjoy its benefits and must bear its
burdens. (71 Am. Jur. 2d 342)
E. TAX AS DISTINGUISHED FROM OTHER
FORMS OF EXACTIONS Described as a destructive power which interferes
with the personal and property rights of the people
F. KINDS OF TAXES and takes from them a portion of their property for the
support of the government. (Paseo Realty &
G. DOCTRINES IN TAXATION Development Corporation v. CA, G.R. No. 119286,
1. Lifeblood theory 2004) In Sison v. Ancheta, (G.R. No. L-59431, 1984)
2. Construction and interpretation of tax laws, however, the SC acknowledged that the due process
rules, and regulations clause may be invoked where a taxing statute is so
3. Prospectivity of tax laws arbitrary that it finds no support in the Constitution,
4. Imprescriptibility of taxes such as when the tax imposition amounts to a
5. Double taxation confiscation of property.
6. Exemption from taxation
7. Escape from taxation Three Elements of Taxation:
8. Equitable recoupment 1. It is an enforced proportional contribution from
9. Prohibition on compensation and set-off persons and properties;
2. It is imposed by the State by virtue of its
sovereignty;
3. It is levied for the support of the government.
(PCGG v. Cojuangco, G.R. No. 147062-64,
2001)
2. CHARACTERISTICS
Nature
1. The power of taxation is inherent in sovereignty
as an incident or attribute thereof, being essential
to the existence of independent government. It
exists apart from the Constitution and is not being
expressly conferred by the people.
2. It is legislative in character. It is generally not

delegated to the executive or administrative
departments.
PAGE 31 of 490
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Exceptions where delegation is allowed: be found only in the responsibility of the

 To Local Government Units (LGUs) with legislature. (Creba Inc. v. Romulo, G.R. No.
respect to matters of local concern. (SecS. 160756, March 9, 2010)
5 & 20, Art. X, Constitution);
 When it is allowed by the Constitution (Sec. The legislature, therefore, basically determines:
28(2), Art. VI, Constitution); and  The subjects (persons, property,
 When the delegation relates merely to an occupation, exercises, or privileges to be
administrative implementation that may call taxed);
for some degree of discretionary powers  Method of collection;
under a set of sufficient standards  Purpose for which the tax shall be levied;
expressed by law (Pelaez v. Auditor  Apportionment of tax (whether for general
General, G.R. No. L-23825, 1965), or application or limited to a particular locality);
implied from the policy and purpose of the  Amount or rate;
law (Maceda v. Macaraig, G.R. No. 88291,  Kind of tax to be collected; and
1993).  Situs of taxation.
3. It is subject to constitutional and inherent The legislature also grants legislative tax exemptions
limitations. or condonations, and specifies or provides for the
administrative as well as the judicial remedies that
Characteristics either the government or the taxpayer can avail.
1. It must be used for public purpose. A tax shall be (Petron v. Tiangco, G.R. No. 158881, 2008)
considered to have been utilized for public
purpose if the welfare of the nation or the greater 3. PURPOSE
portion of its population has benefited from it.
(Gomez v. Palomar, G.R. No. L-23645, 1968; Phil
1. Primary or Revenue-Raising Purpose:
Guaranty Co., Inc. v. CIR, G.R. No. L-22074,
Taxation is the power by which the sovereign
1965).
raises revenue to defray the necessary expenses
2. It is the strongest of all the inherent powers of the
of government.
government. (Sison v. Ancheta, G.R. No. L-
59431, 1984) However, this does not mean that
it is superior to the other inherent powers of the Taxes provide the funds or property with which to
government. promote the general welfare and protection of the
3. It is territorial in operations. The power to tax can whole citizenry.
only be exercised within the territorial jurisdiction
of a taxing authority (51 Am. Jur. 88), except 2. Secondary or Non-Revenue/Special or
when it is subject to international comity or there Regulatory or Sumptuary Purpose:
exists privity of relationship between the taxing Taxation is also used for regulatory purposes. It
State and the object of tax. Hence, in Mitsubishi is used to attain non-revenue objectives and
Corporation v. CIR (G.R. No. 175772, 2017), it pursue policy decisions.
was held that the income tax and branch profit
remittance tax paid by Mistubishi was Example:
erroneously collected considering that the  Regulation of activities - Taxation could be a
obligation to pay the same had already been tool to implement the State’s police power,
assumed by the Philippine Government by virtue such as imposing a tax on sale, lease or
of its Exchange of Notes with the Japanese disposition of videograms primarily to
Government. answer the need to regulate the video
4. It is comprehensive as it covers persons, things industry due in part to rampant film piracy,
or property, privilege, occupation, profession or violation of intellectual property rights and
business, and transactions or activities. proliferation of pornography. (Tio v.
5. It is generally pecuniary in nature (i.e., payable in Videogram Regulatory Board, G.R. No.
money). However, a law may prescribe other 75967, 1987).
form or kind of payment such as back pay
certificate. (Tirona v. The City Treasurer of  Promotion of general welfare - Taxation is
Manila, G.R. No. L-24607, 1968) done not merely to raise revenues to support
6. It is plenary in nature. As a general rule, the the government, but also to provide means
scope of the legislative power to tax is unlimited for the rehabilitation and stabilization of a
and plenary. Acknowledging in its very nature no threatened industry (like coco levy funds),
limits, the principal check against its abuse is to which is affected with public interest. (PCGG
PAGE 32 of 490
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v. Cojuangco, G.R. No. 147062-64, 2001).

In Lutz v. Araneta, (G.R. No. L-7859, 1955) POLICE EMINENT
TAX
tax was imposed for the protection and POWER DOMAIN
promotion of sugar industry, and so the
Court held that its promotion, protection and value of the
advancement, redounds greatly to the property
general welfare, hence it is valid.
EFFECT
B. DISTINGUISH: POWER OF TAXATION,
Becomes Restraint on the Transfer of right
POLICE POWER, AND EMINENT
part of public injurious use of to the property
DOMAIN fund property
PERSONS AFFECTED
POLICE EMINENT
TAX
POWER DOMAIN Applies to all Applies to all Only particular
persons, persons, property is
CONCEPT property, and property, and covered
excises that excises that
Power to Power to make Power to take may be may be subject
enforce and implement private property subject thereto
contribution laws for the for public use thereto
to raise funds general Welfare with just
for Compensation SUPERIORITY OF CONTRACTS
Government
Contracts Contracts may
SCOPE may be be impaired
impaired
Plenary, Broader in Merely a power unless (a)
comprehensi application; to “take” private government
ve General power property for is party to
to make and public use contract
implement laws granting
exemption; or
EXERCISING AUTHORITY (b) involves
National and National May be granted franchise
Local Government or to public BENEFITS RECEIVED
Governments political service
subdivisions companies or Protection No direct or Just
public utilities and general immediate compensation
benefits from benefit but only equivalent to
PURPOSE the such as may fair market
Raise Exercised to The taking of government arise from the value of the
revenues promote public property for maintenance of property
welfare through public use a healthy
regulation economic
standard of
AMOUNT OF IMPOSITION society
No limit Limited to the No limit RELATIONSHIP TO CONSTITUTION

cost of imposed, but
regulation, the amount Subject to Subjected to Subject to
issuance of should be certain certain certain
license, or based on the constitutional constitutional constitutional
surveillance fair market limitations limitations limitations
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C. SCOPE AND LIMITATIONS OF 1. Delegation to local governments

TAXATION It is in line with the principle that the power to
create municipal corporations for purposes of
1. INHERENT AND CONSTITUTIONAL local self-government carries with it the power to
confer the power to tax on such local
LIMITATIONS OF TAXATION
governments.
The power of taxation is the strongest of all the
2. Delegation to the President
powers of the government. Nevertheless, effective
Certain aspects of the taxing process that are not
limitations thereon may be imposed by the people
legislative in character may be vested to him, e.g.
through the Constitution. Accordingly, no matter how
delegation of tariff powers by Congress to the
broad and encompassing the power of taxation, it is
President under the flexible tariff clause (Sec.
still subject to inherent and constitutional limitations.
28(2), Art. VI, Constitution), and delegation of
emergency powers (Sec. 23(2), Art. VI,
Inherent Limitations Constitution)
a. Public Purpose In the case of Abakada Guro v. Executive

Test: Whether the proceeds will be used for Secretary Ermita, (G.R. No. 168056, 2005) the
something which is the duty of the State to provide. Court held that the Congress does not abdicate
its functions or unduly delegate its power when it
The public purpose of the tax law must exist at the describes what job must be done, who must do
time of its enactment. The money raised by taxation it, and what is the scope of his authority. There is
can be expended only for public purposes and not for no undue delegation of legislative power but only
the advantage of private individuals. Therefore, since of the discretion as to the execution of a law.
the appropriation sought a private purpose, it is null
and void. (Pascual v. Secretary of Public Works, 3. Delegation to administrative agencies
G.R. No. L-10405, 1960) Administrative agencies are authorized to fix
within specified limits, tariff rates, import or export
The term "public use" has acquired a more quotas, tonnage and wharfage dues and other
comprehensive coverage. To the literal import of the duties or imposts.
term signifying strict use or employment by the public
has been added the broader notion of indirect public c. Territorial (see discussions on
benefit or advantage. (Sumulong v. Guerrero, G.R.
territoriality principle and situs of
No. L-48685, 1987)
taxation below)
b. Inherently Legislative
Power of taxation cannot be delegated – this
d. International Comity
contemplates the power to determine kind, object, A state must recognize the generally accepted tenets
extent, amount, coverage, and situs of tax. It must be of international law, they must accord each other as
distinguished from power to assess and collect which sovereign equals. This limits the authority of a
is exercised by the Executive through the BIR. government to effectively impose taxes on a
sovereign state and its instrumentalities, as well as
However, it may be exceptionally delegated when: on its property held, and activities undertaken, in that
1. The delegation shall not contravene any capacity. (Vitug) For example, a property of a foreign
constitutional provision or inherent limitations of State or government may not be taxed by another
taxation; State.
2. It is effected either by the Constitution or by
validly enacted legislative measures or statute; A state that has contracted valid international
and obligations is bound to make in its legislations those
3. Except when expressly provided by the modifications that ensure granting of reliefs under tax
Constitution, it should only be in favour of the treaties. (Deutsche Bank v. CIR, G.R. No. 188550,
local legislative body of the local or municipal 2010)
government concerned.
General rule – The power to tax is exclusively vested

in the legislative body, hence, it cannot be delegated.
(Delegata potestas non potest delegari)
Exceptions:
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e. Exemption of Government Taxpayer may be imprisoned for non-payment of

Entities, Agencies, and other kinds of taxes where the law so expressly
Instrumentalities provides.
Rationale: If the government taxes itself or if Local b. Uniformity and equality of

Government Units tax the national government, it taxation (Sec. 28 (1), Art VI,
would be akin to taking money from one pocket to the Constitution)
other. Entities or agencies exercising sovereign
functions (acta jure imperii) are tax exempt, unless Uniformity: all articles or properties of the same
expressly taxed. Agencies performing proprietary class taxed at the same rate. (Eastern Theatrical Co.
functions are subject to tax, unless expressly v. Alfonso, G.R. No. L-1104, 1949)
exempted.
Equality: apportionment must be more or less just in
Government owned and controlled corporation the light of taxpayer’s ability to shoulder tax burden.
performing proprietary functions are subject to taxes,
except those exempted under Section 27(C) of RA The equal protection clause refers to like treatment in
8424 as amended by RA 9337 and RA 10963, like circumstances.
namely:
1. GSIS The uniformity and equality clause refers to the
2. SSS proper relative treatment for tax purposes of persons
3. HDMF in like circumstances. Section 28 (1), Art. VI provides
4. PHIC that Congress shall evolve a progressive system of
5. the local water districts taxation. Hence, the Constitution does not really
prohibit a regressive system of taxation. A
The amendment reduced the list of exempt entities progressive system of taxation means that as
by excluding therein the Philippine Amusement and resources of the taxpayer become higher, the tax rate
Gaming Corporation. likewise increases. It is based on the ability to pay.
Instrumentality of the National Government is exempt c. Grant by Congress of authority to

from real property tax. (MIAA v. CA G.R. No. 155650, the President to impose tariff
2006) However, an instrumentality of the National rates (flexible tariff clause) (Sec.
Government can be subject to tax if there is a 28 (2), Art. VI, Constitution)
statutory authority to do so and if there is no express
provision against such act.
 Includes import and export quotas, tonnage
Chief Justice Hilario Davide, Jr. in the case of MCIAA and wharfage dues aside from tariff rates
v. Marcos (G.R. No. 120082, 1996) has stated that  Delegated by the Congress
“nothing can prevent Congress from decreeing that  Through a law; the Tariff and Customs Code
even instrumentalities or agencies of the government has provided for what has been termed as
performing governmental functions may be subject to the “flexible tariff clause” authorizing the
tax. President to modify import duties (Sec. 401,
TCC)
Constitutional Limitations  Subject to Congressional limits and
restrictions
 Within the framework of national
Provisions directly affecting Taxation:
development program
a. Prohibition against imprisonment
d. Prohibition against taxation of
for non-payment of poll tax (Sec.
religious, charitable and
20, Art. III, Constitution) educational entities/Exemption
However, the taxpayer can still be made to pay fines
and penalties for non-payment. from real property taxes (Sec. 28
[3], Art. VI, Constitution)
Poll tax: cedula/residence tax (but in the US, it
usually means the payment of tax to exercise the Exemption under Sec. 28(3), Art. VI pertains only to
right of suffrage.) real property tax (RPT).
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Summary WHO WHAT HOW

WHO WHAT HOW charitable
Exempt as long purposes. (Sec.
as it is used 28[3], Art. VI,
actually, directly Constitution)
and exclusively Exempt provided
(ADE) for that is organized
Revenues
educational and operated
purposes, exclusively for
regardless of its charitable
Non-stock
source. (Sec. purposes and no
non-profit
4[3], Art. XIV, part of its net
educational
Constitution; income or asset
institutions
DLSU v. CIR, inures to the
2016) benefit of any
Revenues
Exempt from member,
RPT as long as organizer, etc.
they are used (Sec. 30[E],
Assets NIRC).
ADE for
educational
purposes. Id. Other non- Income from real
Exempt from stock non- or personal
income tax if profit properties or
they are charitable from activities
organized and institutions conducted for
operated profit, regardless
exclusively for of the disposition
charitable made of such
purposes and no income, shall be
part of its net subject to
income or asset income tax.
inures to the (Sec. 30, last
benefit of any par., NIRC)
member, Exempt as long
Revenues organizer, etc. as the property
(Sec. 30[E], is it ADE used for
NIRC) Assets charitable
Non-stock purposes. (Sec.
non-profit 28[3], Art. VI,
Income from real
hospitals Constitution)
or personal
properties or Exempt from
from activities income tax if
conducted for they are
profit, regardless organized and
of the disposition Propriety operated
made of such non-profit exclusively for
income, shall be hospital Revenues charitable
subject to and purposes and no
income tax. educational part of its net
(Sec. 30, last institutions income or asset
par., NIRC) inures to the
Exempt from benefit of any
RPT as long as member,
Assets organizer, etc.
they are used
ADE for
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WHO WHAT HOW government. (CIR. v. St. Luke’s, G.R. No.

(Sec. 30[E], 203514, 2017)
NIRC).  Exclusive - possessed and enjoyed to the
If the non-profit exclusion of others; debarred from
hospital/educati participation or enjoyment; and 'exclusively'
on institution is defined, 'in a manner to exclude; as
enjoying a privilege exclusively.' . . The
earns income
words ‘dominant use’ or ‘principal use’
from its for-profit cannot be equated with ‘used exclusively’
activities, it will (CIR v. St. Luke’s, G.R. No. 203514, 2017)
retain its tax
exemption for its As for the income tax exemption of charitable
charitable institutions under the NIRC, a charitable institution
activities, but the does not lose its character as such and its exemption
income from for- from taxes simply because it derives income from
profit activities paying patients, whether outpatient, or confined in
will be subject to the hospital, or receives subsidies from the
the preferential government, so long as the money received is
rate of 10% devoted or used altogether to the charitable object
under Section 27 which it is intended to achieve; and no money inures
(B), NIRC, to the private benefit of the persons managing or
Provided, that operating the institution (CIR v. St. Luke’s, G.R. No.
beginning July 203514, 2017)
1,2020 until
June 30,2023, e. Prohibition against taxation of
the rate of one non-stock, non-profit
percent (1%) [educational] institutions (Sec.
shall apply, 4[3&4], Art. XIV, Constitution)
provided that its
gross income Test: How both the revenues and assets will be
from unrelated used.
trade, business
or activity does Exempts from taxes all revenues and assets of non-
not exceed 50% stock, non-profit educational institutions actually,
of its total gross directly and exclusively used for educational
income. purposes.
Exempt as long
Exemption covers income, real estate tax, donor’s
as the property
tax, and customs duties (distinguished from the
is ADE used for previous provision, (Sec. 28[3], Art. VI, Constitution),
educational or which pertains only to real property tax exemption
Assets
charitable granted to real properties that are used for religious,
purposes. (Sec. charitable, or educational purposes.
28[3], Art. VI,
Constitution) Income is exempt provided it is used for maintenance
or improvement of institution (indispensable or
RPT exemption covers charitable institutions, essential). The exemption is strictly personal (i.e.,
churches, and parsonages or convents appurtenant non-transferable).
thereto, mosques and non-profit cemeteries and all
lands, buildings and improvements actually, directly Distinguish tax treatment of:
and exclusively used for charitable, religious and  Proprietary educational institutions
educational purposes. (Preferential tax rate of 10%, but beginning
July 1, 2020 until June 30, 2023, preferential
Definition of Terms: tax rate is 1%); and
 Charitable institution – essentially provide  Government educational institutions (Tax-
for free goods and services to the public (to exempt, e.g., UP)
an indefinite number of persons) which
would otherwise falls on the shoulders of the
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f. Majority vote of Congress for k. No appropriation or use of public

grant of tax exemption (Sec. 28 money for religious purposes
[4], Art. VI, Constitution) (Sec. 29 [2], Art. VI, Constitution)
 Includes amnesties, condonations and No public money or property shall be appropriated,

refunds applied, paid, or employed, directly or indirectly, for
 Involves majority of all members voting the use, benefit, or support of any sect, church,
separately denomination, sectarian institution, or system of
 Relative majority (majority of quorum) is religion, or of any priest, preacher, minister, other
sufficient to withdraw exemption religious teacher, or dignitary as such, except when
such priest, preacher, minister, or dignitary is
assigned to the armed forces, or to any penal
g. Prohibition on use of tax levied
institution, or government orphanage or leprosarium.
for special purpose (Sec. 29 [3],
Art. VI, Constitution)
l. Tax bills should originate
Revenues derived for a special fund shall be exclusively in the House of
administered for the purpose intended only. Representatives (Sec. 24, Art. VI,
Constitution)
Once the purpose is achieved, the balance, if any, is
to be transferred to the general funds of the All appropriation, revenue or tariff bills, bills
government. authorizing increase of the public debt, bills of local
application, and private bills shall originate
h. President’s veto power on exclusively in the House of Representatives, but the
Senate may propose or concur with amendments.
appropriation, revenue, and tariff
bills (Sec. 27 [2], Art. VI,
Constitution) m. Judicial power to review legality
of tax (Sec. 5 (2b), Art. VIII,
The President shall have the power to veto any Constitution)
particular item or items in an appropriation, revenue,
or tariff bill, but the veto shall not affect the item or The Supreme Court shall have the power to review,
items to which he does not object. revise, reverse, modify, or affirm on appeal or
certiorari, as the law or the Rules of Court may
provide, final judgments and orders of lower courts in
i. Grant of power to the local
all cases involving the legality of any tax, impost,
government units to create its assessment, or toll, or any penalty imposed in
own sources of revenue (Sec. 5, relation thereto.
Art. X, 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.
j. Flexible tariff clause (Sec. 28 [2],

Art. VI, Constitution)
The Congress may, by law, 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.
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Provisions indirectly affecting Taxation: Supreme Court also stated that the equal
protection guarantee does not require territorial
a. Due process (Sec. 1, Art. III, uniformity of laws. The classification applies
Constitution) equally to all the resident individuals and
businesses within the "secured area." The
residents, being in like circumstances or
SUBSTANTIVE PROCEDURAL contributing directly to the achievement of the end
Should not be harsh, No arbitrariness in purpose of the law, are not categorized further.
oppressive or assessment and collection Instead, they are all similarly treated, both in
confiscatory privileges granted and in obligations required. (Tiu
(reasonableness) v. CA, G.R. No. 127410,1999)
By authority of valid Right to notice and hearing A tax is uniform when it operates with the same
law force and effect in every place where the subject
of it is found. Uniformity means that all property
Must be for a public
belonging to the same class shall be taxed alike
purpose
The Legislature has the inherent power not only to
Imposed within select the subjects of taxation but to grant
territorial jurisdiction exemptions. Tax exemptions have never been
deemed violative of the equal protection clause.
(CIR v. Lingayen
It can also be invoked by the government. (Province
Gulf Electric Power Co., Inc., G.R. No. L-23771,
of Abra v. Hernando, G.R. No. L-49336, 1981)
1988)
No state may tax anything not within its jurisdiction
without violating the due process clause; the taxing c. Religious freedom (Sec. 5, Art III,
power of a state does not extend beyond its territorial Constitution)
limits, but within such it may tax persons, property,
income, or business. (Manila Gas v. Collector, G.R. The constitutional guaranty of the free exercise and
No. L-24780, 1936) enjoyment of religious profession and worship carries
with it the right to disseminate religious information.
b. Equal protection (Sec. 1, Art. III, (American Bible Society v. City of Manila, G.R. No. L-
9637, 1957) Activities that are simply and purely for
Constitution)
propagation of faith are exempt.
All persons subject to legislation shall be treated
alike, under like circumstances and conditions both Tax is unconstitutional if it operates as a prior
restraint on exercise of religion or favors a certain
in privileges conferred and liabilities imposed. (Sison,
religion (non-establishment of religion).
Jr. v. Ancheta, G.R. No. L-59431, 1984)
Income of religious organizations from any activity
No violation of equal protection when there is proper
conducted for profit or from any of their property, real
classification made.
or personal, regardless of disposition of such income,
is taxable.
The classification to be valid must:
1. Rest on substantial distinctions;
2. Be germane to the purpose of the law; d. Non-impairment of obligations of
3. Not be limited to existing conditions only; and contracts (Sec. 10, Art. III,
4. Apply equally to all members of the same class. Constitution)
Examples: Applies only when government is party to the contract

granting exemption
There are substantial differences between the big
investors who are being lured to establish and Exception: In case of franchise tax. The Constitution
operate their provides that franchise is subject to amendment,
industries in the special economic zones and alteration, or repeal by Congress.
those business operators outside the zones. One
Contractual tax exemptions, in the real sense of the
of these is that the former bring in billion-peso
term and where the non-impairment clause of the
investments and thousands of new jobs. The
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Constitution can rightly be invoked, are those agreed within and sold within the Philippines, or
to by the taxing authority in contracts, such as those produced without and sold without the
contained in government bonds or debentures, Philippines, shall be treated as derived from
lawfully entered into by them under enabling laws in sources entirely within the Philippines and
which the government, acting in its private capacity, entirely without the Philippines, respectively.
sheds its cloak of authority and waives its
governmental immunity. These contractual tax By a taxpayer other than the producer of
exemptions, however, are not to be confused with tax manufacturer: gains, profit, and income derived
exemptions granted under franchises. A franchise from the purchase within and its sale without the
partakes the nature of a grant which is beyond the Philippines, or from the purchase without and its
purview of the non-impairment clause of the sale within shall be treated as derived entirely
Constitution. (MERALCO v. Province of Laguna, from sources within the country in which the
G.R. No. 131359, 1999) personal property is sold.
2. TERRITORIALITY PRINCIPLE AND Exception: Gains from the sale of shares of stock
SITUS OF TAXATION in a domestic corporation shall be treated as
derived entirely from sources within the
Situs is the place of taxation; power to tax is limited Philippines regardless where the said shares are
to the territorial jurisdiction of the taxing state. It is sold.
the place or authority that has the right to impose
and collect taxes. (CIR v. Marubeni Corp. GR No. From sources without the Philippines:
137377, December 18, 2001) 1. Interest other than those derived from sources
within the Philippines.
Exception: where privity of relationship exists, the 2. Dividends other than those derived from sources
State can exercise its taxing powers over its citizen within the Philippines.
outside its territory. 3. Compensation for services performed without the
Philippines.
Situs of Income Tax 4. Rentals and royalties from property located
Factors that determine the situs of income tax without the Philippines or from any interest in
(Sec. 23, NIRC): such property including rentals or royalties for the
1. Nationality use of or for the privilege of using without the
2. Residency Philippines, patents, copyrights and other like
3. Source of Income properties.
From sources within the Philippines: Income partly within and partly without the
1. Interests on bonds, notes or other interest- Philippines:
bearing obligations of residents of the Philippines Items other than those specified above in (1) and (2)
(residence of debtor rule). shall be treated as derived partly from sources within
2. Dividends from a domestic corporation. From a and partly from sources without the Philippines.
foreign corporation, if at least 50% of the foreign
corporation’s gross income for a three-year base Situs of Property Taxes
period is derived from Philippine sources. REAL PERSONAL PROPERTY
3. Compensation for services performed within the PROPERTY
Philippines. TANGIBLE INTANGIBLE
4. Rentals and royalties from properties located in Location of
the Property Location of the Domicile of the
the Philippines or any interest in such property
Property Owner
including rentals or royalties for the use of or for
the privilege of using within the Philippines,
patents, copyrights and other like properties. Situs of Transfer Tax
5. Sale of real property located in the Philippines. TAX SITUS
6. Sale of personal property – Estate Tax Domicile of the decedent at
By the producer or manufacturer: sale of the time of his death
personal property produced by the taxpayer Donor’s Tax Domicile of the donor at the
within and sold without the Philippines, or time of the transfer
produced without and sold within the Philippines,
shall be treated as derived from sources within
and partly from sources without the Philippines.
Conversely, sale of personal property produced
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SUMMARY Toll
OBJECT SITUS RULE TAX TOLL
Person Residence, Kind of Demand of Demand of
Domicile, demand sovereignty ownership
Citizenship
Purpose Support of Collection for the
Real Property Location of the property government use of property
Tangible Physical location although Amount No limit – Fair return of the
Personal the owner resides in another depends on need cost of the property
Property jurisdiction of the or improvement
government
Royalties Where the use of or right to
use is exercised.
License Fee
Income Citizenship
Residence TAX LICENSE FEE
Source of Income
Source Exercise of Emanate from the
Transfer of Citizenship of Taxing power police power of the
property Residence authorit State
Location of Property y
Business or Where the Purpose Raise revenue Regulation

Occupation act/business/occupation is
Object Persons, Right to exercise a
performed/exercised
property and privilege
privilege
D. REQUISITES OF A VALID TAXATION
Amount No limit Only necessary to
1. Must be for a public purpose; carry out
2. Should be uniform and equitable; regulation
3. Either the person or property taxed is within the
jurisdiction of the taxing authority; Distinction lies in the primary purpose:
4. Complies with the requirements of due process;  The primary purpose of license fees is for
and regulation and the excess of the amount
5. Does not infringe any constitutional or inherent collected, from the cost to carry out the
limitations. regulation, should be minimal and incidental.
 Tax’s primary purpose, or at least one of the
E. TAX AS DISTINGUISHED FROM real and substantial purposes, is to raise
OTHER FORMS OF EXACTIONS revenue.
 If amount is too high for regulation and/or the
Customs Duty/Tariff amount levied is not related to costs of
regulation, it would be a tax.
TAX CUSTOMS DUTY
Purpose of distinction: limitations and exemptions
Coverage More Importation or apply only to one and not to the other (ex. Exemption
comprehensive export of goods from taxation does not include exemption from fees).
than customs
duty A non-stock not-for-profit educational institution,
which is exempt from taxes, is not exempt from
Object Persons, Goods imported or payment of Building Permit Fee and Local Clearance
property, etc. exported Fee as the said charges are regulatory fees and not
taxes. (Angeles University v. City of Angeles, G.R.
No. 189999, June 27, 2012)
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Royalty fees are regulatory fees. Clark Special Debt

Economic Zone (“CSEZ”) imposes payments on the
movement of petroleum fuel to and from the TAX DEBT
economic zone. Specifically, CSEZ provides for the
payment of accreditation fees, annual inspection Source Law; legal Based on contract
fees, royalty fees and gate pass fees. Chevron is a obligation
domestic company located within the economic zone.
CSEZ billed Chevron for royalty fees at 0.50/liter. Nature Personal Assignable
(Chevron Philippines v. BCDA, G.R. No. 173863,
September 15, 2010) Right to Generally not May be the subject
set-off subject to of compensation/
The imposition of capital contribution component of compensation/ set-off
P10 per bag was an exercise by the State of its set-off
taxation power. While it is true that the power of
taxation can be used as an implement of police Effect Imprisonment is No imprisonment
power, the primary purpose of the levy is revenue sanction for non- for non-payment
generation. If the purpose is primarily revenue, or if payment
revenue is, at least, one of the real and substantial
purposes, then the exaction is properly called a tax.
(Planters Products, Inc. v. Fertiphil Corp., G.R. No. F. KINDS OF TAXES
166006, 2008)
1. As to subject matter or object
There is no logic or justification in exacting a. Personal, Capitation, or Poll Tax
employment permit fee from aliens. The imposition is  Fixed amount
not regulatory but a revenue measure. It follows then  Individuals residing within specified
that the permit fee is essentially a tax for the purpose territory
of raising money under the guise of regulation.  Without regard to their property,
(Villegas v. Hiu Tsai, L-29646, 1978) occupation or business
Example: Community Tax (Cedula)
Special Assessment b. Property Tax
 Imposed on property, real or personal
TAX SPECIAL  In proportion to its value or other
ASSESSMENT reasonable method of apportionment
Example: Real estate tax
Imposed Persons, Only on land
on properties, etc. c. Excise/Privilege tax
 Imposed upon the performance of an
Why For public Public
act, the enjoyment of a privilege or the
imposed purpose improvement that engagement in an occupation,
regardless benefits the land profession or business
who/what will  This is different from the excise tax of
benefit Title VI of the NIRC
Purpose To support the Contribution to
Example: Income tax, VAT, estate tax, donor’s tax
general purposes cost of public
of government improvement
2. As to who bears the burden or incidence
When Regular exaction Exceptional as to a. Direct - imposed on the person who also
imposed time and locality bears the burden thereof
Example: income tax, community tax,
Basis Necessity Benefits obtained estate tax
b. Indirect - imposed on the taxpayer who shifts

the burden of the tax to another (Maceda v.
Macaraig, Jr., 1991)
Example: VAT, specific tax, percentage tax,

customs duties
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General Rule: The proper party to seek a refund is b. Regressive - tax rate decreases as the tax
the statutory taxpayer. (Silkair v. CIR, G.R. No. base increases
173594, 2008)
c. Proportionate or Flat - based on a fixed
Exception: if the law confers exemption from both percentage of the amount of the property,
direct or indirect taxes, claimant is entitled to a refund income or other basis to be taxed
even if claimant is not the statutory taxpayer but only Example: Real estate tax, VAT, percentage
bears the economic burden of the tax. (Philippine tax
Airlines v. CIR, G.R. No. 198759, 2013)
d. Mixed - the tax rates are partly progressive
3. As to tax rates or determination of amount and partly regressive.
a. Specific - tax imposed and based on a
physical unit of measurement, as by head, G. DOCTRINES IN TAXATION
number, weight, length or volume
Example: Tax on distilled spirits, fermented 1. LIFEBLOOD THEORY
liquors, cigars
Taxes are the lifeblood of the Government. Without
revenue raised from taxation, the government will not
b. Ad Valorem - tax of a fixed proportion of the
survive, resulting in detriment to society. Without
value of property with respect to which the
taxes, the government would be paralyzed for lack of
tax is assessed; requires intervention of
motive power to activate and operate it.
assessor.
(Commissioner v. Algue, G.R. No. L-28896, 1988)
Example: Real estate tax, excise tax on
cars, non-essential goods
2. CONSTRUCTION AND
c. Mixed INTERPRETATION OF TAX LAWS,
RULES AND REGULATIONS
4. As to purposes
a. General, fiscal or revenue- imposed for the Tax Laws
general purpose of supporting the General rule: Tax laws are construed liberally in
government favor of the government and strictly against the taxing
Example: Income tax, percentage tax authority. In case of doubt, tax statutes are construed
strictly against the government and liberally in favor
b. Special or regulatory - imposed for a special of the taxpayer. (CIR v. CA, G.R. No. 107135, 1999)
purpose, to achieve some social or
economic objectives Taxes, being burdens, are not to be presumed
beyond what the statute expressly and clearly
Example: Protective tariffs or customs duties declare.
Tax statutes offering rewards are liberally construed

5. As to scope or authority to impose
in favor of informers.
a. National - imposed by the national
government
Exception: Where the language of the tax statute is
Example: National internal revenue taxes,
plain and there is no doubt as to the legislative intent.
custom duties
In such case, the words employed are to be given
their ordinary meaning.
b. Municipal or local - imposed by the municipal
corporations or local governments
Tax Exemptions and Exclusions
Example: Real estate tax, occupation tax General rule: Exemptions are not favored and are
construed strictissimi juris against the taxpayer.
6. As to graduation of rate (three systems of
An exemption from the common burden cannot be
taxation)
permitted to exist upon vague implication or
a. Progressive or graduated - tax rate
inference.
increases as the tax base or bracket
increases
Taxation is the rule while exemption is the exception.
Therefore, whoever claims exemption must be able
Example: Income tax, estate tax, donor’s tax
to justify his claim or right thereto, by a grant
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expressed in terms “too plain to be mistaken and too 2. Where the facts subsequently gathered by
categorical to be misinterpreted.” the Bureau of Internal Revenue are
materially different from the facts on which
If not expressly mentioned by law, it must at least be the ruling is based; or
within its purview by clear legislative intent. 3. Where the taxpayer acted in bad faith.
Claims for refund partake of the nature of tax Penal Provisions of Tax Laws
exemptions and will not be allowed unless granted in Strict construction so as not to extend the plain terms
the most explicit and categorical language. thereof that might create offenses by mere
implication not so intended by the legislative body.
Exceptions: (People v. Martin, G.R. No. L-38019, 1980)
1. When the law itself expressly provides
for a liberal construction, that is, in case 3. Prospectivity Of Tax Laws
of doubt, it shall be resolved in favor of This principle provides that a tax law must only be
exemption. applicable and operative prospectively.
2. When the exemption is in favor of the
government itself or its agencies Taxes may be imposed retroactively by law, but
because the general rule is that they are unless so expressed by such law, these taxes must
exempt from tax only be imposed prospectively. (Hydro Resources v.
3. When the exemption refers to religious, CA, G.R. No. 80276, 1990)
charitable and educational institutions
4. When there is an express mention or Ex post facto is not applicable for tax purposes.
when the taxpayer falls within the However, when it comes to civil penalties like fines
purview of the exemption by clear and forfeiture (except interest), tax laws may provide
legislative intent, the rule on strict and allow its application retroactively, unless it
construction does not apply. produces harsh and oppressive consequences which
violate the taxpayer’s constitutional rights regarding
Tax Rules and Regulations equity and due process. (Fernandez v. Fernandez,
The construction placed by the office charged with G.R. No. L-9141, 1956; CIR v. Filipinas Compañas
implementing and enforcing the provisions of the de Seguros, G.R. No. 14880, 1960)
NIRC should be given controlling weight unless such
interpretation is clearly erroneous. 4. Imprescriptibility Of Taxes
Although the NIRC provides for the limitation in the
Taxpayers cannot be deprived of their entitlement to assessment and collection of taxes imposed, such
the benefit of a treaty for failure to strictly comply with will only be applicable to those taxes where a tax
an administrative issuance requiring the prior return is required. The prescriptive period shall start
application for tax treaty relief. At most, the from the time the taxpayer files the tax return and
application for a tax treaty relief from the BIR should declares his liability. (Bisaya Land Transportation Co.
merely operate to confirm the entitlement of the v. Collector of Internal Revenue, G.R. Nos. L-12100
taxpayer to the relief. The denial of a tax relief based & L-11812, 1959).
on a tax treaty due to the failure of a taxpayer to
comply with a RMO would impair the value of the tax Unless otherwise provided by the tax law itself, taxes
treaty and the State’s duty to comply in good faith in general are imprescriptible. (CIR v. Ayala
with the tax treaty. (Deutsche Bank AG Manila v. CIR, Securities Corporation, G.R. No. L-29485, 1976)
G.R. No. 188550, 2013)
The law on prescription being a remedial measure
Non-retroactivity of Rulings (Sec. 246) - Any should be interpreted liberally in favor of the taxpayer
revocation, modification or reversal of any of the rules in order to protect the taxpayer. (Republic v. Ablaza,
and regulations promulgated in accordance with the G.R. No. L-14519, 1960)
preceding Sections or any of the rulings or circulars
promulgated by the Commissioner shall not be given
retroactive application if the revocation, modification
or reversal will be prejudicial to the taxpayers, except
in the following cases:
1. Where the taxpayer deliberately misstates
or omits material facts from his return or any
document required of him by the Bureau of
Internal Revenue;
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5. Double taxation receives the proceeds of one tax. (Commissioner v.

Lednickey, G.R. No. L-18169, 1964)
a. Direct Double Taxation (Strict sense)
The same property is taxed twice when it should be c. Tax treaties as relief from double taxation
taxed only once. Modes of eliminating Double Taxation
 Provide for exemptions or allowance of
Both taxes must be imposed: deduction or tax credit for foreign taxes;
 On the same property or subject matter;  Enter into treaties with other states (e.g.,
 For the same purpose; former Phil-Am Military Bases Agreements
 By the same taxing authority; as to income tax); or
 Within the same jurisdiction or taxing district  Apply the principle of reciprocity.
and during the same period; and
 They must be of the same kind or character In the case of CIR v S.C. Johnson & Sons, Inc., (G.R.
of tax. (Villanueva v. City of Iloilo, G.R. No. No. 127105, 1999), International Juridical Double
L-26521, 1968) Taxation is defined as an imposition of comparable
b. Indirect Double taxation (Broad sense) taxes in two or more States on the same taxpayer in
It means indirect duplicate taxation. It extends to all respect of the same subject matter and for identical
cases in which there are two or more pecuniary periods. In order to eliminate double taxation, a tax
impositions. The Constitution does not prohibit the treaty is entered into by the two contracting States.
imposition of double taxation in the broad sense. The apparent rationale for doing away with double
taxation is to encourage the free flow of goods and
Constitutionality of Double Taxation services and the movement of capital, technology
The SC held that there is no constitutional prohibition and persons between countries, conditions deemed
against double taxation in the Philippines. (Villanueva vital in creating robust and dynamic economies.
v. City of Iloilo, G.R. No. L-26521, 1968) Therefore, it
may not be a valid defense against the validity of a 6. Exemption from taxation
tax measure. (Pepsi-Cola v. Tanauan, G.R. No. L-
31156, 1976) What is prohibited is direct double Tax Exemption
taxation. The grant of immunity to particular persons or
corporations or to persons or corporations of a
There is no double taxation in the following cases: particular class from a tax which persons and
 By taxing corporate income and corporations generally within the same state or taxing
stockholders’ dividends from the same district are obliged to pay. It is an immunity
corporation; or privilege; it is freedom from a financial charge or
 Tax imposed by the State and the local burden to which others are subjected. (Greenfield v.
government upon the same occupation, Meer, G.R. No. 156, 1946)
calling or activity;
 Real estate tax and income tax collected on Nature of Tax Exemption
the same real estate property leased for Exemption from taxes is personal in nature and
earning purposes (Villanueva v. City of Iloilo, covers only taxes for which the taxpayer-grantee is
G.R. No. L-26521, 1968); and directly liable. In any case, it cannot be transferred or
 Taxes are imposed on taxpayer’s final assigned by the person to whom it is given without
product and the storage of raw materials the consent of the State.
used in the production of the final product
(Procter and Gamble Philippines v. Tax exemptions are strictly construed against the
Municipality of Jagna, G.R. No. L-24265, taxpayer because such provisions are highly
1979). disfavored and may almost be said to be odious to
the law. (Manila Electric Company v. Vera, G.R. No.
Example: L-29987, 1975)
Spouses are American citizens residing in the
Philippines, hence, they pay income taxes in the Exemptions are not presumed, but when public
Philippines and federal income taxes in the US. The property is involved, exemption is the rule, and
Court held that double taxation becomes obnoxious taxation, the exception.
only where the taxpayer is taxed twice for the benefit
of the same governmental entity. In this case, while General Rule: Exemptions are not presumed.
the taxpayers would have to pay two taxes on the Exception: When public property is involved (i.e.,
same income, the Philippine government only exemption is the rule, and taxation, the exception)
PAGE 45 of 490
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There can be no simultaneous exemptions under two Purpose is some public benefit or interest, which the
laws, one partial and the other total. law-making body considers sufficient to offset the
monetary loss entailed in the grant of exemptions.
Kinds of Tax Exemption
1. Express (or affirmative) – when certain Created in a treaty on grounds of reciprocity or to
persons, property or transactions are, by lessen the rigors of the international double or
express provision, exempted from all or multiple taxation.
certain taxes, either entirely or in part.
Equity is not a ground for tax exemption.
Examples of Statutory Tax Exemptions:
 Intercorporate dividends by a domestic Revocation of tax exemption
corporation from another domestic Tax exemption is generally revocable. The
corporation1 congressional power to grant an exemption
 Section 105 of the Tariff and Customs necessarily carries with it the consequent power to
Code revoke the same.
 Section 234 of the Local Government
Code In order to be irrevocable, the tax exemption must be
 Other special laws such as Omnibus founded on a contract or granted by the Constitution.
Investment Code of 1987 and Philippine
Overseas Shipping Act By way of exception, a contractual tax exemption
obtained from the State for a valid and material
2. Implied (or by omission) – when a tax is consideration of a mutual nature cannot be revoked
levied on certain classes of person, without impairing the obligation of contracts under the
properties or transactions without Constitution. (Mactan Cebu Int’l Airport Authority v.
mentioning the other classes. Every tax Marcos, G.R. No. 120082, 1996; MERALCO v.
statute makes exemptions since all those Province of Laguna, G.R. No. 131359, 1999)
not mentioned are deemed exempted. The
omission may either be accidental or 7. Escape from taxation
intentional.
a. Shifting of tax burden
3. Contractual – those lawfully entered into by The imposition of tax is transferred from the statutory
the government in contracts under existing taxpayer to another without violating the law.
laws. These exemptions must not be
confused with the tax exemptions granted Ways of shifting the tax burden (FBO):
under franchises, which are not contracts 1. Forward shifting: The transfer of burden
within the context of non-impairment clause from the producer to distributor until it finally
of the Constitution. (Cagayan Electic Co. v. reaches the ultimate purchaser or consumer
CIR, G.R. No. L-60126, 1985)
2. Backward shifting: The reverse of forward
The mere undertaking of NPC under the Agreement, shifting, e.g. the manufacturer has agreed to
that it shall be responsible for the payment of all real buy the supplier’s product only if the price is
estate taxes and assessments, does not justify the reduced by the amount of tax
exemption of FELS – a private company. The
privilege granted to NPC cannot be extended to 3. Onward shifting: The tax burden is shifted
FELS. (Fels Enegry, Inc. v. Province of Batangas, twice or more either forward or backward
G.R. Nos. 168557 & 170628, 2007)
Rationale/grounds for exemption

A presumption that the public interest will be
subserved by the exemption allowed. Grant of
exemption rests upon that such will benefit the body
of the people and not upon any idea of lessening the
burden of the individual owners of property.
1SEC.27 (D) (4) Intercorporate Dividends. - Dividends received by a

domestic corporation from another domestic corporation shall not
be subject to tax.
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Taxes that can be shifted It connotes the integration of three factors:

1. VAT 1. End to be achieved, i.e., the payment of less
2. Percentage tax than that known by the taxpayer to be legally
3. Excise tax on excisable articles due, or the non-payment of tax when it is shown
4. Ad valorem taxes that oil companies pay to that a tax is due;
BIR upon removal of petroleum products 2. Accompanying state of mind which is
from its refinery described as being "evil," in "bad faith," "willful,"
or "deliberate and not accidental"; and
Meaning of impact and incidence of taxation 3. Course of action or failure of action, which
 Impact of Taxation – point on which the tax is unlawful. (Toda, Jr. v. CA, G.R. No. 78583,
is originally imposed or the one on whom the 1990).
tax is formally assessed.
TAX
 Incidence of Taxation – point on which the TAX EVASION
AVOIDANCE
tax burden finally rests or settles down. Other Tax Dodging Tax
Name Minimization
Example: VAT is originally assessed against the Means Use Illegal Use legal
seller who is required to pay the said tax, but the
means means
burden is actually shifted or passed on to the buyer.
Penalty Punishable by Not punishable
It is important to know where the impact of taxation law by law
lies (i.e. who the statutory taxpayer is) because it will Object To escape To minimize
generally determine: payment of payment of
1. The proper party to claim a refund of taxes taxes
erroneously imposed indirect taxes; and
2. Whether the indirect taxes can be passed on Willful Blindness Doctrine
to an exempt buyer. An individual or corporation can no longer say that
the errors on their tax returns are not their
b. Distinguish: tax avoidance and tax responsibility or that it is the fault of the accountant
evasion they hired.
Tax avoidance – also called tax minimization, is a An act is willful if it is “voluntary, conscious and
tax saving device that is legally permissible intentional.” Bad motive or intent to defraud need not
be shown. The only thing that needs to be shown is
The Court held that tax avoidance is the use of a tax that the taxpayer is aware of his/her obligation to file
saving device within the means sanctioned by law. annual income tax returns but “she nevertheless,
Any tax avoidance scheme should be used by the voluntarily, knowingly and intentionally failed to file
taxpayer in good faith and at arm’s length (CIR v the required returns.” (People v. Kintanar, CTA E.B.
Estate of Benigno Toda Jr., G.R. 147188, 2004) No. 006, 2010, affirmed by the SC in 2012)
When a merger or reincorporation is undertaken for However, in the case of People v. Judy Ann Santos
a bona fide purpose and not solely for the purpose of (CTA Case No. 012, 2013), affirmed by the SC in
escaping the burden of taxation, it is not evasion. 2013, the CTA Division acquitted Santos although
The questioned merger involved a pooling of the BIR asserted the same arguments it made in the
resources aimed at the continuation and expansion Kintanar case. Santos was charged with failure to
of business and so came under the intendment of the supply correct and accurate information in her ITR.
NIRC exempting from the capital gains tax She claimed that by virtue of trust, respect and
exchanges of property effected under lawful confidence, she entrusted her finances to her
corporate combinations. (Commissioner v. Rufino, manager since she was a child. Here, the CTA
G.R. No. L-33665-68, 1987) Division found that the element of willfulness and
motive to commit fraud were wanting and that Santos
Tax evasion – connotes fraud through the use of was merely negligent. Unlike Santos, who did not
pretenses and forbidden devices to lessen or defeat know any better, Kintanar was an experienced
taxes; must be willful and intentional businesswoman who ought to have known and
understood all the matters concerning her business,
including knowledge and awareness of her tax
obligations concerning her business and should have
ensured the correct filing of her returns.
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People v. Kintanar People v. Santos 9. Prohibition on compensation and

Tax evasion connotes the integration of the set-off
three factors. Taxes are not subject to set-off or legal
All elements are Lacks the element of compensation because the government and the
present willfulness taxpayer are not mutual creditor and debtor of each
other. (Republic v. Mambulao Lumber Co., G.R. No.
“Willful" in tax crimes The element of willful
L-17725, 1962; Caltex Phils. v. COA, G.R. No.
means voluntary, failure to supply correct 92585, 1992)
intentional violation of and accurate
a known legal duty, information must be
Taxes are not subject to set-off or compensation for
and bad faith or bad fully established as a the following reasons:
purpose need not be positive act or state of 1. Taxes are of distinct kind, essence and nature,
shown mind. It cannot be and these impositions cannot be classed in
presumed nor merely the same category as ordinary
attributed to mere obligations;
inadvertent or 2. The applicable laws and principles governing
negligent acts. each are peculiar, not necessarily common, to
Involves non-filing of Involves failure to each other; and
Income Tax Return. supply correct and 3. Public policy is better subserved if the integrity
accurate information. and independence of taxes are maintained.
The elements of a Mere understatement (Republic v. Mambulao Lumber Co., G.R. No. L-
violation of Section of a tax is not itself 17725, 1962)
255 of the NIRC for proof of fraud for the
failure to make or file purpose of tax evasion. A person cannot refuse to pay tax on the basis that
a return are: the government owes him an amount equal to or
The elements of a greater than the tax being collected. The collection
1. The accused is a violation of Section 255 of a tax cannot await the results of a lawsuit against
person required to of for failure to supply the government. (Philex Mining Corp. v. CIR, G.R.
make or file a return; correct and accurate No. 125704, 1998; Francia v. Intermediate Appellate
Court, G.R. No. L-67649, 1988)
2. The accused failed information are:
to make or file the In several cases, as an exception to offsetting, the
return at the time 1. That a person is Court have allowed the determination of the
required by law; required to supply taxpayer’s liability in a refund case, thereby allowing
3. The failure to make correct and accurate the offsetting taxes. In these cases, offsetting was
or file the return was information; allowed because the determination of the taxpayer’s
willful. 2. That there is failure liability is intertwined with the resolution for the claim
to supply correct and of refund.
accurate information at
the time or times In the case of TPC, where in it filed a claim for refund
required by law or rules or credit under Sec. 112 of the NIRC while the issue
and regulations; and to be resolved is whether TPC is entitled of its
3. That such failure to unutilized input VAT, the offsetting was not allowed.
supply correct and The Court held that, since it is not a claim for refund
accurate information is under Section 229 of the NIRC, the correctness of
done willfully. TPC's VAT returns is not an issue. Hence, the
determination of the taxpayer’s liability was not
related with the resolution of the claim for refund or
8. Equitable recoupment
credit offsetting was also not an issue. (CIR v. Toledo
When a taxpayer is entitled to a claim for refund but
Power Company, G.R. No. 196415, 2015)
he was not able to file a written claim within the
prescribed time, the taxpayer is allowed to credit the
————- end of topic ————
amount for refund against his existing liability. This is
not allowed in the Philippines and is applied in
common law countries.
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III. LEGISLATIVE DEPARTMENT A. LEGISLATIVE POWER
1. SCOPE AND LIMITATIONS

TOPIC OUTLINE UNDER THE SYLLABUS:
Nature of Legislative Power
A. LEGISLATIVE POWER Legislative power is the authority to make, alter and
1. Scope and limitations repeal laws. (PHIL. CONST., art. VI, § 1.)
2. Principle of non-delegability;
exceptions Classification of Legislative Power (COrODe):
1. Constituent - the power to propose
B. HOUSES OF CONGRESS; amendments to the Constitution
COMPOSITIONS AND QUALIFICATIONS 2. Ordinary - the power to pass ordinary laws
1. Senate 3. Original - possessed by the people in their
2. House of Representatives sovereign capacity, exercised via initiative
a. District representatives and and referendum.
questions of apportionment 4. Delegated - possessed by Congress and
b. Party-list system other legislative bodies by virtue of the
Constitution; subordinate to the original
C. LEGISLATIVE PRIVILEGES; power of the people who delegated the
INHIBITIONS; AND DISQUALIFICATIONS same.
D. QUORUM AND VOTING MAJORITIES Who Exercises Legislative Power (CoLoPeP)
E. DISCIPLINE OF MEMBERS 1. Congress
Legislative power is vested in Congress, which
F. PROCESS OF LAW-MAKING consists of the Senate and the House of
Representatives.
G. APPROPRIATION AND RE-ALIGNMENT
General Plenary Power
H. LEGISLATIVE INQUIRIES AND The grant of legislative power to Congress is broad,
OVERSIGHT FUNCTIONS general and comprehensive. The legislative body
possesses plenary power for all purposes of civil
I. POWER OF IMPEACHMENT government. Any power, deemed to be legislative by
usage and tradition, is necessarily possessed by
J. ELECTORAL TRIBUNALS AND THE Congress, unless the Constitution has lodged it
COMMISSION ON APPOINTMENTS elsewhere. Except as limited by the Constitution,
1. Powers and Jurisdiction either expressly or impliedly, legislative power
embraces all subjects and extends to matters of
K. INITIATIVE AND REFERENDUM general concern or common interest. (Ople v. Torres,
G.R. No. 127685, July 23, 1998)
2. Local Legislative Body

Local legislative bodies are allowed by the
Constitution to legislate on purely public matters.
Since what was given to local legislative bodies is not
power to make rules and regulations but legislative
power, the rules on valid delegation do not apply.
However, when what is given to a local legislative
body is executive power, the rules applicable to the
empowerment of administrative agencies also
becomes applicable (Rubi v. Provincial Board, G.R.
No. L-14078. March 8, 1919).
Requisites of A Valid Ordinance: (Must NOT

CUPPU, Must be GC)
1. Must not Contravene the Constitution or any
statute
2. Must not be Unfair or oppressive
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3. Must not be Partial or discriminatory 2. The legislative power of Batasan was

4. Must not Prohibit, but may regulate trade ordinary, while the legislative power of the
5. Must not be Unreasonable President was extraordinary. Hence, the
6. Must be General and Consistent with public President in his judgment may undo what
policy (Magtajas v. Pryce Properties, G.R. the legislature might have done not to his
No. 111097, July 20, 1994). satisfaction (Bernas, 1987 Philippine
Constitution: A Commentary, 684, 2009).
3. People’s Initiative on Statutes
Revolutionary Government
4. The President under a Martial Law Rule or in a a. Proclamation No. 3
Revolutionary Government After the 1986 revolution, President Corazon Aquino
assumed revolutionary legislative power and, on
Martial Law March 25, 1986 issued Proclamation No. 3, the
During the period from 1972 to 1987, the laws of the Provisional Freedom Constitution. Article II, Section
Philippines did recognize the legislative power 1 vested legislative power in the President until a
lodged in the presidency. Today, the 1987 legislature is elected and convened under a new
Constitution has not disturbed this fact and still Constitution.
recognizes the legitimate exercise of legislative
power by then President Ferdinand Marcos (Bernas, b. 1987 Constitution
1987 Philippine Constitution: A Commentary, 681, Section 6 of the Transitory Provisions of the 1987
2009). Constitution provides that “The incumbent President
shall continue to exercise legislative powers until the
a. Martial Law Powers and Article XVII of the 1973 first Congress is convened.”
Constitution
Shortly after martial law and the birth of the 1973 President Corazon Aquino exercised legislative
Constitution the legislative power in the President, as power alone while President Ferdinand Marcos
flowing from his martial law powers and Article XVII, exercised legislative power concurrently first with the
Section 3(2) of the 1973 Constitution, was interim Batasang Pamabansa and then with the
recognized as extraordinary legislative power given regular Batasang Pambansa (Bernas, 1987
to the President to enable him to cope with an Philippine Constitution: A Commentary, 685, 2009).
extraordinary situation especially at a time when
there was no operating legislative body (Aquino, Jr. President Corazon Aquino lost her legislative power
v. COMELEC, G.R. No. L-40004, January 31, 1975). on July 26, 1987 when Congress was convened.
b. Amendment No. 6 Limitations on Legislative Power

In 1976, Amendment No. 6 clarified the legislative
power of the President: “Whenever in the judgment A. Substantive - limitations on the content of
of the President (Prime Minister), there exists a grave laws
emergency or threat or imminence thereof, or
whenever the interim Batasang Pambansa or the Express limitations
regular National Assembly fails or is unable to act 1. Bill of Rights
adequately on any matter for any reason that in his a. No law shall be passed abridging
judgment requires immediate action, he may, in order freedom of speech, of expression,
to meet the exigency, issue the necessary decrees, etc.
orders or letters of instruction, which shall form part b. No law shall be made respecting an
of the law of the land.” establishment of religion or
prohibiting the free exercise thereof
The legislative power given in Amendment no. 6 is c. No law impairing the obligation of
also concurrent with that of the regular Batasang contracts shall be passed
Pambansa (Legaspi v. Minister of Finance, G.R. No. d. No ex post facto law or bill of
L-58289, July 24, 1982). attainder shall be enacted
2. On appropriation
NOTE: a. The procedure in approving
1. The 1973 Constitution provided for two appropriations for Congress shall
concurrent legislative agencies: strictly follow the procedure for
a. Batasang Pambansa approving appropriations for other
b. President departments or agencies
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b. Prohibition against use of public 2. Three readings on separate days, printed

money or property for a religious copies of the final bill in its final form to be
purpose distributed to members three days before its
c. No specific funds shall be passage, except if the President certifies to
appropriated or paid for use or its immediate enactment to meet a public
benefit of any religion, sect, etc., calamity or emergency; upon its last
except for priests, etc. assigned to reading, no amendment is allowed and the
AFP, penal institutions, etc. vote thereon taken immediately and the
3. On taxation yeas and nays entered into the Journal.
a. No law granting any tax exemption 3. Appropriation, revenue, tariff, bills
shall be passed without the authorizing the increase of public debts, bills
concurrence of a majority of all of local application, and private bills shall
Members of Congress originate exclusively in the House of
b. All money collected on any tax Representatives.
levied for a special purpose shall be
treated as a special fund and paid 2. PRINCIPLE OF NON-DELEGABILITY;
out for such purpose only EXCEPTIONS
c. All revenues and assets of non-
stock, non-profit educational Principle of Non-Delegability
institutions General Rule: Congress cannot delegate its
4. On the Supreme Court’s jurisdiction. No law legislative power under the principle of non-
shall be passed increasing the appellate delegation (delegata potestas non potest delegari or
jurisdiction of the Supreme Court as delegated power may not be delegated).
provided in the Constitution without its
advice and concurrence Exceptions: (PLATE)
5. On nobility. No law granting title of royalty 1. To the extent reserved to the People by the
or nobility shall be passed provision on initiative and referendum.
2. Delegation to Local government
Implied limitations 3. Delegation of rule-making power to
1. Prohibition against irrepealable laws Administrative bodies
2. Non-delegation of powers 4. Congress may delegate Tariff powers to the
President
Jurisprudence 5. Emergency powers delegated by Congress
1. Power to provide holdover: Congress cannot to the President.
provide for the holdover of elective officers if
the same would go beyond their terms fixed For an exhaustive discussion of this topic, see II(F)
by the Constitution (Abas Kida v. Senate, [Delegation of Powers] of this Reviewer.
G.R. No. 196271, 2011).
2. Power to create new term and appoint the B. HOUSES OF CONGRESS;
occupant of the position: Congress cannot COMPOSITIONS AND
create a new term and effectively appoint the QUALIFICATIONS
occupant of the position for the new term.
(Id.)
1. SENATE
3. Power to grant franchise for public utilities:
Congress cannot grant legislative franchises
for the operation of public utilities which shall Composition
be exclusive in character and which shall not 24 who are elected at large by the qualified voters of
be subject to amendment, alteration or the Philippines. (PHIL. CONST., art. VI, § 2.)
repeal when common good requires
(Tawang Multipurpose v. La Trinidad Water Term of Office
District, G.R. No. 166471, 2011). 6 years commencing at noon on the 30th day of June
following their election (PHIL. CONST., art. VI, § 4.)
B. Procedural - limitations on the manner of Term Limit
passing laws No Senator shall serve for more than 2 consecutive
terms. Voluntary renunciation of the office for any
1. There must only be one subject to be stated length of time shall not be considered as an
in the title of the bill to prevent hodgepodge interruption in the continuity of his service for the full
or log-rolling legislation. term for which he was elected (PHIL. CONST., art. VI,
§ 4.)
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2. HOUSE OF REPRESENTATIVES Term of 6 years Term of 3 years

commencing at noon commencing at noon
Composition on June 30, on June 30, next
Not more than 250 members, unless otherwise fixed next following their following their election
by law, consisting of: election
1. District Representatives: elected from Term limit: no more Term limit: no more
legislative districts apportioned among the than 2 consecutive than 3 consecutive
provinces, cities and the Metropolitan Manila terms terms
area
2. Party-list Representatives: shall constitute
20% of the total number of the members of a. District representatives and
the House of Representatives including questions of apportionment
those under the party-list.
District Representative (PHIL. CONST., art. VI, § 5.)
Term of Office Elected from legislative districts that are
3 years, commencing at noon on the 30th day of June apportioned in accordance with the number of
next following their election inhabitants in each area and on the basis of a
uniform and progressive ratio.
Term Limit
No member of the HOR shall serve for more than 3 Qualifications
consecutive terms. Voluntary renunciation of the 1. Natural born citizen
office for any length of time shall not be considered 2. At least 25 years of age on the day of the
as an interruption in the continuity of his service for election
the full term for which he was elected. 3. Able to read and write
4. Registered voter in the district in which he
List of Qualifications for both Senators and shall be elected
Members of the House 5. A resident of the Philippines for a period of
The qualifications of both Senators and Members of not less than 1 year immediately preceding
the House are LIMITED to those provided by the the day of the election
Constitution. Congress cannot, by law, add or
subtract from these qualifications (PHIL. CONST., art. Residence Requirement
VI, § 3 & 6; Pimentel v. COMELEC, G.R. No. 161658, 1. The term "residence" has been understood
Nov. 3, 2008). as synonymous with domicile not only under
the previous Constitutions but also under the
1987 Constitution. (Co v. HRET, G.R. Nos.
Qualifications for Senate and House of
92191-92, July 30, 1991)
Representatives:
2. Domicile denotes a fixed permanent
SENATOR REPRESENTATIVE
residence to which when absent for
Natural-born citizen of the Philippines business or pleasure, one intends to return.
Able to read and write a. The absence of a person from said
At least 35 years old At least 25 years old permanent residence, no matter
on the DAY OF THE on the DAY OF THE how long, notwithstanding, it
ELECTION ELECTION continues to be the domicile of that
At least 35 years old At least 25 years old person.
on the DAY OF THE on the DAY OF THE b. In other words, domicile is
ELECTION ELECTION characterized by animus
Registered voter Registered voter in the revertendi. (Id.)
district in which he 3. The manifest intent of the law in fixing a
shall be elected residence qualification is to exclude a
(except party-list stranger or newcomer, unacquainted with
representatives) the conditions and needs of a community
Resident of the Resident of the said and not identified with the latter, from an
Philippines for at least district for at least 1 elective office to serve that community.
2 years immediately year immediately (Gallego v. Verra, G.R. No. L-48641, Nov.
preceding the election preceding election 24, 1941)
(except party-list 4. Domicile of origin is not easily lost. To
representative) successfully effect a change of domicile, the
following must be proven: (AID)
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a. an Actual removal or an actual

and voting power
change of domicile
among the districts
b. a bona fide Intention of abandoning
the former place of residence and
establishing a new one Only Congress can create provinces and cities
c. Definite acts which correspond with because the creation of provinces and cities
the purpose (Aquino v. COMELEC, necessarily includes the creation of legislative
G.R. No. 120265, Sept. 18, 1995) districts, a power only Congress can exercise under
5. Therefore, in order to acquire a domicile by Section 5, Article VI of the Constitution and Section 3
choice, there must be an animus non of the Ordinance appended to the Constitution. The
revertendi and an animus manendi. (Gallego ARMM Regional Assembly cannot create a province
v. Verra, G.R. No. L-48641, Nov. 24, 1941) without a legislative district because the Constitution
6. While voting is not conclusive of residence, mandates that every province shall have a legislative
it does give rise to a strong presumption of district (Sema v. COMELEC, G.R. No. 177597, July
residence. The fact that one has 16, 2008).
continuously voted in a particular locality is
a strong factor in assisting to determine the The COMELEC cannot correct the imbalance
status of his domicile. (Domino v. resulting from the increase of districts by transferring
COMELEC, G.R. No. 134015, July 29, districts. The COMELEC must wait for a legislative
1999) enactment. (Montejo v. COMELEC, G.R. No.
7. It is the fact of residence, not a statement in 118702, March 16, 1995)
a certificate of candidacy which ought to be
decisive in determining whether or not an Rules on apportionment of legislative districts
individual has satisfied the constitution's Under the Constitution
residency qualification requirement. The 1. Legislative districts shall be made in
said statement becomes material only when accordance with the number of respective
there is or appears to be a deliberate attempt inhabitants and on the basis of a uniform and
to mislead, misinform, or hide a fact which progressive ratio
would otherwise render a candidate 2. Each district shall comprise, as far as
ineligible. (Romualdez-Marcos, G.R. No. practicable, Contiguous, Compact and
119976, Sept. 18, 1995) Adjacent territory. (CCA)
3. Each city with at least 250,000 inhabitants
Creation of Legislative Districts will be entitled to at least one representative
The rules on legislative apportionment or creation of while each province will have at least one
legislative districts are found in Art. VI, Section 5 (1), representative.
(3) and (4) (Bagabuyo v. COMELEC, G.R. No. 4. Each province, irrespective of the number of
176970, Dec. 8, 2008). inhabitants, is entitled to at least 1
representative
5. Legislative districts shall be re-apportioned
LEGISLATIVE
REAPPORTIONMENT by Congress within 3 years after the return
APPORTIONMENT
of each census.
The determination of The realignment or
the number of change in legislative Gerrymandering
representatives which districts brought about Formation of one legislative district out of separate
a State, county or by changes in territories for the purpose of favoring a candidate or
other subdivision may population and a party. This is the reason why the Constitution
send to a legislative mandated by the requires that Legislative Districts be continuous,
body constitutional compact, and adjacent.
requirement of equality
It is the allocation of of representation
seats in a legislative
body in proportion to
the population; the
drawing of voting
district lines so as to
equalize population
PAGE 54 of 490
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Jurisprudence Gerrymandering
1. 250,000 minimum population NOT a The formation of one legislative district out of
requirement for provinces: There is no separate territories for the purpose of favoring a
specific provision in the Constitution that candidate or a party (Navarro v. Executive Secretary,
fixes a 250,000 minimum population that G.R. No. 180050, Feb. 10, 2010).
must compose of every legislative district.
What the Constitution provides is a 250,000 The Constitutional standards used to determine the
minimum population only for a city to be apportionment of legislative districts, i.e. that each
entitled to a representative, but not so for a legislative district is to comprise, as far as
province (Aquino v. COMELEC, G.R. No. practicable, a contiguous, compact, and adjacent
189793, April 7, 2010). territory, is meant to prevent ‘gerrymandering.’ (Id.)
2. 250,000 only to create an initial
legislative district: The requirement for Difference of Reapportionment in Sec. 5(10), Art.
cities applies only to its initial legislative VI and the Creation of LGU in Sec. 10, Art. X.
district. The Constitution does not require a In the former, the purpose is to ensure better access
city to increase its population by another to one’s district representative in Congress. No
250,000 to be entitled to an additional district political or corporate unit is created. Thus, there is no
(Id.) need for a plebiscite in the creation, dissolution, or
3. Necessity of confirmation by plebiscite: any other similar action on a legislative district.
a. The creation of legislative districts
does not need confirmation by In the latter, political and corporate units are created
plebiscite if it does not involve the or altered. These possess legal personality and are
creation of a local government unit considered “instrumentalities of the State in carrying
(Bagabuyo v. COMELEC, G.R. No. out the functions of government”. They exercise
176970, Dec. 8, 2008). special functions for the sole benefit of constituents.
b. When a municipality is converted Thus, the need for a plebiscite to expressly secure
into a city large enough to entitle it the consent of the people affected by the creation,
to one district, the incidental effect division, merger, abolition or alteration of boundaries
is splitting the district into two. This of local government units through a plebiscite
does not need a consensus. There (Bagabuyo v. COMELEC, G.R. No. 176970, Dec. 8,
is no need for plebiscite under Art. 2008).
X of the Constitution when one
district is split into two, because b. Party-list system
there is no creation of new juridical
personalities nor division of territory Party-List Representatives (Sec. 5 (2))
per se. There is only a need for Constitute 20% of the total number of representatives
plebiscite if you are creating a new (the total includes the party-list representatives). The
Local Government Unit (Tobias v. maximum number of House of Representative
Abalos, G.R. No. L-114783, Dec. 8, members is set at 250, which means a maximum of
1994). 50 party-list members are allowed. But this number
4. Reapportionment either through a can be increased through a passage of a law (Banat
special law or general reapportionment v. COMELEC, G.R. Nos. 179271 & 179295, July 8,
law: The reapportionment of legislative 2009).
districts may be made through a special law,
such as the charter of a new city. The However, for 3 consecutive terms after the ratification
Constitution clearly provides that Congress of the 1987 Constitution (1987-1992, 1992-1995 and
shall be composed of not more than two 1995-1998) from February 2, 1987 until 1998, one
hundred fifty (250) members, unless half of the seats allocated to party-list representatives
otherwise fixed by law. As thus worded, the shall be filled as provided by law, by selection or
Constitution did not preclude Congress from election from the labor, peasant, urban poor,
increasing its membership by passing a law, indigenous cultural communities, women, youth, and
other than a general reapportionment law. such other sectors as may be provided by law, except
(Mariano v. COMELEC, G.R. No. 118577, the religious sector (PHIL. CONST., art. VI, § 5(2).).
Mar. 7, 1995)
Under Art. XVIII, Sec. 7, until a law is passed, the
President may fill by appointment from a list of
nominees by the respective sectors the seats
reserved for sectoral representation.
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c) If the total number of Party-List Seats is given.

R.A. No. 7941, the Party-List System Act was Total House Seats = Party-List Seats / 0.2
approved on March 3, 1995. This law put into place District Seats = Party-List Seats / .25
the mechanics for a party-list system of
representation based on election and ended the Parameters in Party-List Elections
appointment of sectoral representatives by the 1. 20% of the total number of the membership
President as provided in the Transitory Provisions. of the House of Representatives is the
maximum number of seats available to
For the purposes of the May 1998 elections, the first party-list organizations, such that there is
5 major political parties on the basis of party automatically one party-list seat for every
representation in the House of Representatives at the four existing legislative districts.
start of the Tenth Congress of the Philippines shall 2. Garnering 2% of the total votes cast in the
not be entitled to participate in the party-list system. party-list elections guarantees a party-list
organization one seat. The guaranteed
Mechanics (R.A. No. 7941, § 8.) seats shall be distributed in a first round of
1. Registered party-lists, organizations, or seat allocation to parties receiving at least
coalitions shall submit to the COMELEC a two percent of the total party-list votes.
list of not less than five (5) nominees in order 3. The additional seats, i.e. the remaining
of priority. seats after allocation of the guaranteed
a. A person may be nominated in one seats, shall be distributed to the party-list
(1) list only. organizations including those that received
b. Only persons who have given their less than 2% of the total votes. The
consent in writing may be named in additional seats shall be distributed to the
the list. parties in a second round of seat allocation
c. Candidates for any elective office in according to the two-step procedure laid
the immediately preceding election down in the BANAT Decision of 21 April
shall be disqualified from becoming 2009. The continued operation of the 2%
a nominee. threshold as it applies to the allocation of the
d. No change of names or alteration of additional seats is unconstitutional because
the order of nominees shall be this threshold mathematically and physically
allowed after the same shall have prevents the filling up of the available party-
been submitted to the COMELEC list seats.
4. The three-seat cap is constitutional. The
Exceptions: three-seat cap is intended by the Legislature
1. when the nominee dies to prevent any party from dominating the
2. withdraws in writing his nomination party-list system. There is no violation of the
3. becomes incapacitated in which case the Constitution because the 1987 Constitution
name of the substitute nominee shall be does not require absolute proportionality for
placed last in the list. the party-list system. The well-settled rule is
○ Incumbent sectoral representatives that courts will not question the wisdom of
in the House of Representatives the Legislature as long as it is not violative
who are nominated in the party-list of the Constitution (Banat v. COMELEC, G.
system shall not be considered R. No. 179271, July 8, 2009).
resigned.
2. The parties, organizations, and coalitions Seat Allocation for the Party-list Representatives
shall be ranked from the highest to the 1. Determine the number of seats available to
lowest based on the number of votes party-list representatives through the
garnered during elections. (R.A. No. 7941, § following formula:
11.) a. (Number of seats available to
legislative districts ÷ 0.80) x 0.20
Formula: 2. Rank all party-lists according to votes
a) If the number of District Seats is given. received.
Total House Seats = District Seats / 0.8 3. Determine the 2% qualifiers through the
Party-List Seats = District Seats x 0.25 formula below. These party-lists are
b) If the total number of House Seats is given. guaranteed one seat in the House
Party-List Seats = Total House Seats x 0.2 (“guaranteed seats” or the number of seats
District Seats = Total House Seats x 0.8 allocated to the 2% qualifiers).
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a. Number of votes received by the

party-list ÷ the total number of votes Rules on Party-Lists
cast for the party-list system 1. Principle of Social Justice: The inspiration
(divisor) of the system is social justice understood in
b. LEONEN: The divisor to be used in both the economic and political sense.
interpreting the formula used in 2. Participation not Limited to Sectoral
BANAT is the total votes cast for the Groups: Participation in the system is not
party-list system. This should not limited to the sectors enumerated by the
include the invalid votes. However, Constitution or law. The framers of the 1987
so as not to disenfranchise a Constitution did not intend to leave out non-
substantial portion of the electorate, sectoral parties in the party-list system and
total votes cast for the party-list exclusively limit it to sectoral groups.
system should mean all the votes 3. Groups must comply with the
validly cast for all the candidates Constitution and other applicable laws:
listed in the ballot, [even those] The enumeration of marginalized and under-
that are subsequently represented sectors is not exclusive. The
disqualified, so long as they were crucial element is not whether a sector is
presented as a choice to the specifically enumerated, but whether a
electorate. The voter relies on the particular organization complies with the
ballot when making his or her requirements of the Constitution and RA
choices. (ARARO v. COMELEC, 7941. Moral disapproval, without more, is
G.R. No. 192803, Dec. 10, 2013) not a sufficient governmental interest to
4. Determine the “additional seats” through the justify exclusion of homosexuals from
following formula: participation in the party-list system (Ang
a. Maximum number of seats (result of Ladlad v. COMELEC, G.R. No. 190582,
#1) - guaranteed seats April 8, 2010).
5. Divide the number of votes received by all 4. Three different groups may participate in
parties (2% qualifiers and non-qualifiers) by the party-list system:
the total number of votes cast, as in #3) and 5. national parties or organizations,
multiply the result to the number available 6. regional parties or organizations, and
seats, as in #4 7. sectoral parties or organizations.
6. Distribute the additional seats (rounded 8. Rule on National and Regional
down) in accordance to the ranking. Parties/Organizations: The national and
7. Take note of the three seat cap. (BANAT v. regional organizations need not be
COMELEC, G.R. No. 179271, 2009) economically marginalized and do not need
to organize along sectoral lines but they
Qualifications of Party List Representatives (R.A. must be politically or ideologically
No. 7941, § 9.) disadvantaged or marginalized.
1. Natural born citizen of the Philippines; 9. Rule on Sectoral Parties: Sectoral parties
2. Registered voter; or organizations may either be 'marginalized
3. Resident of the Philippines for a period of not and underrepresented' or lacking in 'well-
less than 1 year immediately preceding the defined political constituencies'. It is enough
day of the election; that their principal advocacy pertains to the
4. At least 25 years of age on the day of the special interest and concerns of their sector.
election (youth sector nominee must be at a. Marginalized and
least 25 years old but not more than 30 Underrepresented sectors: (HI
years old on day of election); FLOW PUV)
5. Able to read and write; i. Handicapped
6. A bona fide member of the party or ii. Indigenous Cultural
organization he seeks to represent for at Communities
least 90 days before the day of the election. iii. Fisher Folk
7. A nominee who changes his sectoral iv. Labor
affiliation within the same party will only be v. Overseas Workers
eligible for nomination under the new vi. Peasant
sectoral affiliation if the change has been vii. Urban Poor
effected at least six months before the viii. Veterans
elections (Amores v. HRET, G.R. No. b. Sectors that lack 'well defined
189600, June 29, 2010). political constituencies’: (PWEY)
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ix. Professionals nominee who remains qualified (Atong

x. Women Paglaum v. COMELEC, G.R. No. 203766,
xi. Elderly April 2, 2013).
xii. Youth a. The proviso does not authorize a
10. Rule on Political Party Participation: party-list from not complying with
Political parties can participate in party-list the submission of at least five
elections provided they register under the nominees upon its manifestation to
party-list system and do not field candidates participate in the party-list elections.
in legislative district elections. (COCOFED v. COMELEC, G.R.
a. A political party, whether major or No. 207026, Aug. 6, 2013).
not, that fields candidates in
legislative district elections can Disqualifications of Parties or Organizations
participate in party-list elections (R.A. No. 7941, § 6.)
only through its sectoral wing that 1. religious sector;
can separately register under the 2. advocates of violence or unlawful means of
party-list system. seeking its goal;
b. The sectoral wing is by itself an 3. foreign party or organization;
independent sectoral party, and is 4. receiving support from any foreign
linked to a political party through a government, foreign political party,
coalition (Atong Paglaum v. foundation, organization, whether directly or
COMELEC, G.R. No. 203766, April through any of its officers or
2, 2013). 5. members or indirectly through third parties
for partisan election purposes;
Rules on Members of Sectoral Parties or 6. fails to comply with laws, rules or regulations
Organizations relating to elections;
1. A majority of the members of both types of 7. declares untruthful statements in its petition;
sectoral parties or organizations must 8. ceased to exist for at least 1 year; or fails to
belong to the sector they represent, i.e. participate in the last 2 preceding elections
majority must: or, fails to obtain at least 2% of the votes
a. Be marginalized and underrepresented cast under the party-list system in the 2
or preceding elections for the constituency in
b. Lack well-defined political constituencies which it has registered.
Rules on Nominees of Party-Lists NOTE: The word “or” is a disjunctive term signifying
1. The nominees of sectoral parties or disassociation and independence of one thing from
organizations that represent the the other things enumerated; it should, as a rule, be
"marginalized and underrepresented" or that construed in the sense in which it ordinarily implies,
represent those who lack "well-defined as a disjunctive word. Thus, the plain, clear and
political constituencies," must either: unmistakable language of the law provides for two (2)
a. Belong to their respective sectors or separate reasons for delisting. (Philippine Guardians
i. To “belong” in the Brotherhood Inc. v. COMELEC, G.R. No. 190529,
marginalized and Apr. 29, 2010)
underrepresented sector
does not mean one must Who determines whether a party represents a
"wallow in poverty, marginalized sector?
destitution or infirmity." COMELEC has jurisdiction to determine whether an
ii. It is sufficient that one, or organization applying for the party list system
his or her sector, is below represents a marginalized sector. It cannot be
the middle class challenged by certiorari because the decision is
b. Have a track record of advocacy for based on facts and the SC does not try facts (V.C.
their respective sectors Cadangen v. COMELEC, G.R. No. 177179, June 5,
2. The nominees of national and regional 2009).
parties or organizations must be bona-fide
members of such parties or organizations. Sectoral parties are not required to adduce evidence
3. National, regional, and sectoral parties or showing their track record that they have undertaken
organizations shall not be disqualified if to further the cause of the sector they represent. It is
some of their nominees are disqualified, sufficient that their ideals are geared towards the
provided that they have at least one
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cause of the sector they represent (Abang-Lingkod v. Senate President or the Speaker must sign
COMELEC, G.R. No. 206952, Oct. 22, 2013). a certification, if Congress is not in session
a. Declaring the existence of vacancy
Term vs. Tenure b. Calling for a special election to be
TERM TENURE held within 45 to 90 days from the
The period during The period during date of the resolution or certification
which the elected which such officer 3. The Senator or representative elected shall
officer is legally actually holds the serve only for the unexpired term.
authorized to assume position
his office and exercise COMELEC’s Role in a Special Election (R.A. No.
the powers thereof 6645, as amended by R.A. No. 7166)
Cannot be reduced May be limited by law In case a permanent vacancy shall occur in the
Senate or House of Representatives at least one (1)
Ways by Which Tenure of Members of Congress year before the expiration of the term, COMELEC is
May Be Shortened: (FRED) required:
1. Forfeiture of his seat by holding any other 1. to call a special election by fixing the date of
office or employment in the government or the special election:
any subdivision, agency, or instrumentality a. House of Representatives - the
thereof, including government-owned or date shall not be earlier than sixty
controlled corporations or subsidiaries (PHIL. (60) days nor later than ninety (90)
CONST., art. VI, § 13.); after the occurrence of the vacancy
2. Voluntary Renunciation of office (PHIL. b. Senate - the special election shall
CONST., art. VI, § 4, ¶ 3.). be held simultaneously with the
a. Mere filing of a certificate of next succeeding regular election
candidacy during one’s term is 2. to give notice to the voters of, among other
considered voluntary renunciation things, the office or offices to be voted for.
since the law deems such act as a
resignation (Dimaporo v Mitra, G.R. The calling of an election, that is, the giving notice
No. 96859, Oct. 15, 1991). of the time and place of its occurrence, whether made
3. Expulsion as a disciplinary action for by the legislature directly or by the body with the duty
disorderly behavior (PHIL. CONST., art. VI, § to give such call, is indispensable to the election’s
16, ¶ 3). validity.
4. Disqualification as determined by resolution 1. In a special election to fill a vacancy, the rule
of the electoral tribunal in an election contest is that a statute that expressly provides
(PHIL. CONST., art. VI, § 17.). that an election to fill a vacancy shall be
held at the next general elections fixes the
Vacancy and Special Election date at which the special election is to be
In case of vacancy in the Senate or in the House of held and operates as the call for that
Representatives, a special election may be called to election.
fill such vacancy in the manner prescribed by law, but 2. Consequently, an election held at the time
the Senator or Member of the House of thus prescribed is not invalidated by the fact
Representatives thus elected shall serve only for the that the body charged by law with the duty of
unexpired term. calling the election failed to do so. This is
because the right and duty to hold the
Special Election (R.A. No. 6645, as amended by election emanate from the statute and not
R.A. No. 7166) from any call for the election by some
1. Special election will be called if vacancy authority and the law thus charges voters
occurs: with knowledge of the time and place of the
a. At least 18 months before the next election.
regular election for the members of 3. Conversely, where the law does not fix the
the Senate; time and place for holding a special
b. At least 1 year before the next election but empowers some authority to
regular election for members of the fix the time and place after the happening
House of Representatives of a condition precedent, the statutory
2. The particular House of Congress where provision on the giving of notice is
vacancy occurs must pass either a considered mandatory, and failure to do so
resolution if Congress is in session, or the will render the election a nullity.
4. Thus, the failure of the COMELEC to
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properly call for a special election to fill a AS TO EFFECT OF LOSING IN THE

permanent vacancy in the Senate under PREVIOUS ELECTION
R.A. 7166 does not nullify the election held A district A party-list
since the statute already fixes the date. representative is not representative cannot
However, the failure of the COMELEC to do prevented from running sit if he ran and lost in
so in case of a permanent vacancy in the again as a district the previous election.
House of Representatives would produce representative if
the opposite result. (Tolentino v. COMELEC, he/she lost during the
G.R. No. 148334, Jan. 21, 2004) previous election.
AS TO EFFECT OF CHANGE OF
District v. Party List Representatives AFFILIATION PRIOR TO ELECTION
DISTRICT PARTY-LIST A change in affiliation A change in affiliation
REPRESENTATIVE REPRESENTATIVE within months prior to within 6 months prior to
AS TO ELECTION OR SELECTION election does not election prohibits the
Elected according to Elected nationally, with prevent a district party-list
legislative district by party-list organizations representative from representative from
the constituents of garnering at least 2% running under his new sitting as
such district. of all the votes cast for party. representative under
the party-list system his new
entitled to 1 seat, which party/organization.
is increased according
to proportional C. LEGISLATIVE PRIVILEGES,
representation, but is in INHIBITIONS, AND
no way to exceed 3
seats per organization.
DISQUALIFICATIONS
AS TO RESIDENCY REQUIREMENT
Must be a resident of No special residency Privileges (PHIL. CONST., art. VI, § 11.)
his legislative district requirement in a Immunity from Arrest — Legislators are privileged
for at least 1 year legislative district. from arrest while Congress is in session only
immediately before the (whether regular or special) with respect to offenses
election. punishable by not more than 6 years of
AS TO MANNER OF CANDIDATE’S imprisonment. The immunity does not extend to the
ELECTION prosecution of criminal offenses.
Elected personally (i.e. Voted upon by party or 1. Right of Members to Attend
Congressional Sessions: A Senator, who
by name of candidate). organization; it is the
remains in detention, cannot be allowed to
party who designates
go to the Senate to attend all its official
who will sit as its
functions. All prisoners whether under
representative.
preventive detention or serving final
AS TO EFFECT OF CHANGE OF
sentence cannot practice their profession
AFFILIATION DURING THE TERM
nor engage in any business or occupation,
Does not lose seat if If she/he changes party
or hold office, elective or appointive, while in
he/she changed party or affiliation, loses his
detention. This is a necessary consequence
or affiliation. seat, in which case
of arrest and detention. The presumption of
he/she will be
innocence does not carry with it the full
substituted by another
enjoyment of civil and political rights
qualified person in the
(Trillanes v. Judge Pimentel, G.R. No
party/organization
179817, June 27, 2008).
based on the list
submitted to the
Privileged Speech — No member shall be
COMELEC.
questioned or held liable in any forum other than
AS TO MANNER OF FILLING VACANCIES his/her respective Congressional body for any
A special election may A substitution will be speech or debate in Congress or in any Committee
be held provided that made within the party, thereof.
the vacancy takes based on the list
place at least 1 year submitted to the “Speech or debate” includes:
before the next COMELEC. 1. Utterances made by Congressmen in the
election. performance of their official functions, such
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as speeches delivered, statements made, or

votes cast in the halls of Congress, while the Requirements to Avail of the Privilege of Speech
same is in session and Debate Clause
2. Bills introduced in Congress, whether the 1. That the remarks must be made while the
same is in session or not legislature or the legislative committee is
3. Other acts performed by Congressmen, functioning, that is, in session; and
either in Congress or outside the premises 2. That they must be made in connection with
housing its offices, in the official discharge of the discharge of official duties.
their duties as members of Congress and of
Congressional Committees duly authorized Inhibitions (PHIL. CONST., art. VI, § 12.)
to perform its functions as such, at the time All Members of the Senate and the House of
of the performance of the acts in question Representatives shall, upon assumption of office,
(Jimenez v. Cabangbang, G.R. No. L- make a full disclosure of their financial and business
15905, Aug. 3, 1966). interests. They shall notify the House concerned of a
potential conflict of interest that may arise from the
The privilege arises not because the statement is filing of a proposed legislation of which they are
made by a lawmaker, but because it is uttered in authors.
furtherance of legislation. It cannot be invoked when
the lawmaker's speech or utterance is extraneous to Therefore, senators and representatives are not
the due functioning of the legislative process prohibited from introducing bills that have conflicts
(Trillianes v. Castillo-Marigomen, G.R. No. 223451, with their interest, as long as they disclose.
March 14, 2018).
Disqualifications (PHIL. CONST., art. VI, § 13 & 14.)
To participate in or respond to media interviews is DISQUALIFICATION WHEN APPLICABLE
not an official function of any lawmaker; it is not Cannot hold any other During his term. If he
demanded by his sworn duty nor is it a component of office or employment in does so, he forfeits his
the process of enacting laws. A lawmaker may the Government or any seat in Congress.
discharge his duties and legislate without having to subdivision, agency or
communicate with the press. A lawmaker's instrumentality thereof,
participation in media interviews is not a legislative including GOCCS or
act, but is "political in nature,” outside the ambit of the their subsidiaries.
immunity conferred under the Speech or Debate Cannot be appointed During the term for
Clause (Trillianes v. Castillo-Marigomen, G.R. No. to any office which was which he was elected.
223451, March 14, 2018). created or the
emoluments thereof
A complaint for disbarment or disciplinary action increased.
based on disparaging remarks made by an Cannot personally During his term of
incumbent Senator against the Chief Justice will not appear as counsel office.
prosper because of the Speech and Debate clause before any court of
(Pobre v. Defensor-Santiago, A.C. No. 7399, Aug. justice, electoral
25, 2009). tribunal, quasi-judicial
and administrative
Limitations: body.
1. Protection is only against prosecution in any
Cannot be financially During his term of
forum other than Congress itself. Hence, the
interested directly or office.
Senate or the House may discipline their
indirectly in any
respective members.
contract, franchise, or
2. The ‘speech or debate’ must be made in
special privilege
performance of their duties as members of
granted by the
Congress.
Government, or any
3. Congress need not be in session when the
subdivision, agency or
utterance is made, as long as it forms part of
instrumentality thereof,
legislative action (e.g. part of the deliberative
including any GOCC or
and communicative process used to
its subsidiary.
participate in legislative proceedings in
consideration of proposed legislation or with Cannot intervene in During his term of
respect to other matters with Congress’ any matter before any office.
jurisdiction) office of the
government when it is
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for his pecuniary 2. Under the present law, which leaves

benefit or where he discretion to Congress as to the number of
may be called upon to regular session days, the distinction is no
act on account of his longer significant for the purpose of
office. determining what the legislature may
consider. (Bernas, The 1987 Philippine
A Senator who is likewise the Chairman of the Constitution: A Comprehensive Reviewer,
National Red Cross does not forfeit his seat in the 2011)
Senate because the National Red Cross is a private
corporation performing a public function (Liban v. Kinds of Recess
Gordon, G.R. No. 175352, Aug. 15, 2009). 1. Voluntary Recess - takes place before the
adjournment of Congress like Christmas
A congressman cannot buy nominal shares in a recess
corporation and appear in “intervention” before the 2. Compulsory Recess - takes place when
SEC. This is a circumvention of the constitutional the Congress adjourns
policy (Puyat v. De Guzman, G.R. No. L-51122, Mar.
25, 1982). Quorum to do business - Majority of each House
shall constitute a quorum.
Rules on Increase in Salaries (PHIL. CONST., art. VI, 1. A smaller number may adjourn from day to
§ 10.) day and may compel the attendance of
No increase in their salaries shall take effect until absent members.
after the expiration of the full term (not tenure) of all 2. In computing a quorum, members who are
the members of the Senate and the House of outside the country and thus outside of each
Representatives approving such increase. House’s coercive jurisdiction are not
included.
Since the Constitution provides for rules on “salaries” 3. Majority in Senate: The basis in
and not “emoluments”, members of the House may determining the existence of a quorum in the
appropriate for themselves other sums of money Senate is the total number of Senators who
such as travel allowances, as well as other benefits. are in the country and within the coercive
jurisdiction of the Senate (Avelino v.
A new senator or representative elected through a Cuenco, G.R. No. L-2821, March 4, 1949).
special election is not entitled to the new salary rate 4. Majority of the House: means 1/2 +1 of the
because the new members are serving the terms of actual membership of the House who are
those who approved the increase. Thus, they are not within the coercive jurisdiction of the
entitled to the increase. Congress (within the Philippines).
5. Majority of all members of Congress:
D. QUORUM AND VOTING MAJORITIES means majority of the entire composition of
Congress regardless of the number of
members present or absent during time the
Sessions (PHIL. CONST., art. VI, § 15.)
question is brought to the floor as long as
there is quorum (e.g. (24/2) +1 for the
1. Regular sessions - Congress convenes
Senate and (250/2) +1 for the HOR)
once every year on the 4th Monday of July
(unless otherwise provided for by law). It
Voting Majorities of Congress
continues in session for as long as it may
SENATE
determine, until 30 days before the opening
NATURE OF REQUIRED BASIS
of the next regular session, excluding
Saturdays, Sundays, and legal holidays. PROCEEDING VOTES
For the 2/3 of All Sec. 21, Art.
2. Special Sessions - called by the President effectivity of VII
at any time when Congress is not in session treaty or
i.e. when the legislature is in recess international
agreement
Regular v. Special Session Conviction in 2/3 of All Sec. 3(6), Art.
1. Under the 1935 Constitution, the distinction impeachment XI
between regular and special sessions was
significant because during a special session,
the legislature could consider only the
subject matter designated by the President.
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HOUSE OF REPRESENTATIVES
NATURE OF REQUIRED BASIS Instances when Congress is Voting Separately
PROCEEDING VOTES 1. Determining the winning candidate for
Affirm or 1/3 of All Sec. 3(3), Art. President or Vice President in case two or
Override XI more candidates have an equal and highest
Resolution to number of votes (PHIL. CONST., art. VII, § 4.)
Impeach 2. Determine President’s disability (PHIL.
CONST., art. VII, § 11.)
COMMON TO BOTH 3. Declaring existence of a state of war in joint
NATURE OF REQUIRED BASIS session (PHIL. CONST., art. VI, § 23(1).)
PROCEEDING VOTES 4. Confirming the President’s nomination of a
Discipline 2/3 of All Sec. 16(3) Vice-President from Congress whenever
Members there is a vacancy in the Office of the Vice
President (PHIL. CONST., art. VII, § 0.)
Election of Majority of All Sec. 16(1)
5. Proposing Constitutional amendments
Officers
(PHIL. CONST., art. XVII, § 1.)
Declare the 2/3 of Both Sec. 23
Existence of a Houses,
Instances when Congress is Voting Jointly
State of War voting
1. Revoking or extending proclamation
separately
suspending the privilege of writ of habeas
Override 2/3 of All in Sec. 27(1)
corpus (PHIL. CONST., art. VII, § 18.)
President's the House of
2. Revoking or extending declaration of martial
Veto Origin
law (PHIL. CONST., art. VII, § 18.)
Quorum to do Majority w/in Sec. 16(2);
business Compulsive Avelino v. Officers of Congress (PHIL. CONST., art. VI, § 16.)
Power of the Cuenco 1. Senate President
House 2. Speaker of the House
Yeas and Nays 1/5 of Sec. 16(4) 3. Such other officers as it may deem
in the Journal Members necessary.
present of
each house Election of Officers
Tax Exemption Majority of All Sec. 28(4) 1. By a majority vote of all respective members
Confirmation of Majority of Art. VII, Sec. 2. Congress has the sole prerogative in
new VP Both Houses, 9 choosing its officers and the manner by
nominated by voting which they are chosen. (Defensor-Santiago
President separately v. Guingona, G.R. No. 134577, Nov. 18,
Determination 2/3 of Both Art. VII, Sec. 1988)
that Pres. Houses, 11 3. While the Constitution mandates that the
unable to voting President of the Senate must be elected by
discharge separately a number constituting more than one half of
powers & duties all the members thereof, it does not provide
To break a tie in Majority of All, Art. VII, Sec. that the members who will not vote for him
presidential voting 4 shall ipso facto constitute the "minority," who
election separately could thereby elect the minority leader.
Revocation of Majority of All, Art. VII, Sec. Verily, no law or regulation states that the
Proc. of Martial voting jointly 18 defeated candidate shall automatically
Law/ become the minority leader. (Id.)
Suspension of 4. The Senate President or Speaker of the
Priv. of Writ of HOR is elected through a majority vote of all
Habeas Corpus its respective Members, and such other
Extension of Majority of All, Art. VII, Sec. officers as may deem necessary. (PHIL.
Proc. of voting jointly 18 CONST., art. VI, § 16.)
ML/Suspension.
of Priv. of WHC
To Concur w/ Majority of All Art. VII, Sec.
President in 19
granting
amnesty
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E. DISCIPLINE OF MEMBERS Authority of Sandiganbayan to Suspend

A Congressman can be preventively suspended by
Suspension v. Expulsion the Sandiganbayan for violation of Anti-Graft Law
1. Suspension - shall not exceed 60 days, with notwithstanding the exclusive power of Congress to
discipline its members.
the concurrence of 2/3 of all its members.
2. Expulsion - concurrence of 2/3 of all its
members. The suspension contemplated in Article VI, Section
16(3) of the Constitution is a punishment that is
Nature of Disciplining Authority imposed by the Senate or House of Representatives
Each House may determine the rules of its upon an erring member. It is distinct from the
proceedings, punish its Members for disorderly suspension under Section 13 of the Anti-Graft and
behavior, and, with the concurrence of 2/3 of all its Corrupt Practices Act, which is not a penalty but a
members, suspend or expel a Member. A penalty of preventive measure. Since Section 13 of the Act
suspension, when imposed, shall not exceed 60 does not state that the public officer must be
days. (PHIL. CONST., art. VI, § 16(3).) suspended only in the office where he is alleged to
have committed the acts which he has been charged,
The disciplinary action taken by Congress against a it applies to any office which he may be holding
member is not subject to judicial review because (Santiago v. Sandiganbayan, G.R. No. 128055, April
each House is the sole judge of what disorderly 18, 2001).
conduct is (Osmeña v. Pendatun, G.R. No. L-17144,
Oct. 28, 1960). F. PROCESS OF LAW-MAKING
The parliamentary immunity of members of Congress Bills that must originate in the House (PuP-TL)
is not absolute. While parliamentary immunity (PHIL. CONST., art. VI, § 24.) Note: While these bills
guarantees the legislator complete freedom of must originate from the House, the Senate may
expression without fear of being made responsible introduce amendments and pass a completely
before the courts or any other forum outside of different bill from the original one from the house.
Congressional Hall, it does NOT protect him (her) What is required only is that the bill originate in the
from responsibility before the legislative body itself House.
whenever words and conduct are considered
disorderly or unbecoming a member thereof. 1. Bills authorizing the increase of Public debt
● One which creates public indebtedness
For unparliamentary conduct, members of Congress such as bills for the issuance of bonds and
can be: other forms of obligations
1. censured,
2. committed to prison, 2. Private bills
3. suspended, and ● One affecting purely private interest, such as
4. even expelled by the votes of their one granting a franchise.
colleagues (Osmeña v. Pendatun, G.R. No.
L-17144, Oct. 28, 1960). 3. Tariff bills
● One that specifies the rates or duties to be
Is preventive suspension considered an imposed on imported articles
interruption of a term?
Preventive suspension is not considered 4. Bills of Local application
“interruption” of a term under Sec. 8, Art. X and Sec. ● A bill of local application, such as one asking
43 (b) of R.A. No. 7160. A preventive suspension for the conversion of a municipality into a
cannot simply be considered an interruption because city, is deemed to have originated from the
the suspended official continues to stay in office House provided that the bill of the House
although barred from exercising the functions and was filed prior to the filing of the bill in the
prerogatives of the office within the suspension Senate; even if in the end, the Senate
period. The best indicator of the suspended official’s approved its own version (Tolentino v.
continuity in office is the absence of a permanent Secretary of Finance, G.R. No. 115455, Oct.
replacement and the lack of the authority to appoint 30, 1995).
one since no vacancy exists (Aldovino v. COMELEC,
G.R. No. 184836, Dec. 23, 2009). Revenue Bills
One specifically designed to raise money or revenue
through imposition or levy.
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1. For example, registration fees used for the See Part V(1) on the Substantive and Procedural
construction and maintenance of highways. Limitations on Congress’ Law-Making Powers.
(PAL vs. Edu, G.R. No. L-41383, Aug. 15,
1988). BICAMERAL CONFERENCE COMMITTEE – an
2. The Videogram Regulatory Board Law extra-constitutional creation which is intended to
imposing a tax on video rentals does not resolve conflicts between House and Senate
make the law a revenue bill because the versions of bills. (Bernas, 1987 Philippine
purpose is primarily regulation, and not to Constitution: A Commentary, 790, 2009).
raise revenue. (Tio v. Videogram Regulatory
Board, G.R. No. L-75697, June 18, 1987) Scope Of The Bicameral Conference
Committee’s Powers (A2R2P)
General Limitations (PHIL. CONST., art. VI, § 26.) 1. Adopt the Bill entirely; or
Every bill shall embrace only one (1) subject, as 2. Amend; or
expressed in the title thereof, which does not have to 3. Revise; or
be a complete catalogue of everything stated in the 4. Reconcile the House Bill and the Senate
bill. Bills;
5. Propose entirely new provisions not found in
An Act creating the Videogram Regulatory Board either the House Bill or the Senate Bill.
including 30% tax on gross receipts on video (Amendments in the nature of a substitute)
transactions was held to be valid. Taxation is
sufficiently related to regulation of the video industry Limitation: So long as the amendment is germane
(Tio v. Videogram Regulatory Board, G.R. No. L- to the subject of the bill before the Committee.
75697, June 18, 1987).
In a bicameral system, bills are independently
It is sufficient that the title expressing the general processed by both Houses of Congress. It is not
subject of the bill and all the provisions of the statute unusual that the final version approved by one House
are germane to such general subject (Sumulong v. differs from what has been approved by the other.
COMELEC, G.R. No. L-48609, Oct. 10, 1941). The “conference committee,” consisting of members
nominated from both Houses, is an extra-
Bills passed by either House must pass 3 readings constitutional creation of Congress whose function
on separate days, and printed copies thereof in its is to propose to Congress ways of reconciling
final form distributed to its members 3 days before its conflicting provisions found in the Senate version and
passage. in the House version of a bill.
FIRST READING - Only the title is read; the bill is It is within the power of a conference committee to
passed to the proper committee include in its report an entirely new provision that is
not found either in the House bill or in the Senate bill.
SECOND READING - Entire text is read and debates If the committee can propose an amendment
are held; amendments introduced. consisting of one or two provisions, there is no
reason why it cannot propose several provisions,
THIRD READING - Only the title is read, no collectively considered as an "amendment in the
amendments are allowed. Vote shall be taken nature of a substitute," so long as such amendment
immediately thereafter and the yeas and nays is germane to the subject of the bills before the
entered in the journal. committee. After all, its report was not final but
needed the approval of both houses of Congress to
Exceptions: become valid as an act of the legislative department
● When the President certifies to the necessity (Tolentino v. Secretary of Finance, G.R. No. 115455,
of the bill’s immediate enactment to meet a Aug. 25, 1994).
public calamity or emergency, the three
readings can be held on the same day. Presidential Veto
(PHIL. CONST., art. VI, § 26(2).) Every bill passed by Congress shall be presented to
● When the offices of the President and Vice- the President before it becomes law. To approve, he
President are both vacant, the bill calling for shall sign it. Otherwise, he shall veto the bill. (PHIL.
a special election to elect a President and CONST., art. VI, § 27(1).)
Vice-President is deemed certified. (PHIL.
CONST., art. VII, § 10.) Overriding a Veto
The President shall transmit to House where the bill
originated. If, after such reconsideration, 2/3 of all the
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members of such House shall agree to pass the bill, (Arroyo v. De Venecia, G.R. No. 127255, Aug. 14,
it shall be sent, together with the objections, to the 1997)
other House by which it shall likewise be ● The only limitation to the power of Congress
reconsidered, and if approved by 2/3 of all the to promulgate its own rules is the
members of that House, it shall become law. observance of quorum, voting, and
publication when required. As long as these
To override the veto, at least 2/3 of all the members requirements are complied with, the Court
of each House must agree to pass the bill. In such will not interfere with the right of Congress to
case, the veto is overridden and becomes a law amend its own rules. (Pimentel v. Senate
without need of presidential approval. (PHIL. CONST., Committee, G.R. No. 187714, March 8,
art. VI, § 27(1).) 2011)
Item Veto Congressional Journals and Records (PHIL.

General Rule: As a general rule, if the President CONST., art. VI, § 16.)
disapproves of a provision in a bill approved by
congress, he must veto the entire bill. General Rule: The Journal is conclusive upon the
courts.
Exception: As an exception, the President is allowed
to item-veto in these types of bills: (ART) Exception: An enrolled bill prevails over the contents
1. Appropriation of the Journal.
2. Revenue, and
3. Tariff (Sec. 27 (2)). ENROLLED BILL - The official copy of approved
legislation and bears the certifications of the
Exceptions to the Exception: presiding officers of each House. Thus, where the
DOCTRINE OF INAPPROPRIATE PROVISIONS - A certifications are valid and are not withdrawn, the
provision that is constitutionally inappropriate for an contents of the enrolled bill are conclusive upon the
appropriation bill may be subject to veto even if it is courts as regards the provision of that particular bill.
not an appropriation or revenue “item”. (Gonzalez v.
Macaraig, Jr., G.R. No. 87636, Nov. 19, 1990). ENROLLED BILL DOCTRINE – The signing of a bill
by the Speaker of the House and the President of the
EXECUTIVE IMPOUNDMENT - Refusal of the Senate and its certification by the secretaries of both
President to spend funds already allocated by Houses of Congress that such bill was passed are
Congress for a specific purpose. It is in effect, an conclusive of its due enactment (Arroyo v. De
“impoundment” of the law allocating such Venecia, G.R. No.127255, Aug. 14, 1997).
expenditure of funds.
ENROLLED JOURNAL RECORD
NOTE: There is no doctrine for or against executive BILL
impoundment. It has not been judicially questioned. Official copy of Abbreviated Word for word
approved account of transcript of
Type of Item Bill legislation, daily deliberations
TYPE OF BILL ITEM with proceedings in in Congress
Revenue/tax bill Subject of the tax, and certifications Congress
tax rate imposed of presiding
thereon officers
Appropriations bill Indivisible sum Submitted to Provides proof Provides
dedicated to a stated the President of what detailed proof
purpose for signature, transpired of what
indicating during transpired
VETO OF RIDER - A rider is a provision that does not approval deliberations during
relate to a particular appropriation stated in an deliberations
appropriation bill. Being an invalid provision under Insures Supports the
Section 25 (2), the President may exercise item veto. publicity of journal entry
legislative
Internal Rules proceedings
As part of their inherent power, each House may
determine its own rules. Hence, the courts cannot
intervene in the implementation of these rules
insofar as they affect the members of Congress.
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Cases When the Constitution Requires Yeas And its operation to the appropriation to which it relates.
Nays To Be Recorded (PHIL. CONST. § 25 (2)).
1. Last and third readings of a bill
2. Upon 1/5 members’ request A provision which refers to the fundamental
3. Re-passing a bill over Presidential veto government policy matters of the calling to active
duty and the reversion to inactive status of reserve
Adjournment officers in the AFP is a non-appropriation item
Neither House during the sessions of the Congress, inserted in an appropriation measure and is a
shall without the consent of the other, adjourn for violation of the constitutional inhibition against
more than 3 days, nor to any other place than that in “riders” to the General Appropriations Act (GAA)
which the two Houses shall be sitting. (PHIL. CONST., (Garcia v Mata, G.R. No. L-33713 July 30, 1975).
art. VI, § 16.)
Following liberal construction, a provision will not be
considered a “rider” if: 1) it is not inconsistent with or
foreign to the general subject, 2) considered in
Types of Adjournment furtherance of such subject by providing for the
1. Day to day method and means of carrying out the general
2. Yearly subject (Fariñas v Executive Secretary; G.R. No.
3. Sine die — with no appointed date for 147387, 2003). 
resumption
Transfer of Funds / Re-alignment
‘Place’ General Rule: No law shall be passed authorizing
Refers not to the building but to the political unit any transfer of appropriations;
where the Houses may be sitting.
Exception (Exclusive List): The following may, by
G. APPROPRIATION AND RE-ALIGNMENT law, be authorized to augment any item in the general
appropriations law for their respective offices from
No money shall be paid out of the Treasury except in savings in other items of their respective
pursuance of an appropriation made by law. (PHIL. appropriations:
CONST. § 29(1))  1. The President
2. Senate President
Rules on Appropriation 3. Speaker of the House of Representatives,
All appropriation bills shall originate exclusively in the 4. the Chief Justice of the Supreme Court
House of Representatives, but the Senate may 5. the heads of Constitutional Commissions
propose or concur with amendments. (PHIL. CONST. (PHIL. CONST. § 25 (5))
§ 24)
Individual members of Congress may only determine
If, by the end of any fiscal year, the Congress shall the necessity of the realignment of savings in the
have failed to pass the general appropriations bill for allotments for their operating expenses because they
the ensuing fiscal year, the general appropriations are in the best position to know whether there are
law for the preceding fiscal year shall be deemed re- savings available in some items and whether there
enacted and shall remain in force and effect until the are deficiencies in other items of their operating
general appropriations bill is passed by the expenses that need augmentation. However, it is the
Congress. (PHIL. CONST. § 25 (7)) Senate President and the Speaker of the House of
Representatives who shall approve the realignment.
Limits on Power to Appropriate (Philippine Constitution Association v. Enriquez, G.R.
The Congress may not increase the appropriations No. 113105, 19 August 1994.)
recommended by the President for the operation of
the Government as specified in the budget. The form, Discretionary Funds
content, and manner of preparation of the budget
shall be prescribed by law (PHIL. CONST. § 25 (1)). Discretionary funds appropriated for particular
officials shall be disbursed only for public purposes
Prohibition on “Riders” in Appropriation Bills to be supported by appropriate vouchers and subject
No provision or enactment shall be embraced in the to such guidelines as may be prescribed by law. 
general appropriations bill unless it relates (Araullo v. Aquino, G.R. No. 209287, 1 July 2014)
specifically to some particular appropriation therein.
Any such provision or enactment shall be limited in Special Purpose Fund
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A special appropriations bill shall specify the purpose violations of the law, it is beyond the scope of
for which it is intended, and shall be supported by congressional powers.
funds actually available as certified by the National
Treasurer, or to be raised by a corresponding Compulsory Process
revenue proposal therein. (Belgica v. Ochoa, Jr. G.R. The power of legislative investigation includes the
No. 208566, 19 November 2013) power to compel the attendance of witnesses.
Corollary to the power to compel the attendance of
H. LEGISLATIVE INQUIRIES AND witnesses is the power to ensure that said witnesses
OVERSIGHT FUNCTIONS would be available to testify in the legislative
investigation. (Standard Chartered v. Senate, G.R.
LEGISLATIVE INQUIRIES No. 167173, Dec. 27, 2007).
(PHIL. CONST., art. VI, § 21.)
Duly Published Rules of Procedure
Scope It is incumbent upon the Senate to publish the rules
The power of legislative investigation includes: for its legislative inquiries in each Congress or
1. Power to issue summons and notices; otherwise make the published rules clearly state that
2. Power to punish or declare a person in the same shall be effective in subsequent
contempt Congresses or until they are amended or repealed to
3. The power to determine the rules of its sufficiently put the public on notice. If it was the
proceedings intention of the Senate for its present rules on
legislative inquiries to be effective even in the next
Limitations: (ADR) Congress, it could have easily adopted the same
1. The inquiry must be in Aid of legislation. language it had used in its main rules regarding
2. The inquiry must be conducted in effectivity. Publication in the internet does not satisfy
accordance with the ‘Duly published rules of the requirement of publication as provided in the
procedure’ of the House conducting the Constitution (Garcillano v. House of Representatives,
inquiry; and G.R. No. 170338, Dec. 23, 2008).
3. The rights of persons appearing in or
affected by such inquiries shall be Right against Self-Incrimination
Respected. (e.g., right to due process, right A subpoenaed witness cannot refuse to attend a
against self- incrimination) (Bernas, 1987 legislative inquiry by invoking his or her right against
Philippine Constitution: A Commentary, 761, self-incrimination. Such right may be invoked only
2009). when the incriminating question is being asked, since
Nature and Purpose they have no way of knowing in advance the nature
The power of inquiry — with process to enforce it — or effect of the questions to be asked of them. (Sabio
is an essential and appropriate auxiliary to the v. Gordon, G.R. No. 174340, Oct. 17, 2006).
legislative function. A legislative body cannot
legislate wisely or effectively in the absence of Non-Applicability of the Sub Judice Rule to
information respecting the conditions which the Inquiries in Aid of Legislation
legislation is intended to effect or change; and where The mere filing of a criminal or an administrative
the legislative body does not itself possess the complaint before a court or a quasi-judicial body
requisite information — which is not infrequently true should not automatically bar the conduct of legislative
— recourse must be had to others who do possess investigation. Otherwise, it would be extremely easy
it. (Arnault v. Nazareno, G.R. No. L-3820, July 18, to subvert any intended inquiry by Congress through
1950) the convenient ploy of instituting a criminal or an
administrative complaint. Surely, the exercise of
Legislative inquiries must be conducted “in aid of sovereign legislative authority, of which the power of
legislation” which does not necessarily mean that legislative inquiry is an essential component, cannot
there is pending legislation regarding the subject of be made subordinate to a criminal or an
the inquiry. Hence, the materiality of a question is administrative investigation. (Standard Chartered v.
determined not by its connection to any pending Senate, G.R. No. 167173, Dec. 27, 2007).
legislation, but by its connection to the general scope
of the inquiry. (Bengzon v. Senate Blue Ribbon A legislative investigation in aid of legislation and
Committee, G.R. No. 89914, Nov. 20, 1991) court proceedings have different purposes. On
one hand, courts conduct hearings or like
If the investigation is no longer “in aid of legislation” adjudicative procedures to settle, through the
but, “in aid of prosecution” where the stated purpose application of a law, actual controversies arising
of the investigation is, to determine the existence of between adverse litigants and involving demandable
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rights. On the other hand, inquiries in aid of

legislation are, inter alia, undertaken as tools to Prior to Balag, the prevailing rule was that the
enable the legislative body to gather information and, Senate, as a continuing body (as opposed to the
thus, legislate wisely and effectively; and to House of Representatives), can incarcerate a
determine whether there is a need to improve witness indefinitely based on Arnault v. Nazareno.
existing laws or enact new or remedial legislation, However, the Court ruled that an indefinite and
albeit the inquiry need not result in any potential unspecified period of detention will amount to
legislation. On-going judicial proceedings do not excessive restriction and will certainly violate any
preclude congressional hearings in aid of legislation. person's right to liberty. (Id.)
(Romero v. Estrada, G.R. No. 174105, April 2, 2009)
If Congress decides to extend the period of
Power to Punish for Contempt imprisonment for the contempt committed by a
The power to punish contempt must be considered witness beyond the duration of the legislative inquiry,
implied or incidental to the exercise of legislative then it may file a criminal case under existing statute
power. How could a legislative body obtain the (Art. 150 of the Revised Penal Code penalizes the
knowledge and information on which to base refusal of a witness to answer any legal inquiry before
intended legislation if it cannot require and compel Congress), amend existing law, or enact a new law
the disclosure of such knowledge and information, if to increase the definite period of imprisonment.
it is impotent to punish a defiance of its power and Augmenting its power of contempt and extending the
authority? (Standard Chartered v. Senate, G.R. No. period of imprisonment shall be in the sole discretion
167173, Dec. 27, 2007). of Congress. This constitutes as a statutory power
of contempt, which is different from the inherent
The exercise by Congress or by any of its committees power of contempt. (Id.)
of its contempt power is based on the principle of
self-preservation (i.e. preserving its authority and OVERSIGHT FUNCTIONS
dignity). As the branch of the government vested with (PHIL. CONST., art. VI, § 22.)
the legislative power, independently of the judicial
branch, it can assert its authority and punish Section 22 pertains to the power to conduct
contumacious acts against it. Such power is sui a question hour, the objective of which is to obtain
generis, as it attaches not to the discharge of information in pursuit of Congress' oversight function.
legislative functions per se, but to the sovereign
character of the legislature as one of the three Question Hour – Appearance of department heads
independent and coordinate branches of before Congress to give account of their stewardship
government. (Id.) (Bernas, 1987 Philippine Constitution: A
Commentary, 769, 2009).
Period of Detention for Contempt (Balag v.
Senate, G.R. No. 234608, July 3, 2018) Under Section 22, department heads (members of
HOUSE OF the Executive Department) cannot be compelled to
SENATE
REPRESENTATIVES appear before Congress. Neither may department
Can last only until the Can last only until the heads impose their appearance upon Congress. This
final adjournment of the termination of the is in line with the principle of separation of powers.
last session of such legislative inquiry (even
Congress during recess) under Department Heads May Appear before Congress
which the said power is in the Following Instances:
invoked 1. Upon their own initiative, with the consent of
the President (and that of the House
The legislative inquiry concerned)
of the Senate 2. Upon the request of either House
terminates on two 3. Written questions shall be submitted to the
instances: President of the Senate or Speaker of the
1. Upon the House at least 3 days before the scheduled
approval or appearance of the department heads.
disapproval of 4. Interpellations shall not be limited to written
the Committee questions, but may cover related matters.
Report 5. The inquiry will be conducted in executive
2. Upon the session when:
expiration of ○ Required by the security of state, or
such Congress public interest, and
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○ When the President so states in

writing. QUESTION LEGISLATIVE
HOUR INVESTIGATION
There is no such thing as a ‘question hour’ in the (SEC. 22) (SEC. 21)
Constitution (It is a parliamentary concept and WHO MAY Only Any person
practice). The distinction in legislative hearings is APPEAR department
between investigative function and oversight heads
function. (Senate v. Ermita, G.R. No. 169777, April WHO Entire body Entire body or its
20, 2006). CONDUCTS respective
committees
Any post-enactment congressional measure should SUBJECT Matters Any matter in aid
be limited to scrutiny and investigation, in following MATTER related to the of legislation
the principle separation of powers. An accountability OR department
mechanism with which the proper expenditure of PURPOSE only as an
public funds may be checked is the power of exercise of
congressional oversight, which may be performed Congress’
either through: oversight
1. Scrutiny based primarily on Congress‘ function
power of appropriation and the budget NATURE Discretionary Compulsory
hearings conducted in connection with it, its EXEMPTED All heads of (1) President
power to ask heads of departments to PERSONS departments (2) Justices of the
appear before and be heard by either of its of the Supreme Court
Houses on any matter pertaining to their Executive (3) Members of
departments and its power of confirmation; Branch of the the AFP, if
2. Investigation and monitoring of the government prevented by the
implementation of laws pursuant to the shall secure President as
power of Congress to conduct inquiries in the consent Commander-in-
aid of legislation. (Belgica v. Ochoa, G.R. of the Chief (Gudani v.
No. 208566, Nov. 19, 2013). President Senga, G.R. No.
prior to 170165, Aug. 15,
Question Hour vs. Legislative Investigation appearing 2006)
Sections 21 and 22, while closely related and before either
complementary to each other, should not be House of
considered as pertaining to the same power of Congress
Congress. One specifically relates to the power to (EO 464,
conduct inquiries in aid of legislation, the aim of Sec.1)
which is to elicit information that may be used for EXEMPTED (1) Executive privilege, which must
legislation, while the other pertains to the power to INFORMATI be invoked by the President himself
conduct a question hour, the objective of which is to ON or through the Executive Secretary
obtain information in pursuit of Congress’ oversight by authority of the President
function. (Neri v. Senate, G.R. No. 180643, March (Senate v. Ermita, G.R. No.
25, 2008) 169777, April 20, 2006)
(2) Privileged information e.g.
Section 22, in keeping with the separation of powers, national defense, diplomatic,
states that Congress may only request their military secrets, etc.
appearance. Nonetheless, when the inquiry in which (3) Right against self-incrimination
Congress requires their appearance is "in aid of
legislation" under Section 21, the appearance is Invocation of Executive Privilege
mandatory (Senate v. Ermita, G.R. No. 169777, April Under Article VI, Section 22, the appearance of
20, 2006). department heads in the question hour is
discretionary on their part. However, under Section
21, Congress is not bound to respect their refusal to
appear in inquiries in aid of legislation, unless a valid
claim of privilege is subsequently made, either by the
President herself or by the Executive Secretary.
(Senate v. Ermita, G.R. No. 169777, April 20, 2006)
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Only the President may invoke this. If it is which prepares a report (which can be
invoked by some other person, there must be favorable or unfavorable). In either case, the
proof that he or she has Presidential authority. House by a vote of 1/3 of all its members
decides whether complaint should be given
A claim of privilege, being a claim of exemption from due course. (PHIL. CONST., art. IX, § 3(2 &
an obligation to disclose information, must, therefore, 3).)
be clearly asserted. The court itself must determine 2. Referral to the Committee and decision by
whether the circumstances are appropriate for the the House is unnecessary if the complaint is
claim of privilege, and yet do so without forcing a filed by at least 1/3 of all the members of the
disclosure of the very thing the privilege is designed house (PHIL. CONST., art. IX, § 3(4).)
to protect. Absent then a statement of the specific
basis of a claim of executive privilege, there is no way Exclusive Power to Try and Decide
of determining whether it falls under one of the The Senate shall have the sole power to try and
traditional privileges, or whether, given the decide all cases of impeachment. No person shall be
circumstances in which it is made, it should be convicted without the concurrence of 2/3 of all the
respected (Senate v. Ermita, G.R. No. 169777, April Members of the Senate (PHIL. CONST., art. IX, § 3(6).)
20, 2006).
The penalty imposable shall be limited to:
The President has constitutional authority to prevent ● removal from office and
any member of the Armed Forces from testifying ● disqualification to hold any office under the
before a legislative inquiry by virtue of her power as Republic of the Philippine (PHIL. CONST., art.
commander-in- chief, and that as a consequence a IX, § 3(7).)
military officer who defies such injunction is liable
under military justice. The only way to circumvent this Officers Subject to Impeachment (PHIL. CONST.,
is by judicial order because the President may be art. IX, § 2.) (P-VSCO)
commanded by judicial order to compel the ● President
attendance of the military officer. Final judicial orders ● Vice President
have the force of the law of the land which the ● Members of the Supreme Court
President has the duty to faithfully execute (Gudani ● Members of the Constitutional Commissions
v. Senga, G.R. No. 170165, Aug. 15, 2006). ● Ombudsman
When Congress merely seeks to be informed on how Grounds for Impeachment (PHIL. CONST., art. IX, §
department heads are implementing the statutes 2.) (BGC-T2O)
which it has issued, its right to such information is not ● Bribery
as imperative as that of the President to whom, as ● Graft and Corruption
Chief Executive, such department heads must give a ● Culpable Violation of the Constitution
report of their performance as a matter of duty. In ● Treason
such instances, Section 22 of Article VI, in keeping ● Betrayal of Public Trust
with the separation of powers, states that Congress ● Other high crimes
may only request their appearance. Nonetheless,
when the inquiry in which Congress requires their J. ELECTORAL TRIBUNALS AND THE
appearance is “in aid of legislation” under Section 21, COMMISSION ON APPOINTMENTS
Article VI, the appearance is mandatory (Senate v.
Ermita, G.R. No. 169777, April 20, 2006). 1. ELECTORAL TRIBUNALS
I. POWER OF IMPEACHMENT (Phil. a. NATURE

Const., art. XI.)
The Senate and the House of Representatives shall
Exclusive Power To Initiate each have an Electoral Tribunal (SET and HRET).
The House of Representatives shall have the (PHIL. CONST., art. VI, § 17.)
exclusive power to initiate all cases of impeachment
(PHIL. CONST., art. IX, § 3(1).) Composition – Nine (9) members
1. The impeachment proceedings begin with a 1. Three (3) Supreme Court Justices to be
complaint filed with the House of designated by the Chief Justice.
Representatives either by a member of the o The senior Justice in the Electoral
House or by any citizen supported by a Tribunal shall be its Chairman.
resolution of endorsement by any member.
The complaint is referred to a Committee
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2. Six (6) Members of the Senate or House, as “Qualifications” are not limited to the qualifications
the case may be. They shall be chosen on prescribed by the Constitution for a Member of
the basis of proportional representation Congress under Art. VI, Sec. 6. (Guerrero v.
COMELEC, G.R. No. 137004, July 26, 2000)
The presence of the three Justices, as against six
members of [each House], was intended as an The COMELEC’s jurisdiction over election contests
additional guarantee to ensure impartiality in the relating to election, returns, and qualifications ends,
judgment of cases before it. As such, there should and the HRET's own jurisdiction begins once a
always be one member of the Tribunal who is a winning candidate is:
Justice. If all three Justice-members inhibit 1. proclaimed
themselves in a case, the Supreme Court will 2. taken his oath, and
designate another Justice to chair the Electoral 3. assumed office as a Member of the House
Tribunal. (Reyes v. HRET, G.R. No. 221103, Oct. 16, of Representatives. (Aggabao v.
2018) COMELEC, G.R. No. 163756, Jan. 26,
2005)
Nature of Tribunals
The tribunal was created to function as a Thus, in an electoral contest where the validity of
nonpartisan court although two-thirds of its the proclamation of a winning candidate who has
members are politicians. It is a non-political body in a taken his oath of office and assumed his post as
sea of politicians. As judges, the members of the Congressman is raised, that issue is best addressed
tribunal must be non-partisan. They must discharge to the HRET. (Guerrero v. COMELEC, G.R. No.
their functions with complete detachment, 137004, July 26, 2000)
impartiality, and independence — even
independence from the political party to which they Once COMELEC loses its jurisdiction, the proper
belong. Hence, "disloyalty to party" and "breach of remedy is to file a petition for quo warranto before
party discipline," are not valid grounds for the the HRET and not a petition for certiorari before the
expulsion of a member of the tribunal. (Bondoc v. Supreme Court. (Señeres v. COMELEC, G.R. No.
Pineda, G.R. No. 97710, Sept. 26, 1991) 178678, Apr. 16, 2009)
LEONEN: An Electoral Tribunal is a quasi-judicial Note: The Constitution provides that a person
body. Therefore, the degree of proof required is only assumes office “at noon on the 30th day of June”.
substantial evidence or that amount of relevant The Oath of Office the petitioner presented is not
evidence which a reasonable mind might accept as valid. As far as the court is concerned, she took her
adequate to justify a conclusion. (David v. SET, G.R. oath on 5th of June which is not the one prescribe by
No. 221538, Sept. 20, 2016) the Constitution. Therefore, the COMELEC still has
jurisdiction. Before there is a valid taking of the
Security of Tenure oath, it must be made:
Membership in the HRET may not be terminated 1. before the Speaker of the House of
except for a just cause, such as the expiration of the Representatives, and
member's congressional term of office, his death, 2. in open session. (Reyes v. COMELEC, G.R.
permanent disability, resignation from the political No. 207264, June 25, 2013)
party he represents in the tribunal, formal affiliation
with another political party, or removal for other valid Does the HRET have jurisdiction over pre-
cause. A member may not be expelled by the HOR proclaimed controversies?
for ‘party disloyalty’ short of proof that he has formally No, the COMELEC has exclusive jurisdiction over
affiliated with another political group. (Bondoc v. pre-proclaimed controversies. (Omnibus Election
Pineda, G.R. No. 97710, Sept. 26, 1991) Code, § 242)
b. POWERS Is jurisdiction lost upon withdrawal or protest?

No. Jurisdiction once acquired, is not lost upon the
Jurisdiction instance of the parties, but continues until the case is
Each Electoral Tribunal shall be the sole judge of all terminated. Mere filing of a motion to withdraw
contests relating to the (ERQ) Election, Returns protest, without any action on the part of the tribunal,
and Qualifications of their respective members. does not divest it of jurisdiction. An election protest is
This includes determining the validity or invalidity of impressed with public interest in the sense that the
a proclamation declaring a particular candidate as public is interested in knowing what happened in the
the winner. elections. Thus, private interest must yield to the
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common good. (Robles v HRET, G.R. No. 86647, jurisdiction. (Pimentel v. HRET, G.R. No.
Feb. 5, 1990) 141489, Nov. 29, 2002)
E.g. A final vote tally made by an Electoral Tribunal
Election Contest – where a defeated candidate without supporting evidence has been struck down
receiving the second highest number of votes by the Court. (Lerias v. COMELEC, G.R. No. 97105,
challenges the qualifications of a winning candidate Oct. 15, 1991)
and claims for himself the seat of a proclaimed
winner. Jurisprudence - LEONEN
● In the absence of an election contest, the When the names of the parents of a foundling cannot
Electoral Tribunal is without jurisdiction. be discovered despite a diligent search, but sufficient
However, each House can expel its own evidence is presented to sustain a reasonable
members or even defer their oath taking until inference that satisfies the quantum of proof required
their qualifications are determined. This may to conclude that at least one or both of his or her
be exercised even without an election parents is Filipino, then this should be sufficient to
contest. establish that he or she is a natural-born citizen.
The power of the HRET to determine the citizenship When these inferences are made by the SET in the
of a winning candidate does not include looking at the exercise of its sole and exclusive prerogative to
grant of citizenship to the candidate’s ascendant. decide the qualifications of the members of the
That would be a prohibited collateral attack (Vilando Senate, then there is no grave abuse of discretion.
v. HRET, G.R. Nos. 192147 & 192149, Aug. 23, (David v. SET, G.R. No. 221538, Sept. 20, 2016)
2011).
The cardinal objective in ballot appreciation is to
An Electoral Tribunal may annul election results if in discover and give effect to, rather than frustrate, the
its determination, fraud, terrorism or other electoral intention of the voter. Extreme caution is observed
irregularities existed to warrant the annulment. before any ballot is invalidated and doubts are
Because in doing so, it is merely exercising its resolved in favor of the ballot’s validity. This Court
constitutional duty to ascertain who among the finds no grave abuse of discretion by the HRET in its
candidates received the majority of the valid votes findings after its careful review of the objected ballots
cast. (Abayon v. HRET, G.R. No. 222236, May 3, and guided by existing principles, rules and rulings
2016) on its appreciation. (Locsin v. HRET, G.R. No.
204123, March 19,2013)
Since the Electoral Tribunals are independent
constitutional bodies: Rule Making Power
The power of the HRET, as the sole judge of all
Neither Congress nor the Courts may interfere with contests relating to the election, returns and
procedural matters relating to the functions of the qualifications of the Members of the House of
Electoral Tribunals. (Angara v. Electoral Representatives, to promulgate rules and regulations
Commission, G.R. No. L-45081, July 15, 1936) relative to matters within its jurisdiction, including the
● Its members may not be arbitrarily removed period of filing election protests before it, is beyond
from their positions in the tribunal by the dispute. It’s rule-making power necessarily flows
parties that they represent. Neither may from the general power granted it by the Constitution.
they be removed for not voting according to (Lazatin v HRET, G.R. No. 84297, 1998)
party lines, since they are acting
independently of Congress. (Bondoc v. 2. COMMISSION ON APPOINTMENTS
Pineda, G.R. No. 97710, Sept. 26, 1991)
The mere fact that the members of either the Senate a. NATURE
or the House sitting on the Electoral Tribunal are
themselves the ones sought to be disqualified (due Composition
to the filing of an election contest against them) does 1. Senate President as ex-officio chairman
not warrant the disqualification of all the members of 2. 12 Senators
the Electoral Tribunal. (Abbas v. SET, G.R. No. 3. 12 Members of the House
83767, Oct. 27, 1988)
● Judicial review of decisions of the Electoral The Commission on Appointments (CA) acts as a
Tribunals may be had with the Supreme legislative check on the appointing authority of the
Court only on the ground of grave abuse of President. For the effectivity of the appointment of
discretion, the decision or resolution having certain key officials enumerated in the Constitution,
been rendered without or in excess of the consent of the CA is needed. (Bernas)
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Manner of Constitution 3. Other public Ministers or consuls

Elected on the basis of proportional representation 4. Officers of the AFP from the rank of Colonel
from the political parties and party-list organizations or Naval Captain and above; and
within 30 days after the Senate and the House of 5. Other officers whose appointments are
Representatives shall have organized with the vested in him by the Constitution (e.g.
election of the Senate President and the Speaker of COMELEC members)
the House (PHIL. CONST., art. VI, § 19.) o Examples: Chairmen and
commissioners of the CSC,
The Constitution does not require that the “political COMELEC, and COA; regular
parties” be registered before the COMELEC. (Daza members of the Judicial Bar
v. Singson, G.R. No. 86344, Dec. 21, 1989) Council (JBC)
The minimum required number of elected senators Note: The consent of Commission on Appointments
belonging to the same political party in order for the is required only in the 1st sentence enumeration of
party to qualify for a seat in the CA is at least two (2) Art. VII, Section 16. (Sarmiento v. Mison, G.R. No L-
elected senators for every seat in the CA. (Guingona 79974, Dec. 17, 1987)
v. Gonzales, G.R. No. 106971, March 1, 1993).
Limitations
The Constitution does not require that the full ● Congress cannot by law prescribe that the
complement of 12 senators be elected to the appointment of a person to an office created
membership in the CA before it can discharge its by such law shall be subject to confirmation
functions and that it is not mandatory to elect 12 by the CA.
senators to the CA (Guingona vs. Gonzales, G.R. No. ● Appointments extended by the President to
106791, March 1, 1993). the enumerated positions while Congress is
not in session shall only be effective until
The two Houses have primary jurisdiction on who disapproval by the CA, or until the next
should sit in the CA. This includes determination of adjournment of Congress.
party affiliation and number of party members for ● Since the Commission on Appointments is
purpose of determining proportional representation an independent constitutional body, its rules
(Drilon v. De Venecia, G.R. No. 180055, July 31, of procedure are outside the scope of
2009). congressional powers as well as that of the
judiciary.
Voting For further discussion on this topic, see IV(C)(2)
1. The Commission shall rule by a majority vote [Powers of the President: Power of Appointment] of
of all the Members. (PHIL. CONST., art. VI, § this Reviewer.
18.)
2. The chairman shall only vote in case of a tie. K. INITIATIVE AND REFERENDUM
(Id.)
3. The Commission shall act on all 1. Initiative
appointments submitted to it within 30
session days. (Id.) The power of the people to propose amendments to
4. The Commission shall meet only while the Constitution or to propose and enact legislation
Congress is in session, at the call of its called for the purpose (R.A. No. 6735, § 3(a))
Chairman or a majority of all its members.
(PHIL. CONST., art. VI, § 19.) Three Types of Initiative (CSL)
1. Initiative on the Constitution - A petition
b. POWERS proposing amendments to the Constitution.
2. Initiative on Statutes - A petition proposing
Jurisdiction (PHIL. CONST., art. VII, § 16.) to enact a national legislation.
The Commission on Appointments shall confirm the 3. Initiative on Local Legislation - A petition
appointments by the President with respect to the proposing to enact a regional, provincial,
following positions: (E-MA²-C) city, municipal, or barangay law, resolution
1. Heads of the Executive Departments or ordinance (R.A. No. 6735, § 3(a))
o Exception: Appointment of Vice
President as a member of the Local Initiative
Cabinet needs no confirmation Registered voters within a local government unit may
(PHIL. CONST., art. VII, § 15.) file a petition with the Regional Assembly or local
2. Ambassadors, legislative body, respectively, proposing the
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adoption, enactment, repeal or amendment of any 1. Referendum on statutes - petition to

law, ordinance or resolution. (R.A. No. 6735, § 13(a)) approve or reject an act or law, or part
thereof, passed by Congress
2. Referendum on local laws - legal processes
whereby the registered voters of the local
MINIMUM NUMBER OF REGISTERED
government units may approve, amend or
VOTERS REQUIRED PER LGU reject any ordinance enacted by the
Sanggunian
LGU NOT LESS THAN:
Required Petition
Autonomous region 2000 1. Petition should be registered with the
Commission on Elections
Province or city 1000 2. Should be signed by at least 10% of the total
number of registered voters
Municipality 100 3. Every legislative district must be represented
by at least 3% of the registered voters thereof
Barangay 50
The petition to be signed by the people should
Limitations on the Power of Local Initiative contain a definite proposal of the amendment of the
1. Should not be exercised more than once a Constitution; not merely a general question whether
year; they approve of the amendment or not (Lambino v.
2. Extended only to subjects or matters which COMELEC, G.R. No. 174153, October 25, 2006).
are within the legal powers of local
legislative bodies to enact; Matters Which May Not Be the Subject of
3. If the local legislative body adopts the Initiative or Referendum (R.A. No. 6735, § 10.)
proposition in toto before the initiative is 1. A petition embracing more than one subject.
held, the initiative shall be cancelled. Those 2. Statutes involving emergency measures
against such action may apply for initiative.
(R.A. No. 6735, § 15) Initiative v. Referendum (SBMA v. COMELEC, G.R.
No. 125416, Sept. 26, 1996)
Limitation on Local Legislative Body vis-a-vis INITIATIVE REFERENDUM
Local Initiative
Any proposition, ordinance, or resolution approved Power of the people to Right reserved to the
through an initiative and referendum propose bills and laws, people to adopt or
● Shall not be repealed, modified or amended and to enact or reject reject any act or
by the local legislative body concerned them at the polls measure which has
within 6 months from its date of approval independent of the been passed by a
● May be amended, modified, repealed within legislative assembly legislative body and
3 years thereafter by a vote of 3/4 of all its which in most cases
members. would without action on
○ In case of barangays, the period the part of electors
shall be 18 months after approval. become a law
(R.A. No. 6735, § 16; Local
Government Code, § 125.) Entirely the work of the Begun and consented
electorate to by the law-making
Indirect Initiative
body
Exercise of initiative by the people through a
proposition sent to the Congress or the local
A process of law- Consists merely of the
legislative body for action (R.A. No. 6735, § 3(b))
making by the people electorate approving or
themselves without the rejecting what has
2. Referendum
participation and been drawn up or
The power of the electorate to approve or reject against the wishes of enacted by a legislative
legislation through an election called for the purpose their elected body
(R.A. No. 6735, § 3(c))
representatives
Two Classes of Referendum (R.A. No. 6735, § 3(c);
Local Government Code, § 126.) ————- end of topic ————-
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IV. EXECUTIVE DEPARTMENT A. QUALIFICATIONS, ELECTION,

AND TERM OF PRESIDENT AND
TOPIC OUTLINE UNDER THE SYLLABUS: VICE-PRESIDENT
A. QUALIFICATIONS, ELECTION, AND Qualifications of President and Vice-President

TERM OF THE PRESIDENT AND VICE- (Secs 3-4):
PRESIDENT PRESIDENT VICE-PRESIDENT
1. Natural-born citizen of the Philippines
B. PRIVILEGES, INHIBITIONS, AND 2. Registered voter
DISQUALIFICATIONS 3. Able to read and write
4. At least 40 years old on the day of election
C. POWERS OF THE PRESIDENT 5. Resident of the Philippines for at least 10 years
1. General executive and administrative immediately preceding the election
powers 6. Term of 6 years
2. Power of appointment 7. Unless otherwise provided by law, term of office
a. In general commences at noon of June 30 next following the
b. Confirmation and by-passed election
appointments Single term only; not Term limitation; 2
c. Midnight and ad interim eligible for any reelection successive terms
appointments (but can run if no longer
d. Power of Removal incumbent president, like
D. POWER OF CONTROL AND President Estrada in
SUPERVISION May 2020)
1. Doctrine of qualified political agency
2. Executive Departments and Offices Any person who has
3. Local Government Units succeeded as President,
and served as much for
E. EMERGENCY POWERS more than 4 years shall
F. MILITARY POWERS NOT be qualified for
1. Calling out powers election to the same
2. Declaration of martial law and office at any time
suspension of the privilege of the writ of
habeas corpus; extension Voluntary renunciation of the office for any length of
G. EXECUTIVE CLEMENCY time shall not be considered an interruption in the
1. Forms and Limitations continuity of service
H. DIPLOMATIC POWER
I. POWERS RELATIVE TO Term of Office
APPROPRIATION MEASURES The President and Vice President shall be elected by
direct vote of the people for a term of 6 years (PHIL.
J. RULES OF SUCCESSION CONST. art. VII, § 4).
The president shall not be eligible for any re-election.

No person who has succeeded as President and has
served for more than 4 years shall be qualified for
election to the same office at any time. (PHIL. CONST.,
art VII, § 4, ¶ 1).
No Vice-President shall serve for more than 2

consecutive terms. (PHIL. CONST., art. VII, § 4, ¶ 2).
Election
Regular: 2nd Monday of May, every 6 years
Special (Requisites)
● Death, Permanent disability, removal from
office or resignation of both President and
Vice-President
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● Vacancies occur more than 18 months profession during their

before the next regular presidential election; tenure
and
● A law passed by Congress calling for a ● Participating in any
special election to elect a President and Vice business
President to be held not earlier than 45 days
nor later than 60 days from the time of such ● Being financially
call (PHIL. CONST., art VII, § 10) interested in any contract
with, or in any franchise,
Congress as Canvassing Board or special privilege
The proclamation of presidential and vice presidential granted by the
winners is a function of Congress and not of the government or any
COMELEC (Macalintal v COMELEC, G.R. No. subdivision, agency or
157013, June 10, 2003) instrumentality thereof,
including GOCCs or their
SC as the Presidential Electoral Tribunal (PET) subsidiaries (PHIL.
The SC, sitting en banc, shall be the sola judge of all CONST., art VII, § 13)
contests relating to the election, returns and Spouses and Cannot be appointed during
qualifications of the President or Vice President, and 4th degree President’s tenure as:
may promulgate its rules for the purpose. (Macalintal relatives of the (a) Members of the Constitutional
v. PET, G.R. No. 191618, Nov. 23, 2010) President Commissions
(consanguinity (b) Office of the Ombudsman
Oath of Office or affinity) (c) Department Secretaries
Before they enter on the execution of their office, the (d) Department Under-
President, Vice President or the Acting President secretaries
shall take the oath or affirmation (PHIL. CONST., art. (e) Chairman or heads of bureaus
VII, § 5). or offices including GOCCs
and their subsidiaries
B. PRIVILEGES, INHIBITIONS, AND If the spouse, etc., was already in

DISQUALIFICATIONS any of the above offices before
his/her spouse became President,
1. Disqualifications he/she may continue in office.
SUBJECT SOURCE OF What is prohibited is appointment
DISQUALIFICATION and reappointment, not
President PROHIBITED FROM: continuation in office.
Holding any office or employment
Vice President during their tenure Spouses etc., can be appointed to
the judiciary and as ambassadors
Cabinet Exceptions: and consuls
Members ● Otherwise provided in the
Constitution (e.g., Vice The Chief Presidential Legal Counsel (CPLC) has the
Deputies or President appointed as a duty of giving independent and impartial legal advice
Assistants of member of the Cabinet, on the actions of the heads of various executive
Cabinet Secretary of Justice sits departments and agencies and to review
members as an ex-officio member investigations involving heads of executive
on Judicial and Bar departments and agencies, as well as other
Council) Presidential appointees.
● The positions are ex-
officio and they do not The PCGG is charged with the responsibility, under
receive any salary or the President, of recovering ill-gotten wealth. The
other emoluments offices of the PCGG and CPLC are incompatible.
therefor (e.g. Sec. of Without question, the PCGG is an agency under the
Finance is head of Executive Department. Thus, the actions of the
Monetary Board) PCGG Chairman are subject to the review of the
CPLC (Public Interest Group v. Elma, G.R. No.
● Practicing, directly or 138965, June 30, 2006).
indirectly, any other
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Exception to the Prohibition on the President

and His/Her Official Family from Holding Any Duration of Presidential Immunity
Other Office or Employment After his tenure, the Chief Executive cannot invoke
If 4th degree relatives are already in office when a immunity from suit for civil damages arising out of
President assumes office, the relatives are not acts done by him while he was President which were
thereby ousted from their positions. What is not performed in the exercise of official duties.
prohibited is appointment or reappointment and not (Estrada v. Desierto, G.R. No. 146710, March 2,
uninterrupted continuance in office 2001)
Inhibitions A department secretary, even if an alter ego of the

● No increase in salaries until after the President, cannot invoke presidential immunity in a
expiration of the term of the incumbent case filed against him because the questioned acts
during which such increase was approved are not the acts of the President. (Gloria v CA, G.R.
(PHIL. CONST., art. VII, §6). No. 119903, Aug. 15, 2000)
● Shall not, during tenure, directly or indirectly,
practice any other profession, participate in PRESIDENTIAL PRIVILEGE
any business, or be financially interested in
any contract with, or in any franchise, or Executive Privilege is the power of the President to
special privilege granted by the Government withhold certain types of information from the court,
or any subdivision, agency or instrumentality the Congress, and the public. (Neri v. Senate, G.R.
thereof, including GOCCs or their No. 180643, March 25 2008).
subsidiaries (PHIL. CONST., art. VII, § 13).
● Shall not receive any other emoluments For the presidential communications privilege to
from the government or any other source apply, the following must concur:
(PHIL. CONST., art. II, § 6) (a) Communications relate to a “quintessential
● Shall avoid conflict of interest in conduct of and nondelegable power” of the President.
office (PHIL. CONST., art. VII, § 13). (e.g. the power to enter into an executive
agreement with other countries without the
2. Privileges concurrence of the Legislature has
traditionally been recognized in Philippine
PRESIDENTIAL IMMUNITY jurisprudence)
(b) Communications are “received” by a close
Immunity from suit is personal to the President and advisor of the President. Under the
may be invoked by him alone. The President may “operational proximity” test, Secretary Neri
waive it impliedly, as when he himself files suit of NEDA can be considered a close advisor,
(Soliven v. Makasiar, G.R. No. 82585, Nov. 14, being a member of President Arroyo’s
1988). cabinet.
(c) There is no adequate showing of a
The presidential immunity from suit remains compelling need that would justify the
preserved under our system of government, albeit limitation of the privilege and of the
not expressly reserved in the present constitution unavailability of the information elsewhere
(Rubrico, et al. v. Gloria Macapagal-Arroyo, et al., by an appropriate investigating authority.
G.R. No. 183871, Feb. 18, 2010).
Scope of Executive Privilege
Unlawful acts of public officials are not acts of State Executive privilege covers all confidential or
and the officer who acts illegally is not acting as such classified information between the President and the
but stands in the same footing as any other public officers covered by this executive order;
trespasser. Once out of office, even before the end including:
of the six-year term, immunity for non-official acts is  Conversations and correspondence
lost (Estrada v. Desierto, G.R. No. 146710-15, March between the President and the public
2, 2001). official covered by this executive order
(Chavez v Public Estates Authority, G.R.
Even if the DECS Secretary is an alter ego of the No. 133250, July 9, 2002)
President, the President’s immunity from suit cannot  Military, diplomatic and other national
be invoked because the questioned acts are not the security matters which in the interest of
acts of the President but merely those of a national security should not be divulged;
Department Secretary (Gloria v. CA, G.R. No.  Information between inter-government
119903, Aug. 15, 2000). agencies prior to the conclusion of treaties
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and executive agreements (Chavez v. Exception to Executive Privilege:

PCGG, G.R. No. 130716, Dec. 9, 1998); The President's generalized assertion of privilege
 Discussion in close-door Cabinet meetings must yield to the demonstrated, specific need for
(Chavez v. PCGG, G.R. No. 130716, Dec. evidence in a pending criminal trial. (U.S. v. Nixon,
9, 1998); 418 U.S. 683, 1974).
 Matters affecting national security and
public order (Chavez v. Public Estates Executive privilege cannot be used to conceal a
Authority, G.R. No. 133250, Jul. 9, 2002). crime or a possible wrongdoing. Thus, the specific
need for evidence in a pending criminal trial
Person Covered by the Privilege outweighs the President’s generalized interest in
The person covered by the executive privilege is a confidentiality (Neri v. Ermita, G.R. No. 169777, April
person in possession of information which is, in the 20, 2006).
judgment of the head of office concerned, privileged
Difference between Presidential
Operational Proximity Communications Privilege and Deliberative
Not every person who plays a role in the Process Privilege
development of presidential advice, no matter how PRESIDENTIAL DELIBERATIVE
remote and removed from the President, can qualify COMMUNICATIONS PROCESS PRIVILEGE
for the privilege. The privilege should apply only to PRIVILEGE
communications authored or solicited and received Pertains to Includes advisory
by those members of an immediate White House communications, opinions,
advisor’s staff who have broad and significant documents or other recommendations and
responsibility for investigation and formulating of the materials that reflect deliberations comprising
advice to be given the President on the particular presidential decision- part of a process by
matter to which the communications relate (Neri v. making and deliberations which governmental
Senate Committee, G.R. No. 180643, March 25, decisions and policies
2008 citing In re: Sealed, No. 96-3124, 121 F.3d are formulated
729,326 U.S. App. D.C. 276, 1997). Applies to decision- Applies to decision-
making of the President making of executive
Presidential communications are presumptively officials (and judiciary)
privileged and such presumption can be overcome
only by mere showing of public need by the branch Rooted in the Based on common law
seeking access to conversations. The oversight constitutional principle of privilege
function of Congress may be facilitated by separation of powers
compulsory process ONLY to the extent that it is Requisites: Requisites:
performed in pursuit of legislation” (Neri v. Senate, (a) It must involve a (a) Predecisional – it
G.R. No. 180643, March 25, 2008). quintessential and precedes, in temporal
non-delegable power sequence, the
While the final text of the JPEPA may not be kept of the President decision to which it
perpetually confidential - since there should be (b) Operational relates
“ample opportunity for discussion before a treaty is Proximity (b) Deliberative – reflects
approved” – the offers exchanged by the parties (c) Important and the give and take of
during the negotiations continue to be privileged even compelling need to the consultative
after the JPEPA is published. Diplomatic negotiations be confidential, not process such that
privilege bears a close resemblance to the merely based on disclosure would
deliberative process and residential communications’ general interest discourage candid
privilege. Clearly, the privilege accorded to diplomatic discussion within the
negotiations follows as a logical consequence from agency (In Re:
the privileged character of the deliberative process Production of Court
(Akbayan v. Aquino, G.R. No. 170516, July 16, Records and
2008). Documents, Feb. 14,
2012)
When To Apply Executive Privilege:
(a) Must fall within one of the above.
(b) Must be stated with sufficient particularity so
the Congress or Court can determine the
legitimacy of the claim of privilege.
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C. POWERS OF THE PRESIDENT The power involved is the President's residual power
to protect the general welfare of the people. It is
1. GENERAL EXECUTIVE AND founded on the duty of the President, as steward of
ADMINISTRATIVE POWERS the people. To paraphrase Theodore Roosevelt, it is
not only the power of the President but also his duty
Executive Powers, In General to do anything not forbidden by the Constitution or the
The Constitution provides that "[t]he executive power laws that the needs of the nation demand. It is a
shall be vested in the President of the Philippines.” power borne by the President's duty to preserve and
However, it does not define what is meant by defend the Constitution. It also may be viewed as a
executive power although in the same article it power implicit in the President's duty to take care that
touches on the exercise of certain powers by the the laws are faithfully executed (Marcos v
President, i.e., the power of control over all executive Manglapus, G. R. No. 88211, Sept. 15, 1989).
departments, bureaus and offices, the power to
execute the laws, the appointing power, the powers 2. POWER OF APPOINTMENT
under the commander-in-chief clause, the power to
grant reprieves, commutations and pardons, the a. In General
power to grant amnesty with the concurrence of
Congress, the power to contract or guarantee foreign Nature of the Power to Appoint
loans, the power to enter into treaties or international
agreements, the power to submit the budget to Executive in nature; while Congress (and the
Congress, and the power to address Congress. Constitution in certain cases) may prescribe the
qualifications for particular offices, the determination
The President’s Executive powers are not limited to of who among those who are qualified will be
those set forth in the Constitution. The President has appointed is the President’s prerogative.
residual powers as the Chief Executive of the
country, which powers include others not set forth in In case of vacancy in an office occupied by an alter
the Constitution (Marcos v. Manglapus, G.R. No. ego of the President, such as the office of a
88211, Sept. 15, 1989). department secretary, the President must
necessarily appoint an alter ego of her choice as
Power of Administrative Reorganization acting secretary before the permanent appointee
The President has the continuing authority to of her choice could assume office. Congress, through
reorganize the national government, which includes a law, cannot impose on the President the obligation
the power to group, consolidate bureaus and to appoint automatically the undersecretary as her
agencies, to abolish offices, to transfer functions, to temporary alter ego. An alter ego, whether temporary
create and classify functions, services and activities or permanent, holds a position of great trust and
and to standardize salaries and materials, if effected confidence. Congress, in the guise of prescribing
in good faith and for the purpose of economy or make qualifications to an office, cannot impose on the
the bureaucracy more efficient. (MEWAP v Executive President who her alter ego should be (Pimentel v.
Secretary, G.R. No. 160093, July 31, 2007) Ermita, G.R. No. 164978, Oct. 13, 2005).
Faithful Execution Clause May the President appoint an individual as

Until and unless a law is declared unconstitutional, acting Solicitor General and acting Secretary of
the President has a duty to execute it regardless of Justice?
his doubts as to its validity.
The President may not appoint an individual as acting
RESIDUAL POWERS Solicitor General and acting Secretary of Justice in a
concurrent capacity. The designation of Alberto Agra
The President shall exercise such other powers and as acting Secretary of Justice concurrently with his
functions vested in the President which are provided position as Solicitor General is in violation of the
for under the laws and which are not specifically constitutional prohibition under Article VII, Section
enumerated above, or which are not delegated by the 13. It is of no moment that the designation was in a
President in accordance with law. temporary capacity. The Constitution makes no
reference to the nature of the designation (Funa v.
The textual justification for this under the Constitution Agra, G.R. No. 191644, Feb. 19, 2013).
is Article VII, Section 17 – to ensure that the laws are
faithfully executed – called the Faithful Execution Kinds of Presidential Appointments under Art VII,
Clause. Sec.15 of the Constitution
(a) Appointments made by an acting president
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(b) Midnight appointment — appointment made Appointments extended by an acting President shall
by a President after the election of his remain effective unless revoked by the elected
successor and up to the end of his term. This President within 90 days from assumption of office
is prohibited by the Constitution. (PHIL. CONST., art. VII, § 14)
(c) Appointments for Partisan Political
Consideration. Those made 2 months Two months immediately before the next Presidential
before the next Presidential election. This is elections and up to the end of his/her term, a
prohibited by the Constitution. President or Acting President shall not make
(d) Regular presidential appointments, with or appointments except temporary appointments to
without confirmation by the Commission on executive positions when continued vacancies
Appointments, and ‘recess’ or ‘ad-interim’ therein will prejudice public service or endanger
appointments. public safety (PHIL. CONST., art. VII, § 15).
Appointment in an Acting Capacity The appointment of the heads of the executive

The essence of an appointment in an acting capacity departments, ambassadors, other public ministers
is its temporary nature. It is a stop-gap measure and consuls, or officers of the armed forces from the
intended to fill an office for a limited time until the rank of colonel or naval captain, and other officers
appointment of a permanent occupant to the office. whose appointments are vested in him in this
The law expressly allows the President to make such Constitution require the consent of the Commission
acting appointment. EO 292 states that “[t]he on Appointments (PHIL. CONST., art. VII, § 16).
President may temporarily designate an officer
already in the government service or any other b. Confirmation and by-passed
competent person to perform the functions of an appointments
office in the executive branch.” But EO 292 also
provides that acting appointments cannot exceed Regular Appointments Requiring Consent of
one year. The law has incorporated this safeguard Commission on Appointment (CA)
to prevent abuses, like the use of acting The following may be appointed by the president,
appointments as a way to circumvent confirmation by subject to approval by the Commission on
the Commission on Appointments. (Pimentel v. Appointments (CA):
Ermita, G.R. No. 164978, Oct. 13, 2005) (a) Heads of executive departments
(b) Ambassadors, consuls, and other public
Requisites for Valid Appointment ministers
1. Authority to appoint and evidence of its (c) Officers of AFP from the rank of colonel or
exercise; naval captain
2. Transmittal of the appointment and proof of (d) Other officers whose appointment is vested
it in him by the Constitution, such as:
3. Vacant position at the time of appointment; a. Chairmen and members of the
4. Receipt of the appointment and COMELEC, COA, and CSC.
5. acceptance by the appointee who b. Regular members of the JBC.
possesses all the qualifications and none of c. The Ombudsman and his deputies.
the disqualifications. (Velicaria-Garafil v. d. Sectoral representatives in
OP, G.R. No. 203372, June 16, 2015). Congress, as provided in Transitory
Provisions (Sec. 16).
Limitations on the Exercise/Power
Appointments With Prior Recommendation or
The Constitutional Limitations on the Nomination By The JBC
President’s appointing power ● Members of the SC and judges of the lower
The President may not appoint his/her spouse and courts; these appointments do not need CA
relatives by consanguinity or affinity within the 4th confirmation (PHIL. CONST., art. VIII, § 9).
civil degree as members of the: ● Ombudsman and his Deputies (PHIL.
(a) Constitutional Commissions CONST., art. VIII, § 9).
(b) Ombudsman Regular Appointments Without Need Of CA
(c) Department Secretaries Confirmation
(d) Undersecretaries All other officers whose appointments are not
(e) Chairmen and heads of Bureaus and Offices otherwise provided for by law and those whom he
(f) GOCCs (PHIL. CONST., art. VII, § 13) may be authorized by law to appoint do not require
CA confirmation. This includes the Chairman and
members of the Commission on Human Rights
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(CHR), whose appointments are provided for by law, Difference between Disapproval and By-Passed
and NOT by the Constitution. (PHIL. CONST., Art. VII, Appointments
Sec. 16) APPOINTMENTS BY-PASSED
DISAPPROVED APPOINTMENTS
Congress may, by law, vest in the President alone or When the Commission When an ad-interim
in the courts, or in the heads of departments, disapproves an ad position is by-passed
agencies boards or commissions the appointment of interim appointment, the because of law of time or
other officers lower in rank than those mentioned appointee can no longer failure of the
above (PHIL. CONST., Art. VII, Sec 16) be extended a new Commission to organize,
appointment, inasmuch there is no final decision,
However, Congress cannot, by law, require CA as the disapproval is a the President is free to
confirmation of the appointment of other officers for final decision in the renew the ad-interim
offices created subsequent to the 1987 Constitution exercise of the appointment.
e.g. NLRC Commissioners, Bangko Sentral Commission’s checking
Governor (Calderon v. Carale, G.R. No. 91636, April power on the
23, 1992). appointment authority of
the President
PROCEDURE WHEN CA CONFIRMATION
NEEDED:
(a) Nomination by President c. Midnight Appointments & Ad
(b) Confirmation by CA Interim Appointments
(c) Appointment by President
(d) Acceptance by appointee. MIDNIGHT APPOINTMENT
a. At any time before all four steps
have been complied with, the
General Rule: Two (2) months immediately before
President can withdraw the
the next Presidential elections and up to the end of
nomination or appointment.
his term, the President or Acting President shall not
make appointments. This is to prevent the practice of
Procedure When No CA Confirmation Needed:
making “midnight appointments.” (PHIL. CONST., art.
(a) Appointment VII, § 15).
(b) Acceptance
Exceptions
Once appointee accepts, President can no longer
withdraw the appointment
1. Temporary appointments to executive
positions if continued vacancies will prejudice
Appointments By An Acting President (PHIL.
public service or endanger public safety.
CONST., art. VII, § 14)
These shall remain effective unless revoked by the
2. Prohibition does not extend to appointments
elected President within 90 days from his assumption
or re-assumption of office. in the Supreme Court. Had the framers
intended to extend the prohibition to the
appointment of Members of the Supreme
The power of the succeeding President to revoke
Court, they could have explicitly done so. The
appointments made by the Acting President refers
only to appointments in the Executive Department prohibition is confined to appointments in the
Executive Department. Existence of the JBC
(De Castro v. JBC, G.R. No. 191002, April 20, 2010).
also prevents possible abuses in
appointment (De Castro v JBC, G.R. No.
191002, April 20, 2010); overturned In re:
Appointment of Valenzuela, A.M. 98-5-01-
SC, Nov. 9, 1998).
3. There is no law that prohibits local elective

officials from making appointments during the
last days of his or her tenure. Prohibition only
applies to appointments by the President (De
la Rama v. CA, G.R. No. 131136, Feb. 28,
2001).
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4. If the President is not satisfied with the list Appointments of local chief executives must conform
submitted by the JBC, he may ask for another to these civil service rules and regulations in order to
list. But once the appointment is issued by the be valid. (Provincial Government of Aurora v Marco,
President and accepted by the nominee, it G.R. No. 202331, April 22, 2015)
needs no further confirmation.
AD INTERIM APPOINTMENT
5. President may appoint SC Justice within 60
days prior to election. Article VII deals entirely What is an ad interim appointment?
with the executive department while Article An ad interim appointment is a permanent
VIII deals with the judiciary. Had the framers appointment unless otherwise indicated. It is an
intended to extend the 60-day prohibition appointment made by the President while Congress
contained in Section 15, Article VII to the is NOT in session or during recess.
appointment of Members of the Supreme
Court, they could have explicitly done so. Ad-Interim Appointments (PHIL. CONST., art VII, §
That such specification was not done only 16)
reveals that the prohibition against the ● When Congress is in recess, the President
President or Acting President making may still appoint officers to positions subject
appointments within two months before the to CA confirmation. These appointments are
next presidential elections and up to the end effective immediately, but are only effective
of the President’s or Acting President’s term until they are disapproved by the CA or until
does not refer to the Members of the the next adjournment of Congress.
Supreme Court. The usage in Section 4 (1), ● Applies only to positions requiring
Article VIII of the word shall – an imperative, confirmation of CA Appointments to fill an
operating to impose a duty that may be office in an ‘acting’ capacity are NOT ad-
enforced – should not be disregarded. interim in nature and need no CA approval.
● The assumption of office on the basis of the
6. The framers did not need to extend the ad interim appointments issued by the
prohibition against midnight appointments to President does not amount to a temporary
appointments in the Judiciary, because the appointment which is prohibited by § 1 (2),
establishment of the JBC and subjecting the Art. IX-C. An ad interim appointment is a
nomination and screening of candidates for permanent appointment because it takes
judicial positions to the unhurried and effect immediately and can no longer be
deliberate prior process of the JBC ensured withdrawn by the President once the
that there would no longer be midnight appointee has qualified into office. (Matibag
appointments to the Judiciary. JBC v. Benipayo G.R. No. 149036, April 2, 2002).
intervention eliminates the danger that
appointments to the Judiciary can be made How Ad-Interim Appointments Terminated
for the purpose of buying votes in a coming (a) Disapproval of the appointment by the CA;
presidential election, or of satisfying partisan (b) Adjournment by the Congress without the
considerations. The creation of the JBC was CA acting on the appointment (NACHURA)
precisely intended to de-politicize the
Judiciary by doing away with the intervention d. Power of Removal
of the Commission on Appointments (De
Castro v. JBC, G.R. No. 191002, April 20 General Rule: The express power of appointment of
2010). the President has the corollary implied power of
removal. Hence, the President may remove
Prohibition against Midnight Appointments appointees.
applicable to Presidential Appointments only
(LEONEN) Exception: Appointments requiring certain methods
The prohibition on midnight appointments under for removal (e.g., Impeachment, appointment of
Article VII, Sec 15 only applies to presidential judges of inferior courts (PHIL. CONST., art. VIII, § 11;
appointments. It does not apply to appointments Gonzales III vs. Office of the President of the
made by local chief executives. Nevertheless, the Philippines, G.R. No. 196231, Sept. 4, 2012).
Civil Service Commission has the power to
promulgate rules and regulations to professionalize The succeeding President may not revoke
the civil service. It may issue rules and regulations appointments to the Judiciary made by an Acting
prohibiting local chief executives from making President. Sec. 14, Art. VII refers only to
appointments during the last days of their tenure. appointments in the Executive Department. It has no
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application to appointments in the Judiciary because For Administrative Proceedings, decisions of

temporary or acting appointments can only Department Secretaries need not be appealed to the
undermine the judiciary due to their being revocable President in order to comply with the requirement of
at will…Prior to their mandatory retirement or exhaustion of administrative remedies.
resignation, judges of the first or second level courts
and the Justices of the third level courts may only be The execution of laws is an OBLIGATION of the
removed for cause, but the members of the Supreme President. He cannot suspend the operation of laws.
Court may be removed only by impeachment (De
Castro v. JBC, G.R. No. 191002, Apr. 20, 2010). 1. Doctrine of Qualified Political
Agency
Disciplinary Powers
The power of the President to discipline officers flows QUALIFIED POLITICAL AGENCY - Acts of
from the power to appoint the officer, and NOT from department heads, etc., performed and promulgated
the power of control. in the regular course of business, are presumptively
acts of the President.
While the President may remove from office those
who are not entitled to security of tenure, or those Exceptions:
officers with no set terms, such as Department If the acts are disapproved or reprobated by the
Heads, the officers, and employees entitled to President. If the President is required to act in person
security of tenure cannot be summarily removed from by law or by the Constitution (e.g. the power to grant
office. pardons).
D. POWER OF CONTROL AND Application to Cabinet Members and Executive

SUPERVISION Secretary (LEONEN)
The doctrine of qualified political agency
Power of Control acknowledges the multifarious executive
The power of an officer to alter, modify, or set aside responsibilities that demand a president's attention,
what a subordinate officer has done in the such that the delegation of control power to his or her
performance of his duties, and to substitute the Cabinet becomes a necessity.
judgment of the officer for that of his subordinate.
Unless the Constitution or law provides
The President’s power of control is a self-executing otherwise, Cabinet members have the president's
provision. The incumbent President is free to amend, imprimatur to exercise control over the offices
rescind and modify any political agreements entered and departments under their respective
into by the previous Presidents (Ocampo v. Enriquez, jurisdictions, which authority nonetheless
G.R. No. 225973, Nov. 8, 2016). remains subject to the president's disapproval or
reversal. In a long line of decisions, the Court upheld
The appeal from the decision of a Department the notion that "the power of the president to
Secretary to the President can be restricted due to reorganize the National Government may validly be
the President’s power of control. It may be limited by delegated to his [or her] cabinet members exercising
executive order of the President, a law providing for control over a particular executive department”.
judicial review, and a rule of procedure promulgated
by the Supreme Court. (Angeles v. Gaite, G.R. No. But the Court retains the distinction that the doctrine
165276, Nov. 25, 2009). remains limited to the President's executive
secretary and other Cabinet secretaries. It does
Power of Supervision not extend to deputy executive secretaries or
The power of a superior officer to ensure that the laws assistant deputy secretaries. Clearly, the president
are faithfully executed by subordinates. cannot be expected to personally exercise his or her
control powers all at the same time. This entails the
The power of supervision does not include the power delegation of power to his or her Cabinet members
of control; but the power of control necessarily (Philippine Institute for Development Studies v.
includes the power of supervision. Commission on Audit, GR. No. 212022, Aug. 20,
2019).
The President’s power over GOCCs comes not from
the Constitution but from statute. Hence, it may 2. Executive Departments and Offices
similarly be taken away by statute.
The President may, by executive or administrative
order, direct the reorganization of government
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entities under the Executive Department. Section 17, by law, authorize the President, for a limited period
Article VII of the 1987 Constitution, clearly states: and subject to such restrictions as it may prescribe,
“The President shall have control of all executive to exercise powers necessary and proper to carry out
departments, bureaus and offices.” The a declared national policy. Unless sooner withdrawn
Administrative Code also grants the President the by resolution of the Congress, such powers shall
power to reorganize the Office of the President in cease upon the next adjournment thereof. (PHIL.
recognition of the recurring need of every President CONST., art. VI, § 23(2); IBP v. Zamora, G.R. No.
to reorganize his or her office “to achieve simplicity, 141284, Aug. 15, 2000)
economy and efficiency” (Tondo Medical v. Court of
Appeals, G.R. No. 167324, July 17, 2007). Conditions for the Exercise of the President of
Emergency Powers (David v. Macapagal-Arroyo,
The President may transfer any agency under the G.R. No. 171396, May 3, 2006)
Office of the President to any other department or 1. There must be a war or national emergency;
agency, subject to the policy in the Executive Office 2. There must be a law authorizing the
and in order to achieve simplicity, economy and President to exercise emergency powers;
efficiency (Anak Mindanao v. Executive Secretary, 3. Exercise must be for a limited period;
G.R. No. 166052, Aug. 29, 2007). 4. Exercise must be necessary and proper to
carry out a declared national policy; and
The creation of the Truth Commission does not fall 5. Must be subject to restrictions that Congress
within the President’s power to reorganize. It flows may provide.
from the faithful-execution clause of the Constitution
under Article VII, Section 17 thereof. One of the The President could validly declare the existence of
recognized powers of the President is the power to a state of national emergency even in the absence of
create ad hoc committees. This flows from the need a Congressional enactment. But the exercise of
to ascertain facts and determine if laws have been emergency powers, such as the taking over of
faithfully executed or guide the President in privately owned public utility or business affected with
performing his duties relative to the execution and public interest, is a different matter. This requires a
enforcement of laws. The Truth Commission will not delegation from Congress. (Id.)
supplant the Ombudsman or the Department of
Justice or erode their respective powers. The Article XII, Section 17 of the Constitution, which
investigative function of the Commission will states that, “[i]n times of national emergency, when
complement those of the two offices (Biraogo v. The the public interest so requires, the State may, during
Philippine Truth Commission of 2010 / Rep. Edcel C. the emergency and under reasonable terms
Lagman, et. al. v. Exec. Sec. Paquito N. Ochoa, Jr., prescribed by it, temporarily take over or direct the
et al., G.R. No. 192935 & G.R. No. 193036, Dec. 7, operation of any privately owned public utility or
2010). business affected with public interest,” is an aspect
of the emergency powers clause (i.e. PHIL. CONST.,
3. Local Government Units art. VI, § 23(2)). Whether or not the President may
exercise such power is dependent on whether
The power of the president over local government Congress may delegate it to him pursuant to a law
units is only of general supervision. He can interfere prescribing the reasonable terms thereof. (Id.)
with the actions of their executive heads only if these
are contrary to law.
The President exercises direct supervision over

autonomous regions, provinces, and independent
cities.
To facilitate the exercise of power of general

supervision of local government, the President may
merge administrative regions and transfer the
regional center to Koronadal City from Cotabato City
(Republic v. Bayao, G.R. No. 179492, June 5, 2013).
E. EMERGENCY POWERS
Congress is the repository of emergency powers. But

in times of war or other national emergency, it may,
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F. MILITARY POWERS 1. Calling out Powers
Extraordinary/Commander-in-Chief Powers As Commander-in-Chief of the Armed Forces,

Differentiated whenever necessary, the President may call out the
SUSPENDING THE Armed Forces to PREVENT or SUPPRESS:
PRIVILEGE OF THE (a) Lawless violence
CALLING OUT (b) Invasion
WRIT OF HABEAS
POWERS (c) Rebellion
CORPUS/DECLARING
MARTIAL LAW
GROUNDS Among the three extraordinary powers, the calling
May be resorted to May be exercised only out power is the most benign and involves ordinary
whenever it becomes when there is actual police action. The power to call is fully discretionary
necessary to prevent invasion or rebellion, and to the President; the only limitations being that he
or suppress lawless public safety requires it acts within permissible constitutional boundaries or in
violence, invasion, or a manner not constituting grave abuse of discretion.
rebellion In fact, the actual use to which the President puts the
ACTION BY THE LEGISLATIVE OR JUDICIAL armed forces is not subject to judicial review.
BRANCH (Lagman v. Medialdea, G.R. No. 231658, July 4,
The Court may nullify Congress may revoke 2017)
the exercise of such such proclamation or
power only when the suspension and the The President's calling out power is in a different
President acts in a Court may review the category from the power to suspend the privilege of
manner constituting sufficiency of the factual the writ of habeas corpus and the power to declare
grave abuse of basis thereof martial law. In other words, the President may
discretion exercise the power to call out the Armed Forces
independently of the power to suspend the privilege
(Lagman v. Medialdea, G.R. No. 231658, July 4,
of the writ of habeas corpus and to declare martial
2017; IBP v. Zamora, G.R. No. 141284, Aug. 15,
law, although, of course, it may also be a prelude to
2000)
a possible future exercise of the latter powers. (Id.)
Graduation of the Extraordinary Powers
The 1987 Constitution gives the President a The factual necessity of calling out the armed forces
is something that is for the President to decide. (IBP
sequence of graduated power[s]. From the most to
the least benign, these are: the calling out power, the v. Zamora, G.R. No. 141284, Aug. 15, 2000)
power to suspend the privilege of the writ of habeas
corpus, and the power to declare martial law. It must Judicial inquiry can go no further than to satisfy the
Court not that the President’s decision is correct but
be stressed, however, that the graduation refers only
to hierarchy based on scope and effect. It does not in that the President did not act arbitrarily. Thus, the
standard laid down is not correctness, but
any manner refer to a sequence, arrangement, or
order which the Commander-in-Chief must follow. arbitrariness.
This so-called "graduation of powers" does not
dictate or restrict the manner by which the President PP 1017 is constitutional insofar as it constitutes a
call by PGMA on the AFP to suppress lawless
decides which power to choose.
violence, which pertains to a spectrum of conduct
The power to choose, initially, which among these that is manifestly subject to state regulation, and not
extraordinary powers to wield in a given set of free speech.
conditions is a judgment call on the part of the
President. PP 1017 is unconstitutional insofar as it grants PGMA
the authority to promulgate “decrees.” Legislative
It is thus beyond doubt that the power of judicial power is within the province of the Legislature. She
can only order the military, under PP 1017, to enforce
review does not extend to calibrating the President's
decision pertaining to which extraordinary power to laws pertinent to its duty to suppress lawless violence
(David v. Gloria Macapagal-Arroyo, G.R. No.
avail given a set of facts or conditions. To do so would
be tantamount to an incursion into the exclusive 171396, May 3, 2006).
domain of the Executive and an infringement on the
prerogative that solely, at least initially, lies with the Gen. Order No. 5 is constitutional since it provides a
standard by which the AFP and the PNP should
President. (Lagman v. Medialdea, G.R. No. 231658,
implement PP 1017, that is, suppressing lawless
July 4, 2017)
violence. However, considering that “acts of
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terrorism” have not yet been defined and made Checks and Balances to Limit the Exercise of
punishable by the Legislature, such portion of G.O. the Martial Law and Suspension
No. 5 is declared unconstitutional. (David v. Powers/Safeguards against Abuse
Macapagal-Arroyo, G.R. No. 171396, May 3, 2006)
1. The President may declare martial law or
Declaration of a State of Emergency suspend of the privilege of the writ of the
The declaration of a state of emergency is merely a privilege of habeas corpus only when there
description of a situation that authorizes (the is an invasion or rebellion and public safety
President) to call out the Armed Forces to help the requires such declaration or suspension.
police maintain law and order. It gives no new power 2. The President's proclamation or suspension
to her, or to the military, or to the police. Certainly, it shall be for a period not exceeding 60 days.
does not authorize warrantless arrests or control of 3. Within 48 hours from the proclamation or
media (David v. Ermita, G.R. No. 171409, May 3, suspension, the President must submit a
2006). Report in person or in writing to Congress.
4. The Congress, voting jointly and by a vote of
Emergency Powers v. Calling Out Powers at least a majority of all its Members, can
The presidential proclamation of a state of revoke the proclamation or suspension.
emergency is NOT sufficient to allow the President to 5. The President cannot set aside the
take over any public utility. Since it is an aspect of Congress' revocation of his proclamation or
emergency powers in accordance with § 23 (2), Art. suspension.
VI of the Constitution, there must be a law delegating 6. The President cannot, by himself, extend his
such power to the President (David v. Macagapal proclamation or suspension. He should ask
Arroyo, G.R. No. 171396, May 3, 2006). the Congress' approval.
7. Upon such initiative or request from the
2. Declaration of Martial Law and President, the Congress, voting jointly and
Suspension of the Privilege of the Writ of by a vote of at least a majority of all its
Habeas Corpus; Extension Members, can extend the proclamation or
suspension for such period as it may
Besides his calling out powers, the President may determine.
also: 8. The extension of the proclamation or
(a) Suspend the privilege of the writ of habeas suspension shall only be approved when the
corpus invasion or rebellion persists and public
(b) Proclaim a state of martial law safety requires it.
9. The Supreme Court may review the
A state of martial law is peculiar because the sufficiency of the factual basis of the
President, at such a time, exercises police power, proclamation or suspension, or the
which is normally a function of the Legislature. In extension thereof, in an appropriate
particular, the President exercises police power, with proceeding filed by any citizen.
the military’s assistance, to ensure public safety and 10. The Supreme Court must promulgate its
in place of government agencies which for the time decision within 30 days from the filing of the
being are unable to cope with the condition in a appropriate proceeding
locality, which remains under the control of the State. 11. Martial law does not suspend the operation
(Lagman v. Medialdea, G.R. No. 231658, July 4, of the Constitution. Accordingly, the Bill of
2017) Rights remains effective under a state of
martial law. Its implementers must adhere to
Grounds For The Suspension Of The Privilege Of the principle that civilian authority is
The Writ Of Habeas Corpus And Declaration Of supreme over the military and the armed
Martial Law forces is the protector of the people. They
1. Actual rebellion or invasion (not imminent) must also abide by the State's policy to value
2. Public safety requires it the dignity of every human person and
guarantee full respect for human rights.
12. Martial law does not 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.
13. The suspension of the privilege of the writ
applies only to persons judicially charged for
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rebellion or offenses inherent in or directly need of a call within 24 hours following the Presidents
connected with invasion. proclamation or suspension. Clearly, the Constitution
14. Finally, during the suspension of the calls for quick action on the part of the Congress.
privilege of the writ, any person thus Whatever form that action takes, therefore, should
arrested or detained should be judicially give the Court sufficient time to fulfill its own mandate
charged within three days, otherwise he to review the factual basis of the proclamation or
should be released. suspension within 30 days of its issuance. (Fortun v.
Arroyo, G.R. No. 190293, March 20, 2012)
(Lagman v. Pimentel III, G.R. No. 235935, Feb. 6,
2018) As to what facts must be stated in the proclamation
and the written Report is up to the President. As
Territorial Coverage Commander-in-Chief, he has sole discretion to
The Constitution grants to the President the determine what to include and what not to include in
discretion to determine the territorial coverage of the proclamation and the written Report taking into
martial law and the suspension of the privilege of the account the urgency of the situation as well as
writ of habeas corpus. He may put the entire national security. (Lagman v. Medialdea, G.R. No.
Philippines or only a part thereof under martial law. 231658, July 4, 2017)
2017) Supreme Court Review
(a) In an appropriate proceeding filed by any
Limiting the proclamation and/or suspension to the citizen
place where there is actual rebellion would not only (b) The SC may review the sufficiency of the
defeat the purpose of declaring martial law, it will factual basis of the proclamation or
make the exercise thereof ineffective and useless. suspension, or the extension thereof
(e.g. martial law over Mindanao as a whole and not (c) Its decision must be promulgated within 30
merely Marawi where actual rebellion transpired) days from filing
● It is difficult, if not impossible, to fix the
territorial scope of martial law in direct Parameters of the Court for Determining the
proportion to the "range" of actual rebellion Sufficiency of the Factual Basis for the
and public safety simply because rebellion Declaration of Martial Law and/or the
and public safety have no fixed physical Suspension of the Privilege of the Writ of
dimensions. Habeas Corpus (Sufficiency of the Factual Basis
● Moreover, the President's duty to maintain Test)
peace and public safety is not limited only to 1. Actual rebellion or invasion
the place where there is actual rebellion; it 2. Public safety requires it
extends to other areas where the present 3. There is probable cause for the President to
hostilities are in danger of spilling over. (Id.) believe that there is actual rebellion or
invasion. (Lagman v. Medialdea, G.R. No.
Congressional Check on the Exercise of Martial 231658, July 4, 2017)
Law and Suspension Powers
1. The power to review the President's The scope of the Supreme Court’s power to review
proclamation of martial law or suspension of the declaration of Martial Law or suspension of the
the privilege of the writ of habeas corpus, writ of habeas corpus is limited to a determination of
and to revoke such proclamation or the sufficiency (not accuracy) of the factual basis
suspension. of such declaration or suspension. (Id.)
2. The power to approve any extension of the
proclamation or suspension, upon the The nature of the Supreme Court’s jurisdiction to
President's initiative, for such period as it determine the sufficiency of the factual basis for the
may determine, if the invasion or rebellion declaration of martial law and the suspension of the
persists and public safety requires it. privilege of the writ of habeas corpus by the President
(Lagman v. Pimentel III, G.R. No. 235935, is sui generis and granted by Sec. 18, Art. VII of the
Feb. 6, 2018) Constitution. It does not stem from Sec. 1 or 5 of Art.
VIII. (Id.)
Duty to Report to Congress
Section 18, Article VII, requires the President to
report his actions to Congress, in person or in writing,
within 48 hours of such proclamation or suspension.
In turn, the Congress is required to convene without
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Extension of Martial Law Judicial Power to Review vs. Congressional

When approved by the Congress, the extension of Power to Revoke Martial Law and Suspension of
the proclamation or suspension, as described during the Writ of Habeas Corpus
the deliberations on the 1987 Constitution, becomes JUDICIAL POWER CONGRESSIONAL
a "joint executive and legislative act" or a TO REVIEW POWER TO
"collective judgment" between the President and the REVOKE
Congress. (Lagman v. Medialdea, G.R. No. 243522, Court can only refer to Congress may take into
Feb. 19, 2019) information available to consideration:
the President prior to or (a) Data available to
The Court need not make an independent at the time of the the President
determination of the factual basis for the declaration prior to or at the
proclamation or extension of martial law and the time of the
suspension of the privilege of the writ of habeas Court is not allowed to declaration and
corpus. The Court is not a fact-finding body required undertake an (b) Events
to make a determination of the correctness of the independent supervening the
factual basis for the declaration or extension of investigation beyond declaration
martial law and suspension of the writ of habeas the pleadings
corpus. It would be impossible for the Court to go on Does not look into the Can probe further and
the ground to conduct an independent investigation absolute correctness of deeper, can delve into
or factual inquiry, since it is not equipped with the factual basis accuracy of facts
resources comparable to that of the Commander-in- presented before it
Chief to ably and properly assess the ground
conditions. (Id.) Passive Automatic
Initiated by filing of a May be activated by
In determining the sufficiency of the factual basis for petition “in an Congress itself at any time
the extension of martial law, the Court needs only to appropriate after the proclamation or
assess and evaluate the written reports of the proceeding” by a suspension was made
government agencies tasked in enforcing and citizen
implementing martial law in Mindanao. (Id.)
The test of sufficiency is not accuracy nor

preciseness but reasonableness of the factual basis
2017)
adopted by the Executive in ascertaining the
existence of rebellion and the necessity to quell it.
The Court can simultaneously exercise its power of
(Id.)
review with, and independently from, the power to
revoke by Congress. Corollary, any perceived
Manner of Approval by Congress of Extension is
inaction or default on the part of Congress does not
a Political Question
deprive or deny the Court of its power to review. (Id.)
The Court cannot review the rules promulgated by
Congress (in extending martial law or the suspension
Ways to Lift the Proclamation of Martial Law
of the writ of habeas corpus) in the absence of any
and/or Suspension of the Privilege:
constitutional violation. Legislative rules, unlike
1. Lifting by the President himself;
statutory laws, do not have the imprints of
2. Revocation by Congress;
permanence and obligatoriness during their
3. Nullification by the Supreme Court; and
effectivity. In fact, they may be revoked, modified or
4. By operation of law after 60 days (PHIL.
waived at the pleasure of the body adopting them.
CONST. art. VII, § 18).
(Lagman v. Pimentel III, G.R. No. 235935, Feb. 6,
2018; Lagman v. Medialdea, G.R. No. 243522, Feb.
19, 2019) G. EXECUTIVE CLEMENCY
1. Forms and Limitations
The matter of executive clemency is non-delegable

power and must be exercised by the President
personally (Villena v. Secretary of the Interior, G.R.
No. L-46570, April 21, 1939).
The power exists as an instrument for correcting the

infirmities in administration of justice and for
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mitigating whenever a strict application of the Extinguishes the offense Only penalties are
provisions of the law will result in undue harshness. extinguished; May or
(Bernas, 1987 Philippine Constitution: A may not restore political
Commentary, 924, 2009). rights; Absolute pardon
restores; Conditional,
FORMS OF EXECUTIVE CLEMENCY does not.
Civil indemnity is not
PARDON – An act of grace, proceeding from the extinguished
power entrusted of the laws, which exempts the May be granted before or Only granted after
individual on whom it is bestowed, from the after conviction conviction by final
punishment the law inflicts for a crime he has judgment
committed (United States v. Wilson, 503 U.S. 329,
1992). It is either conditional or plenary. EXECUTIVE CLEMENCY IN ADMINISTRATIVE
CASES:
AMNESTY - An act of grace concurred in by The power to grant clemency includes cases
Congress, usually extended to groups of persons involving administrative penalties. Where a
who commit political offenses, which puts into conditional pardon is granted, the determination of
oblivion the offense itself. The President alone whether it has been violated rests with the President.
cannot grant amnesty for it needs the concurrence by
a majority of all the members of Congress. When a The President can extend it to administrative cases
person applies for amnesty, he must admit his guilt but only in the Executive Branch, not in the Judicial
of the offense that is subject to such amnesty. If his or Legislative Branches of government (Llamas v.
application is denied, he can be convicted based on Orbos, G.R. No. 99031, Oct. 15, 1991).
this admission of guilt.
TAX AMNESTY: General pardon to impose penalties
REPRIEVE – postpones the execution of an offense on persons guilty of evasion or violation of revenue
to a day certain (People v. Vera, G.R. No. L-45685, or tax law (Republic v. IAC, G.R. No. 69344, Apr. 26,
Dec. 22, 1937). 1991).
REMISSION OF FINES AND FORFEITURES – LIMITATIONS

prevents the collection of fines or the confiscation of
forfeited property but it cannot have the effect of CANNOT BE GRANTED:
returning the property which has been vested in 3rd (a) Before conviction, in cases of impeachment
parties or money already in the public treasury
(Bernas, 1987 Philippine Constitution: A The President can pardon criminal offenses after an
Commentary, 933, 2009). impeachment proceeding such as what happened in
2007 when President Arroyo pardoned former
COMMUTATION – a remission of a part of the President Estrada after having been convicted by the
punishment; it is a substitution of a lesser penalty for Sandiganbayan of plunder.
the one originally imposed (People v. Vera, G.R. No.
L- 45685, Dec. 22, 1937). The exercise of the pardoning power is discretionary
in the President and may not be interfered with by
Amnesty v. Pardon Congress or the Court, except only when it exceeds
AMNESTY PARDON the limits provided for by the Constitution (Risos-
Political Offenses Ordinary Offenses Vidal v. COMELEC, G.R. No. 206666, Jan. 21,
To a class of persons To individuals 2015).
Need not be accepted Must be accepted
Requires concurrence of No need for (b) For violations of election laws, rules, and
majority of all members Congressional regulations without the favorable
of Congress Concurrence recommendation of the COMELEC in cases
A public act; subject to Private act of President; of civil or legislative contempt
judicial notice it must be proved (c) Granted only after conviction by final
judgment. (People. v. Salle, G.R. No.
103567, Dec. 4, 1995)
PAGE 91 of 490
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AS TO EFFECT: treaty or international agreement shall be

(a) Does not absolve civil liabilities for an transmitted to the Senate, with the following
offense options:
(b) Does not restore public offices already a. Approve it by 2/3 majority vote
forfeited, although eligibility for the same b. Disapprove it outrights
may be restored (Monsanto v. Factoran, c. Approve it conditionally, with
G.R. No. 78239, Feb. 9, 1989). suggested amendments. If re-
negotiated and the Senate’s
H. DIPLOMATIC POWER suggestions are incorporated, the
treaty goes into effect without need
Power to Contract of Guarantee Foreign Loans of further Senate approval.
(PHIL. CONST., art. VII, § 20)
The President may contract or guarantee foreign Note: While a treaty is re-negotiated, there is yet no
loans on behalf of the Republic of the Philippines with treaty
the prior concurrence of the Monetary Board; and
subject to such limitations as may be provided by law. EXECUTIVE AGREEMENTS
Executive agreements are concluded:
The Monetary Board shall, within 30 days from the (a) to adjust the details of a treaty, e.g., EDCA
end of every quarter of the calendar year, submit to as to VFA;
Congress a complete report on loans to be (b) pursuant to or upon confirmation by an act
contracted or guaranteed by the government of of the Legislature; or
GOCCs the would have the effect of increasing (c) in the exercise of the President's
foreign debts. independent powers under the Constitution.
Principle of Transformation of International Law The President may enter into an executive
(PHIL. CONST., art. VII, § 21) agreement on foreign military bases, troops or
No treaty or international agreement shall be valid facilities only if the executive agreement is not the
and effective unless concurred in by at least 2/3 of instrument that allows the presence of foreign military
ALL the Members of the Senate. bases, troops or facilities; or merely aims to
implement an existing law or treaty. (Saguisag v.
EXECUTIVE Exec. Sec., G.R. No. 212426, Jan. 12, 2016)
TREATIES
AGREEMENTS
International agreements International agreements Although municipal law makes a distinction between
involving political issues embodying adjustments international agreements and executive agreements,
or changes of national of detail carrying out with the former requiring Senate approval and the
policy and those well-established national latter not needing the same, under international law,
involving international policies and traditions there is no such distinction.
arrangements of and those involving
permanent character arrangements of more or The President cannot, by executive agreement,
less temporary nature undertake an obligation that indirectly circumvents a
legal prohibition.
Power to enter into foreign relations includes:
(a) The power to appoint ambassadors, other The President alone without the concurrence of the
public ministers, and consuls Senate abrogated a treaty. Assume that the other
(b) The power to receive ambassadors and country party to the treaty is agreeable to the
other public ministers accredited to the abrogation provided it complies with the Philippine
Philippines Constitution. If a case involving the validity of the
(c) The power to contract and guarantee treaty abrogation is brought to the SC, it should
foreign loans on behalf of the Republic dismiss the case. The jurisdiction of the SC (other
(d) The power to deport aliens – this power is lower courts) over a treaty is only with respect to
vested in the President by virtue of his office, questions of its constitutionality of validity. It does not
subject only to restrictions as may be pertain to the termination/abrogation of a treaty
provided by legislation as regards grounds (Gonzales v. Hechanova, G.R. No. L-21897, Oct. 22,
for deportation. In the absence of any 1963).
legislative restriction to authority, the
President may exercise this power
(e) The power to negotiate treaties and other
international agreements. However, such
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Treaty v. Executive Agreement shared function between the executive and

EXECUTIVE legislative branches hence the Senate’s
TREATY
AGREEMENT power to concur with treaties necessarily
Involves political issues, Involves details carrying includes the power to impose conditions for
national policy out national policy its concurrence.
International agreements More or less temporary (Pangilinan et. al. v. Cayetano et. al., G.R. No.
of a permanent kind in character 238875, G.R. No. 239483 & 240954, March 16,
2021)
Must be ratified No need to be ratified
I. POWERS RELATIVE TO
An “exchange of notes” is a record of a routine APPROPRIATION MEASURES
agreement that has many similarities with a private
law contract. The agreement consists of the ITEM VETO POWER on the basis of:
exchange of two documents, each of the parties Doctrine of Inappropriate Provisions - A provision
being in possession of the one signed by the that is constitutionally inappropriate for an
representative of the other. Under the usual appropriation bill may be subject to veto even if it is
procedure, the accepting State repeats the text of the not an appropriation or revenue “item.”
offering State to record its assent. An exchange of
notes is considered a form of an executive Executive Impoundment - Refusal of the President
agreement, which becomes binding through to spend funds already allocated by Congress for a
executive action without the need of a vote by the specific purpose. It is, in effect, an “impoundment” of
Senate or Congress (Abaya vs. Edbane, G.R. No. the law allocating such expenditure of funds.
167919, Feb. 14, 2007).
Budget – The Executive Branch proposes a budget
The Exchange of Notes between Secretary Romulo to Congress, which the latter considers in drafting
and the US Ambassador embodying a “No Surrender appropriation laws.
Agreement” regarding citizens arrested under the
Rome Treaty is valid. An exchange of Notes is Power to Augment
equivalent to an executive agreement and it is a No law shall be passed authorizing any transfer of
valid form of international agreement. The appropriations; however, /the President, /the
categorization of agreements in Eastern Sea President of the Senate, /the Speaker of the House
Trading, is not cast in stone. Neither a hard and fast of Representatives, /the Chief Justice of the Supreme
rule on whether Senate concurrence is needed for Court, and /the heads of Constitutional Commissions
executive agreements. (Bayan Muna v. Secretary may, by law, be authorized to augment any item in
Romulo, G.R. No. 159618, Feb. 1, 2011). the general appropriations law for their respective
offices from savings in other items of their respective
The President does not have absolute unilateral appropriations. (PHIL. CONST., Art. VI, § 25(5))
authority to withdraw from a treaty.
What are the requisites for a valid transfer of
1. The President enjoys some leeway in appropriation?
withdrawing from agreements which he or There are two essential requisites in order that a
she determines to be contrary to the transfer of appropriation with the corresponding
Constitution or statutes. funds may legally be effected. First, there must be
2. The President cannot unilaterally withdraw savings in the programmed appropriation of the
from agreements which were entered into transferring agency. Second, there must be an
pursuant to congressional imprimatur. existing item, project or activity with an appropriation
When a statute is adopted, the President in the receiving agency to which the savings will be
cannot withdraw from the treaty being transferred. (Sanchez v. COA, 552 SCRA 471)
implemented unless the statute itself is
repealed. (ex. Congress passed R.A 9581 Actual savings is a sine qua non to a valid transfer
ahead of the Senate’s concurrence to the of funds from one government agency to
Rome Statute.) another. The word “actual” denotes that something
3. The President cannot unilaterally withdraw is real or substantial, or exists presently in fact as
from international agreements where the opposed to something which is merely theoretical,
Senate concurred and expressly declared possible, potential or hypothetical. (Sanchez v. COA,
that any withdrawal must also be made with 552 SCRA 471)
its concurrence. Effecting treaties is a Veto Powers
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The President must communicate his decision to veto regular session. He may also appear before
within 30 days from the date of receipt thereof. If he it at any time.
fails to do so, the bill shall become law as if he signed (e) Call Congress to a special session
it. This rule eliminates the possibility of a ‘pocket veto’ (f) Power to Classify and Reclassify lands
whereby the President simply refuses to act on the
bill. J. RULES OF SUCCESSION
In exercising the veto power, the bill is rejected and Manner Of Election (PHIL. CONST., art. VII, § 4)
returned with his objections to the House from which
it originated. The House shall enter the objections in The President and Vice-President shall be elected by
the journal and proceed to reconsider it. (See earlier the direct vote of the people.
comment)
Election returns for President and Vice-President,
Pocket Veto vs. Item Veto duly certified by the Board of Canvassers of each
POCKET VETO ITEM VETO province or city, shall be transmitted to Congress,
When the president is Power of a president to directed to the Senate President.
considered to have nullify or cancel specific
rejected a bull submitted provisions of a bill, Upon receipt of the certificates of canvass, the
to him for his approval usually a budget Senate President shall, not later than 30 days after
when Congress adjourns appropriations bill, the day of the election, open all the certificates in the
during the period given to without vetoing the entire presence of both houses of Congress, assembled in
the president to approve legislative package joint public session.
or reject a bill
The Congress, after determining the authenticity and
Congressional pork barrel violates the due execution of the certificates, shall canvass the
President’s power to item-veto votes.
The President cannot exercise his item-veto power
because the purpose of the lump-sum discretionary The person having the highest number of votes shall
budget is still uncertain. Furthermore, it cannot be be proclaimed elected.
considered an item because an item is defined in the
field of appropriations as the particulars, details, In case of a tie between 2 or more candidates, one
distinct and severable parts of the appropriation or of shall be chosen by a majority of ALL the members of
the bill. (Belgica v. Hon. Ochoa, G.R. No. 208566, both Houses, voting separately.
Nov. 19, 2013)
The Supreme Court en banc shall act as the sole
See Part III(I) for more details on item veto. judge over all contests relating to the election,
returns, and qualifications of the President or Vice-
Non-Delegable Powers of the President President and may promulgate its rules for the
● Commander-in-Chief powers; purpose.
● Appointment and removal power;
● The power to grant pardons and reprieves; Congress may delegate counting to a committee
● The authority to receive ambassadors and provided it approves it as a body (considered as a
other public officials; and non-legislative function of Congress).
● The power to negotiate treaties. (Neri v.
Senate, G.R. No.180643, Mar. 25, 2008) Proclamation of President-Elect & VP-Elect is the
function of Congress not the COMELEC’s.
Other Powers
(a) Borrowing Power: The President may Limitations
contract or guarantee foreign loans on
behalf of the Republic with the concurrence (a) Salaries and emoluments of the President
of the Monetary Board, subject to such and Vice-President shall be determined by
limitations as may be provided by law. law
(b) Deportation Power (b) Shall not be decreased during the tenure of
(c) Power to Receive Ambassadors and the President and the Vice-President
other public ministers duly accredited to (c) Increases take effect only after the
the Philippines expiration of the term of the incumbent
(d) Informing Power: The President shall during which the increase was approved.
address Congress at the opening of its
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(d) No other emolument from the government or Vacancy in the Office of the Vice-President (PHIL.
any other source during their tenure may be CONST., art. VII, § 9)
received.
Procedure To Fill Up Vacancy
Succession of President-Elect and Vice- President will nominate new VP from among the
President Elect at the Start of the Term (PHIL. members of either House of Congress.
CONST., art. VII, § 7)
VACANCY SUCCESSOR Nominee shall assume office upon confirmation by
President-elect fails to VP-elect will be Acting majority vote of ALL members of both Houses, voting
qualify or to be chosen President until a separately. (In effect, nominee forfeits his seat in
President is Congress.)
qualified/chosen
President-elect dies or VP becomes President Election of President and Vice-President after
permanently disabled vacancy (PHIL. CONST., art. VII, § 10)
Both President and VP- Senate President, or in
Elect are not chosen, or case of his inability, Procedure
do not qualify, or both Speaker of the House Congress shall convene 3 days after the vacancy in
die, or both become shall act as President the offices of both the President and the VP, without
permanently disabled until a President or a VP need of a call. The convening of Congress cannot be
shall have been chosen suspended.
Death, permanent and qualified.
disability, or inability of Within 7 days after convening, Congress shall enact
Senate President and Congress shall a law calling for a special election to elect a President
Speaker of the house as determine, by law, who and a VP. The special election cannot be postponed.
Acting President will be the Acting
President until a The requirement of three readings on separate days
President or VP shall under Sec. 26(2), Art VI shall not apply to a bill calling
have qualified. for a special election. The law shall be deemed
enacted upon its approval on third reading.
Succession of President and Vice-President
During Mid-Term (PHIL. CONST., art. VII, § 8) The special election shall be held within 45-60 days
VACANCY SUCCESSOR from the time of the enactment of the law.
President dies/ VP becomes President
Limitation: No special election shall be called if the
permanently disabled/ for the unexpired term
vacancy occurs within 18 months before the date of
impeached or resigns
the next presidential election.
Both President and VP Senate President, or in
die/ permanently case of his inability,
disabled/ impeached or Speaker of the House
Temporary Disability of the President to
resign shall act as president
discharge his duties (PHIL. CONST. art. VII, Sec.
until the President or VP
11) may be raised in either of two ways:
Death, permanent shall have been elected
(a) By the President himself, when he sends a
disability, or inability of and qualified.
written declaration to the Senate President
Senate President and
and the Speaker of the House. In this case,
Speaker of the house as Congress shall
the Vice-President will be Acting President
Acting President determine, by law, who
until the President transmits a written
will be the Acting
declaration to the contrary.
President until a
(b) When a majority of all Cabinet members
President or VP shall
transmit to the Senate President and the
have been elected and
Speaker of the House their written
qualified, subject to the
declaration. The VP will immediately
same restrictions of
assume the powers and duties of the office
powers and
as Acting President.
disqualifications as the
Acting President
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Scenarios After Disability is Relayed in the

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

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

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

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

access to the President:
(a) National Security Adviser
(b) Secretary of Foreign Affairs
(c) Chief of Staff of the AFP
————- end of topic ————-
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V. JUDICIAL DEPARTMENT A. JUDICIAL POWER
Judicial Power
TOPIC OUTLINE UNDER THE SYLLABUS: The authority to settle justiciable controversies or
disputes involving rights that are enforceable and
A. JUDICIAL POWER demandable before the courts of justice or the
redress of wrongs for violations of such rights and to
B. JUDICIAL REVIEW determine whether or not there has been grave
1. Requisites abuse of discretion amounting to lack or excess of
2. Political question doctrine jurisdiction on the part of any branch or
3. Moot questions instrumentality of the government. (Lopez v. Roxas,
4. Operative fact doctrine G.R. No. L-25716, July 28, 1966).
C. JUDICIAL INDEPENDENCE AND FISCAL Where Vested

AUTONOMY Vested in the Supreme Court and such lower courts
as may be established by law. (PHIL. CONST., art. VIII,
D. APPOINTMENTS TO THE JUDICIARY § 1.)
1. Qualifications
2. Judicial and Bar Council Hence, they may neither attempt to assume or be
(composition and powers) compelled to perform non-judicial functions. They
may not be charged with administrative functions,
E. THE SUPREME COURT (COMPOSITION except when reasonably incidental to the fulfillment
POWERS, AND FUNCTIONS) of their duties (Meralco v. Pasay Transportation Co.,
G.R. No. L-37878, Nov. 25, 1932).
Judicial Power includes the duty of the courts:

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

Before a tribunal, board, or officer may exercise
judicial or quasi-judicial acts, it is necessary that
there be a law that give rise to some specific rights of
persons or property under which adverse claims to
such rights are made, and the controversy ensuing
therefrom is brought, in turn, before the tribunal,
board or officer clothed with power and authority to
determine what that law is and thereupon adjudicate
the respective rights of the contending parties.
(Santiago Jr. v. Bautista, G.R. No. L-25024, March
30, 1970).
Thus, an award of honors to a student by a board of

teachers may not be reversed by a court where the
awards are governed by no applicable law. (Id)
The court has no authority to entertain an action for

judicial declaration of citizenship because there was
no law authorizing such proceeding (Channie Tan v.
Republic, G.R. No. L-14159, April 18, 1960).
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Courts cannot reverse the award of a board of judges committed grave abuse of discretion amounting to
in an oratorical contest (Felipe v. Leuterio, G.R. No. lack or excess of jurisdiction.
L-4606, May 30, 1952).
Under this expanded jurisdiction conferred to the
Jurisdiction Supreme Court, the political question doctrine is no
longer the insurmountable obstacle to the exercise of
The power to hear and decide a case. judicial power or the impenetrable shield that protects
● Who Defines: Congress shall have the executive and legislative actions from judicial inquiry
power to define, prescribe and apportion the or review (Oposa v. Factoran, Jr. G.R. No. 101083,
jurisdiction of the various courts, but may not July 30, 1993)
deprive the Supreme Court of its jurisdiction
over cases enumerated in Sec. 5, Art. VIII B. JUDICIAL REVIEW
[PHIL. CONST., art. VIII, § 2.],
● No law shall be passed increasing the ● The power of the Supreme Court to declare
appellate jurisdiction of the Supreme Court a law, treaty, ordinance, etc. unconstitutional
as provided in the Constitution without its (PHIL. CONST., art. VIII, § 4(2).)
advice and concurrence (PHIL. CONST., art. ● Lower courts may also exercise the power of
VI, § 30.) judicial review, subject to the appellate
jurisdiction of the SC. (PHIL. CONST., art. VIII,
Scope of Jurisdiction § 5(2).)
The power to control the execution of its decision is ● Only Supreme Court decisions set
an essential aspect of jurisdiction. It cannot be the precedents. As thus, only SC decisions are
subject of substantial subtraction, for our Constitution binding on all.
vests the entirety of judicial power in one Supreme
Court and in such lower courts as may be established 1. REQUISITES
by law. (Echegaray v. SOJ, G.R. No. 132601, Jan.
19, 1999) Requisites of Judicial Review: (EARLS)
1. The question of constitutionality must be
Limitations of Judicial Power raised in the first instance, or at the Earliest
1. Political Questions: A question, the opportunity.
resolution of which has been vested by the 2. The question involved must be Ripe for
Constitution exclusively In the people, in the adjudication, e.g. the challenged
exercise of their sovereign capacity, or In government act must have had an adverse
which full discretionary authority has been effect on the person challenging it.
delegated to a co-equal branch of the 3. An Actual case calling for the exercise of
Government (Tanada v. Cuenco, G.R. No. judicial power.
L-10520, Feb. 28, 1957). 4. Resolution of the issue of constitutionality is
2. Separation of Powers: The Supreme Court unavoidable or is the very Lis mota of the
and its members should not and cannot be case.
required to exercise any power or to perform 5. The person challenging the governmental
any trust or to assume any duty not act must have ‘Standing’ (Locus Standi).
pertaining to or connected with the
administering of judicial functions. (Manila Exception: The Court can waive the procedural rule
Electric Co. v Pasay Transportation, G.R. on standing in cases that raise issues of
No. 37878, Nov. 25, 1932) transcendental importance.
3. Not the function of the judiciary to give
advisory opinion: The function of the Functions of Judicial Review
courts is to determine controversies 1. Checking — invalidating a law or executive
between litigants. They do not give advisory act that is found to be contrary to the
opinions. (Director of Prisons v Ang Cho Kio, Constitution
G.R. No. 30001, June 23, 1970) 2. Legitimating — upholding the validity of the
law that results from a mere dismissal of a
Expanded Jurisdiction and Authority of the case challenging the validity of the law
Supreme Court Symbolic — to educate the bench and bar as to the
Art. VIII, Sec.1, par. 2, of the Constitution expanded controlling principles and concepts on matters of
the power, authority and jurisdiction of the courts of grave public importance for the guidance of and
justice, particularly the Supreme Court, to determine restraint upon the future (Salonga v. Cruz Pano ̃ , G.R.
whether any branch of the government has No. 59524, Feb. 18, 1985)
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hypothetical. (PBOAP v. DOLE, G.R. No. 202275,

Doctrine of Judicial Supremacy July 17, 2018)
When the judiciary allocates constitutional
boundaries, it neither asserts superiority nor nullifies o In such cases, the conflict will not
an act of the Legislature. It only asserts the solemn have sufficient concreteness or
and sacred obligation assigned to it by the adversariness so as to constrain
Constitution to determine conflicting claims of the discretion of this Court. After all,
authority under the Constitution and to establish for legal arguments from concretely
the parties in an actual controversy the rights which lived facts are chosen narrowly by
that instrument secures and guarantees to them. the parties. Those who bring
theoretical cases will have no such
Justiciable Controversy limits. (Id.)
A definite and concrete dispute touching on the legal
relations of parties having adverse legal interests, The Court generally declines to issue advisory
which may be resolved by a court of law through the opinions or to resolve hypothetical or feigned
application of a law (Cutaran v. DENR, G.R. No problems, or mere academic questions. The
134958, Jan. 31, 2001) limitation of the power of judicial review to actual
cases and controversies assures that the courts will
Requirements for Justiciability not intrude into areas specifically confined to the
1. That there be an actual controversy between other branches of government. (PHILCONSA v
or among the parties to the dispute; Philippine Government, G.R. No. 218406, Nov. 29,
2. That the interests of the parties be adverse; 2016)
3. That the matter in controversy be capable of
being adjudicated by judicial power; and Ripe for Adjudication
4. That the determination of the controversy A constitutional question is ripe for adjudication when
will result in practical relief to the the governmental act being challenged has had a
complainant. direct adverse effect on the individual challenging it.
It is also necessary that there be a law that gives rise
Actual Case/Controversy to some specific rights of persons or property, under
● An actual case or controversy involves a which adverse claims are made. (Santiago Jr. v.
conflict of legal rights, an assertion of Bautista, GR No. 25024, March 30, 1970)
opposite legal claims, susceptible of judicial
resolution as distinguished from a For a case to be considered ripe for adjudication, it is
hypothetical or abstract difference or a prerequisite that:
dispute. (PHILCONSA v Philippine o an act had then been accomplished
Government, G.R. No. 218406, Nov. 29, or performed by either branch of
2016) government before a court may
● There must be a contrast of legal rights that interfere, and
can be interpreted and enforced on the basis o the petitioner must allege the
of existing law and jurisprudence. (Id.) existence of an immediate or
● It is the parties' duty to demonstrate actual threatened injury to himself as a
cases or controversies worthy of judicial result of the challenged action.
resolution. Pleadings must show a violation
of an existing legal right or a controversy that (PHILCONSA v. Philippine Government, G.R. No.
is ripe for judicial determination. (Falcis v. 218406, Nov. 29, 2016)
Civil Registrar General, G.R. No. 217910,
Sept. 3, 2019) 2. Political question doctrine
● Facts are the basis of an actual case or
controversy. There must be sufficient facts Political Question
to enable the Court to intelligently adjudicate A question, the resolution of which has been vested
the issues. (Id.) by the Constitution exclusively:
1. In the people, in the exercise of their
Advisory Opinions sovereign capacity, or
Even the expanded jurisdiction of this Court under 2. In which full discretionary authority has been
Article VIII, Section 1 does not provide license to delegated to a co-equal branch of the
provide advisory opinions. An advisory opinion is Government
one where the factual setting is conjectural or
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(Tanada v. Cuenco, G.R. No. L-10520, Feb. 28, Recognition of diplomatic immunity (ICMC v. Hon.
1957). Calleja, G.R. No. 85750, Sept. 28, 1990).
The judiciary is NOT precluded from reviewing The determination of what constitutes “betrayal of
“political questions”. Under the second clause of Sec. public trust” or “other high crimes” is a political
1, Art. VIII (the power to determine whether or not question. A determination of what constitutes an
there has been a grave abuse of discretion) the impeachable offense is a purely political question,
Courts may now determine whether there has been which the Constitution has left to the sound discretion
grave abuse of discretion amounting to lack or of the legislature (Gutierrez v. The House of
excess of jurisdiction on the part of any branch or Representatives Committee on Justice, et al., G.R.
instrumentality of government. No. 193459, Feb. 15, 2011).
A political question arises in constitutional issues Examples of cases in jurisprudence where the
relating to the powers or competence of different Court held that there was no political question
agencies and departments of the executive or those involved.
of the legislature. The political question doctrine is 1. Apportionment of representative
used as a defense when the petition asks this court districts (because there are
to nullify certain acts that are exclusively within the constitutional rules governing
domain of their respective competencies, as provided apportionment) (Bagabuyo v.
by the Constitution or the law. In such a situation, COMELEC, G.R. No. 176970, Dec. 8,
presumptively, this court should act with deference. It 2008).
will decline to void an act unless the exercise of that 2. Suspension of the privilege of the writ of
power was so capricious and arbitrary so as to habeas corpus because the Constitution
amount to grave abuse of discretion. sets limits to executive discretion on the
● The existence of constitutionally imposed matter (Montenegro v. Castañeda, G.R.
limits justifies subjecting the official actions No. L-4221, Aug. 30, 1952).
of the body to the scrutiny and review of the 3. Manner of forming the Commission on
Court. Appointments (Daza v. Singson, G.R.
● Furthermore, the concept of a political No. 86344, Dec. 21, 1989; Coseteng v.
question never precludes judicial review Mitra, G.R. No. 86649, July 12, 1990;
when the act of a constitutional organ Guingona v. Gonzales, G.R. No.
infringes upon a fundamental individual or 106971, Oct. 20, 1992).
collective right. (The Diocese of Bacolod v.
Commission on Elections, G.R. No. 205728, 3. Moot Questions
Jan. 21, 2015)
An action is considered moot when it no longer
While courts can determine questions of legality with presents a justiciable controversy because the issues
respect to governmental action, they cannot review involved have become academic or dead or when the
government policies and the wisdom behind matter has already been resolved. There is nothing
such policies. These questions are vested by the for the court to resolve as the determination thereof
Constitution in the Executive and Legislative has been overtaken by subsequent events (Atty.
Departments. Evillo C. Pormento v. Estrada and COMELEC, G.R.
No. 191988, Aug. 31, 2010).
Examples of political questions in jurisprudence
Interpretation of the meaning of “disorderly behavior” However, the “moot and academic” principle is not a
and the legislature’s power to suspend a member magical formula that automatically dissuades courts
(there is no procedure for the imposition of the in resolving a case. The Court may still take
penalty of suspension nor did the 1935 Constitution cognizance of an otherwise moot case, if it finds
define what “disorderly behavior is). The matter is left that:
to the discretion of the legislature (Osmeña, Jr. v. o there is a grave violation of the
Pendatun, G.R. No. L-17144, Oct. 28, 1960). Constitution;
o the situation is of exceptional
Whether the court could intervene in a case where character and paramount public
the House of Representatives was said to have interest is involved;
disregarded its own rule. The court was held to have o the constitutional issue raised
been without authority to intervene (Arroyo v. De requires formulation of controlling
Venecia, G.R. No. 127255, Aug. 14, 1997). principles to guide the bench, the
bar, and the public; and
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o the case is capable of repetition yet (White Light v. City of Manila, G.R. No. 122846, Jan.
evading review. 20, 2009)
(Narra Nickel Mining and Development Corp. v. Rules on the Liberal Approach on Locus Standi
Redmont Consolidated Mines Corp., G.R. No. Allowed to sue where there is a
195580, Jan. 28, 2015) claim of any of the following:
● public funds are illegally
Locus Standi/Legal Standing disbursed (Information
Technology v. COMELEC,
Definition: a personal and substantial interest in the G.R. No. 159139, Jan. 13,
case such that the party has sustained or will 2004)
sustain direct injury as a result of the governmental ● public money is being
act that is being challenged. (Francisco v. HOR, G.R. deflected to any improper
No. 160261, Nov. 10, 2003) purpose (Id.)
● there is a wastage of public
The term "interest" is material interest, an interest in funds through the
issue and to be affected by the decree, as enforcement of an invalid
distinguished from mere interest in the question or unconstitutional law (Id.)
involved, or a mere incidental interest. (Joya v. Taxpayer ● the tax measure is
PCGG, G.R. No. 96541, Aug. 24, 1993) unconstitutional (David v.
Arroyo, G.R. No. 171396,
Moreover, the interest of the party plaintiff must be May 3, 2006)
personal and not one based on a desire to vindicate
the constitutional right of some third and related Before he can invoke the power of
party. (Id.) judicial power, he must specifically
prove that he has sufficient interest
Test: whether a party alleges such personal stake in in preventing the illegal expenditure
the outcome of the controversy as to assure that of money raised by taxation and that
concrete adverseness which sharpens the he would sustain a direct injury as a
presentation of issues upon which the court depends result of the enforcement of the
for illumination of difficult constitutional questions. questioned statute or contract.
(Id.) (Francisco v. HOR, G.R. No.
160261, Nov. 10, 2003)
Elements (ITR) There must be a showing of obvious
o The petitioner must have personally interest in the validity of the election
suffered some actual or threatened Voters
law in question (David v. Arroyo,
Injury which can be legal, G.R. No. 171396, May 3, 2006)
economic, or environmental; There must be a showing that the
o The injury is fairly Traceable to the Concerned issues raised are of transcendental
challenged action; and citizens importance which must be settled
o The injury is likely to be Redressed early (Id.)
by a favorable action There must be a claim that the
official action complained of
(TELEBAP v. COMELEC, GR No. 132922, April 21, infringes upon their prerogatives as
1998) Legislators
legislators (Biraogo v. Philippine
Truth Commission, G.R. No.
Requisites for Third Party Standing (jus tertii) 192935, Dec. 7, 2010)
(IRH)
1. The litigant must have suffered an injury-in- Standing in Environmental Cases
fact, thus giving him or her a "sufficiently The Rules of Procedure for Environmental Cases
concrete interest" in the outcome of the liberalized the requirements on standing, allowing the
issue in dispute; filing of a citizen's suit by any Filipino citizen in
2. The litigant must have a close Relation to the representation of others, including minors or
third party; and generations yet unborn, may file an action to enforce
3. There must exist some Hindrance to the rights or obligations under environmental laws.
third party's ability to protect his or her own (Resident Marine Mammals v. Reyes, G.R. No.
interests. 180771, April 21, 2015; Segovia v. The Climate
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Change Commission, G.R. No. 211010, March 7, considerations of practicality and fairness. In
2017) this regard, certain acts done pursuant to a
legal provision which was just recently
Guidelines in determining whether or not a matter declared as unconstitutional cannot be
is of transcendental importance: anymore undone because not only would it
● The character of the funds or other assets be highly impractical to do so, but more so,
involved in the case; unfair to those who have, in good faith, relied
● The presence of a clear case of disregard of on the said legal provision prior to the time it
a constitutional or statutory prohibition by was struck down. (Id.)
the public respondent agency or ● It applies only to cases where
instrumentality of the government; and extraordinary circumstances exist, AND
● The lack of any other party with a more direct only when the extraordinary
and specific interest in the questions being circumstances have met the stringent
raised (Chamber of Real Estate and conditions that will permit its application.
Builders’ Association, Inc. v. Energy
Regulatory Commission, et al., G.R. No. (Araullo v. Aquino III, G.R. No. 209287, July 1, 2014)
174697, July 8, 2010).
C. JUDICIAL INDEPENDENCE AND
Rule on Raising at the Earliest Opportunity FISCAL AUTONOMY
General Rule: The earliest opportunity to raise a
constitutional issue is to raise it in the pleadings Concepts of Judicial Independence
before a competent court that can resolve the same. DECISIONAL
(Matibag v. Benipayo, G.R. No. 149036, April 2, INDEPENDENCE OR INSTITUTIONAL
2002) INDIVIDUAL (JUDICIAL)
JUDICIAL INDEPENDENCE
Exceptions: INDEPENDENCE
1. In criminal cases — at any time at the Refers to a judge's Describes the
discretion of the court ability to render separation of the
2. In civil cases — at any stage of the decisions free from judicial branch from the
proceedings if necessary for the political or popular executive and
determination of the case itself; or influence based solely legislative branches of
3. In every case (Except where there is on the individual facts government
estoppel) — at any stage if it involves the and applicable law
jurisdiction of the court (People v. Vera, G.R.
No. 45685, Nov. 16, 1937) Focuses on each Focuses on the
particular judge and independence of the
4. Operative fact doctrine seeks to insure his or judiciary as a branch of
her ability to decide government and
Effect of a Declaration of Unconstitutionality cases with autonomy protects judges as a
within the constraints of class
An unconstitutional act is not a law; it confers no the law
rights; it imposes no duties; it affords no protection; it
creates no office; it is inoperative as if it has not been A judge has this kind of Refers to the collective
passed at all. (Film Development Council of the independence when he independence of the
Philippines v. Colon Heritage Realty Corp., G.R. Nos. can do his job without judiciary as a body
203754 & 204418, Oct. 15, 2019) having to hear — or at
least without having to
The exception is the doctrine of operative fact, take it seriously if he
which applies as a matter of equity and fair play. (Id.) does hear — criticisms
● This doctrine nullifies the effects of an of his personal morality
unconstitutional law or an executive act by and fitness for judicial
recognizing that the existence of a statute office
prior to a determination of unconstitutionality
is an operative fact and may have
consequences that cannot always be A truly independent judiciary is possible only when
ignored. (Id.) both concepts of independence are preserved —
● Hence, it legitimizes otherwise invalid acts wherein public confidence in the competence and
done pursuant thereto because of
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integrity of the judiciary is maintained, and the public income tax does not fall within the
accepts the legitimacy of judicial authority. constitutional protection against
(Re: COA Opinion on Computation of Appraised decrease of their salaries during
Value of Properties Purchased by SC Justices, A.M. their continuance in office. (Nitafan
No. 11-7-10-SC, July 31, 2012; In the Matter of the v. CIR, G.R. No. 78780, July 23,
Allegations Contained in the Columns of Mr. Amado 1987).
P. Macasaet, A.M. No. 07-09-13-SC, Aug. 8, 2008) ● The right to criticize the courts and judicial
officers must be balanced against the
Constitutional Safeguards to Secure Judicial equally primordial concern that the
Independence independence of the Judiciary be protected
from due influence or interference. (In re
Judiciary in General Letter of UP Law Faculty, A.M. No. 10-10-4-
● Creation and abolition of courts C, March 8, 2011)
o Congress’ power to create courts ● The Judiciary shall enjoy fiscal autonomy.
implies the power to abolish and Appropriations for the Judiciary may not be
even re-organize courts. But this reduced by the legislature below the amount
power cannot be exercised in a appropriated for the previous year and, after
manner that would undermine the approval, shall be automatically and
security of tenure of the judiciary. If regularly released. (PHIL. CONST., art. VIII, §
the abolition or re-organization is 3.)
done in good faith and not for o The grant of fiscal autonomy to the
political or personal reasons, it is Judiciary is more extensive than the
valid. (De La Llana v. Alba, G.R. mere automatic and regular release
No. L-57883, March 12 1982) of its approved annual
o Congress may enact laws appropriations. Real fiscal
prohibiting courts from issuing autonomy covers the grant to the
restraining orders against Judiciary of the authority to use and
administrative acts in controversies dispose of its funds and properties
involving facts or the exercise of at will, free from any outside control
discretion. However, on issues or interference. (Re: COA Opinion
involving questions of law, courts on Computation of Appraised Value
cannot be prohibited from of Properties Purchased by SC
exercising their power to restrain Justices, A.M. No. 11-7-10-SC, July
such acts. (Malaga v. Penachos, 31, 2012)
Jr., G.R. No. 86695, Sept. 3, 1992) o Fiscal autonomy contemplates a
● Members of the judiciary enjoy security guarantee on full flexibility to
of tenure. (PHIL. CONST., art. VIII, § 2.) allocate and utilize their resources
● Members of the judiciary may not be with the wisdom and dispatch that
designated to any agency performing the Judiciary’s needs require. It
quasi-judicial or administrative recognizes the power and authority
functions. (PHIL. CONST., art. VIII, § 12.) to levy, assess and collect fees, fix
o The Presidential Electoral Tribunal rates of compensation not
(PET) does not exercise quasi- exceeding the highest rates
judicial functions. When the authorized by law for compensation
Supreme Court, as the PET, and pay plans of the government
resolves a presidential or vice- and allocate and disburse such
presidential election contest, it sums as may be provided by law or
performs what is essentially a prescribed by them in the course of
judicial power (Macalintal v. PET, the discharge of their functions.
G.R. No. 191618, Nov. 23, 2010). (Bengzon v. Drilon, G.R. No.
● The salaries of Justices and judges shall 103524, April 15, 1992) 
be fixed by law and cannot be decreased o Legal fees constitute not only a vital
during their continuance in office. (PHIL. source of the Court’s financial
CONST., art. VIII, § 10.) resources but also comprise an
o However, their salaries are properly essential element of the Court’s
subject to a general income tax law fiscal independence. Any
applicable to all income earners exemption from the payment of
and that the payment of such legal fees granted by Congress to
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GOCCs and LGUs will necessarily ▪ Determine the court with

reduce the Judiciary Development jurisdiction to hear and
Fund (JDF) and the Special decide controversies or
Allowance for the Judiciary Fund disputes arising from legal
(SAJF). Such situation is rights (Lopez v. Roxas,
constitutionally infirm for it impairs G.R. No. L-25716,1966)
the Court’s guaranteed fiscal ● It has administrative supervision over all
autonomy, which recognizes the inferior courts and personnel. (PHIL. CONST.,
power and authority of the Court to art. VIII, § 6.)
levy, assess and collect fees ● It has exclusive power to discipline or
including legal fees. (Re: In the dismiss judges/ justices of inferior courts.
Matter of Clarification Of Exemption (PHIL. CONST., art. VIII, § 11.)
from Payment of All Court and ● The Court alone may initiate the Rules of
Sheriff's Fees of Cooperatives, Court. (PHIL. CONST., art. VIII, § 5(5).)
A.M. No. 12-2-03-0, March 13, ● The Court alone may order temporary
2012) detail of judges. (PHIL. CONST., art. VIII, §
5(3).)
Supreme Court in General ● The Court can appoint all officials and
● Being a Constitutional body, it may not employees of the Judiciary. (PHIL. CONST.,
be abolished by law. art. VIII, § 5(6).)
● In GENERAL, its members may only be
removed through impeachment. (PHIL. D. APPOINTMENTS TO THE JUDICIARY
CONST., art. XI, § 2.)
o Members of the Supreme Court 1. QUALIFICATIONS
may now be removed from office
through a petition for quo Every prospective appointee to the judiciary must
warranto. Section 2, Article XI of apprise the appointing authority of every matter
the Constitution allows the bearing on his fitness for judicial office including such
institution of a quo warranto action circumstances as may reflect on his integrity and
against an impeachable officer. A probity (In Re: JBC v. Judge Quitain, JBC No. 013,
quo warranto petition is predicated Aug. 22, 2007).
on grounds distinct from those of
impeachment. The former Until a correction of existing records on one’s birth
questions the validity of a public and citizenship, one cannot accept an appointment
officer's appointment while the to the judiciary, as that would be a violation of the
latter indicts him for the so-called Constitution. For this reason, he can be prevented by
impeachable offenses without injunction from doing so (Kilosbayan v. Ermita, G.R.
questioning his title to the office he No. 177721, July 3, 2007).
holds. (Republic v. Sereno, G.R.
No. 237428, June 19, 2018) Qualifications for Judges and Justices (PHIL.
CONST., art. VIII, § 7.)
● Jurisdiction LOWER
o It may not be deprived of minimum COLLEGIATE LOWER
and appellate jurisdiction SUPREME COURTS (CA, NON-
o Congress may not increase the COURT CTA, COLLEGIAT
Supreme Court’s appellate SANDIGANBAY E COURTS
jurisdiction without its advice or AN)
concurrence (PHIL. CONST., art. VI, Natural-born citizen of the Citizen of the
§ 30.) Philippines Philippines
o Congress cannot deprive the (may be
Supreme Court of its jurisdiction naturalized)
over cases provided for in the At least 40 Possesses other qualifications
Constitution (PHIL. CONST., art. VIII, years old prescribed by Congress
§ 2.) and may only do the following: At least 15 Member of the Philippine Bar
▪ Define enforceable and years of
demandable rights; experience as
prescribing remedies for a judge or in
violations of such rights the practice of
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law in the 3. Representative of Congress, as ex-officio

Philippines member
A person of proven competence, integrity, probity, 4. Representative of the Integrated Bar
and independence 5. A professor of law
6. A retired member of the Supreme Court
A Supreme Court Justice, who is required under the 7. Private sector representative
Constitution to be a Member of the Philippine Bar as
a qualification for the office held by him and who may Regular Members of the JBC
be removed from office only by impeachment, ● The last four in the enumeration above are
cannot be charged with disbarment during his the regular members of the JBC.
incumbency. Further, during his incumbency, he ● The President, with the consent of the
cannot be charged criminally before the Commission on Appointments, appoints
Sandiganbayan or any other court with any offence regular members who serve for 4 years, in
which carries with it the penalty of removal from staggered terms. (PHIL. CONST., art. VIII, §
office, or any penalty service of which would amount 8(2).)
to removal from office. (In Re Gonzalez, A.M. No. 88- ● They shall receive such emoluments as may
4-5433, April 15, 1988) be determined by the Supreme Court. (PHIL.
CONST., art. VIII, § 8(4).)
The Constitution requires that members of the
Judiciary must be of proven integrity. To be of Clerk of the Supreme Court – serves as the
proven integrity means that the applicant must have secretary ex officio of the Council and shall keep a
established steadfast adherence to moral and ethical record of its proceedings (PHIL. CONST., art. VIII, §
principles. One who chronically fails to file his or her 8(3).)
SALN violates the Constitution and the laws; and one
who violates the Constitution and the laws cannot The JBC is composed of 7 members coming from
rightfully claim to be person of integrity and may thus different sectors. Thus, while we do not lose sight of
be removed through a quo warranto petition. the bicameral nature of our legislative department, it
(Republic v. Sereno, G.R. No. 237428, June 19, is beyond dispute that the Constitution is explicit that
2018) we have only “a representative”. Thus, two (2)
representatives from Congress would increase the
Lower Non-Collegiate Courts number of JBC members to eight (8), a number
RTC MTC beyond what the Constitution has contemplated. The
At least 35 years old At least 30 years old lone representative of Congress is entitled to one full
Engaged for at least 10 Engaged for at least 5 vote. This effectively disallows the scheme of splitting
years in the practice of years in the practice of the said vote into half between two representatives of
law in the Philippines law in the Philippines Congress. (Chavez v. JBC, G.R. No. 202242, April
or or 16, 2013)
Has held public office Has held public office Thus, any inclusion of another member, whether with
in the Philippines in the Philippines one whole vote or 1/2 of it, goes against that
requiring admission to requiring admission to mandate. Section 8(1), Article VIII of the Constitution,
the practice of law as a the practice of law as a providing Congress with an equal voice with other
requisite requisite members of the JBC in recommending appointees to
the Judiciary is explicit. (Id.)
Term (PHIL. CONST., art. VIII, § 11.)
Members of the Supreme Court and judges of the The JBC can still perform its mandated task of
lower courts hold office during good behavior until: submitting the list of nominees to the President
1. The age of 70 years old despite a vacancy in the position of Chief Justice or
2. They become incapacitated to discharge the ex-officio Chairman (as a result, for example, of
their duties impeachment). In such case, the most Senior Justice
of this Court who is not an applicant for the position
2. JUDICIAL AND BAR COUNCIL of Chief Justice should participate in the deliberations
for the selection of nominees for the said vacant post
a. Composition (PHIL. CONST., art. VIII, § and preside over the proceedings. (Dulay v. JBC,
8.) G.R. No. 202143, July 3, 2012)
1. Chief Justice, as ex-officio chairman
2. Secretary of Justice, as ex-officio member
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The Supreme Court shall provide in its annual budget by this Court upon the JBC, such surrender of choice
the appropriations for the Council. (PHIL. CONST., art. presupposes that whosoever is nominated is not
VIII, § 8(4)). otherwise disqualified. The question of whether or not
the nominee possesses the requisite qualifications is
b. Powers determined based on facts and therefore does not
depend on, nor call for, the exercise of discretion on
Functions of The JBC (PHIL. CONST., art. VIII, § the part of the nominating body. Thus, the nomination
8(5).) by the JBC is not accurately an exercise of policy or
- Primary Function: Recommend wisdom as to place the JBC's actions in the same
appointees to the Judiciary. category as political questions that the Court is
- Secondary Function: It may also exercise barred from resolving. (Republic v. Sereno, G.R. No.
such other functions as the SC may assign 237428, June 19, 2018)
to it.
Mandamus will not lie to compel the JBC to select
Incidental Functions and recommend nominees for vacant judicial
positions, which is a discretionary function. There is
The functions of searching, screening, and no legal right to be included in the list of nominees for
selecting are necessary and incidental to the JBC's judicial vacancies. Possession of the constitutional
principal function of choosing and recommending and statutory qualifications for appointment to the
nominees for vacancies in the judiciary for judiciary may not be used to legally demand that
appointment by the President. In carrying out its main one's name be included in the list of candidates for a
function, the JBC has the authority to set the judicial vacancy. (Villanueva v. JBC, G.R. No.
standards/criteria in choosing its nominees for 211833, April 7, 2015)
every vacancy in the judiciary, subject only to the
minimum qualifications required by the Constitution The clustering of nominees for the six vacancies in
and law for every position. (Villanueva v. JBC, G.R. the Sandiganbayan by the JBC impaired the
No. 211833, April 7, 2015)   President's power to appoint members of the
Judiciary and to determine the seniority of the newly-
appointed Sandiganbayan Associate Justices. The
Rules on Appointments/Clustering of Nominees
clustering by the JBC of nominees for simultaneous
1. The President shall appoint Members of the
or closely successive vacancies in collegiate courts
Supreme Court and judges of lower courts
can actually be a device to favor or prejudice a
from a list of at least three (3) nominees for
particular nominee. A favored nominee can be
each vacancy, as prepared by the JBC.
included in a cluster with no other strong contender
2. No CA confirmation is needed for
to ensure his/her appointment; or conversely, a
appointments to the Judiciary.
nominee can be placed in a cluster with many strong
3. Vacancies in SC should be filled within 90
contenders to minimize his/her chances of
days from the occurrence of the vacancy.
appointment. (Aguinaldo v. Aquino, G.R. No.
4. Vacancies in lower courts should be filled
224302, November 29, 2016)
within 90 days from submission to the
President of the JBC list.
5. Midnight Appointments – Explicit prohibition E. THE SUPREME COURT
against midnight appointments is already
unnecessary due to the intervention of and 1. COMPOSITION
screening made by Judicial Bar Council
(JBC) (De Castro v. JBC, G.R. No. 191002, A Constitutional Court
April 20, 2010) The Supreme Court is the only constitutional court,
all the lower courts being of statutory creation.
The Supreme Court has supervision over the JBC,
and this authority covers the overseeing of the JBC’s Members (PHIL. CONST., art. VIII, § 4(1).)
compliance with its own rules. (Jardeleza v. Sereno, ● Chief Justice, and
G.R. No. 213181, Aug. 19, 2014) ● 14 Associate Justices
The primary limitation to the JBC's exercise of The President cannot appoint a temporary member
discretion is that the nominee must possess the of the Supreme Court. There can be no doubt that the
minimum qualifications required by the Constitution Chief Justice and Associate Justices required by the
and the laws relative to the position. While the Constitution to compose the Supreme Court are
resolution of who to nominate as between two regular members of the Court. A temporary member
candidates of equal qualification cannot be dictated would be a misnomer, implying a position not
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contemplated by the Constitution. Thus, a law which the trial court resolving incidental matters.
authorizes the President to designate any judge of (NICOS Industrial Corp. v. Court of Appeals,
the lower court or cadastral judge to act as member G.R. No. 88709, Feb. 11, 1992)
of the Supreme Court is void (Vargas vs. Rillaroza, ● So long as the decision contains the
G.R. No. L-1612, Feb. 26, 1948). necessary facts to warrant its conclusions, it
is no error for [the court] to withhold any
The members of the judiciary perform judicial specific finding of facts with respect to the
functions. This function is exclusive. They cannot evidence for the defense. The mere failure
perform nonjudicial functions. For this reason, the to specify (in the decision) the contentions of
Constitution provides that the members of the the appellant and the reasons for refusing to
Supreme Court and of other courts shall not be believe them is not sufficient to hold the
delegated to any agency performing quasi-judicial or same contrary to the requirements of the
administrative functions. (PHIL. CONST., art. VIII, § provisions of law and the Constitution. (Air
12.) France v. Carrascoso, G.R. No. L-21438,
Sept. 28, 1986)
Primus Inter Pares ● The significance of factual findings lies in the
Literally, first among equals; the maxim indicates that value of the decision as a precedent. How
a person is the most senior of a group of people will the ruling be applied in the future, if there
sharing the same rank or office. The phrase has been is no point of factual comparison? (Velarde
used to describe the status, condition or role of the v. Social Justice Society, G.R. No. 159357,
Chief Justice in many supreme courts around the April 28, 2004)
world.
No petition for review or motion for reconsideration of
Hearing Of Cases In The Supreme Court (PHIL. a decision of the court shall be refused due course or
CONST., art. VIII, § 4(1).) denied without stating the legal basis therefor. (PHIL.
● Divisions of 3, 5, or 7 members CONST., art. VIII, § 14).)
● En Banc
Decisions by The Supreme Court (PHIL. CONST.,
Any vacancy should be filled within 90 days from the art. VIII, § 13.)
occurrence thereof. ● The conclusions of the Court in any case
submitted to it for decision en banc or in
2. POWERS AND FUNCTIONS division shall be reached in consultation
before the case is assigned to a Member for
Decisions in General the writing of the opinion of the Court.
No decision shall be rendered by any court without ● A certification to this effect must be signed
expressing therein clearly and distinctly the facts and by the Chief Justice and attached to the
the law on which it is based. (PHIL. CONST., art. VIII, record of the case, and served upon the
§ 14.) parties.
● It is a requirement of due process that the o Absence of a certification does not
parties to a litigation be informed of how it mean that there was no
was decided, with an explanation of the consultation prior to assignment of
factual and legal reasons that led to the the case to a member. The
conclusions of the court. (NICOS Industrial presumption of regularity prevails
Corp. v. Court of Appeals, G.R. No. 88709, but the erring officer will be liable
Feb. 11, 1992) administratively (Consing v. CA,
● The purpose [of this Constitutional G.R. No. 78272, Aug. 29, 1989).
requirement is] to inform the person reading ● Any Member who took no part, or dissented,
the decision, and especially the parties, of or abstained from a decision or resolution
how it was reached by the court after must state the reason therefor. The same
consideration of the pertinent facts and requirements shall be observed by all lower
examination of the applicable laws. collegiate courts.
(Francisco v. Permskul, G.R. No. 81006,
May 12, 1989) All lower collegiate courts shall observe the same
● The [provision] does not apply to procedure (e.g., CA, CTA, and Sandiganbayan).
interlocutory orders, such as one granting a
motion for postponement or quashing a Minute Resolutions
subpoena, because it refers only to The adjudication of a case by minute resolution is an
decisions on the merits and not to orders of exercise of judicial discretion and constitutes sound
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and valid judicial practice. (Agoy v. Araneta Center, supplemented by the final judgment. The Supreme
Inc., G.R. No. 196358 (Resolution), March 21, 2012) Court expressed its disapproval of the practice of
rendering of sin perjuico judgments. (NACHURA)
Minute resolutions are issued for the prompt dispatch
of the actions of the Court. While they are the results Timeframe for Deciding (PHIL. CONST., art. VIII, §
of the deliberations by the Justices of the Court, they 15.)
are promulgated by the Clerk of Court or his SUPREME COLLEGIATE LOWER
assistants whose duty is to inform the parties of the COURT COURTS COURTS
action taken on their cases by quoting verbatim the 24 months 12 months 3 months from
resolutions adopted by the Court. Neither the Clerk from from submission
of Court nor his assistants take part in the submission submission
deliberations of the case. They merely transmit the
Court's action in the form prescribed by its Internal The periods above commence from the date of
Rules. (Id.) submission for decision or resolution.
When a minute resolution denies or dismisses a A case or matter shall be deemed submitted for
petition for failure to comply with formal and decision or resolution upon the filing of the last
substantive requirements, the challenged decision, pleading, brief, or memorandum required by the
together with its findings of fact and legal Rules of Court or by the Court itself.
conclusions, are deemed sustained. (Philippine
Health Care Providers v. CIR, G.R. No. 167330, June Upon expiration of the period without decision or
12, 2009) resolution, a certification stating why no decision or
resolution has been rendered shall be issued and
With respect to the same subject matter and the signed by the Chief Justice or presiding judge.
same issues concerning the same parties, it A copy of the certification shall be attached to the
constitutes res judicata. However, if other parties or record of the case or matter, and served upon the
another subject matter (even with the same parties parties. The certification shall state why a decision or
and issues) is involved, the minute resolution is not resolution has not been rendered or issued within
binding precedent. (Id.) said period.
There are substantial, not simply formal, distinctions The expiration of the period notwithstanding, the
between a minute resolution and a decision. The court shall decide or resolve the case or matter
constitutional requirement that the facts and the law without further delay.
on which the judgment is based must be expressed
clearly and distinctly applies only to decisions, not to Being the court of last resort, the Supreme Court
minute resolutions. A minute resolution is signed only should be given an ample amount of time to
by the clerk of court by authority of the justices, unlike deliberate on cases pending before it. While the 24-
a decision. It does not require the certification of the month period provided under the 1987 Constitution is
Chief Justice. Moreover, unlike decisions, minute persuasive, it does not summarily bind this Court to
resolutions are not published in the Philippine the disposition of cases brought before it. It is a mere
Reports. Finally, the proviso of Section 4(3) of Article directive to ensure this Court's prompt resolution of
VIII speaks of a decision. Indeed, as a rule, this Court cases, and should not be interpreted as an inflexible
lays down doctrines or principles of law which rule. (Re: Elvira N. Enalbes, A.M. No. 18-11-09-SC
constitute binding precedent in a decision duly signed (Resolution, Jan. 22, 2019)
by the members of the Court and certified by the
Chief Justice. (Id.) The Sandiganbayan falls under the 3-month rule
because it is a trial-court, not a collegiate court (Re:
Memorandum Decisions Problems of Delays in Cases Before the
Memorandum decisions, where the appellate court Sandiganbayan, A.M. No. 00- 8-05-SC, Jan. 31,
adopts the findings of fact and law of the lower court, 2002).
are allowed as long as the decision adopted by
reference is attached to the Memorandum for easy A judge who fails to resolve cases within the period
reference (Oil and Natural Gas Commission v. CA, prescribed may be held liable for gross inefficiency,
G.R. No. 114323, July 23, 1998). unless he explains his predicament and asked for
extensions of time from the Supreme Court. (OCA v.
Sin Perjuico Judgments Quiñanola, A.M. No. MTJ-99-1216, Oct. 20, 1999)
One that is rendered without a statement of the facts
in support of its conclusions, to be later
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EN BANC AND DIVISION CASES There is a distinction between cases, on the one
hand, and matters, on the other hand, such that
En Banc (PHIL. CONST., art. VIII, § 4(2).) cases are "decided" while matters, which include
● All cases involving constitutionality of a: motions, are "resolved", applying the rule of
(LIT) reddendo singula singulis. (Fortich v. Corona, G.R.
o Law No. 131457, Aug. 19, 1999) 
o International or executive ● Only cases are referred to the Court en banc
agreement for decision whenever the required number
o Treaty of votes is not obtained.
● All cases involving the constitutionality, ● Conversely, the rule does not apply where
application or operation of: (POPORI) the required three votes is not obtained in
o Presidential decrees
the resolution of a motion for
o Orders
o Proclamations reconsideration.
o Ordinances ● Hence, “when the required number is not
o Other Regulations obtained, the case shall be decided en
o Instructions banc” only speaks of “case” and not
● Cases required to be heard en banc “matter.”
under the Rules of Court: ● Article VIII, Section 4(3) pertains to the
o Appeals from Sandiganbayan and disposition of cases by a division. If there is
from the Constitutional a tie in the voting, there is no decision. The
Commissions
only way to dispose of the case then is to
o Cases heard by a division where
refer it to the Court en banc. On the other
required majority of 3 was not
obtained hand, if a case has already been decided by
o Cases where SC modifies or the division and the losing party files a
reverses a doctrine or principle of motion for reconsideration, the failure of the
law laid down by the SC en banc or division to resolve the motion because of a
by a division tie in the voting does not leave the case
o Administrative cases to discipline or undecided. There is still the decision which
dismiss judges of lower courts must stand in view of the failure of the
o Election contests for President and members of the division to muster the
Vice-President
necessary vote for its reconsideration. Quite
plainly, if the voting results in a tie, the
Cases required to be heard en banc shall be decided
with the concurrence of a majority of the Members motion for reconsideration is lost.
who:
● actually took part in the deliberations on the The Supreme Court sitting en banc is not an
issues in the case and appellate court vis-à-vis its Divisions, and it exercises
● voted thereon no appellate jurisdiction over the latter. Each division
of the Court is considered not a body inferior to the
No doctrine or principle of law laid down by the court Court en banc, and sits veritably as the Court en banc
in a decision rendered en banc or in division may be itself. It bears to stress further that a resolution of the
modified or reversed except by the court sitting en Division denying a party’s motion for referral to the
banc.
Court en banc of any Division case, shall be final and
Division (PHIL. CONST., art. VIII, § 4(3).) not appealable to the Court en banc. (Apo Fruits v.
● Cases or matters heard by a division shall CA, G.R. No. 164195, 2008)
be decided or resolved with:
o the concurrence of a majority of the PROCEDURAL RULE-MAKING (PHIL. CONST., art.
Members who actually took part in VIII, § 5(5).)
the deliberations on the issues in
the case and voted thereon and, The Supreme Court has the power to promulgate
o in no case without the concurrence rules concerning the:
of at least three of such Members. ● Protection and enforcement of constitutional
● When the required number is not obtained,
rights
the case shall be decided en banc.
● Pleading, practice and procedure in all
courts
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● Admission to the practice of law unconstitutional since the payment of legal fees is an
● The Integrated Bar integral part of the rules promulgated by the court
● Legal assistance to the underprivileged pursuant to its rule-making power under the
Constitution. The other branches cannot trespass
Limitations on Judicial Rule-Making: upon this prerogative by enacting laws or issue
1. It should provide a simplified and orders that effectively repeal, alter or modify any of
inexpensive procedure for the speedy the procedural rules (Re: Petition for Recognition of
disposition of cases. the GSIS from Payment of Legal Fees, A.M. No. 08-
2. It should be uniform for all courts of the same 2-01-0, Feb. 11, 2010).
grade.
3. It should not diminish, increase, or modify Rule-making power also includes the inherent power
substantive rights. to suspend its own rules in particular cases in the
interest of justice. (Philippine Blooming Mills
It is possible for a substantive matter to be Employment v. Philippine Blooming Mills Co., G.R.
nonetheless embodied in a rule of procedure. Yet the No. L-31195, June 5, 1973)
absorption of the substantive point into a procedural
The constitutional grant to promulgate rules carries
rule does not prevent the substantive right from being
with it the power, inter alia, to determine whether to
superseded or amended by statute, for the creation give the said rules prospective or retroactive effect.
of property rights is a matter for the legislature to (People v. Lacson, G.R. No. 149453, April 1, 2003)
enact on, and not for the courts to decide upon.
(Republic v. Gingoyon, G.R. No. 166429, Feb. 1, ADMINISTRATIVE SUPERVISION OVER LOWER
2006). COURTS (PHIL. CONST., art. VIII, § 6.)
The Supreme Court has administrative supervision
In determining whether a rule prescribed by the over all inferior courts and personnel.
Supreme Court, for the practice and procedure of the
lower courts, abridges, enlarges, or modifies any Administrative supervision merely involves
substantive right, the test is whether the rule really
overseeing the operations of agencies to ensure that
regulates procedure, that is, the judicial process for
enforcing rights and duties recognized by substantive they are managed effectively, efficiently and
law and for justly administering remedy and redress economically, but without interference with day-to-
for a disregard or infraction of them. If the rule takes day activities. Thus, to effectively exercise its power
away a vested right, it is not procedural. If the rule of administrative supervision over all courts as
creates a right such as the right to appeal, it may be prescribed by the Constitution, P.D. No. 828, as
classified as a substantive matter; but if it operates amended, created the Office of the Court
as a means of implementing an existing right then the Administrator. Nowhere in the functions of the
rule deals merely with procedure. (Estipona v. several offices in the Office of the Court Administrator
Lobrigo, G.R. No. 226679, Aug. 15, 2017) is it provided that the Supreme Court can assume
jurisdiction over a case already pending with another
The rules on plea bargaining neither create a right
court. (Agcaoili v. Fariñas, G.R. No. 232395, July 3,
nor take away a vested right. Instead, it operates as
2018)
a means to implement an existing right by regulating
the judicial process for enforcing rights and duties
Administrative jurisdiction over a court employee
recognized by substantive law and for justly
belongs to the Supreme Court, regardless of whether
administering remedy and redress for a disregard or
the offense was committed before or after
infraction of them. Sec. 23 of the Comprehensive
employment in the judiciary. (Ampong v CSC, G.R.
Dangerous Drugs Act, which states that “[a]ny person
No. 167916, Aug. 26, 2008)
charged under any provision of this Act regardless of
the imposable penalty shall not be allowed to avail of
It is only the Supreme Court that can oversee the
the provision on plea-bargaining,” is unconstitutional
judges’ and court personnel’s compliance with all
as it encroaches on the constitutional rule-making
laws, and take the proper administrative action
power of the Court. (Id.)
against them if they commit any violation thereof. No
other branch of government may intrude into this
A legislative grant of exemption from the payment of
power, without running afoul of the doctrine of
legal fees under RA 8291 was held to be
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separation of powers. (Maceda v. Vasquez, G.R. No.

102781, April 22, 1993) Decisions of the SC on disciplinary cases en banc is
needed only when the penalty imposed is dismissal
Thus: of a judge, disbarment of a lawyer, suspension of
● The Ombudsman cannot justify its either for more than 1 year or a fine exceeding 10,000
investigation of a judge on the powers pesos. Otherwise, the case may be decided by a
granted to it by the Constitution. It cannot division. (People v. Gacott, G.R. No. 116049, July 13,
compel the Court, as one of the three 1995)
branches of government, to submit its
records, or to allow its personnel to testify on The rule prohibiting the institution of disbarment
this matter. (Id.) proceedings against an impeachable officer applies
● The Ombudsman cannot determine for itself only during his or her tenure and does not create
and by itself whether a criminal complaint immunity from liability for possibly criminal acts or for
against a judge, or court employee, involves alleged violations of the Code of Judicial Conduct or
an administrative matter. The Ombudsman other supposed violations. Provided that the
is duty bound to have all cases against requirements of due process are met, the Court may
judges and court personnel filed before it, penalize retired members of the Judiciary for
referred to the Supreme Court for misconduct committed during their incumbency. (In
determination as to whether and Re Undated Letter of Mr. Louis C. Biraogo, A.M. No.
administrative aspect is involved 09-2-19-SC, Feb. 24, 2009)
therein. (Caoibes, Jr. v. Ombudsman, G.R.
No. 132177, July 19, 2001) POWER TO APPOINT
The CSC must likewise bring its complaint against a The Supreme Court has the power to appoint all
judicial employee before the OCA. However, such officials and employees of the Judiciary in
employee may be estopped from questioning the accordance with the Civil Service Law.
jurisdiction of the CSC under specific circumstances.
(Ampong v CSC, G.R. No. 167916, Aug. 26, 2008) ORIGINAL AND APPELLATE JURISDICTION
(PHIL. CONST., art. VIII, §5(1) and (2).)
Administrative supervision also includes:
The Supreme Court has original jurisdiction over:
● Power to temporarily assign lower court
1. Cases affecting:
judges to other stations in the public interest;
a. Foreign ambassadors
such assignment shall not exceed six (6)
b. Other foreign public ministers
months without the consent of the judge
c. Consuls stationed in the Philippines
concerned (PHIL. CONST., art. VIII, § 5(3).)
2. Petitions for:
● Order a change of venue or place of trial to
a. Certiorari
avoid a miscarriage of justice (PHIL. CONST.,
b. Prohibition
art. VIII, § 5(4).)
c. Mandamus
d. Quo Warranto
The administrative function of the Court to transfer
e. Habeas Corpus
cases is a matter of venue, rather than jurisdiction.
The Court may transfer the trial of cases from one
The Supreme Court has appellate jurisdiction (i.e.
court to another of equal rank in a neighboring site,
review, revise, reverse, modify, or affirm on appeal or
whenever the imperative of securing a fair and
certiorari) over final judgments and orders of lower
impartial trial, or of preventing a miscarriage of
courts in:
justice, so demands. (Agcaoili v. Fariñas, G.R. No.
1. All cases involving constitutionality or
232395, July 3, 2018)
validity of any Law, International agreement
or Treaty (LIT)
POWER TO DISCIPLINE (PHIL. CONST., art. VIII, §
2. All cases involving the constitutionality or
11.)
validity of any Presidential decree, Order,
The Supreme Court en banc shall have the power to
Proclamation, Ordinance, Regulation or
discipline judges of lower courts, or order their
Instruction (POPORI)
dismissal by a vote of a majority of the Members who
actually took part in the deliberations on the issues in
the case and voted thereon.
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3. All cases involving the legality of any: Tax, Court’s session on acts done material to
Impost, Toll, Assessment or any Penalty pending cases, except where a party litigant
imposed in relation thereto (TITAP) requests information on the result of the
4. All cases in which the jurisdiction of any raffle of the case, pursuant to Rule 7,
lower court is in issue Section 3 of the Rules of Court of the
5. Criminal cases where the penalty imposed is Supreme Court (IRSC);
reclusion perpetua or higher ● Court deliberations or the deliberations of
6. All cases where only errors or questions of the Members of the court sessions on cases
law are involved and matters pending before the Court;
● Court records which are “pre-decisional” and
Judicial Privilege “deliberative” in nature;
Judicial privilege insulates the Judiciary from an ● Confidential Information secured by justices,
improper intrusion into the functions of the judicial judges, court officials and employees in the
branch and shields justices, judges, and court course of their official functions mentioned in
officials and employees from public scrutiny or the the 2 preceding enumerations, are
pressure of public opinion that would impair a judge’s privileged even after their term of office;
ability to render impartial decisions. (In Re: ● Records of cases that are still pending for
Production of Court Records and Documents and the decision are privileged materials that cannot
Attendance of Court Officials and Employees as be disclosed, except only for pleadings,
Witnesses under the Subpoenas of February 10, orders and resolutions that have been made
2012 and the Various Letters of Impeachment available by court to the general public.
Prosecution Panel dated January 19 and 25, 2012, ● The principle of comity or inter-departmental
Notice of Resolution, February 14, 2012). courtesy demands that the highest officials
of each department be exempt from the
Deliberative Process Privilege (Id.) compulsory processes of the other
This privilege guards against the disclosure of departments;
information/communication involving as it does the ● These privileges belong to the Supreme
deliberative process of reaching a decision. This Court as an institution, not to any justice or
enables the Members of the Court to freely discuss judge in his or her individual capacity. Since
the issues without fear of criticism for holding the Court is higher than the individual
unpopular positions or fear of humiliation for one's justices or judges, no sitting or retired justice
comments. or judge, not even the Chief Justice, may
claim exception without the consent of the
To qualify for protection under the deliberative Court.
process privilege, the agency must show that the
document is both predecisional and deliberative. The Internal Rules of the Supreme Court (IRSC)
● Predecisional – if it precedes, in temporal prohibits the disclosure of:
sequence, the decision to which it relates i.e. 1. Result of the raffle of cases;
if they were made in the attempt to reach a 2. Actions taken by the Court on each case
final conclusion. included in the agenda of the Court’s
● Deliberative – if it reflects the give-and-take session;
of the consultative process. The key 3. Deliberations of the Members in court
question in determining whether the material sessions on cases and matters pending
is deliberative in nature is whether before it;
disclosure of the information would 4. The privilege against disclosure of these
discourage candid discussion within the kinds of information/communication is
agency. known as deliberative process privilege
Summary of privileged documents or ————- end of topic ————-

communications not subject to disclosure: (Id.)
● 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
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VI. CONSTITUTIONAL COMMISSIONS A. COMMON PROVISIONS

INSTITUTIONAL INDEPENDENCE SAFEGUARDS
Constitutional Safeguards
A. COMMON PROVISIONS ● The commissions are constitutionally
created, and may not be abolished by law
B. POWERS AND FUNCTIONS
(PHIL. CONST. art. IX-A, §1)
C. COMPOSITION AND QUALIFICATION OF ● Each is expressly described as
MEMBERS ‘independent’
● Each is conferred certain powers and
D. PROHIBITED OFFICES AND INTERESTS functions by the Constitution which cannot
be reduced by statute (PHIL. CONST. art. IX-
E. JUDICIAL REVIEW OF FINAL ORDERS,
B, C, and D)
RESOLUTIONS, AND DECISIONS OF
CONSTITUTIONAL COMMISSIONS ● The Chairmen and members cannot be
removed, except by impeachment (PHIL.
CONST. art. XI, § 2)
● The Chairmen and the members are given a
fairly long term of office of 7 years (PHIL.
CONST. art. IX-B, C, and D, § 1, ¶ 2)
● The Chairmen and members may not be re-
appointed or appointed in an acting capacity
● The salaries of the Chairmen and members
are relatively high and may not be
decreased during continuance in office
(PHIL. CONST. art. IX, § 3; art. XVIII, § 117)
● The Commissions enjoy fiscal autonomy
(PHIL. CONST. art. IX-A, § 5).
● Each Commission en banc may promulgate
its own procedural rules, provided they do
not diminish, increase or modify substantive
rights (PHIL. CONST. art. IX, § 6)
o In case of conflict between the
Rules of Court and the Rules
promulgated by the commission,
the prevailing rule will depend on
where the case is filed. If before the
commission, the rule of the
commission prevails, if before a
regular court, the Rules of Court will
prevail.
o The power of the Supreme Court to
review the rules of quasi-judicial
agencies does not apply to
Constitutional Commissions
● The Chairmen and members are subject to
certain disqualifications calculated to
strengthen their integrity (PHIL. CONST. art.
IX, § 2)
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● The Commissions may appoint their own (c) The promotional appointment must conform
officials and employees in accordance with to the rotational plan or the staggering of
Civil Service Law (PHIL. CONST. art. IX, § 4). terms in the commission membership.
Fiscal Autonomy Jurisprudence on Sec.1(2), Art.IX-D

Fiscal autonomy means that there is automatic and 1. Term of Appointment: The appointment of
regular release as opposed to the fiscal autonomy of members of any of the three constitutional
the judiciary, which includes the rule that commissions, after the expiration of the uneven
appropriation may not be less than the previous year. terms of office of the first set of commissioners,
Rotational Scheme of Appointments shall always be for a fixed term of seven (7)
This scheme provides that the first appointees shall years; an appointment for a lesser period is void
serve terms of 7, 5 and 3 years, respectively. “There and unconstitutional.
appears to be near unanimity as to the purpose/s of
the rotational system, as originally conceived, i.e., to The appointing authority cannot validly shorten
place in the commission a new appointee at a fixed the full term of seven (7) years in case of the
interval (every two years presently), thus preventing expiration of the term as this will result in the
a four-year administration appointing more than one distortion of the rotational system prescribed by
permanent and regular commissioner, or to borrow the Constitution.
from Commissioner Monsod of the 1986 CONCOM,
‘to prevent one person (the President of the 2. Rule on Appointment to Vacancies:
Philippines) from dominating the commissions’” Appointments to vacancies resulting from
(Funa v. Chairman of COA, G.R. No. 192791, April certain causes (death, resignation, disability or
24, 2012).
impeachment) shall only be for the unexpired
The 2 conditions for the workability of the portion of the term of the predecessor; such
“Rotational Scheme” are: appointments cannot be less than the unexpired
● The terms of the first batch of portion [as it will disrupt the staggering].
commissioners should start on a common
date; and 3. Members of Commission who served Full
Term: Members of the Commission who were
Any vacancy due to the death, resignation or appointed for a full term of seven years and who
disability before the expiration of the term should be served the entire period, are barred from
filled only for the unexpired balance of the term (Funa reappointment to any position in the
v. Chairman of COA, G.R. No. 192791, Apr. 24, 2012 Commission. The first appointees in the
citing Republic v. Imperial, G.R. No. L-8684, March
Commission under the Constitution are also
31, 1955).
covered by the prohibition against
Where the Rotational Scheme Applies: reappointment.
● Civil Service Commission (CSC)
● Commission on Elections (COMELEC) 4. Eligibility for Appointment as Chairman of
● Commission on Audit (COA) Commissioner who resigns: A commissioner
● Judicial and Bar Council (JBC) who resigns after serving in the Commission for
less than seven years is eligible for an
Promotional Appointment of Commissioner to appointment as Chairman for the unexpired
Chairman portion of the term of the departing chairman.
Article IX-D, Sec. 1(2) does not prohibit a promotional Such appointment is not covered by the ban on
appointment from commissioner to chairman as long reappointment, provided that the aggregate
as:
(a) The commissioner has not served the full period of the length of service will not exceed
term of 7 years; and seven (7) years and provided further that the
(b) The appointment to any vacancy shall be vacancy in the position of Chairman resulted
only for the unexpired portion of the term of from death, resignation, disability or removal by
the predecessor. (PHIL. CONST. art. IX-D, impeachment. This is not a reappointment, but
Sec. § 1(2)) effectively a new appointment.
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5. Rule on Temporary Appointments: Any entire commission. (e.g. Chairman cannot ratify a
member of the Commission cannot be decision that would otherwise have been void.)
appointed or designated in a temporary or
acting capacity. B. POWERS AND FUNCTIONS
.
Term of Office of Each Commission Member Civil Service Commission
The terms of the first Chairmen and Commissioners
of the Constitutional Commissions under the 1987 The Civil Service Commission, as the central
Constitution must start on a common date, personnel agency of the Government, shall establish
irrespective of the variations in the dates of a career service and adopt measures to promote
appointments and qualifications of the appointees, in morale, efficiency, integrity, responsiveness,
order that the expiration of the first terms of seven, progressiveness, and courtesy in the civil service. It
five and three years should lead to the regular shall strengthen the merit and rewards system,
recurrence of the two-year interval between the
integrate all human resources development
expiration of the terms. This common appropriate
programs for all levels and ranks, and institutionalize
starting point must be on February 02, 1987, the date
of the adoption of the 1987 Constitution. a management climate conducive to public
(a) Term – the time during which the officer may accountability. It shall submit to the President and the
claim to hold office as of right, and fixes the Congress an annual report on its personnel
interval after which the several incumbents programs. (PHIL. CONST. art. IX-B, § 3)
shall succeed one another.
FUNCTIONS OF THE CSC
(b) Tenure – term during which the incumbent
1. In the exercise of its powers to implement
actually holds the office.
R.A. 6850 (granting civil service eligibility to
employees under provisional or temporary
The term of office is not affected by the holdover.
The tenure may be shorter than the term for reasons status who have rendered seven years of
within or beyond the power of the incumbent. efficient service), the CSC enjoys a wide
(Gaminde v. Commission on Audit, G.R. No. 140335, latitude of discretion, and may not be
Dec. 13, 2000) compelled by mandamus (Torregoza v. Civil
Service Commission, G.R. No. 101526, July
3, 1992).
How Commission decides Matters or Cases 2. Under the Administrative Code of 1987, the
Each commission shall decide matters or cases by a Civil Service Commission has the power to
majority vote of all its members within 60 days from
hear and decide administrative cases
submission. The rule on majority vote shall apply
instituted before it directly or on appeal,
both in a division or en banc.
including contested appointments.
Who constitutes ‘majority’ 3. The Commission has original jurisdiction to
This provision is clear when it says that the voting hear and decide a complaint for cheating in
should be a majority vote of all its members and not the Civil Service examinations committed by
only of those who participated in the deliberation and government employees. (Cruz v. CSC, G.R.
voted therein. No. 144464, Nov. 27, 2001)
4. It is the intent of the Civil Service Law, in
Effect of Resignation of a Commissioner requiring the establishment of a grievance
When a commissioner resigns, it does not procedure, that decisions of lower level
automatically invalidate the decision. So long as the
officials (in cases involving personnel
required majority of the commission is still achieved
despite the withdrawal of the vote of the one who actions) be appealed to the agency head,
resigned, the decision shall stand. then to the Civil Service Commission.
(Olanda v.Bugayong G.R. No. 140917, Oct.
Exception: COMELEC may sit en banc or in 2 10, 2003).
divisions. 5. As the central personnel agency of the
No One member can decide a case for the government, shall establish a career service
Commission and adopt measures to promote morale,
As collegial bodies, each commission must act as efficiency, integrity, responsiveness,
one, and no one member can decide a case for the
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progressiveness and courtesy in the Civil President (e.g. those in the foreign
Service. service)
a. It may revoke a certificate of e. Positions in the AFP although
eligibility motu proprio and governed by a different merit
consequently, the power to revoke system
one that has been given. f. Personnel of GOCCs with original
b. Where the case simply involves the charters
rechecking of examination papers g. Permanent laborers, whether
and nothing more than a re- skilled, semiskilled or unskilled
evaluation of documents already in 2. Non-Career Service: characterized by
the records of the CSC according to entrance on bases other than those of the
a standard answer key previously usual tests utilized for the career service,
set by it, notice and hearing is not tenure limited to a period specific by law, or
required. Instead, what will apply in which is co-terminus with that of the
such a case is the rule of res ipsa appointing authority or subject to his
loquitur (Lazo v. Civil Service pleasure, or which is limited to the duration
Commission, G.R. No. 108824, a. Elective officials, and their personal
Sept. 14, 1994). and confidential staff;
6. Strengthen the merit and rewards system b. Department heads and officials of
7. Integrate all human resources development Cabinet rank who hold office at the
programs for all levels and ranks pleasure of the President, and their
8. Institutionalize a management climate personal and confidential staff;
conducive to public accountability c. Chairmen and members of
9. Submit to the President and the Congress commissions and bureaus with
an annual report of personnel programs fixed terms;
d. Contractual personnel;
Scope of the Civil Service Commission (BIGAS) e. Emergency and seasonal
1. Branches personnel
2. Instrumentalities
3. GOCCs with original charters The CSC cannot disallow an appointment to a
4. Agencies of the government position authorized by law but not included in the
5. Subdivisions Index of Occupational Service. Although the CSC
(PHIL. CONST. art. IX-B, § 2(1)) rules limit appointments to positions within the Index
of Occupational Service, nevertheless, it is limited to
the implementation of the laws it is tasked to enforce.
Classes of Service
RA 8494 exempted the Trade and Investment
1. Career Service: characterized by entrance Corporation from conforming to the position
(a) based on merit and fitness to be classification; thus, the appointment is valid (Trade
determined, as far as practicable, by and Investment v. CSC, G.R. No. 182249, March 5,
competitive examinations; or (b) based on 2013).
highly technical qualifications; with
opportunity for advancement to higher Appointments in the Civil Service
career positions and security of tenure.
a. Open Career Positions: where prior General Rule: Made only according to merit and
qualification in an appropriate fitness to be determined, as far as practicable, by
examination is required competitive examination
b. Closed career positions: scientific
or highly technical in nature; Exceptions:
c. Career Executive Service: 1. Policy determining – Where the officer lays
undersecretaries, bureau directors down principal or fundamental guidelines or
d. Career Officers: other than those rules; or formulates a method of action for
belonging to the Career Executive government or any of its subdivisions; e.g.
Service who are appointed by the department head.
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2. Primarily confidential – Denoting not only Security of Tenure in Civil Service Law
confidence in the aptitude of the appointee The concept of security of tenure in the Civil Service
for the duties of the office but primarily close Law is embraced in Section 2(3), Article XI-B. “No
intimacy which ensures freedom of officer or employee of the civil service shall be
intercourse without embarrassment or removed or suspended except for cause provided by
freedom from misgivings or betrayals on law.”
confidential matters of state (De los Santos
v. Mallare, G.R. No. L-3881, Aug. 31, 1950); Classes of non-competitive positions
OR one declared to be so by the President ● Policy determining – where the officer lays
of the Philippines upon the recommendation down principal or fundamental guidelines or
of the CSC (Salazar v. Mathay, G.R. No. L- rules or formulates a method of action for
44061, Sept. 20, 1976) government or any of its subdivisions.
3. Highly technical – Requires possession of (Nachura, p. 418)
technical skill or training in supreme degree. ● Primarily confidential – when the nature of
(De los Santos v. Mallare, supra) the office requires close intimacy between
the appointee and appointing authority
Types of Appointment which insures freedom of intercourse
1. Permanent Status: A permanent without embarrassment or freedom from
appointment shall be issued to a person who misgiving of betrayal of personal trust on
meets all the requirements for the positions confidential matters of state.
to which he is being appointed, including the ● Highly technical – it means something
appropriate eligibility prescribed, in beyond the ordinary requirements of the
accordance with the provisions of law, rules profession. Hence, its determination is
and standards promulgated in pursuance always a question of fact. (CSC v. Javier,
thereof. G.R. No. 173264, Feb. 22, 2008)
2. Temporary Status: In the absence of
appropriate eligibles and when it becomes When Position Primarily Confidential
necessary in the public interest to fill a A position is considered primarily confidential if the
vacancy, a temporary appointment shall be nature of the office requires close intimacy between
issued to a person who meets all the the appointee and appointing authority which
requirements for the position to which he is ensures freedom of intercourse without
being appointed except the appropriate civil embarrassment or freedom from misgiving or
service eligibility; provided that such betrayal of personal trust on confidential matters of
temporary appointment shall not exceed 12 state.
months, but the appointee may be replaced
sooner if a qualified civil service eligible The Guarantee of Security of Tenure for Primarily
becomes available. Confidential Positions
They are covered by the guarantee of security of
CSC may not terminate the employment of a tenure but the termination of their official relation can
civil servant be justified on the ground of loss of confidence
The CSC may not terminate the employment of a civil because in that case their cessation from office
servant. The CSC is not a co-manager or surrogate involves no removal but the expiration of the term of
administrator of government offices and agencies. Its office.
functions and authority are limited to approving or
reviewing appointments to determine their The CSC cannot take back-up files in the computer
compliance with requirements of the Civil Service
of an employee to determine if he was acting as
Law. On its own, the Commission does not have the
power to terminate employment or drop members counsel for employees with cases before the
from the rolls (UP and Torres v. CSC, G.R. No. Commission when such employee has a reasonable
132860, April 3, 2001). expectation of privacy. In determining such, the
following factors should be considered: (RAC)
1. The Employee’s Relationship to the item
seized;
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2. Whether the employee took Action to Can ex officio members receive per diems?
maintain his privacy in the item No, ex officio members of a board are not entitled to
3. Whether the item was in the immediate per diems. (PEZA v COA, G.R. No. 189767, July 3,
Control of the employee; 2012)
(Pollo v. Constantino-David, G.R. No. 181881, Oct.
18, 2011) Commission on Elections
Rule on Security of Tenure Enforce and administer

No officer or employee of the CSC shall be removed ● All laws and regulations relative to the
or suspended except for causes provided by law conduct of an election, plebiscite, initiative,
(PHIL. CONST. art. IX-B, § 2, ¶ 3). Security tenure is referendum, and recall. e.g., COMELEC can
available even to positions which are considered enjoin construction of public works within 45
highly technical, policy-determining and primarily days of an election.
confidential. ● The COMELEC can take cognizance of any
question on the conduct of plebiscite such as
Rule on Partisan Political Activity to correct or check what the Board of
Joint Circular No.001 d. 2016 of the COMELEC and Canvassers erroneously or fraudulently did
CSC reiterated art. IX, § 2(4) that no officer or
during the canvassing, verify or ascertain
employee in the civil service shall engage, directly or
indirectly, in any electioneering or partisan political the results of the plebiscite either through
campaign. However, the prohibition of engaging in pre-proclamation case or through revision of
partisan political activity does not apply to ballots. The power of the COMELEC to
department secretaries. (Santos v. Yatco, G.R. No. ascertain the results of the plebiscite is
L013932, Dec. 24, 1959) implicit in the power to enforce all laws
relative to the conduct of plebiscite.
Right to Self-Organization ● COMELEC can take jurisdiction over cases
The right to self-organization shall not be denied to involving party identity and leadership or
government employees. But employees in the civil controversy as to leadership in the party.
service may not resort to strikes, walkouts, and other Such jurisdiction is sourced from the general
temporary work stoppages, like workers in the private
power of the Commission to administer laws
sector, to pressure the government to accede to their
demands. Thus, their right to organize does not and rules involving the conduct of election.
include the right to strike. (SSS v. CA, G.R. No. ● here is no need for a special legislation for
85279, July 28, 1989) the authorization of the conduct of recall
elections because it is deemed included in
Prohibition against Additional and Double the constitutional function of COMELEC,
Compensation hence, contemplated in its budget in the
Rule: No elective or appointive public officer or GAA (Goh v. Bayron, G.R. No. 212584, Nov.
employee shall receive additional, double, or indirect 25, 2014).
compensation, unless specifically authorized by law,
nor accept without the consent of the Congress, any Exercise exclusive original jurisdiction over all
present, emolument, office or title of any kind from contests relating to the elections, returns, and
any foreign government. qualifications of all elective regional, provincial and
Note that pensions or gratuities shall not be city officials
considered as additional, double or indirect
compensation. (PHIL. CONST. art. IX-B, § 8) Election contests in the Sangguniang Kabataan (SK)
a. Additional Compensation: when for one are not under COMELEC jurisdiction but under the
and the same office for which jurisdiction of the DILG.
compensation has been fixed there is
added to such fixed compensation an extra Exercise appellate jurisdiction over all contests
reward in the form of bonus and the like involving:
(BERNAS) 1. Elective municipal officials decided by
b. Double Compensation: refers to two sets trial courts of general jurisdiction
of compensation for two different offices 2. Elective barangay officials decided by trial
held concurrently by one officer courts of limited jurisdiction
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a. A petition for certiorari questioning Deputize, with the concurrence of the President, law
an interlocutory order of a trial court enforcement agencies and instrumentalities of the
in an electoral protest was within Government, including the Armed Forces of the
the appellate jurisdiction of the Philippines, for the exclusive purpose of ensuring
COMELEC. The Court recognizes free, orderly, honest, peaceful, and credible
the COMELEC’s appellate elections.
jurisdiction over petitions for ● This power is NOT limited to the election
certiorari against all acts or period.
omissions of courts in election ● Applies to both criminal and administrative
cases (Bulilis v. Nuez, G.R. No. cases.
195953, Aug. 9, 2011).
b. Petition for certiorari questioning Register political parties, organizations, or
the decision of COMELEC division coalitions, accredit citizens’ arms of the Commission
is premature as there is a plain and on Elections.
speedy remedy before COMELEC ● Political parties, etc. must present their
En Banc (Villarosa v. Festin, G.R. platform or program of government.
No. 212953, Aug. 5, 2014). ● There should be sufficient publication.
3. Decisions, final orders, or rulings of the ● Groups that cannot be registered:
COMELEC contests involving elective 1. Religious denominations/ sects
municipal and barangay offices shall be 2. Those that seek to achieve their goals
final, executory, and not appealable. through violence or unlawful means
a. Exception: May be appealed to the 3. Those that refuse to uphold and adhere
SC EN BANC on questions of law to the Constitution
When the decision is brought on a 4. Those supported by any foreign
special civil action for certiorari, government e.g. receipt of financial
prohibition, or mandamus under contributions related to elections
Rule 64 for grave abuse of
discretion under Article IX-A File, upon a verified complaint, or on its own initiative,
Section 7. petitions in court for inclusion or exclusion of voters;
investigate and, where appropriate, prosecute cases
Issue writs of certiorari, prohibition and of violations of election laws, including acts or
mandamus in the exercise of its appellate omissions constituting elections frauds, offenses and
jurisdiction. malpractices.
Contempt powers COMELEC has exclusive jurisdiction to investigate

COMELEC can exercise this power only in relation to and prosecute cases for violations of election laws.
its adjudicatory or quasi-judicial functions. It
CANNOT exercise this in connection with its purely COMELEC can deputize prosecutors for this
executive or ministerial functions. purpose. The actions of the prosecutors are the
actions of the COMELEC.
If it is a pre-proclamation controversy, the COMELEC
exercises quasi-judicial or administrative powers. COMELEC can conduct preliminary investigations on
election cases falling within its jurisdiction.
Its jurisdiction over ‘contests’ (after proclamation) is
in exercise of its judicial functions. Recommend to the Congress effective measures
to minimize election spending, including limitation of
Decide, except those involving the right to vote, all places where propaganda materials shall be posted,
questions affecting elections, including determination and to prevent and penalize all forms of election
of the number and location of polling places, frauds, offenses, malpractices, and nuisance
appointment of election officials and inspectors, and candidacies.
registration of voters. These petitions are cognizable
by the Regular Courts (MTC). Recommend to the President the removal of any
officer or employee it has deputized, or the imposition
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of any other disciplinary action, for violation or The COMELEC cannot itself, in the same
disregard of, or disobedience to its directive, order, or cancellation (of certificate of candidacy) case, decide
decision. the qualification or lack thereof of the candidate if
such issues are yet undecided or undetermined by
Submit to the President and the Congress a the proper authority.
comprehensive report on the conduct of each
election, plebiscite, initiative, referendum, or recall ● The provisions in Article IX-C, Section 2,
(PHIL. CONST. art. IX-C, § 2). enumerating the powers and functions of
COMELEC does not have the same
The vote requirement for a valid COMELEC en Banc exactitude of the provisions of Art. VI, Sec.
resolution is a majority of the votes of all members, 17, which provides for the HRET and SET,
or 4 votes. If the six members are evenly divided, the or that of Art. VII, Sec. 4, which provides that
Commission on Elections should rehear the case the SC en banc shall be the sole judge of all
(Sevilla v. COMELEC, G.R. 203833, March 19, contests regarding the Presidency and Vice-
2013). Presidency. These tribunals have
jurisdiction over the question of
Powers not given to COMELEC qualifications of the President, VP,
● Decide questions involving the right to vote Senators, and the HoR.
(placed under jurisdiction of courts); o Not one of the enumerated powers
● Transfer municipalities from one of the COMELEC as stated in
congressional district to another for the Article IX-C, Sec. 2 of the
purpose of preserving proportionality. Constitution grants the commission
the power to determine the
Cases decided by COMELEC subject to judicial qualifications of a candidate.
review: ● A COMELEC rule or resolution cannot
Decisions or determinations by COMELEC in the supplant or vary the legislative enactments
exercise of its administrative (not quasi-judicial) that distinguish the grounds for
power may be questioned in an ordinary civil action disqualification from those of ineligibility, and
before the trial court. (Filipinas Engineering & the appropriate proceedings to raise the said
Machine Shop v. Ferrer, G.R. No. L-31455, Feb. 28, grounds. (Fermin v. COMELEC, G.R. No.
1985). 179695, Dec. 18, 2008)
● The Court has no power to review on ● Insofar as the qualification of a candidate is
certiorari an interlocutory order or even a concerned, Rule 25 and Rule 23 of the
final resolution issued by a DIVISION of the COMELEC rules do not allow authorization
COMELEC. The Court can only review a and do not constitute vestment of jurisdiction
final decision or resolution of the COMELEC for the COMELEC to determine the
en banc (Cagas vs. COMELEC, G.R. No. qualification of a candidate.
194139, Jan. 24, 2012). ● The facts of qualification must first be
● COMELEC has jurisdiction to determine the established in a prior proceeding before an
presence of “probable cause” in election authority vested with jurisdiction. Prior
cases. The finding of probable cause and determination of qualification may be by
the prosecution of election offenses rests in statute, by an executive order or by a
the COMELEC’s sound discretion (Baytan v. judgment of a competent court or tribunal.
COMELEC, G.R. No. 153945, Feb. 4, 2003). ● Lacking this prior determination, the
● The Chief State Prosecutor, who may have certificate of candidacy cannot be cancelled
been designated by the COMELEC to or denied due course on ground of false
prosecute a criminal action, merely derives representations regarding a candidate’s
his authority from the COMELEC. It is qualifications except if there exists self-
beyond his power to oppose the appeal evident facts of unquestioned or
made by COMELEC (Comelec v. Silva, G.R. unquestionable veracity and judicial
No. 129417, Feb. 10, 1998). confessions.
● In this light the COMELEC cannot cancel
Poe’s certificate of candidacy lacking prior
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determination of her qualifications by a Are the functions under R.A. No. 8436
competent body. (Poe-Llamanzares v. mandatory?
Comelec et al, G.R. Nos. 221697 & 221698- Yes. The minimum functional capabilities
700, March 8, 2016) enumerated under Section 6 of R.A. No. 8436, as
amended, are mandatory. These functions constitute
The COMELEC’s power to motu proprio deny due the most basic safeguards to ensure the
course to a certificate of candidacy is subject to the transparency, credibility, fairness and accuracy of the
candidate’s opportunity to be heard. Under Article II, upcoming elections. The law is clear. A “voter-verified
Section 26 of the Constitution, “the state shall paper audit trail” requires the following: (a) individual
guarantee equal access to opportunities for public voters can verify whether the machines have been
service.” (PHIL. CONST. art. II, § 26). This, however,
able to count their votes; and (b) that the verification
does not guarantee a constitutional right to run for or
hold public office. To run for public office is a mere at minimum should be paper based. There appears
privilege subject to limitations imposed by law, such to be no room for further interpretation of a “voter-
as prohibition on nuisance candidates. To minimize verified paper audit trail.” The paper audit trail cannot
logistical confusion caused by nuisance candidates, be considered the physical ballot, because there may
their COC’s may be denied due course by the be instances where the machine may translate the
COMELEC, through motu proprio or upon verified ballot differently, or the voter inadvertently spoils his
petition of an interested party, subject to an or her ballot. (Bagumbayan-VNP Movement, Inc. vs
opportunity to be heard. (Timbol v Commission on COMELEC, G.R. No. 222731, March 8, 2016)
Elections, G.R. No. 206004, Feb. 24, 2015)
Commission on Audit
Regulation of Public Utilities, Media and
Franchises
Examine, audit, and settle all accounts pertaining
The COMELEC may, during the election period,
to:
supervise or regulate the utilization of all franchises
1. Revenue and receipts of funds or property
or permits for the operation of transportation and
2. Expenditures and uses of funds or property
other public utilities, media, all grants, privileges and
owned or held in trust by, or pertain to:
concessions, granted by the Government. (PHIL.
a. The Government
CONST. art. IX-C, § 4)
b. Any of its subdivisions, agencies or
instrumentalities
The aim is to ensure equal opportunity, time, and
c. GOCCs with original charters.
space, and the right to reply, including reasonable
equal rates for public information campaigns and
COA is endowed with enough latitude to determine,
forums among candidates. (PHIL. CONST. art. IX-C, §
prevent and disallow irregular, unnecessary,
4).
excessive, extravagant or unconscionable
expenditures of government funds. In resolving
Can print media be compelled to allocate free
cases brought before it on appeal, respondent COA
space?
is not required to limit its review only to the grounds
No. Print media may not be compelled to allocate free
relied upon by a government agency’s auditor with
space to the Commission. Such would amount to a
respect to disallowing certain disbursements of public
taking of property without just compensation.
funds. In consonance with its general audit power,
(Philippine Press Institute v. COMELEC, G.R. No
respondent COA is not merely legally permitted, but
119694, May 22, 1995)
is also duty-bound to make its own assessment of the
merits of the disallowed disbursement and not simply
Can the COMELEC regulate expressions made by
restrict itself to reviewing the validity of the ground
private citizens?
relied upon by the auditor of the government agency
No. COMELEC had no legal basis to regulate
concerned. To hold otherwise would render COA’s
expressions made by private citizens. As such,
vital constitutional power unduly limited and thereby
COMELEC’s order to remove the tarpaulin posted by
useless and ineffective (Yap v. Commission on Audit,
the Diocese of Bacolod bearing the heading
G.R. No.158562, April 23, 2010).
‘Conscience Vote’ was unconstitutional. (Diocese of
Bacolod v COMELEC, G.R. No 205728, Jan. 21,
Funds cannot be released without auditing in pre-
2015)
audit while in post-audit, the auditing is done only
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after the funds are released. (Maritime Industry The functions of COA can be classified as:
Authority v. Commission on Audit, G.R. No. 185812, 1. Examining and auditing all forms of
Jan. 13, 2015) government revenues and expenditures
2. Settling government accounts
COA is not required to limit its review only to the 3. Promulgating accounting and auditing rules
grounds relied upon by the auditor with respect to 4. Deciding administrative cases involving
disallowing certain disbursements of public funds. In expenditures of public funds.
consonance with its general audit power, COA is not
merely legally permitted but is also duty-bound to COA’s non-exclusive power to audit
make its own assessment of the merits of the The COA does not have the exclusive power to
disallowed disbursement and not simply restrict to examine and audit government entities. As such,
reviewing the validity of the ground relied upon by the public corporations under COA jurisdiction may
auditor of the government agency concerned. employ private auditors. However, COA’s findings
and conclusions necessarily prevail over those of
To settle government accounts private auditors, at least insofar as government
This means the power to settle liquidated accounts agencies and officials are concerned (DBP v COA,
i.e. accounts which may be adjusted simply by an G.R. No. 88435, Jan. 16, 2002)
arithmetical process. It does not include the power to
fix the amount of an unfixed or undetermined debt. Thus, private auditors can be hired but if there is a
conflict, COA audit prevails.
To define the scope and techniques for its own
auditing procedures Prosecutors Power to Review Accounts Settled
by COA
To promulgate accounting and auditing rules Prosecutors may still review accounts already settled
including those for the prevention and disallowance and approved by COA for the purpose of determining
of irregular, unnecessary, excessive, extravagant, or possible criminal liability. This is because COA’s
unconscionable expenditures; interest in such accounts is merely administrative.
Conduct post-audit with respect to the following: Exclusive Authority to Define Scope of Audit and
1. Constitutional bodies, commissions, and Examination
offices granted fiscal autonomy Pursuant to its mandate as the guardians of public
2. Autonomous state colleges and universities funds, the COA has the exclusive authority to define
3. GOCCs and their subsidiaries incorporated the scope of its audit and examination, establish the
under the Corporation Code techniques and methods for such review and
4. Non-governmental entities receiving subsidy promulgate accounting and auditing rules and
or equity, directly or indirectly, from or regulations (Veloso v. Commission on Audit, G.R.
through the government, which are required No. 193677, Sept. 6, 2011).
by law, through the granting institution, to
submit to such audit. What are Considered Private Corporations
5. To decide administrative cases involving Note that not all corporations, which are not
expenditure of public funds government owned or controlled, are ipso facto to be
(PHIL. CONST. art. IX-D, § 2) considered private corporations as there exists
another distinct class of corporations or chartered
If COA finds the internal control system of audited institutions which are otherwise known as “public
agencies inadequate, COA may adopt measures, corporations.” These corporations are treated by law
including temporary or special pre-audit, as as agencies or instrumentalities of the government.
necessary to correct deficiencies. As presently constituted, the BSP is a public
corporation created by law for a public purpose, and
Keep the general accounts of the government being such the funds of the BSP fall under the
jurisdiction of the Commission on Audit. (Boy Scouts
Preserve vouchers and other supporting papers of the Philippines v. COA, G.R. No. 177131, June 7,
pertaining thereto for such period as may be 2011)
provided by law
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Complete Discretion afforded to COA 3. With proven capacity for public

COA is generally accorded complete discretion in the administration; and
exercise of its constitutional duty and responsibility to 4. Must not have been candidates for any
examine and audit expenditures of public funds. Only elective position in the election immediately
in instances when COA acts without or in excess of preceding their appointment
jurisdiction or with grave abuse of discretion
amounting to lack or excess of jurisdiction shall the Disqualifications
Court interfere. Thus, COA can disallow TESDA from 1. No candidate who has lost in any election
paying a healthcare allowance to their employees. shall, within 1 year after such election, be
(TESDA v. COA, G.R. No. 196418, Feb. 10, 2015) appointed to any office in the Government of
any GOCC or in any of their subsidiaries.
Jurisdiction (PHIL. CONST. Art. IX-B, §6)
1. Of the Commission in General: No law shall 2. No elective official shall be eligible for
be passed exempting any entity of the appoint or designation in any capacity to any
Government, or any investment of public public office or position during his tenure.
funds, from the jurisdiction of the COA (PHIL. (PHIL. CONST. Art. IX-B, § 7, ¶ 1)
CONST. art. IX-D, § 3) Exceptions:
2. Over GOCCs: The Constitution vests in the a. the Vice President may be
COA audit jurisdiction over ‘government- appointed as member of the
owned and controlled corporations with Cabinet
original charters, as well as government b. Member of the Congress is
owned or controlled corporations without designated to sit in the JBC
original charters’. GOCCs with original 3. Unless otherwise allowed by law or by the
charters are subject to COA pre-audit, while primary functions of his position, no
GOCCs without original charters are subject appointive official shall hold any other office
to COA post-audit. The determining factor of or employment in the government or any
COA’s audit jurisdiction is government subdivision, agency or instrumentality
ownership or control of the corporation. thereof including GOCCs or their
3. Over LGUs: LGUs, through granted local subsidiaries. (PHIL. CONST. art. IX-B, § 7, ¶
fiscal autonomy are still within the audit 2)
jurisdiction of the COA (Veloso v. 4. No officer or employee in the civil service
Commission on Audit, G.R. No. 193677, shall engage, directly or indirectly, in any
Sept. 6, 2011). electioneering or partisan political
campaign, (PHIL. CONST. art.IX-B, § 2, ¶ 4)
COA authority in Public Bidding Appointment and Term
COA has the power to determine the meaning of Appointed by the President with the consent of the
‘public bidding’ and what constitutes failure of the Commission on Appointments. The term is 7 years,
same when regulations require public bidding for the without reappointment. The prohibition of
sale of government property. reappointment applies even if the Commissioner has
served for less than 7 years. (BERNAS)
C. COMPOSITION AND QUALIFICATION
OF MEMBERS Appointment to any vacancy shall be only for the
unexpired term of the predecessor. In no case shall
a. Civil Service Commission any member be appointed or designated in a
temporary or acting capacity. (PHIL. CONST., art. IX-
Composition B, § 1, ¶ 2)
A Chairman, and 2 Commissioners
b. Commission on Elections
Qualifications (PHIL. CONST., art. IX-B, § 1(1))
1. Natural-born citizens of the Philippines;
Composition
2. At the time of their appointment, at least 35
One Chairman and 6 Commissioners
years of age
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Qualifications (NTCIM)
1. Natural-born citizen; In no case shall any member be appointed or
2. At least 35 years old at the time of designated in a temporary or acting capacity. (PHIL.
appointment; CONST. art. IX-D, § 1, ¶ 2)
3. College degree holder;
4. Not a candidate in any election Immediately Jurisdiction of each Constitutional Commission
preceding the appointment; and
5. Majority, including the chairman, must be Civil Service Commission
members of the Philippine Bar who have Scope: All branches, subdivisions, instrumentalities,
been engaged in the practice of law for at agencies of the government, including government
least 10 years owned and controlled corporations with original
(PHIL. CONST., art. IX-C, § 1, ¶ 1). charters.
Appointment and Term ● “With Original Charter” means that the

Appointed by the President with the consent of the GOCC was created by special law or by
commission of Appointment, for a term of 7 years, Congress
without reappointment. (PHIL. CONST. art. IX-C, § 1, ¶ ● If incorporated under the Corporation Code,
2) it does not fall within the Civil Service and is
not subject to the CSC jurisdiction
If the appointment was ad interim, a subsequent ● If previously government-controlled, but is
renewal of the appointment does not violate the later privatized, it ceases to fall under CSC
prohibition on reappointment because no previous ● Jurisdiction is determined as of the time of
appointment was confirmed by the Commission on filing the complaint.
Appointment. Further, the total term of both
appointments must not exceed the 7-year limit. Commission on Elections
(Matibag v. Benipayo, G.R. No. 149036, April 2, EXCLUSIVE ORIGINAL jurisdiction over all contests
2002) relating to the elections, returns, and qualifications of
all elective REGIONAL, PROVINCIAL and CITY
c. Commission on Audit officials
Composition Election contests in the Sangguniang Kabataan (SK)

1 Chairman, 2 Commissioners are not under COMELEC jurisdiction but under the
jurisdiction of the DILG.
Qualifications ● APPELLATE jurisdiction over all contests
1. Natural born citizen; involving:
2. At least 35 years old at the time of o ELECTIVE MUNICIPAL officials
appointment decided by trial courts of general
3. CPAs with at least 10 years auditing jurisdiction
experience or members of the Bar with at o ELECTIVE BARANGAY officials
least 10 years of experience in the practice decided by trial courts of limited
of law; at no time shall all members belong jurisdiction
to the same profession, and ● A petition for certiorari questioning an
4. Not a candidate in any election immediately interlocutory order of a trial court in an
preceding appointment electoral protest was within the appellate
(PHIL. CONST. art. IX-D, § 1, ¶ 1) jurisdiction of the COMELEC. The Court
recognizes the COMELEC’s appellate
Appointment and Term jurisdiction over petitions for certiorari
Appointed by the President with the consent of the against all acts or omissions of courts in
Commission of Appointments for a term of 7 years, election cases (Bulilis v. Nuez, G.R. No.
without reappointment. 195953, Aug. 9, 2011).
● The COMELEC HAS jurisdiction over intra-
Appointment to any vacancy shall only be for the party disputes. The ascertainment of the
unexpired portion of the term of the predecessor. identity of a political party and its legitimate
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officers is a matter that is well within its The Manila Economic and Cultural Office (“MECO”)
authority. The COMELEC has the power to is subject to audit by the COA. The MECO is sui
enforce and administer all laws and generis. It was established when the Philippines
regulations relative to the conduct of an severed diplomatic relations with Taiwan upon
election. recognition of China. None of its members are
● To resolve the issue, the COMELEC need government officials. It is not a GOCC nor an
only refer to the Party Constitution. It need instrumentality. Its functions are of a kind that would
not go as far as to resolve the root of the otherwise be performed by the diplomatic and
conflict between the parties. It need only consular offices of the Philippines. Nevertheless, the
resolve issues as may be necessary in the consular fees collected by the MECO may be audited
exercise of its enforcement powers. by the COA. (Funa v. Manila Economic and Cultural
Office, G.R. 193462, Feb. 4, 2014)
Commission on Audit
COA is endowed with enough latitude to determine, Water districts are within the coverage of the COA. A
prevent and disallow irregular, unnecessary, water district is a GOCC with a special charter since
excessive, extravagant or unconscionable it is created pursuant to a special law. Thus, COA has
expenditures of government funds. In resolving the authority to investigate whether directors, officials
cases brought before it on appeal, respondent COA or employees of GOCCs receiving allowances and
is not required to limit its review only to the grounds bonuses are entitled to such benefits under
relied upon by a government agency’s auditor with applicable laws. (Feliciano v. Commission on Audit,
respect to disallowing certain disbursements of public G.R. 147402, Jan. 14, 2004)
funds. In consonance with its general audit power,
respondent COA is not merely legally permitted, but D. PROHIBITED OFFICES AND
is also duty-bound to make its own assessment of the INTERESTS
merits of the disallowed disbursement and not simply
restrict itself to reviewing the validity of the ground Prohibited Offices and Interests (BEEH)
relied upon by the auditor of the government agency No member of a Constitutional Commission shall,
concerned. To hold otherwise would render COA’s during his tenure:
vital constitutional power unduly limited and thereby ● Be financially interested, directly or
useless and ineffective (Yap v. Commission on Audit, indirectly, in any contract with, or in any
G.R. No.158562, April 23, 2010). franchise or privilege granted by the
Government, any of its subdivisions,
COA has authority not just over accountable officers agencies or instrumentalities
but also over other officers who perform functions ● Engage in the Practice of any profession;
related to accounting such as verification of ● Engage in the Active management and
evaluations and computation of fees collectible, and control of any business which in any way
the adoption of internal rules of control. COA has the may be affected by the functions of his
authority to define the scope of its audit and office; and
examination, establish the techniques and methods ● Hold any other Office or Employment.
for such review and promulgate accounting and
auditing rules and regulations (Veloso v. Commission E. JUDICIAL REVIEW OF FINAL ORDERS,
on Audit, G.R. No. 193677, Sept. 6, 2011). RESOLUTIONS, AND DECISIONS
The Boy Scout of the Philippines (“BSP”) is a
government-owned and controlled corporation under Rendered in the exercise of quasi-judicial
the jurisdiction of COA. The BSP Charter functions
(Commonwealth Act 111), entitled “An Act to Create ● Decisions, orders or rulings of the
a Public Corporation to be Known as the Boy Scouts COMELEC or the COA may be brought on
of the Philippines, and to Define its Powers and certiorari to the SC under Rule 64.
Purposes” created the BSP as a “public corporation” ● Decisions, orders or ruling of the CSC
(Boy Scouts of the Philippines v. COA, G.R. No. should be appealed to the CA under Rule
177131, June 7, 2011) 43.
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● Period for appeals is 30 days from receipt of

a copy of the decision, order, or ruling.
● It is however a requirement, that a motion for
reconsideration must first be filed before the
commission en banc, before resort to court
is taken.
● The certiorari jurisdiction of the court is
limited only to cases and matters rendered
by a commission in the exercise of its
adjudicatory power, or those relating to an
election dispute and not to cases and
matters purely administrative or executive in
nature.
Rendered in the Exercise of Administrative

Functions
Administrative disciplinary cases involving penalty of
suspension for more than 30 days, or fine in an
amount exceeding 30 days’ salary, demotion,
transfer, removal, or dismissal from office shall be
appealable to the CSC
Decision may be executed pending appeal
Decision of CSC may be brought on appeal to the CA

under Rule 43
Decision of CA may be brought on appeal to the SC

under Rule 45.
Exoneration of officers or employees from

administrative charges does not bar appeal. The
CSC is the proper party to bring the appeal (PD 807,
§37- 39); (CSC v. Dacoycoy, G.R. No. 135805, April
29, 1999).
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IX. BILL OF RIGHTS J. RIGHT TO ASSOCIATION

1. Scope and limitations
TOPIC OUTLINE UNDER THE SYLLABUS K. NON-IMPAIRMENT OF CONTRACTS
1. Concept and limitations
A. DUE PROCESS OF LAW
1. Procedural and substantive L. FREE ACCESS TO COURTS AND ADEQUATE
2. Void-for-vagueness LEGAL ASSISTANCE
3. Judicial and administrative due process
M. RIGHT UNDER CUSTODIAL INVESTIGATION
B. EQUAL PROTECTION OF LAWS 1. Meaning of custodial investigation
1. Requisites for valid classification 2. Rights of a person under custodial
2. Tests to determine the reasonableness of a investigation
classification 3. Requisites of a valid waiver
4. Exclusionary doctrine
C. ARRESTS, SEARCHES AND SEIZURES
1. Requisites of a valid warrant N. RIGHTS OF THE ACCUSED
2. Warrantless arrests and detention 1. Criminal due process
3. Warrantless searches 2. Bail
4. Exclusionary rule 3. Presumption of innocence
4. Right to counsel
D. PRIVACY OF COMMUNICATIONS AND 5. Right to be informed of the nature and cause
CORRESPONDENCE of accusation
1. Private and public communications 6. Right to speedy, impartial, and public trial
2. Intrusion, when allowed 7. Right of confrontation
3. Exclusionary rule 8. Right to compulsory process
9. Trials in absentia
E. FREEDOM OF SPEECH AND EXPRESSION
1. Prior restraint and subsequent punishment O. RIGHT TO SPEEDY TRIAL AND SPEEDY
2. Content-based and content-neutral DISPOSITION OF CASES
regulations
3. Facial challenges and overbreadth doctrine P. RIGHT AGAINST SELF-INCRIMINATION
4. Tests to determine the validity of 1. Extent of the right
governmental regulation 2. Immunity statutes
5. State regulation of different types of mass
media Q. RIGHT AGAINST DOUBLE JEOPARDY
6. Unprotected speech 1. Requisites and limitations
F. FREEDOM OF RELIGION R. RIGHT AGAINST IVOLUNTARY SERVITUDE
1. Non-establishment clause and free exercise
clauses S. RIGHT AGAINST EXCESSIVE FINES, AND
2. Benevolent neutrality and conscientious CRUEL AND INHUMAN PUNISHMENTS
objector
3. Tests to determine the validity of T. NON-IMPRISONMENT FOR DEBTS
governmental regulation
U. EX POST FACTO LAWS AND BILLS OF
G. LIBERTY OF ABODE AND RIGHT TO TRAVEL ATTANDER
2. Watch-list and hold departure orders V. WRITS OF HABEAS CORPUS, KALIKASAN,
HABEAS DATA, AND AMPARO
H. RIGHT TO INFORMATION
I. EMINENT DOMAIN
1. Concept
2. Just compensation
3. Expropriation by local government units
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A. DUE PROCESS OF LAW Essence

No person shall be deprived of life, liberty, or The essence of procedural due process is embodied
property without due process of law, nor shall any in the basic requirement of [1] notice and [2] a real
opportunity to be heard. (Vivo v. PAGCOR, G.R. No.
person be denied the equal protection of the laws. 187854, Nov. 12, 2013)
(PHIL. CONST., art. III, § 1)
While it is true that the right to due process
Concept and Purpose safeguards the opportunity to be heard and to submit
Due process of law means simply, first, that there any evidence one may have in support of his claim or
shall be a law prescribed in harmony with the general defense, where the opportunity to be heard is
powers of the legislative department of the accorded, and the party can “present its side” or
Government; second, that this law shall be “defend its interest in due course”, there is no denial
reasonable in its operation; third, that it shall be of due process because what the law proscribes is
enforced according to the regular methods of the lack of opportunity to be heard. (Oca v Custodio,
procedure prescribed; and fourth, that it shall be GR 199825, July 26, 2017)
applicable alike to all the citizens of the state or to all
of a class. (Rubi v. Provincial Board of Mindoro, G.R. Publication
No. L-14078, March 7, 1919) Every agency shall file with the Office of the National
Administrative Register ONAR in the University of the
Due process evades a precise definition. The Philippines Law Center three (3) certified copies of
purpose of the guaranty is to prevent arbitrary every rule adopted by it. Rules in force on the date of
governmental encroachment against the life, liberty effectivity of this Code which are not filed within three
and property of individuals. The due process (3) months from the date shall not thereafter be the
guaranty serves as a protection against arbitrary basis of any sanction against any party or persons.
regulation or seizure. Even corporations and (Section 3 of Chapter 2, Book VII of the
partnerships are protected by the guaranty insofar as Administrative Code of 1987)
their property is concerned. (White Light Corporation
v. City of Manila, G.R. No. 122846, Jan. 20, 2009) These requirements of publication and filing were put
in place as safeguards against abuses on the part of
Scope lawmakers and as guarantees to the constitutional
The guarantees of the Bill of Rights are universal in right to due process and to information on matters of
their application to all persons within the territorial public concern and, therefore, require strict
jurisdiction, without regard to any differences of race, compliance. (Republic v. Pilipinas Shell, G.R. No.
color, or nationality. All natural persons, and artificial 173918, April 8, 2008)
persons, only in so far as their property is concerned,
are protected by the Due Process clause. (Smith, Bell However, not all rules and regulations adopted by
& Co. v. Natividad, G.R. No. 15574, Sept. 17, 1919) every government agency are to be filed with the UP
Law Center. Only those of general or of permanent
Relativity character are to be filed. According to the UP Law
The concept of due process is not a static one. What Center’s guidelines for receiving and publication of
is due process of law depends on circumstances. It rules and regulations, interpretative regulations and
varies with the subject-matter and necessities of the those merely internal in nature, that is, regulating only
situation. (Rubi v. Provincial Board, citing Moyer vs. the personnel of the Administrative agency and not
Peabody [1909], 212 U. S., 82) the public, need not be filed with the UP Law Center.
(The Board of Trustees of the GSIS v. Velasco, G.R.
1. PROCEDURAL AND SUBSTANTIVE No. 170463, Feb. 2, 2011)
PROCEDURAL Late Petitions

Rules of procedure are intended to ensure the orderly
Procedural due process refers to the procedures that
administration of justice and the protection of
the government must follow before it deprives a
substantive rights in judicial and extrajudicial
person of life, liberty, or property. Procedural due
proceedings. It is a mistake to suppose that
process concerns itself with government action
substantive law and adjective law are contradictory
adhering to the established process when it makes
to each other or, as has often been suggested, that
an intrusion into the private sphere. (White Light
enforcement of procedural rules should never be
Corporation v. City of Manila, G.R. No. 122846, Jan.
permitted if it will result in prejudice to the substantive
20, 2009)
rights of the litigants. This is not exactly true; the
concept is much misunderstood. As a matter of fact,
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the policy of the courts is to give effect to both kinds be erroneous to conclude that she had been
of law, as complementing each other, in the just and completely denied her opportunity to be heard. In
speedy resolution of the dispute between the parties. administrative proceedings, procedural due process
Observance of both substantive and procedural means that one is given the opportunity to explain
rights is equally guaranteed by due process, one’s side and the opportunity to seek a
whatever the source of such rights, be it the reconsideration of the action or ruling complained of,
Constitution itself or only a statute or a rule of court. not only through verbal arguments in court but also
(Tupas v. CA, G.R. No. 89571, Feb. 6, 1991) through pleadings. When she filed her MR, she was
able to completely and exhaustively present her
A party having forfeited the right to appeal cannot arguments. (Espiritu v. Del Rosario, G.R. No.
claim that he/she has been denied due process. 204964. Oct. 15, 2014)
(Tupas v. CA, G.R. No. 89571, Feb. 6, 1991)
There is no denial of the right to due process if there
In a case of falsification of public documents, the was an opportunity for the parties to defend their
accused claimed that his constitutional rights were interests in due course. Petitioner had been able to
violated when the Sandiganbayan denied his motion file a Motion for Reconsideration Ad Cautelam before
for new trial and motion to allow him to present the trial court, and later elevated its case before the
additional witnesses. The Court ruled that his right to Court of Appeals. There is no denial of due process
due process was not violated. The accused had 4 if a party was given an opportunity to be heard in a
years to present evidence yet he only asked for the Motion for Reconsideration. Petitioner did not take
opportunity to present additional evidence via a advantage of the opportunities it was given to lead a
motion for reconsideration after the Sandiganbayan responsive pleading. It allowed the periods it was
had already admitted all the formal offers of evidence given for the filing of pleadings to lapse. (Philippine
of the accused. Further, he failed to present the National Construction Corporation v. Asiavest
witness through the compulsory process of Merchant Bankers (M) Berhad, GR. No. 172301,
subpoena, during all the time that he testified for his Aug. 19, 2015)
defense for a period of six (6) months. Moreover, his
motion to present additional witness was denied due SUBSTANTIVE
to his failure to comply with Sections 4-5 of Rule 15.
In addition, the evidence he seeks to present is not a If due process were confined solely to its procedural
newly discovered evidence since it was already aspects, there would arise absurd situation of
presented by the other parties. All this points out to arbitrary government action, provided the proper
the conclusion that he was given ample opportunity formalities are followed. Substantive due process
to be heard. (Escobar v. People. G.R. No. 205576, completes the protection envisioned by the due
Nov. 20, 2017) process clause. It inquires whether the government
has sufficient justification for depriving a person of
Motion for Reconsideration life, liberty, or property. (White Light Corporation v.
Due process is satisfied when the parties are City of Manila, G.R. No. 122846, January 20, 2009)
afforded fair and reasonable opportunity to explain
their side of the controversy or an opportunity to Substantive due process requires that laws be [1]
move for a reconsideration of the action or ruling grounded on reason and [2] be free from
complained of. (Elenita S. Binay v. Office of the arbitrariness. The government must have sufficient
Ombudsman, 213957-58, Aug. 7, 2019) justification for depriving a person of life, liberty, or
property. Essentially, substantive due process is
A city enacted an ordinance classifying certain areas satisfied if the deprivation is done in the exercise of
as agricultural lands. A landowner filed an application the police power of the State. (Provincial Bus
for exemption and an Order was issued by the Operators Association of the Philippines v. DOLE,
Secretary of Agrarian Reform, granting the G.R. No. 202275, July 17, 2018)
exemption. Farmers of landowner’s landholdings
filed an MR of the Order, which was subsequently Requisites
granted by the judge, thereby revoking the first Order. Laws which interfere with life, liberty, and property
However, this Order was sent to another city and not satisfy substantive due process when there is:
to the correct address of the landowner. The Court (b) Lawful Subject – The interests of the public
ruled that the landowner’s right to due process was generally, as distinguished from those of a
not violated. She was still able to file her MR from the particular class, require such interference;
Order, albeit beyond the allowable period to file and and
was still given due course. While it may be true that (c) Lawful Means – The means are reasonably
she was prevented from filing a timely MR, it would necessary for the accomplishment of the
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purpose, and not unduly oppressive upon command. Thus, Art. 2 of the Civil Code prescribes a
individuals. 15-day period of publication of laws before they take
effect, unless otherwise provided.
The legislature may not, under the guise of protecting
the public interests, arbitrarily interfere with private The omission of publication of laws would offend due
business, or impose unusual and unnecessary process insofar as it would deny the public
restrictions upon lawful occupations. In other words, knowledge of the laws that are supposed to govern
its determination as to what is a proper exercise of its it. The term "laws" should refer to all laws and not
police powers is not final or conclusive, but is subject only to those of general application, but including
to the supervision of the court. (US v. Toribio, G.R. those of local application and private laws. Covered
No. L-5060, Jan. 26, 1910) by this rule are presidential decrees and executive
orders promulgated by the President. Administrative
License to Own and Operate Firearms rules and regulations must also be published if their
With the bearing of arms being a mere privilege, purpose is to enforce or implement existing law
there could not have been a deprivation of right to pursuant also to a valid delegation. However, no
due process in requiring a license for the possession publication is required for internal regulations issued
of firearms. Article III, Section 1 of the Constitution is by administrative agencies. Publication must be in full
clear that only life, liberty, or property is protected by or it is no publication at all since its purpose is to
the due process clause. It is settled that the license inform the public of the contents of the laws. (Tañada
to possess a firearm is neither a property nor a v. Tuvera, G.R. No. L-63915, Dec. 29, 1986)
property right.
2. VOID-FOR-VAGUENESS
Assuming, for the sake of argument, that the right to
possess a firearm were considered a property right, Concept
it is doctrine that property rights are always subject to A statute or act may be said to be vague when it lacks
the State's police power. Further, the PNP comprehensible standards that men of common
Guidelines, which suspended the issuance of permits intelligence must necessarily guess at its meaning
to carry firearms outside of residence, was a valid and differ in its application.
police power measure. The interest of the general
public was satisfied, since the Guidelines were The test in determining whether a criminal statute is
issued in response to the rise in high-profile crimes. void for uncertainty is whether the language conveys
As to the means employed to retain peace and order a sufficiently definite warning as to the proscribed
in society, the revocation of all permits to carry conduct when measured by common understanding
firearms outside of residence would make it difficult and practice. It must be stressed, however, that the
for criminals to commit gun violence and victimize "vagueness" doctrine merely requires a reasonable
others. Therefore, the license requirement to own degree of certainty for the statute to be upheld - not
and operate a firearm is a valid exercise of police absolute precision or mathematical exactitude.
power and not a violation of the right to due process.
(Acosta v. Ochoa, G.R. Nos. 211559, 211567, An act will not be held invalid merely because it might
212570 & 215634, Oct. 15, 2019) have been more explicit in its wordings or detailed in
its provisions, especially where, because of the
Requisites of a Valid Ordinance (Police nature of the act, it would be impossible to provide all
the details in advance as in all other statutes.
Power of LGUs) (Must NOT CUPPU, Must
(Estrada v. Sandiganbayan, G.R. No. 148560,
be GC) November 19, 2001)
1. It must not contravene the constitution or any
statute; In determining whether the words used in a statute
2. It must not be unfair or oppressive; are vague, words must not only be taken in
accordance with their plain meaning alone, but also
3. It must not be partial or discriminatory;
in relation to other parts of the statute. It is a rule that
4. It must not prohibit but may regulate trade;
every part of the statute must be interpreted with
5. It must not be unreasonable; and reference to the context, that is, every part of it must
6. It must be general and consistent with public be construed together with the other parts and kept
policy. subservient to the general intent of the whole
enactment. (Imbong v. Ochoa, G.R. No. 204819,
Publication April 8, 2014)
Due process, which is a rule of fairness, requires that
those who must obey a command must first know the
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Purpose The reason is obvious: They are still alive. Even if

A vague statute is repugnant to the Constitution in they cease to hold public office, they can still be made
two (2) respects: aware of the proceedings and actively submit
(a) It violates due process for failure to accord pleadings. However, death forecloses any
persons, especially the parties targeted by it, opportunity to be heard. Dead respondents will never
fair notice of what conduct to avoid; and know how the proceedings will continue. They cannot
(b) It leaves law enforcers unbridled discretion in submit responsive pleadings or plead innocence of
carrying out its provisions and becomes an beg clemency. To continue with the proceedings is
a violation of the right to due process. (Flores-
arbitrary flexing of the Government muscle.
Concepcion v. Castañeda, A.M. No. RTJ-15-2438
(Estrada v. Sandiganbayan, G.R. No. (Resolution), Sept. 15, 2020)
148560, November 19, 2001)
Standard for Different Types of Proceedings
VOID FOR VAGUENESS V. OVERBREADTH PROCEEDING STANDARD
1. Vagueness and overbreadth are distinct from (Ju3NO)
each other; a vague law must lack clarity and 1. There must be a court or
precision, while an overbroad law need not. tribunal clothed with
2. It is submitted that while the defect of judicial power to hear
overbreadth as an analytical tool is applicable and determine the matter
only to cases involving speech, this is not so before it;
about vagueness. 2. Jurisdiction must be
lawfully acquired over
Void for Vagueness v. Overbreadth the person of the
VOID FOR OVERBREADTH defendant or over the
Judicial
VAGUENESS property which is the
Proceedings
Unconstitutional subject of the
Statute or act Gov't regulation of free proceeding;
speech 3. The defendant must be
Lacks comprehensible Means sweep given an opportunity to
standards unnecessarily broadly be heard; and
Judgment must be rendered
People guess at its Not necessarily upon lawful hearing.
meaning; differ in unclear (El Banco Español – Filipino
application v. Palanca, G.R. No. L-
Violates due process; Invades protected 11390, March 26, 1918)
creates unbridled freedoms (HESS-PIK)
discretion
(Bernas, The 1987 Constitution of the Republic of 1. The right to a Hearing,
the Philippines, 2009) which includes the right
to present one’s case
3. JUDICIAL AND ADMINISTRATIVE and submit evidence in
DUE PROCESS support thereof;
2. The tribunal must
Administrative Proceeding; Dead Respondent consider the Evidence
In administrative cases, the essence of procedural Administrative/ presented;
due process is one’s right to given the opportunity to Quasi-Judicial 3. The decision must have
be heard. This opportunity to be heard must be Proceedings
something to Support
present at every single stage of proceedings. itself;
Administrative proceedings require that the
4. Evidence supporting the
respondent be informed of the charges and be given
an opportunity to refute them. Even after judgement finding or conclusion
is rendered, due process requires that the must be Substantial;
respondent not only be informed of the judgement but 5. The decision must be
also given the opportunity to seek reconsideration of based on the evidence
that judgement. The opportunity to be heard can only Presented at the
be exercised by those who have resigned or retired. hearing or at least
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contained in the record 4. They shall have the right

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

action, however, considering presented evidence to prove
that it is a harsh and his/her right to be on bail,
extraordinary administrative that she is no flight risk, and
proceeding affecting the the trial court had already
freedom and liberty of a exercised its sound
person, the constitutional discretion and had already
right of such person to due determined that under the
process should not be Constitution and laws in
denied. force, the extraditee is
(Lao Gi v. CA, G.R. No. entitled to provisional
81798) release.
If bail can be granted in (Rodriguez v. Presiding
deportation cases, there is Judge of RTC Manila, G.R.
no justification why it should No. 157977)
not also be allowed in
extradition cases. After all, Thus, the cancellation of an
both are administrative extraditee’s bail, without
proceedings where the prior notice and hearing,
innocence or guilt of the could be considered a
person detained is not in violation of his/her right to
issue. due process tantamount to
(Government of Hongkong v. grave abuse of discretion.
Olalia, G.R. No. 153675) (Rodriguez v. Presiding
Judge of RTC Manila, G.R.
While our extradition law No. 157977)
does not provide for the
grant of bail to an extraditee,
however, there is no Instances when hearing is not necessary:
provision prohibiting him or (c) When administrative agencies are exercising
her from filing a motion for their quasi-legislative functions.
bail, a right to due process (d) When administrative agencies are exercising
under the Constitution. The their quasi-judicial functions if temporary
Extradition applicable standard of due pending hearing.
Proceedings process, however, should
(Granting of (e) Abatement of nuisance per se.
not be the same as that in
bail) criminal proceedings. (f) Granting by courts of provisional remedies.
(Government of Hongkong v. (g) Cases of preventive suspension.
Olalia, G.R. No. 153675) (h) Removal of temporary employees in the
government.
Bail may be granted to a (i) Issuance of warrants of distraint and/or levy
possible extraditee only by the BIR Commissioner.
upon a clear and convincing (j) Cancellation of the passport of a person
showing: charged with a crime.
1. That he will not be a flight (k) Suspension of a bank’s operations by the
risk or a danger to the Monetary Board upon a prima facie finding of
community; and liquidity problems in such bank.
2. That there exist special,
humanitarian and Due Process Standards in Administrative
compelling Proceedings
circumstances. Due process in administrative proceedings does not
(Rodriguez v. Presiding necessarily require a trial type of hearing. Neither
Judge of RTC Manila, G.R. does it require an exchange of pleadings between or
No. 157977) among the parties. Due process is satisfied if the
party who is properly notified of allegations against
The grant of the bail him or her is given an opportunity to defend himself
presupposes that the or herself against those allegations, and such
defense was considered by the tribunal in arriving at
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its own independent conclusions. (Gutierrez v COA, proceedings conducted within the bounds of
GR. No. 200628, Jan. 13, 2015) procedural due process is a must. For that reason,
the PMA is not immune from the strictures of due
No Hearing in Provisional Price-fixing process. Where a person's good name, reputation,
Such a relaxed procedure is especially true in honor, or integrity is at stake because of what the
administrative bodies, such as the ERB which in government is doing to him, the minimal
matters of rate or price fixing is considered as requirements of the due process clause must be
exercising a quasi-legislative, not quasi-judicial satisfied.
function. As such administrative agency, it is not
The statement that "a cadet can be compelled to
bound by the strict or technical rules of evidence
surrender some civil rights and liberties in order for
governing court proceedings Relaxed procedures the Code and System to be implemented" simply
adopted could not have resulted in the denial of due pertains to what cadets have to sacrifice in order to
process. (Maceda v. ERB, G.R. No. 96266, Jul. 18, prove that they are men or women of integrity and
1991) honor, such as the right to entertain vices and the
right to freely choose what they want to say or do. In
the context of disciplinary investigation, it does not
Pilotage is considered a property right Thus, contemplate a surrender of the right to due process
the exercise of one's profession falls within but, at most, refers to the cadets' rights to privacy and
to remain silent. (Cudia v. Superintendent of the
the constitutional guarantee against wrongful PMA, G.R. No. 211362, Feb. 24, 2015)
deprivation of, or interference with, property
rights CONSTITUTIONAL AND STATUTORY DUE
PROCESS
without due process. However, it is important
to note that a regulation of professions does What is often said about statutory due process is a
not per se entail a wrongful deprivation. It is procedure created by law, which upholds the
constitutional right of a person to due process.
only when a
Dismissal of Employees
vested right is taken away without due To be sure, the Due Process Clause in Article III, Sec.
process of l aw that it falls under the aegis of 1 of the Constitution embodies a system of rights
Article III, Sec. 1. (Corona v. UHPAP, G.R. based on moral principles so deeply imbedded in the
traditions and feelings of our people as to be deemed
No. 111953)
fundamental to a civilized society as conceived by
our entire history. Due process is that which
comports with the deepest notions of what is fair and
Due Process Standards in Student Disciplinary
right and just. It is a constitutional restraint on the
Cases
legislative as well as on the executive and judicial
Due process in disciplinary cases involving students
powers of the government provided by the Bill of
does not entail proceedings and hearings similar to
Rights.
those prescribed for actions and proceedings in
courts of justice. The proceedings may be summary.
Due process under the Labor Code, like
Cross-examination is not an essential part of the
constitutional due process, has two aspects:
investigation or hearing. The required proof in a
substantive, (i.e., the valid and authorized causes of
student disciplinary action, which is an administrative
employment termination under the Labor Code) and
case, is neither proof beyond reasonable doubt nor
procedural, (i.e., the manner of dismissal).
preponderance of evidence but only substantial
Procedural due process requirements for dismissal
evidence or such relevant evidence as a reasonable
are found in the Implementing Rules of P.D. 442, as
mind might accept as adequate to support a
amended, otherwise known as the Labor Code of the
conclusion. What is crucial is that official action must
Philippines in Book VI, Rule I, Sec. 2, as amended by
meet minimum standards of fairness to the individual,
Department Order Nos. 9 and 10. Breaches of these
which generally encompass the right of adequate
due process requirements violate the Labor Code.
notice and a meaningful opportunity to be heard.
Therefore, statutory due process should be
differentiated from failure to comply with
A cadet facing dismissal from the military academy
constitutional due process.
for misconduct has constitutionally protected private
interests (life, liberty, or property); hence, disciplinary
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Constitutional due process protects the individual does not demand absolute equality among residents.
from the government and assures him of his rights in (Ichong v. Hernandez, G.R. No. L-7995, May 31,
criminal, civil or administrative proceedings; while 1957)
statutory due process found in the Labor Code and
Implementing Rules protects employees from being Scope
unjustly terminated without just cause after notice The guarantees of the Bill of Rights are universal in
and hearing. their application to all persons within the territorial
jurisdiction, without regard to any differences of race,
Where the dismissal is for a just cause, the lack of color, or nationality. All natural persons, and artificial
statutory due process should not nullify the dismissal, persons, only in so far as their property is concerned,
or render it illegal, or ineffectual. However, the are protected by the Equal Protection clause. (Smith,
employer should indemnify the employee for the Bell & Co. v. Natividad, G.R. No. 15574, Sept. 17,
violation of his statutory rights. (Agabon v. NLRC, 1919)
G.R. No. 158693, Nov. 17, 2004)
The Constitution does not require absolute equality
Although the closure was done in good faith and for among persons. It is enough that all persons under
valid reasons, we find that ITC did not comply with like circumstances or conditions are given the same
the notice requirement. While an employer is under privileges and required to follow the same
no obligation to conduct hearings before effecting obligations. In short, a classification based on valid
termination of employment due to authorized cause, and reasonable standards does not violate the equal
however, the law requires that it must notify the protection clause. (Tiu v. Court of Appeals, G.R. No.
DOLE and its employees at least one month before 127410, Jan. 20, 1999)
the intended date of closure. (Timber Co. v Ababon,
G.R. No. 164518, Jan. 25, 2006) 1. REQUISITES FOR VALID
CLASSIFICATION
Preliminary Investigation
The purpose of a preliminary investigation is to The equal protection of the laws clause of the
secure the innocent against hasty, malicious and Constitution allows classification. Classification in
oppressive prosecution, and to protect him from an law, as in the other departments of knowledge or
open and public accusation of crime, from the practice, is the grouping of things in speculation or
trouble, expense and anxiety of a public trial, and practice because they agree with one another in
also to protect the State from useless and expensive certain particulars.
trials. The right to a preliminary investigation is a
statutory grant, and to withhold it would be to
All that is required of a valid classification
transgress constitutional due process. However, in
order to satisfy the due process clause, it is not is that it be reasonable, which means that
enough that the preliminary investigation is the classification should be: (GEES)
conducted in the sense of making sure that a
1. Be Germane to the purposes of the law;
transgressor shall not escape with impunity. A
2. Not limited to Existing conditions only;
preliminary investigation serves not only the
purposes of the State. More importantly, it is a part of
3. Applied Equally to all members of the same
the guarantees of freedom and fair play, which are class; and
birthrights of all who live in our country. (Salonga v. 4. Rest on Substantial distinctions which make
Panon, G.R. No. L-59524, Feb. 18, 1985) for real differences. (Victoriano v. Elizalde
Rope Workers’ Union, G.R. No. L-2524, Sept.
B. EQUAL PROTECTION 12, 1974)
The equal protection of the law clause merely APPLICATION

requires that all persons shall be treated alike, under General Banking Law of 2002
like circumstances and conditions both as to The General Banking Law provides a shorter period
privileges conferred and liabilities enforced. for redemption of three (3) months or earlier to
juridical entities compared to the one (1) year
The equal protection of the law clause is against redemption period given to natural persons.
undue favor and individual or class privilege, as well However, this does not violate the equal protection
as hostile discrimination or the oppression of clause. Equal protection permits of reasonable
inequality. It is not intended to prohibit legislation, classification. The difference in the treatment of
which is limited either in the object to which it is juridical persons and natural persons was based on
directed or by territory within which is to operate. It the nature of the properties foreclosed — whether
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these are used as residence, for which the more question its wisdom. (British American Tobacco v.
liberal one-year redemption period is retained, or Camacho, G.R. No. 163583, Aug. 20 2009)
used for industrial or commercial purposes, in which
case a shorter term is deemed necessary to reduce Cityhood Laws
the period of uncertainty in the ownership of property The Cityhood laws were constitutional. Based on the
and enable mortgagee banks to dispose sooner of deliberations by Congress on R.A. 9009, Congress
these acquired assets. (Zomer Development Co. v. intended that those with pending cityhood bills during
Special 20th Division of the CA, G.R. No. 194461, the 11th Congress would not be covered by the new
Jan. 07, 2020) and higher income requirement of P100 million
imposed by RA 9009. The exemption clauses found
Section 6 of the Cybercrime Prevention Act in the individual Cityhood Laws are the express
Section 6 of the Cybercrime Prevention Act imposing articulation of that intent to exempt respondent
a penalty one degree higher than that provided in the municipalities from the coverage of RA 9009. Such
RPC for acts committed by, through and with the use Cityhood Laws are, therefore, also amendments to
of information and communications technologies was the LGC itself. In the enactment of the Cityhood
assailed for violating equal protection. The Court Laws, Congress merely took the 16 municipalities
upheld the section and explained that Section 6 covered thereby from the disadvantaged position
merely makes commission of existing crimes through brought about by the abrupt increase in the income
the internet a qualifying circumstance. There exists a requirement (from 20 million to 100 million) of RA
substantial distinction between crimes committed 9009, acknowledging the “privilege” that they have
through the use of information and communications already given to those newly-converted component
technology and similar crimes committed using other cities, which prior to the enactment of RA 9009, were
means. In using the technology in question, the undeniably in the same footing or “class” as the
offender often evades identification and is able to respondent municipalities. But in effect, the Cityhood
reach far more victims or cause greater harm. The Laws granted to 33 municipalities amended RA 9009
distinction, therefore, creates a basis for higher through the exemption clauses found therein.
penalties for cybercrimes. (Disini v. Sec. of Justice, (League of Cities of the Phil. et al. v. COMELEC, et
G.R. No. 203335, Feb. 18, 2014) al. G.R. Nos. 176951, 177499, 178056, April 12,
2011)
Disbursement Acceleration Program
The DAP was challenged as “unfair as it [was] VAWC
selective” because the funds released under the DAP RA 9262 (An Act Defining Violence Against Women
was not made available to all the legislators, with and Their Children - VAWC) is not violative of the
some of them refusing to avail themselves of the DAP equal protection clause. There is a valid
funds, and others being unaware of the availability of classification. The unequal power relationship that
such funds. The Court held that the challenge based women are more likely to be victims of violence and
on the contravention of the Equal Protection Clause, the widespread gender bias and prejudice against
which focuses on the release of funds under the DAP women make for real differences justifying the
to legislators, lacks factual and legal basis. The classification. The distinction is germane to the
denial of equal protection of any law should be an purpose of the law to address violence committed
issue to be raised only by parties who supposedly against women. The law applies to women and
suffer it, and, in these cases, such parties would be children who suffer violence and abuse. (Garcia v.
the few legislators claimed to have been Hon. Drilon, G.R. No. 179267, June 25, 2013)
discriminated against in the releases of funds under
the DAP. The requirement was not met here. (Araullo RH Law
v. Aquino III, G.R. No. 209287, July 1, 2014) The RH Law, in providing that the poor are to be
given priority in the government's reproductive health
Classification Freeze Provision care program, does not violate the equal protection
The classification freeze provision does not violate clause. In fact, it is pursuant to Section 11, Article XIII
the equal protection and uniformity of taxation. Even of the Constitution which recognizes the distinct
though it failed to promote fair competition among the necessity to address the needs of the underprivileged
players in the industry, the classification freeze by providing that they be given priority in addressing
provision was not precipitated by a veiled attempt or the health development of the people. It should be
hostile attitude on the part of Congress to unduly noted that Section 7 of the RH Law prioritizes poor
favor older brands. Since the provision was done in and marginalized couples who are suffering from
good faith and is germane to the purpose of the law, fertility issues and desire to have children. (Imbong v.
the Court cannot declare it unconstitutional nor Ochoa, G.R. 204819, April 8, 2014)
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Discounts to PWDs 5 Years of Experience as a Lower Court Judge

The Supreme Court upheld the constitutionality of as Requirement for RTC Judge
R.A. No. 9442 or the Magna Carta for Persons with Consideration of experience by JBC as one factor in
Disability granting the PWDs a 20% discount on the choosing recommended appointees does not
purchase of medicine, and a tax deduction scheme constitute a violation of the equal protection clause.
was adopted wherein covered establishments may The JBC does not discriminate when it employs
deduct the discount granted from gross income number of years of service to screen and differentiate
based on the net cost of goods sold or services applicants from the competition. The number of years
rendered. The equal protection clause recognizes a of service provides a relevant basis to determine
valid classification, that is, a classification that has a proven competence which may be measured by
reasonable foundation or rational basis and not experience, among other factors. The difference in
arbitrary. With respect to R.A. No. 9442, its treatment between lower court judges who have
expressed public policy is the rehabilitation, self- served at least five years and those who have served
development and self-reliance of PWDs. Persons less than five years is upheld in order to meet the
with disability form a class separate and distinct from requirements of proven competence, experience,
the other citizens of the country. Indubitably, such integrity, probity, and independence. The foregoing
substantial distinction is germane and intimately shows that substantial distinctions do exist between
related to the purpose of the law. Hence, the lower court judges with five year experience and
classification and treatment accorded to the PWDs those with less than five years of experience and the
fully satisfy the demands of equal protection. Thus, classification enshrined in the assailed policy is
Congress may pass a law providing for a different reasonable and relevant to its legitimate purpose.
treatment to persons with disability apart from the The Court, thus, rules that the questioned policy does
other citizens of the country. (Drugstores Association not infringe on the equal protection clause as it is
of the Philippines, Inc. and Northern Luzon Drug based on reasonable classification intended to gauge
Corporation v. National Council on Disability Affairs, the proven competence of the applicants. Therefore,
et al., G.R. No. 194561, Sept. 4, 2016) the said policy is valid and constitutional. (Villanueva
v. JBC, G.R. No. 211833, April 07, 2015)
Elective and Appointive Officials
There is a substantial distinction between elective Doctrine of Relative Unconstitutionality
and appointive officials. The former occupy their A statute valid at one time may become void at
office by virtue of the mandate of the electorate. They another time because of altered circumstances.
are elected to an office for a definite term and may be Thus, if a statute in its practical operation becomes
removed therefrom only upon stringent conditions. arbitrary or confiscatory, its validity, even though
On the other hand, appointive officials hold their affirmed by a former adjudication, is open to inquiry
office by virtue of their designation thereto by an and investigation in the light of changed conditions.
appointing authority. Some appointive officials hold
their office in a permanent capacity and are entitled This doctrine was invoked in a case to invalidate RA
to security of tenure while others serve at the 7653, which started as a valid measure of legislative
pleasure of the appointing authority. (Eleazar P. power applicable to Central Bank employees, but,
Quinto and Gerino A. Tolentino, Jr., vs. COMELEC, with the enactment of subsequent laws exempting all
G.R. No. 189698, Feb. 22, 2010) rank and file employees of all GFIs from the Salary
Standardization Law, was rendered void on account
Tax Ordinance Specific to an Entity of a violation of the equal protection clause. (Central
When the taxing ordinance was enacted, Ormoc Bank Employees Association, Inc. v. Bangko Sentral
Sugar Co., Inc. was the only sugar central in the City. ng Pilipinas, G.R. No. 148208, Dec. 15, 2004)
A reasonable classification should be in terms
applicable to future conditions as well. The taxing Suspect Classification
ordinance should not be singular and exclusive as to A suspect classification is one where distinctions are
exclude any subsequently established sugar central made based on the most invidious bases for
from the coverage of the tax. A subsequently classification that violate the most basic human
established sugar central cannot be subject to tax rights, i.e., on the basis of race, national origin, alien
because the ordinance expressly points to Ormoc status, religious affiliation and, to a certain extent, sex
Sugar Company, Inc. as the entity to be levied upon. and sexual orientation. (Serrano v. Gallant, G.R. No.
(Ormoc Sugar Company v. Ormoc City, G.R. No. L- 167614, Mar. 24, 2009)
23794, Feb. 17, 1968)
A "suspect class" is defined as "a class saddled with
such disabilities, or subjected to such a history of
purposeful unequal treatment, or relegated to such a
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position of political powerlessness as to command legitimacy. (Spark v. Quezon City, G.R. No. 225442,
extraordinary protection from the majoritarian Aug. 08, 2017)
political process. (Zomer Development Co. v. Special
20th Division of the CA, G.R. No. 194461, Jan. 07, c. Rational Basis Test
2020)
Under the rational basis test, a legislative
Juridical entities cannot be considered a "suspect classification, to survive an equal protection
class." Juridical entities enjoy certain advantages challenge, must be shown to rationally further a
that natural persons do not, such as limited liability. legitimate state interest. (British American Tobacco
The properties of juridical entities are also often used v. Camacho, G.R. No. 163583, Aug. 20 2009)
for commercial purposes. In contrast, the properties
of natural persons are more often used for residential The rational basis test applies to all other subjects not
purposes. They are also directly responsible for the covered by the first two tests. (Spark v. Quezon City,
liabilities they incur and, often, are not equipped with G.R. No. 225442, Aug. 08, 2017)
the same resources that juridical entities may have.
Juridical entities, thus, cannot be considered a
"suspect class." (Zomer Development Co. v. Special
C. ARRESTS, SEARCHES AND
20th Division of the CA, G.R. No. 194461, Jan. 07, SEIZURES
2020) Section 2 is not just a circumscription of the power of
the State over a person’s home and possessions.
More importantly, it protects the privacy and sanctity
2. TESTS TO DETERMINE THE
of the person himself. It is a guarantee of the right of
REASONABLENESS OF A the people to be secure in their “persons… against
CLASSIFICATION unreasonable searches and seizures.” It is therefore
also a guarantee against unlawful arrests and other
Philippine jurisprudence has developed three (3) forms of restraint on the physical liberty of the person.
tests of judicial scrutiny to determine the (Bernas, The 1987 Constitution of the Republic of the
reasonableness of classifications. Philippines, 2009)
a. Strict Scrutiny Test

The most demanding of all the three tests. Under the Under our Constitution, the same is declared a
strict scrutiny test, the legislative classification is popular right of the people and, of course,
presumed to be unconstitutional and the government indisputably it equally applies to both citizens and
has the burden of proving that the classification is foreigners in this country. (Qua Chee Gan v
necessary to achieve a compelling State interest, and Deportation Board, G.R. No. L-10280, September 30,
is the least restrictive means to protect such interest 1963).
or the means chosen is narrowly tailored to
accomplish the interest. (Serrano v. Gallant, G.R. 1. REQUISITES OF A VALID WARRANT
NO. 167614, Mar. 24, 2009)
SEARCH WARRANTS
The strict scrutiny test applies when a classification
either (i) interferes with the exercise of fundamental
A search warrant is an order in writing, issued in
rights, including the basic liberties guaranteed under
the name of the People of the Philippine Islands,
the Constitution, or (ii) burdens suspect classes.
(Spark v. Quezon City, G.R. No. 225442, Aug. 08, signed by a judge or a justice of the peace, and
2017) directed to a peace officer, commanding him to
b. Intermediate Scrutiny Test search for personal property and bring it before the
The intermediate scrutiny test requires the court. (Sec. 1, Rule 126, Revised Rules of Criminal
government to show that the challenged Procedure)
classification serves an important state interest and
that the classification is at least substantially related The requisites for the issuance of a search warrant
to serving the interest. (Serrano v. Gallant, G.R. No. are: (POJEWS)
167614, Mar. 24, 2009) 1. Probable cause is present (in connection with
one specific offense);
The intermediate scrutiny test applies when a 2. Such probable cause must be determined
classification does not involve suspect classes or personally by the judge;
fundamental rights, but requires heightened scrutiny,
such as in classifications based on gender and
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3. The judge must examine, in writing and under Probability, Not Absolute or Moral Certainty
oath or affirmation, the complainant and the Probable cause is concerned with probability, not
witnesses he or she may produce; absolute or even moral certainty. What is required is
4. The applicant and the witnesses testify on the not proof beyond reasonable doubt but merely
facts personally known to them; and probable cause. (Bernas, The 1987 Constitution of
5. The warrant specifically describes the place to the Republic of the Philippines, 2009)
be searched and the things to be seized.
(People v. Mamaril, G.R. No. 171980, Oct. 6, Conclusions of law unsupported by particulars are
not sufficient to establish probable cause to be used
2010)
as basis for the issuance of a warrant. (Bernas, The
1987 Philippine Constitution: A Comprehensive
A search warrant shall not issue except upon
Reviewer, 2011)
probable cause in connection with one specific
offense to be determined personally by the judge
A tip received from a classified informant may be the
after examination under oath or affirmation of the
basis of a search. (People v. Lo Ho Wing, G.R. No.
complainant and the witnesses he may produce, and
88017, Jan. 21, 1991)
particularly describing the place to be searched and
the things to be seized which may be anywhere in the
Philippines. (ROC, Rule 126, § 4) b. Personal Determination by the
Judge
A search warrant must conform strictly to the
constitutional requirements for its issuance; Trial Court Discretion
otherwise, it is void. (Diaz v. People, G.R. No. There is no exact test for the determination of
188794, Sept. 2, 2015) probable cause in the issuance of search warrants. It
is a matter wholly dependent on the finding of trial
Although the use of the word “and” implies judges in the process of exercising their judicial
conjunction or union, the CA was mistaken in giving function. They determine probable cause based on
the word undue importance. The primary "evidence showing that, more likely than not, a crime
consideration here is the finding of probable cause. It has been committed and that it was committed" by
would not be necessary to examine both the the offender. (Worldwide Web Corporation v. People,
applicant and other witnesses if either one is G.R. No. 161106, Jan. 13, 2014)
sufficient for the judge to establish probable cause.
(People v. Gabiosa Sr., G.R. No. 248395, Jan. 29, Probing and Exhaustive Examination
2020.) In determining the existence of probable cause for
a. Probable Cause the issuance of a search warrant, the examining
magistrate must make probing and exhaustive, not
Definition merely routine or pro forma examination of the
Probable cause for a search warrant is defined as applicant and the witnesses. (Nala v. Barroso, G.R.
such facts and circumstances which would lead a No. 153087, Aug. 7, 2003)
reasonably discrete and prudent man to believe that
an offense has been committed and that the objects Facts and Circumstances Must Be Examined in
sought in connection with the offense are in the place their Totality
sought to be searched. (Laud v. People, G.R. No. Ultimately, in determining the existence of probable
199032, Nov. 19, 2014) cause, the facts and circumstances must be
personally examined by the judge in their totality,
Concept together with a judicious recognition of the variable
A finding of probable cause needs only to rest on complications and sensibilities attending a criminal
evidence showing that, more likely than not, a crime case. (Laud v. People, G.R. No. 199032, Nov. 19,
has been committed and that it was committed by the 2014)
accused. Probable cause demands more than bare
suspicion; it requires less than evidence which would Delay in Application Does Not Negate Probable
justify conviction. The existence depends to a large Cause
degree upon the finding or opinion of the judge The supposed delay in the search warrant’s
conducting the examination. However, the findings of application does not dilute the probable cause finding
the judge should not disregard the facts before him made herein. The delay may be accounted for by a
nor run counter to the clear dictates of reason. (Laud witness’s fear of reprisal and natural reluctance to get
v. People, G.R. No. 199032, Nov. 19, 2014) involved in a criminal case. (Laud v. People, G.R. No.
199032, Nov. 19, 2014)
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Trial Judge Determination Accorded Great

Deference by the Reviewing Court The judge must, before issuing the warrant,
Generally, a judge’s determination of probable cause personally examine in the form of searching
for the issuance of a search warrant is accorded questions and answers, in writing and under oath, the
great deference by a reviewing court, so long as complainant and the witnesses he may produce on
there was substantial basis for that determination. facts personally known to them and attach to the
Substantial basis means that the questions of the record their sworn statements, together with the
examining judge brought out such facts and affidavits submitted. (ROC, Rule 126, § 5)
circumstances as would lead a reasonably discreet
and prudent man to believe that an offense has been Depositions made by Clerk
committed, and the objects in connection with the The participation of respondent Judge in the
offense sought to be seized are in the place sought proceedings which led to the issuance of search
to be searched. (Diaz v. People, G.R. No. 188794, warrant was limited to listening to the stenographer's
Sept. 2, 2015) readings of her notes, to a few words of warning
against the commission of perjury, and to
If the judge is satisfied of the existence of facts upon administering the oath to the complainant and his
which the application is based or that there is witness. This cannot be considered a personal
probable cause to believe that they exist, he shall examination. If there was an examination at all of the
issue the warrant, which must be substantially in the complainant and his witness, it was the one
form prescribed by these Rules. (ROC, Rule 126, § conducted by the Deputy Clerk of Court. The
6) Constitution and the Rules require a personal
examination by the judge. (Bache v. Co. v. Ruiz, G.R.
c. Personal Examination of the No. L-32409. Feb. 27, 1971)
Complainant and the Witnesses
Purpose Compliance is Shown by the Depositions and
The intent was to ensure that a warrant is issued not the Transcript
merely on the basis of the affidavits of the Ideally, compliance with the examination requirement
complainant and his witnesses, but only after is shown by the depositions and the transcript. In
examination by the judge of the complainant and his their absence, however, a warrant may still be upheld
witnesses. (Diaz v. People, G.R. No. 188794, Sept. if there is evidence in the records that the requisite
2, 2015) examination was made and probable cause was
based thereon. There must be, in the records,
Personal Examination v. Personal Determination particular facts and circumstances that were
What the Constitution requires is for the judge to considered by the judge as sufficient to make an
conduct an "examination under oath or affirmation of independent evaluation of the existence of probable
the complainant and the witnesses he may produce," cause to justify the issuance of the search warrant.
after which he determines the existence of probable (Diaz v. People, G.R. No. 188794, Sept. 2, 2015)
cause for the issuance of the warrant. (Diaz v.
People, G.R. No. 188794, Sept. 2, 2015) d. Facts Personally Known to the
Applicant and the Witnesses
Personal examination by the judge of the
complainant and his witnesses is necessary to Purpose
enable him to determine the existence or non- The oath required must refer to the truth of the facts
existence of a probable cause. The determination of within the personal knowledge of the applicant or his
whether or not a probable cause exists calls for the witnesses, because the purpose thereof is to
exercise of judgment after a judicial appraisal of facts convince the committing magistrate, not the
and should not be allowed to be delegated in the individual making the affidavit and seeking the
absence of any rule to the contrary. (Bache and Co. issuance of the warrant, of the existence of probable
v. Ruiz, G.R. No. L-32409. February 27, 1971) cause. (Burgos v. Chief of Staff, G.R. No. L-6426,
Dec. 26, 1984)
Affidavits are Insufficient
Affidavits of the complainant and his witnesses are
insufficient to establish the factual basis for probable Testimony Must Not be Based on Mere Hearsay
cause. Personal examination by the judge of the The testimony must be within the personal
applicant and his witnesses is indispensable, and the knowledge of the complainant or the witnesses he
examination should be probing and exhaustive, not may produce and not based on mere hearsay. (Nala
merely routinary or a rehash of the affidavits. (Diaz v. v. Barroso, G.R. No. 153087, Aug. 7, 2003)
People, G.R. No. 188794, Sept. 2, 2015)
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Testimony Must Not be Based on Personal search with reasonable certainty to locate such place
Belief or thing is sufficient. (Worldwide Web Corporation v.
The applicant and the witness must testify on their People, G.R. No. 161106, Jan. 13, 2014)
personal knowledge, not personal belief. (Nala v.
Barroso, G.R. No. 153087, Aug. 7, 2003) Required Wherever and Whenever it is Feasible
The particularity of the description of the place to be
e. Particularity of Description searched and the things to be seized is required
"wherever and whenever it is feasible." A search
The warrant must be issued in relation to one specific warrant need not describe the items to be seized in
offense. (ROC, Sec. 4, Rule, 126) precise and minute detail. The warrant is valid when
it enables the police officers to readily identify the
Purpose properties to be seized and leaves them with no
The evident purpose and intent of the requirement is discretion regarding the articles to be seized.
to limit the things to be seized to those, and only (Worldwide Web Corporation v. People, G.R. No.
those, particularly described in the search warrant – 161106, Jan. 13, 2014)
to leave the officers of the law with no discretion
regarding what articles they should seize, to the end Search Warrant for an Unnamed Party; John
that unreasonable searches and seizures may not be Doe Search Warrant
made and that abuses may not be committed. A warrant for the apprehension of an unnamed party
(People v. Go, G.R. No. 144639, Sept. 12, 2003) is void, except in those cases where it contains a
descriptio personae such as will enable the officer to
Test of Sufficiency identify the accused. The description must be
A description of a place to be searched is sufficient if sufficient to indicate clearly the proper person upon
the officer with the warrant can, with reasonable whom the warrant is to be served. As the search
effort, ascertain and identify the place intended and warrant stated that John Doe had gambling
distinguish it from other places in the community. Any apparatus in his possession in the building occupied
designation or description known to the locality that by him at No. 124 Calle Arzobispo, City of Manila,
points out the place to the exclusion of all others, and and as this John Doe was Jose Ma. Veloso, the
on inquiry leads the officers unerringly to it, satisfies manager of the club, the police could identify John
the constitutional requirement. (Laud v. People, G.R. Doe as Jose Ma. Veloso without difficulty. (People v.
No. 199032, Nov. 19, 2014) Veloso, G.R. No. L-23051, Oct. 20, 1925)
Particular Description Not Required if Goods by John Doe Search Warrants – Exception, Not the
their Nature are Described Generally Rule
The search warrant must contain a particular John Doe search warrants should be the exception
description of the place to be searched and the and not the rule. The police should particularly
person or thing to be seized. These provisions are describe the place to be searched and the person or
mandatory and must be strictly complied with; but things to be seized, wherever and whenever it is
where, by the nature of the goods to be seized, their feasible. The police should not be hindered in the
description must be rather generally, it is not required performance of their duties, which are difficult
that a technical description be given, as this would enough of performance under the best of conditions,
mean that no warrant could issue. (Alvarez v. CFI, by superficial adherence to technicality or farfetched
G.R. No. L-45358, Jan. 29, 1937) judicial interference. (People v. Veloso, G.R. No. L-
23051, Oct. 20, 1925)
Technical Precision of Description Not Required
Technical precision of description is not required. It is As said warrant is issued against 50 “John Does" not
only necessary that there be reasonable particularity one of whom the witnesses to the complaint could or
and certainty as to the identity of the property to be would Identify, it is of the nature of a general warrant,
searched for and seized, so that the warrant shall not one of a class of writs long proscribed as
be a mere roving commission. Indeed, the law does unconstitutional and once anathematized as "totally
not require that the things to be seized must be subversive of the liberty of the subject."
described in precise and minute detail as to leave no (Pangandaman v. Casar, G.R. No. 71782 April 14,
room for doubt on the part of the searching 1988)
authorities. If this were the rule, it would be virtually
impossible for the applicants to obtain a warrant as Mistake in the Name of the Person Does Not
they would not know exactly what kind of things to Invalidate the Warrant
look for. Any description of the place or thing to be A mistake in the name of the person to be searched
searched that will enable the officer making the does not invalidate the warrant, especially when the
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authorities had personal knowledge of the drug- WHAT MAY BE SEARCHED

related activities of the accused. In fact, a "John Doe" Personal Property to be Seized
warrant satisfies the requirements so long as it A search warrant may be issued for the search and
contains a descriptio personae such as will enable seizure of personal property:
the officer to identify the accused. A mistake in the 1. Subject of the offense;
identification of the owner of the place does not 2. Stolen or embezzled and other proceeds, or
invalidate the warrant provided the place to be fruits of the offense; or
searched is properly described. (People v. Tiu Won 3. Used or intended to be used as the means of
Chua, G.R. No. 149878, July 1, 2003) committing an offense. (ROC, Rule 126, § 3)
General Warrants are Void Ownership Not Required, But Control or
A general warrant is defined as a search or arrest Possession
warrant that is not particular as to the person to be The above rule does not require that the property to
arrested or the property to be seized. It is one that be seized should be owned by the person against
allows the seizure of one thing under a warrant whom the search warrant is directed. It may or may
describing another and gives the officer executing the not be owned by him. In fact, under subsection [2] of
warrant the discretion over which items to take. the above-quoted Section 2, one of the properties
(Worldwide Web Corporation v. People, G.R. No. that may be seized is stolen property. Necessarily,
161106, Jan. 13, 2014) stolen property must be owned by one other than the
person in whose possession it may be at the time of
General warrants do not meet the requirement in Art. the search and seizure. Ownership, therefore, is of
III, Sec. 1, of the Constitution, and of Sec. 3, Rule 126 no consequence, and it is sufficient that the person
of the Revised Rules of Court, that the warrant should against whom the warrant is directed has control or
particularly describe the things to be seized. (Uy v. possession of the property sought to be seized.
BIR, G.R. No. 129651, Oct. 20, 2000) (Burgos v. Chief of Staff, G.R. No. L-6426, Dec. 26,
1984)
General Rule: A general warrant is null and void.
(Nolasco v. Pano ̃ , G.R. No. L- 69803, Oct. 8, Only Those Things Particularly Described in the
1985). Search Warrant
 Exception: The search warrant is severable, The officers of the law are to seize only those things
and those items not particularly described particularly described in the search warrant. A search
may be cut off without destroying the whole warrant is not a sweeping authority empowering a
warrant. (Uy v. BIR, G.R. No. 129651, Oct. raiding party to undertake a fishing expedition to
20, 2000) seize and confiscate any and all kinds of evidence or
articles relating to a crime. The search is limited in
Scatter-shot Warrants scope so as not to be general or explanatory. Nothing
A warrant must be issued upon probable cause in is left to the discretion of the officer executing the
connection with one specific offense. Thus, where warrant. (United Laboratories v. Isip, G.R. No.
the questioned warrant was issued for multiple 163858, June 28, 2005)
offenses, specifically Articles 171 and 213 of the
Revised Penal Code, as well as the Anti-Graft and The description "an undetermined amount of
Corrupt Practices Act, it is void for being a scatter- marijuana" must be held to satisfy the requirement for
shot warrant. (Vallejo v. CA, G.R. No. 156413, Apr. particularity in a search warrant. What is to be seized
14, 2004) in the instant case is property of a specified
character, i.e., marijuana, an illicit drug. By reason of
No provision of law exists which requires that a its character and the circumstances under which it
warrant, partially defective in specifying some would be found, said article is illegal. A further
items sought to be seized yet particular with description would be unnecessary and ordinarily
impossible, except as to such character, the place,
respect to the other items, should be nullified as a
and the circumstances. It is not required that
whole. A partially defective warrant remains valid
technical precision of description be required,
as to the items specifically described in the particularly where, by the nature of the goods to be
warrant. A search warrant is severable, the items seized, their description must be rather general,
not sufficiently described may be cut off without since the requirement of technical description would
destroying the whole warrant. (Microsoft mean that no warrant could issue. (People v. Tee,
Corporation v. Maxicorp, G.R. No. 140946, Sept. G.R. Nos. 140546-47, January 20, 2003)
13, 2004)
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CONDUCT OF A SEARCH reasonable. (People v. Huang Zhen Hua, G.R. No.

Place to be Searched 139301, Sept. 29, 2004)
What is material in determining the validity of a
search is the place stated in the warrant itself, not Unannounced Intrusion When Permissible
Unannounced intrusion into the premises is
what the applicants had in their thoughts, or had
represented in the proofs they submitted to the court permissible when:
issuing the warrant. (People v. CA, G.R. No. 126379, 1. A party whose premises or is entitled to the
June 26, 1998) possession thereof refuses, upon demand, to
open it;
Time of Making Search 2. When such person in the premises already
The warrant must direct that it be served in the day knew of the identity of the officers and of their
time, unless the affidavit asserts that the property is authority and persons;
on the person or in the place ordered to be searched, 3. When the officers are justified in the honest
in which case a direction may be inserted that it be belief that there is an imminent peril to life or
served at any time of the day or night. (ROC, Rule limb; and
126, § 9) 4. When those in the premises, aware of the
presence of someone outside (because, for
Period of the Validity of a Search Warrant example, there has been a knock at the door),
A search warrant shall be valid for 10 days from its are then engaged in activity which justifies the
date. Thereafter it shall be void. (ROC, Rule 126, officers to believe that an escape or the
Sec. 10) destruction of evidence is being attempted.
Search of House, Room, or Premises to Be Made Suspects have no constitutional right to destroy
in Presence of Two Witnesses evidence or dispose of evidence. However, the
No search of a house, room, or any other premises exceptions above are not exclusive or conclusive. At
shall be made except in the presence of the lawful times, without the benefit of hindsight and ordinarily
occupant thereof or any member of his family or in on the spur of the moment, the officer must decide
the absence of the latter, two witnesses of sufficient whether or not to make an unannounced intrusion
age and discretion residing in the same locality. into the premises. Although a search and seizure of
(ROC, Rule 126, § 3) a dwelling might be constitutionally defective, if the
police officers’ entry was without prior
This requirement is mandatory to ensure regularity in announcement, law enforcement interest may also
the execution of the search warrant. The Rules of establish the reasonableness of an unannounced
Court clearly and explicitly establishes a hierarchy entry.
among the witnesses in whose presence the search
of the premises must be conducted. Thus, Section 8, Indeed, there is no formula for the determination of
Rule 126 provides that the search should be reasonableness. Each case is to be decided on its
witnessed by “two witnesses of sufficient age and own facts and circumstances. In determining the
discretion residing in the same locality” only in the lawfulness of an unallowed entry and the existence
absence of either the lawful occupant of the premises of probable cause, the courts are concerned only with
or any member of his family (People v. Go, G.R. No. what the officers had reason to believe and the time
144639, Sept. 12, 2003) of the entry. (People v. Huang Zhen Hua, G.R. No.
139301, Sept. 29, 2004)
“Knock and Announce” Principle in the Service
of a Search Warrant When Forcible Entry Justified
Police officers are obliged to give notice, show their The officer, if refused admittance to the place of
authority, and demand that they be allowed entry. directed search after giving notice of his purpose and
They may only break open any outer or inner door or authority, may break open any outer or inner door or
window of a house to execute the search warrant if, window of a house or any part of a house or anything
after such notice and demand, such officers are therein to execute the warrant or liberate himself or
refused entry to the place of directed search. This is any person lawfully aiding him when unlawfully
known as the “knock and announce” principle which detained therein. (ROC, Rule 126, § 7)
is embodied in Anglo-American Law. The method of
entry of an officer into a dwelling and the presence or The police authorities’ claim that they had to use
absence of such notice are as important some force in order to gain entry cannot be doubted.
considerations in assessing whether subsequent The occupants of the house, especially accused-
entry to search and/or arrest is constitutionally appellant, refused to open the door despite the fact
that the searching party knocked on the door several
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times. Furthermore, the agents saw the suspicious

movements of the people inside the house. These A judge may rely upon the fiscal's certification of the
circumstances justified the searching party's forcible existence of probable cause and, on the basis
entry into the house, founded as it is on the thereof, issue a warrant of arrest. However, the
apprehension that the execution of their mission certification does not bind the judge to come out with
would be frustrated unless they do so. (People v. the warrant of arrest.
Salanguit, G.R. No. 133254-55, April 19, 2001)
To be sure, the Judge must go beyond the
WARRANT OF ARREST Prosecutor’s certification and investigation report
whenever necessary. He should call for the
Arrest is the taking of a person into custody in order
complainant and witnesses themselves to answer the
that he may be bound to answer for the commission
court’s probing questions when the circumstances of
of an offense. (ROC, Sec. 1, Rule 113)
the case so require. (Lim Sr. v. Felix G.R. Nos.
94054-57, Feb. 19, 1991)
An arrest is made by an actual restraint of a person
to be arrested, or by his submission to the custody of
the person making the arrest. No violence or
2. WARRANTLESS ARRESTS AND
unnecessary force shall be used in making an arrest. DETENTION
The person arrested shall not be subject to a greater
restraint than is necessary for his detention. (ROC, Purpose
Sec. 2. Rule 113) To hold that no criminal can, in any case, be arrested
and searched for the evidence and tokens of his
If the judge is satisfied from the preliminary crime without a warrant, would be to leave society, to
examination conducted by him or by the investigating a large extent, at the mercy of the shrewdest, the
officer that the offense complained of has been most expert, and the most depraved of criminals,
committed and that there is reasonable ground to facilitating their escape in many instances. (Umil v.
believe that the accused has committed it, he must Ramos, G.R. No. 81567 July 9, 1990)
issue a warrant or order for his arrest. (Sec. 6, Rule
112, Revised Rules of In warrantless arrests, it is not enough that there is
Criminal Procedure) reasonable ground to believe that the person to be
arrested has committed a crime. A crime must in fact
Probable cause for issuance of warrant of arrest or actually have been committed first. (People v.
Such facts and circumstances which would lead a Burgos, G.R. No. L-68955)
reasonably discreet and prudent man to believe that
an offense has been committed by the person sought Entrapment
to be arrested. It is recognized that in every arrest, there is a certain
amount of entrapment used to outwit the persons
violating or about to violate the law. Not every
Judicial determination of probable cause for deception is forbidden. The type of entrapment the
warrants of arrest law forbids is the inducing of another to violate the
Before issuing a warrant of arrest, the judge must be law, the "seduction" of an otherwise innocent person
satisfied that based on the evidence submitted, there into a criminal career.
is sufficient proof that a crime has been committed
and that the person to be arrested is probably guilty Where the criminal intent originates criminal in the
thereof. At this stage of the criminal proceeding, the mind of the entrapping person and the accused is
judge is not yet tasked to review in detail the evidence lured into the commission of the offense charged in
submitted during the preliminary investigation. It is order to prosecute him, there is entrapment and no
sufficient that he personally evaluates the evidence conviction may be had.
in determining probable cause to issue a warrant of
arrest. (Pestillos v. Generoso, G.R. No. 182601, Nov. Where, however, the criminal intent originates in the
10, 2014) mind of the accused and the criminal offense is
What the Constitution underscores is the exclusive completed, the fact that a person acting as a decoy
and personal responsibility of the issuing judge to for the state, or public officials furnished the accused
satisfy himself the existence of probable cause. In an opportunity for commission of the offense, or that
satisfying himself of the existence of probable cause the accused is aided in the commission of the crime
for the issuance of a warrant of arrest, the judge is in order to secure the evidence necessary to
not required to personally examine the complainant prosecute him, there is no entrapment and the
and his witnesses. (Soliven v. Makasiar, G.R. No. accused must be convicted.27 The law tolerates the
82585 Nov. 14, 1988
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use of decoys and other artifices to catch a criminal. is done in the presence or within the view of the
(People v. Doria, G.R. No. 125299 January 22, 1999) arresting officer. The officer's personal knowledge of
the fact of the commission of an offense is absolutely
Instances When Warrantless Arrest May Be required. The officer himself must witness the crime.
Made Furthermore, the facts do not give rise to a
A peace officer or a private person may, without a reasonable suspicion that X was in possession of
warrant, arrest a person: shabu. From a meter away, even with perfect vision
1. In Flagrante Delicto: When, in his presence, a police officer would not have been able to identify
the person to be arrested has committed, is with reasonable accuracy the contents of the plastic
actually committing, or is attempting to commit sachet. X's acts of standing on the street and holding
an offense; a plastic sachet in his hands, are not by themselves
2. Hot Pursuit Arrest: When an offense has just sufficient to incite suspicion of criminal activity or to
been committed and he has probable cause to create probable cause enough to justify a warrantless
believe based on personal knowledge of facts arrest. (Dominguez y Argana v. People, G.R.
or circumstances that the person to be arrested 235898, Mar. 13, 2019)
has committed it; and
Continuing Offense
3. When the person to be arrested is a prisoner
The crimes of rebellion, subversion, conspiracy or
who has escaped from a penal establishment proposal to commit such crimes, and crimes or
or place where he is serving final judgment or offenses committed in furtherance thereof or in
is temporarily confined while his case is connection therewith constitute direct assaults
pending, or has escaped while being against the State and are in the nature of continuing
transferred from one confinement to another. crimes. Thus, a rebel may be arrested without a
(ROC, Rule 113, § 5) warrant at any time for he is deemed to be in the act
of committing a crime. (Umil v. Ramos, G.R. No.
a. In Flagrante Delicto 81567 July 9, 1990)
Requisites (OP) Buy-Bust

1. The person to be arrested must execute an In buy-bust operations, the arresting officers catch
Overt act indicating that he has just committed, the malefactor in flagrante delicto. But the arresting
is actually committing, or is attempting to officers must neither instigate nor induce the arrestee
commit a crime; and to commit a crime. Entrapment is the employment of
2. Such overt act is done in the Presence or such ways and means for the purpose of capturing a
within the view of the arresting officer. lawbreaker from whose mind the criminal intent
originated. In such cases, a search warrant is not
Reliable information alone is insufficient to support necessary because a search pursuant to a buy-bust
the arrest absent any overt act from the person to be operation is one made incidental to a lawful arrest –
arrested indicating a crime has just been committed, the arrestee is caught in flagrante delicto. (People v.
was being committed, or is about to be committed. De La Cruz, G.R. No. 101315, May 12, 1993)
(Sapi v. People, G.R. No. 200370, June 7, 2017)
Stop and Frisk
Officer Sees the Offense, Although at a Distance When a policeman observes suspicious activity,
When the illegal act was committed in the presence which leads him to believe that a crime is about to be
of the arresting officers, a warrantless arrest may be committed, he can investigate the suspicious looking
effected. An offense is committed in the presence of person and may frisk him for weapons as a measure
an officer when the officer sees the offense, although of self-protection. Should he find, however, a weapon
at a distance, or hears the disturbances created on the suspect, which is unlicensed, he can arrest
thereby and proceeds at once to the scene of the such person for having committed an offense in his
crime. Police officers have personal knowledge of the presence.
actual commission of the crime when they had earlier
conducted surveillance activities of the accused. For the arrest of one in flagrante delicto to be valid
(People v. Sucro, G.R. No. 93239, March 18, 1991) under Rule 112, Section 5(a), the law tilts in favor of
authority. Thus, speech which in an officer's
For an arrest of a suspect in flagrante delicto, two estimation is criminally seditious can justify
elements must concur, namely: (a) the person to be warrantless arrest in flagrante delicto even if upon
arrested must execute an overt act indicating that he prosecution the officer is proved wrong. The criminal
has just committed, is actually committing, or is character of speech is something that is not easily
attempting to commit a crime; and (b) such overt act determined and must await court estimation.
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(Bernas, The 1987 Philippine Constitution: A personal gathering of information is different from
Comprehensive Reviewer, 2011) personal knowledge. (People v. Manlulu, G.R. No.
102140, Apr. 22, 1994)
b. Hot Pursuit Arrest
Probable Cause
Requisites (BC-PC-PK) In determining probable cause, the arresting officer
1. An offense has just Been Committed; and may rely on all the information in his possession, his
2. The arresting officer has Probable Cause to fair inferences therefrom, including his observations.
believe based on Personal Knowledge of facts Mere suspicion does not meet the requirements of
showing probable cause to arrest without warrant
or circumstances that the person to be arrested
especially if it is a mere general suspicion. Probable
has committed it. (People v. Comprado, G.R. No. cause may rest on reasonably trustworthy
213225, April 4, 2018) information as well as personal knowledge. Thus, the
arresting officer may rely on information supplied by
Element of Immediacy a witness or a victim of a crime; and under the
The clincher in the element of ''personal knowledge circumstances, the arresting officer need not verify
of facts or circumstances" is the required element of such information.
immediacy within which these facts or circumstances
should be gathered. This required time element acts The arresting officer should base his determination of
as a safeguard to ensure that the police officers have probable cause on his personal knowledge of facts
gathered the facts or perceived the circumstances and circumstances that the person sought to be
within a very limited time frame. This guarantees that arrested has committed the crime. In other words, the
the police officers would have no time to base their arresting officer operates on the basis of more limited
probable cause finding on facts or circumstances facts, evidence or available information that he must
obtained after an exhaustive investigation. personally gather within a limited time frame.
The reason for the element of the immediacy is this - One should not expect too much of an ordinary
as the time gap from the commission of the crime to policeman. He is not presumed to exercise the subtle
the arrest widens, the pieces of information gathered reasoning of a judicial officer. Oftentimes, he has no
are prone to become contaminated and subjected to opportunity to make proper investigation but must act
external factors, interpretations and hearsay. On the in haste on his own belief to prevent the escape of
other hand, with the element of immediacy imposed the criminal. (Pestilos v. Generoso, G.R. No. 182601,
under Section 5(b), Rule 113 of the Revised Rules of Nov. 10, 2014)
Criminal Procedure, the police officer's determination
of probable cause would necessarily be limited to raw Personal Knowledge: Hearsay Tip Insufficient
or uncontaminated facts or circumstances, gathered The rule requires that an offense had just been
as they were within a very limited period of time. The committed. It connotes immediacy in point of time.
same provision adds another safeguard with the Law enforcers need not personally witness the
requirement of probable cause as the standard for commission of a crime. However, they must have
evaluating these facts of circumstances before the personal knowledge of facts and circumstances
police officer could effect a valid warrantless arrest. indicating that the person sought to be arrested
(Pestilos v. Generoso, G.R. No. 182601, Nov. 10, committed it. A hearsay tip by itself is not personal
2014) knowledge required by the rule. (Sapi v. People, G.R.
No. 200370, June 7, 2017)
Manlulu was arrested without a warrant for allegedly
having killed another person at around 1:00AM in the The requirement of personal knowledge is absent in
morning. The warrantless arrest was made around this case. The Policeman was about 6-10 meters
7:00PM or about 19 hours later. The SC held that for away when he saw the accused emerge from an alley
there to be a lawful warrantless arrest, the arresting holding a plastic sachet. His testimony fails to state
officer must have personal knowledge of the offense, that he had personal knowledge that the sachet
which has in fact just been committed. In other words, contained shabu, or that he saw the sachet
the arrest has to immediately follow the commission containing white crystalline substance, to create a
of the offense. If a sufficient amount of time lapses as reasonable suspicion that the sachet did indeed
to allow him to procure a warrant, then the police contain shabu. From all indications — the time of the
officer must do so. In this case, not only was the arrest being 11:30 p.m., the Policeman's location,
arrest 19 hours after the alleged crime, but the and the tinted front windshield of the van through
arresting officer also did not have any personal which he was looking — it was highly doubtful that
knowledge of the facts. The SC also held that the Policeman saw, let alone deciphered, the
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contents of the sachet. For sure, it was only when he seized during an illegal warrantless arrest. (Valdez v.
held the hand of the accused and confiscated the People, G.R. No. 170180, Nov. 23, 2007)
plastic sachet that he was able to verify its contents.
(Villasana y Cabahug v. People, G.R. No. 209078, The right to question the validity of an arrest may be
Sept. 4, 2019) waived if the accused, assisted by counsel, fails to
object to its validity before arraignment. This waiver,
Escapee however, does not carry with it a waiver of the
An arrest without warrant is l awful when the person inadmissibility of the evidence seized during the
to be arrested is a prisoner who has escaped from a illegal arrest. (Lapi v. People, G.R. No. 210731, Feb.
penal establishment or place where he is serving final 13, 2019)
judgment or temporarily confined while his case is
pending, or has escaped while being transferred from Application for Bail, Not a Waiver
one confinement to another. (ROC, Sec. 5(c), Rule An application for or admission to bail shall not bar
113) the accused from challenging the validity of his arrest
or the legality of the warrant issued therefor, provided
c. Waiver of Right that he raises them before entering his plea. (ROC,
Rule 114, § 26)
Objection to Illegal Arrest Must be Made Before
Plea ADMINISTRATIVE ARRESTS
Appellant is estopped from questioning the legality of
his arrest considering that he never raised this before Deportation Proceedings
entering his plea. Any objection involving a warrant Section 37 of the Immigration Law, empowering the
of arrest or the procedure in the acquisition of Commissioner of Immigration to issue warrants for
jurisdiction over the person of an accused must be the arrest of overstaying aliens is constitutional. The
made before he enters his plea, otherwise, the arrest is a step preliminary to the deportation of the
objection is deemed waived. Consequently, any aliens who had violated the condition of their stay in
irregularity attendant to his arrest, if any, had been this country. The requirement of probable cause, to
cured by his voluntary submission to the jurisdiction be determined by a Judge, does not extend to
of the trial court when he entered his plea and deportation proceedings. There need be no
participated during the trial. (People v. Salvatierra, "truncated" recourse to both judicial and
G.R. No. 104663, July 24, 1997) administrative warrants in a single deportation
proceeding. (Harvey v. Miriam Defensor Santiago,
Accused was seen having a pot session and that the G.R. No. 82544, June 28, 1988)
police who arrested him were conducting a “stake-
out” operation. When accused tested positive for Drug, Alcohol, and Blood Test
drugs, he was charged with violation of RA 9165. The Court acknowledged that compelled urinalysis
Accused did not deny that he was positive for drugs was a form of search but its “reasonableness” must
but rather, he questions the alleged illegality of his be judged by balancing the intrusion on the
arrest. The Court ruled that accused had already individual’s interests against the promotion of
waived the right to question the arrest. He was legitimate government interests. What was essential
assisted by counsel when he entered his plea and was the school’s custodial responsibility and
was able to present his evidence. The right to authority, the nature of the intrusion, the
question the validity of an arrest may be waived if the confidentiality of the test results and the legitimate
accused, assisted by counsel, fails to object to its government interest. (Vernonia School District v.
validity before arraignment. (Lapi v. People, G.R. No. Acton, 515 U.S. 64, June 26, 1995; Board of
210731, Feb. 13, 2019) Education v. Earls, 536 U.S. 22, June 27, 2002)
Waiver of an Illegal Arrest, Not a Waiver of an The Philippine courts followed the ruling in Vernonia
Illegal Search when it decided a case involving the mandatory drug
A waiver of an illegal arrest, however, is not a waiver testing of candidates for public office, students of
of an illegal search. While the accused has already secondary and tertiary schools, officers and
waived his right to contest the legality of his arrest, employees of public and private offices, and persons
he is not deemed to have equally waived his right to charged before the prosecutor’s office with certain
contest the legality of the search. (Villanueva v. offenses. The SC held that the right to privacy has
People, G.R. No. 199042, Nov. 17, 2014) been accorded as a facet of the right to unreasonable
searches and seizures.
A waiver of an illegal warrantless arrest does not also
mean a waiver of the inadmissibility of evidence
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On the case of mandatory drug testing provided for Warrantless searches are allowable in the following
in the Dangerous Drug Act, the Supreme Court held circumstances: (WIPE MS CACP)
the following: (a) Waiver of right
(b) Search Incidental to a lawful arrest
1. Candidates for Constitutional Offices – (c) Seizure of evidence in Plain view
Unconstitutional (d) During exigent and Emergency
A law cannot provide additional qualifications other circumstances
than those outlined in the Constitution. (e) Search of a Moving vehicle
(f) Stop and frisk rule (Terry Search)
2. Employees – Constitutional
(g) Customs search
The random drug testing would be undertaken in
(h) Airport searches
such a manner as to protect the privacy of the
employees involved. Also, the privacy interest in (i) Checkpoint Search
an office is circumscribed by the company’s work (j) Warrantless search by a Private individual
policies, CBAs, and the right of the employer to [Note: This is found in Sec. 5, Rule 113 of the
maintain discipline and efficiency in the workplace. Rules of Court where a private person may
The right to privacy must yield to the necessary arrest a person without a warrant, and in turn
and reasonable requirements of police power. such private individual may validly conduct a
search incidental to a lawful arrest] (People
3. Students – Constitutional v. Aruta, G.R. No. 120915, April 3, 1998)
It is within the prerogative of schools to require
compliance with reasonable school regulations, as a
Waiver of Right
condition for admission or enrollment. The court
found:
Requisites
a. Schools and their administrators stand in
There is an effective waiver of rights against
loco parentis with respect to their students; unreasonable searches and seizures if the
b. Minor students have contextually fewer following requisites are present: (EKI)
rights than an adult, and are subject to the 1. It must appear that the rights Exist;
custody and supervision of their parents, 2. The person involved had Knowledge, actual or
guardians, and schools; constructive, of the existence of such right;
c. Schools, acting in loco parentis, have a duty
3. Said person had an actual Intention to relinquish
to safeguard the health and well-being of
the right. (People v. Tudtud, G.R. No. 144037,
their students and may adopt such
Sept. 26, 2003)
measures as may reasonably be necessary
to discharge such duty; and
Who May Waive
d. Schools have the right to impose conditions
The constitutional immunity from unreasonable
on applicants for admission that are fair,
searches and seizures, being personal one, cannot
just, and non- discriminatory.
be waived by anyone except:
1. The person whose rights are invaded; or
4. Persons charged before the public
2. One who is expressly authorized to do so in his
prosecutor's office – Unconstitutional or her behalf. (People v. Damaso, G.R. No.
Defendants in a criminal complaint are not randomly
93516, Aug. 12, 1992)
picked; neither are they beyond suspicion. Certain
persons are singled out and are impleaded against
Prosecution Must Prove the Waiver with Clear
their will, making a medical test a tool for criminal
prosecution. (Social Justice Society v. Dangerous and Convincing Evidence
Drugs Board, G.R. Nos. 157870, 158633, 161658, Silence or lack of resistance can hardly be
considered as consent to the warrantless search.
Nov. 3, 2008)
Although the right against unreasonable searches
and seizures may be surrendered through a valid
3. WARRANTLESS SEARCHES waiver, the prosecution must prove that the waiver
There are exceptional circumstances when searches was executed with clear and convincing evidence.
are reasonable even when warrantless. There are Consent to a warrantless search and seizure must be
recognized instances of permissible warrantless unequivocal, specific, intelligently given and
searches laid down in jurisprudence. (Sapi v. People, unattended by duress or coercion. (Sapi v. People,
G.R. No. 200370, June 7, 2017) G.R. No. 200370, June 7, 2017)
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It is the State that has the burden of proving, by clear Purpose

and positive testimony, that the necessary consent The purpose of allowing a warrantless search and
was obtained, and was freely and voluntarily given. seizure incident to a lawful arrest is to protect the
(Valdez v. People, G.R. No. 170180, Nov. 23, 2007) arresting officer from being harmed by the person
arrested, who might be armed with a concealed
Determined by the Totality of the Circumstances weapon, and to prevent the latter from destroying
The validity of a consented warrantless search is evidence within reach. It is therefore a reasonable
determined by the totality of the circumstances. This exercise of the State’s police power to protect (1) law
may involve an inquiry into the environment in which enforcers from the injury that may be inflicted on
the consent was given such as the presence of them by a person they have lawfully arrested; and (2)
coercive police procedures. (Sapi v. People, G.R. No. evidence from being destroyed by the arrestee. It
200370, June 7, 2017) seeks to ensure the safety of the arresting officers
and the integrity of the evidence under the control
Waiver Not Presumed and within the reach of the arrestee. (People v.
Mere passive conformity or silence to the warrantless Calantiao, G.R. No. 203984, June 18, 2014)
search is only an implied acquiescence, which
amounts to no consent at all. Silence or lack of Requisites
aggressive objection is a natural reaction to a Test for a valid warrantless search incidental to
coercive environment brought about by the police a lawful arrest: (LCC)
officer's excessive intrusion into his private space. 1. The arrest must be Lawful;
The prosecution and the police carry the burden of 2. The item to be searched was within the arrestee’s
showing that the waiver of a constitutional right is one Custody or area of immediate control; and
which is knowing, intelligent, and free from any 3. The search was Contemporaneous with the
coercion. In all cases, such waivers are not to be arrest.
presumed. (Sapi v. People, G.R. No. 200370, June
7, 2017)
Lawful Arrest Must Precede the Search
General Rule: A search incidental to a lawful arrest
Invalid Waiver Under RA 10951
requires that there must first be a lawful arrest before
RA No. 10591 authorizes warrantless inspections of
a search is made. Otherwise stated, a lawful arrest
houses, which are unreasonable and, therefore,
must precede the search; the process cannot be
require a search warrant. Signing the Consent of
reversed. (Sapi v. People, G.R. No. 200370, June
Voluntary Presentation for Inspection in the pro forma
Individual Application for New Firearm Registration 7, 2017)
cannot be considered a valid waiver of the right
against unreasonable searches under Article III,  Exception: A search substantially
Section 2 of the Constitution. There is a legitimate, contemporaneous with an arrest can precede
almost absolute, expectation of privacy in one's the arrest if the police has probable cause to
residence. The inspection contemplated may only be make the arrest at the outset of the search.
done with a search warrant. Therefore, the signing of (People v. Mariacos, G.R. No. 188611, June
the Consent of Voluntary Presentation for Inspection 16, 2010)
is violative of the protection against unreasonable
searches and seizures. (Acosta v. Ochoa, G.R. Nos. Scope of Warrantless Search
211559, 211567, 212570 & 215634, Oct. 15, 2019) The scope of allowable warrantless search is limited
to the area within which the person arrested could
Any objection to the legality of the search warrant and reach for a weapon or reach for evidence to destroy
the admissibility of the evidence obtained thereby it. (Chimel v. California, 395 U.S. 752, June 23, 1969)
was deemed waived when no objection was raised
by appellant during trial. (People v. Nunez, G.R. No. Moreover, in lawful arrests, it becomes both the duty
177148, G.R. No. 177148 June 30, 2009) and the right of the apprehending officers to conduct
a warrantless search not only on the person of the
a. Search Incidental to a Lawful suspect, but also in the permissible area within the
Arrest latter’s reach. Otherwise stated, a valid arrest allows
A person lawfully arrested may be searched for the seizure of evidence or dangerous weapons either
dangerous weapons or anything which may have on the person of the one arrested or within the area
been used or constitute proof in the commission of of his immediate control. The phrase "within the area
an offense without a search warrant. (ROC, Rule of his immediate control" means the area from within
126, § 13) which he might gain possession of a weapon or
destructible evidence. A gun on a table or in a drawer
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in front of one who is arrested can be as dangerous 3. The evidence must be immediately Apparent;
to the arresting officer as one concealed in the and
clothing of the person arrested. (People v. Calantiao, 4. "Plain view" Justified were seizure of evidence
G.R. No. 203984, June 18, 2014) without further search. (People v. Compacion,
G.R. No. 124442, July 20, 2001)
In Valeroso, however, the Court held that the
evidence searched and seized from him could not be
Immediately Apparent Requirement; Probable
used against him because they were discovered in a
Cause
room, different from where he was being detained,
The immediate requirement means that the
and was in a locked cabinet. Thus, the area searched
executing officer can, at any time of discovery of the
could not be considered as one within his immediate
object or the facts therein available to him, determine
control that he could take any weapon or destroy any
probable cause of the object’s incriminating
evidence against him. (People v. Calantiao, G.R. No.
evidence. Probable cause must be the direct result of
203984, June 18, 2014)
the officer’s instantaneous sensory perception of the
object. The immediately apparent test does not
The better and established rule is a strict application
require an unduly high degree of certainty as to the
of the exception provided in Rule 126, sec. 12 [now
incriminating character of the evidence. (United
Sec. 13] and that is to absolutely limit a warrantless
Laboratories v. Isip, G.R. No. 163858, June 28, 2005)
search of a person who is lawfully arrested to his or
her person at the time of and incident to his or her
It is undeniable that the seizure of the prohibited
arrest and to "dangerous weapons or anything which
items in this case was valid under the "plain view"
may be used as proof of the commission of the
doctrine, for which the following requisites concur: (a)
offense." Such warrantless search obviously cannot
the law enforcement officer in search of the evidence
be made in a place other than the place of arrest.”
has a prior justification for an intrusion or is in a
(Nolasco v. Pano, G.R. No. L- 69803, Jan. 30, 1987)
position from which he can view a particular area; (b)
the discovery of evidence in plain view is inadvertent;
What May Be Searched
(c) it is immediately apparent to the officer that the
Assuming a valid arrest, the arresting officer may
item he observes may be evidence of a crime,
search the person of the arrestee and the area within
contraband or otherwise subject to seizure.
which the latter may reach for a weapon or for
evidence to destroy, and seize any money or
In this case all the elements of plain view
property found which was:
were established. First, the police officers were
(a) Used in the commission of the crime, or
conducting a routine checkpoint when they flagged
(b) The fruit of the crime, or down X, because he was committing several traffic
(c) That which may be used as evidence, or infractions. Thus, the police officers had a prior
(d) Which might furnish the arrestee with the justification for their act of flagging down X and their
means of escaping or committing violence. subsequent intrusion. Second, upon asking X for his
(People v. Comprado, G.R. No. 213225, April registration papers, he voluntarily opened his utility
4, 2018) box, and the two (2) sachets of shabu were plainly
visible to the police officer Z. The discovery of the
b. Seizure of Evidence in Plain View sachets was inadvertent and the illicit items were
immediately apparent. Lastly, sachets containing
Concept white crystalline substance were confiscated since it
Objects in the "plain view" of an officer who has the appeared that the same could be evidence of a
right to be in the position to have that view are subject crime, contraband, or otherwise subject to seizure.
to seizure without a warrant. This seizure of evidence justified the subsequent
searches and the arrest of Danilo. If not for the said
Requisites plastic sachets, there would have been no valid
The following elements must be present before reason to search or frisk Danilo as his traffic
the doctrine may be applied: (VIAJ) violations were punishable only by fine. His traffic
1. A prior Valid intention based on the valid violations per se did not justify a search incidental to
a lawful arrest as there was as yet no lawful arrest to
warrantless arrest in which the police are legally
speak of. (De Villa y Guinto v. People, G.R. No.
present in the pursuit of their official duties; 224039, Sept. 11, 2019.)
2. The evidence was Inadvertently discovered by
the police who have the right to be where they Exception to the Inadmissibility of Evidence
are; Obtained in a Warrantless Search Incident to a
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Lawful Arrest Outside the Suspect’s Person and Rather, the suspicions of the policemen appear to
Premises under his Immediate Control have been aroused by the presence of the numerous
The Plain View Doctrine is actually the exception to passports and immigration documents which they
the inadmissibility of evidence obtained in a discovered in the course of their search. (People v.
warrantless search incident to a lawful arrest outside Go, G.R. No. 144639, Sept. 12, 2003)
the suspect’s person and premises under his
immediate control. It serves to supplement the prior c. Exigent and Emergency
justification – whether it be a warrant for another Circumstances
object, hot pursuit, search incident to lawful arrest, or
some other legitimate reason for being present In the event of a coup d’etat conducted by the
unconnected with a search directed against the “Reform the Armed Forces Movement Soldiers of the
accused – and permits the warrantless seizure. Filipino People”, the EUROCAR Building was put
(People v. Calantiao, G.R. No. 203984, June 18, under surveillance pursuant to an intelligence report
2014) that it housed large quantities of ammunition. During
the operations, the car of the surveillance team was
Applied Where a Police Officer is Not Searching fired upon by 5 persons from a crowd within the
for Evidence vicinity of the EUROCAR Building. The team
The doctrine is usually applied where a police officer proceeded to the building without a warrant and was
is not searching for evidence against the accused, able to seize de Gracia and plenty of explosives and
but nonetheless inadvertently comes across an ammunition. The SC held that the arrests were
incriminating object. (Valeroso v. CA, G.R. No.
impelled by the exigencies of the situation, which
164815, Sept. 3, 2009) concerned the very survival of society and the
government. In this case, the military operatives had
Object Seized Inside a Closed Package reasonable ground to believe that a crime was being
General Rule: An object is in plain view if the committed. The team had no opportunity to apply for
object itself is plainly exposed to sight. Where the a search warrant from the courts, as the court with
object seized was inside a closed package, the jurisdiction, at that time, was closed due to disorder.
object itself is not in plain view and therefore (People v. De Gracia, G.R. Nos. 102009-10, July 6,
cannot be seized without a warrant. 1994).
 Exception: However, if the package
proclaims its contents, whether by its d. Search of a Moving Vehicle
distinctive configuration, its transparency, or
if its contents are obvious to an observer, then Concept
the contents are in plain view and may be The rules governing searches and seizures have
seized. been liberalized when the object of a search is a
vehicle for practical purposes. Police officers cannot
In other words, if the package is such that an be expected to appear before a judge and apply for
experienced observer could infer from its appearance a search warrant when time is of the essence
that it contains the prohibited article, then the article considering the efficiency of vehicles in facilitating
is deemed in plain view. It must be immediately transactions involving contraband or dangerous
apparent to the police that the items that they articles. However, the inherent mobility of vehicles
observe may be evidence of a crime, contraband or cannot justify all kinds of searches. Law enforcers
otherwise subject to seizure. (Caballes v. CA, G.R. must act on the basis of probable cause. (Sapi v.
No. 136292, Jan. 15, 2002) People, G.R. No. 200370, June 7, 2017)
Plain View Doctrine Not Applicable When Rationale

Evidence Discovered in the Course of a Search Securing a search warrant is not practicable to
The seizure of the passports, bankbooks, checks, secure a warrant because the vehicle can be quickly
typewriter, check writer, dry seals and stamp pads moved out of the locality or jurisdiction in which the
and other assorted documents does not fall within the warrant must be sought. (Papa v. Mago, G.R. No. L-
“plain view” exception. The assertions of the police 27360, Feb. 28, 1968)
officers that said objects were “inadvertently” seized
within their “plain view” are mere legal conclusions Visual Search – No Probable Cause Required
which are not supported by any clear narration of the Thus, routinary and indiscriminate searches of
factual circumstances leading to their discovery. The moving vehicles are allowed if they are limited to a
supposed illegal character of the items claimed to visual search. This holds especially true when the
have been seized within the “plain view” of the object of the search is a public vehicle where
policemen was not readily and immediately apparent. individuals have a reasonably reduced expectation of
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privacy. (Sapi v. People, G.R. No. 200370, June 7, search of the car. Hence, the sachets of shabu may
2017) be admitted as evidence. (People v. Tuazon, G.R.
No. 175783, Sept. 3, 2007)
A search of a moving vehicle may either be a mere
routine inspection or an extensive search. The e. Stop and Frisk Rule (Terry
search in a routine inspection is limited to the Search)
following instances:
(a) Where the officer merely draws aside the Concept
curtain of a vacant vehicle which is parked on A "stop and frisk" search is the act of a police officer
the public fair grounds; to stop a citizen on the street, interrogate him, and
(b) Simply looks into a vehicle; pat him for weapon(s) or contraband. (Sapi v. People,
(c) Flashes a light therein without opening the G.R. No. 200370, June 7, 2017)
car's doors;
(d) Where the occupants are not subjected to a Requisites (URIRA)
physical or body search; 1. Police Officer observes Unusual conduct.
(e) Where the inspection of the vehicles is 2. Reasonable suspicion that person is engaged in
limited to a visual search or visual inspection; some type of criminal activity in light of
and experience.
(f) Where the routine check is conducted in a 3. Identifies himself as a policeman upon approach.
fixed area. (Macad v. People, G.R. No. 4. Makes Reasonable inquiries.
227366, Aug. 1, 2018) 5. There is reasonable fear for one’s own, or others’
safety. Thus, he is entitled to conduct a limited
Extensive Search – Probable Cause Required search of the outer clothing of such persons in an
On the other hand, extensive searches are Attempt to discover weapons that might be used
permissible only when they are founded upon for assault. (Terry v. Ohio, 392 U.S. 1, June 10,
probable cause. Any evidence obtained will be 1968)
subject to the exclusionary principle under the
Constitution. (Sapi v. People, G.R. No. 200370, June Scope
7, 2017) The allowable scope of a "stop and frisk" search is
limited to a protective search of outer clothing for
That the object of a warrantless search is allegedly weapons. (Sapi v. People, G.R. No. 200370, June 7,
inside a moving vehicle does not justify an extensive 2017)
search absent probable cause. Moreover, law
enforcers cannot act solely on the basis of Totality of Suspicious Circumstances; At Least
confidential or tipped information. A tip is still hearsay 2 or More Suspicious Circumstances
no matter how reliable it may be. It is not sufficient to For a “stop and frisk” search to be valid, it must be
constitute probable cause in the absence of any other supported by evidence such that the totality of the
circumstance that will arouse suspicion. (Sapi v. suspicious circumstances observed by the arresting
People, G.R. No. 200370, June 7, 2017) officer led him/her to believe that an accused was
committing an illicit act. (Telen v. People, G.R.
When a vehicle is stopped and subjected to an 228107, Oct. 9, 2019)
extensive search, such a warrantless search has
been held to be valid only as long as the officers To sustain the validity of a stop and frisk search, the
conducting the search have reasonable or probable arresting officer should have personally observed two
cause to believe before the search that they will find (2) or more suspicious circumstances, the totality of
the instrumentality or evidence pertaining to a crime, which would then create a reasonable inference of
in the vehicle to be searched. (Macad v. People, G.R. criminal activity to compel the arresting officer to
No. 227366, Aug. 1, 2018) investigate further. (Manibog vs People, G.R. No.
211214, March 20, 2019)
A confidential informer tipped the police that a Gemini
car was going to deliver shabu. When they stopped The police officer must observe at least 2 or more
the car, they saw a gun tucked in Tuazon’s waist. He suspicious circumstances. In this case, the
did not have any documents, which strengthened the prosecution failed to prove the legality of the
police’s suspicion. After he was told to step out of the warrantless arrest and the bare assertion that they
car, they found plastic sachets containing shabu on caught X in flagrante delicto of illegal possession of
the driver’s seat. These circumstances are sufficient a hand grenade is insufficient to cloth the police
to establish probable cause for the warrantless officers with the authority to restrain X’s liberty. PO3
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Y suspicion based on the sight of a metal object is

not sufficient to defeat X’s constitutional right to CUSTOMS MODERNIZATION AND TARIFF
privacy. More importantly, the prosecution in this ACT
case failed to prove the existence of a hand grenade
as no evidence was proffered on its chain custody. Persons Exercising Police Authority
(Telen v. People, G.R. 228107, Oct. 9, 2019) The following persons are authorized to effect
search, seizure, and arrest:
Probable Cause Not Required; But Genuine (a) Officials of the Bureau, District Collectors,
Reason Based on Experience Deputy District Collectors, police officers,
Law enforcers do not have unbridled discretion in agents, inspectors and guards of the Bureau;
conducting "stop and frisk" searches. While probable (b) Upon authorization of the Commissioner,
cause is not required, a "stop and frisk" search
cannot be validated on the basis of a suspicion or officers and members of the Armed Forces of
hunch. Law enforcers must have a genuine reason to the Philippines (AFP) and national law
believe, based on their experience and the particular enforcement agencies; and
circumstances of each case, that criminal activity (c) Officials of the BIR on all cases falling within
may be afoot. Reliance on one (1) suspicious activity the regular performance of their duties, when
alone, or none at all, cannot produce a reasonable payment of internal revenue taxes is
search. (Sapi v. People, G.R. No. 200370, June 7, involved. (Customs Modernization And Tariff
2017) Act, § 214)
f. Customs Search Authority to Enter Properties

Any person exercising police authority may, at any
The Tariff and Customs Code of 1957 authorizes time, enter, pass through, and search any land,
persons having police authority under Section 2203 enclosure, warehouse, store, building or structure not
of the Tariff and Customs Code to enter, pass principally used as a dwelling house.
through or search any land, inclosure, warehouse,
store or building, not being a dwelling house; and When a security personnel or any other employee
also to inspect, search and examine any vessel or lives in the warehouse, store, or any building,
aircraft and any trunk, package, or envelope or any structure or enclosure that is used for storage of
person on board, or to stop and search and examine goods, it shall not be considered as a dwelling house
any vehicle, beast or person suspected of holding or for purposes of this Act. (Customs Modernization And
conveying any dutiable or prohibited article Tariff Act, § 219)
introduced into the Philippines contrary to law,
without mentioning the need of a search warrant in Authority to Search Dwelling House
said cases. But in the search of a dwelling house, the A dwelling house may be entered and searched only
Code provides that said dwelling house may be upon warrant issued by a Judge of a competent
entered and searched only upon warrant issued by a court, the sworn application thereon showing
judge or justice of the peace. Thus, except in the case probable cause and particularly describing the place
of the search of a dwelling house, persons exercising to be searched and the goods to be seized. (Customs
police authority under the customs law may effect Modernization And Tariff Act, § 220)
search and seizure without a search warrant in the
enforcement of customs laws. (Papa v. Mago, G.R. Authority to Search Vessels or Aircrafts and
No. L-27360, Feb. 28, 1968) Persons or Goods Conveyed Therein
Any person exercising police authority under this Act
Requisites: may board, inspect, search and examine a vessel or
Customs searches are allowed when persons aircraft and any container, trunk, package, box or
exercising police authority under the customs envelope found on board, and physically search and
law effect search and seizure in the enforcement examine any person thereon. In case of any probable
of customs laws. To be valid, the requirements violation of this Act, the person exercising police
are: (ACH) authority may seize the goods, vessel, aircraft, or any
1. The person conducting the search is exercising part thereof.
police Authority under customs law;
2. The search was for the enforcement of Customs Such power to search includes removal of any false
law; and bottom, partition, bulkhead, or any other obstruction
3. The place searched is not a dwelling place or for the purpose of uncovering any concealed dutiable
House. (Dela Cruz v People of the Philippines, or forfeitable goods.
G.R. No. 209387, Jan. 11, 2016)
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The proceeding herein authorized shall not give rise In this case, after the metal detector alarmed SUSAN
to any claim for damage caused to the goods, vessel consented to be frisked, which resulted in the
or aircraft, unless there is gross negligence or abuse discovery of packages on her body. It was too late in
of authority in the exercise thereof. (Customs the day for her to refuse to be further searched
Modernization And Tariff Act, § 221) because the discovery of the packages whose
contents felt like rice granules, coupled by her
Authority to Search Vehicles, Other Carriers, apprehensiveness and her obviously false statement
Persons and Animals that the packages contained only money, aroused
Upon reasonable cause, any person exercising the suspicion of the frisker that SUSAN was hiding
police authority may open and examine any box, something illegal. It must be repeated that R.A. No.
trunk, envelope, or other container for purposes of 6235 authorizes search for prohibited materials or
determining the presence of dutiable or prohibited substances. To limit the action of the airport security
goods. This authority includes the search of personnel to simply refusing her entry into the aircraft
receptacles used for the transport of human remains and sending her home (as suggested by appellant),
and dead animals. Such authority likewise includes and thereby depriving them of "the ability and facility
the power to stop, search, and examine any vehicle to act accordingly, including to further search without
or carrier, person or animal suspected of holding or warrant, in light of such circumstances, would be to
conveying dutiable or prohibited goods. (Customs sanction impotence and ineffectivity in law
Modernization And Tariff Act, § 222) enforcement, to the detriment of society." Thus, the
strip search in the ladies’ room was justified under the
Authority to Search Persons Arriving From circumstances. (People v. Canton, G.R. No. 148825,
Foreign Countries Dec. 27, 2002)
Upon reasonable cause, travelers arriving from
foreign countries may be subjected to search and b. Checkpoint Search
detention by the customs officers. The dignity of the
person under search and detention shall be Concept
respected at all times. Female inspectors may be A checkpoint search is a variant of a search of a
employed for the examination and search of persons moving vehicle. Checkpoints per se are not invalid.
of their own sex. (Customs Modernization And Tariff They are allowed in exceptional circumstances to
Act, § 223) protect the lives of individuals and ensure their
safety. They are also sanctioned in cases where the
a. Airport Searches government's survival is in danger. Considering that
routine checkpoints intrude on a motorist's right to
The search was made pursuant to routine airport 'free passage’ to a certain extent, they must be
security procedure, which is allowed under Section 9 conducted in a way least intrusive to motorists. (Sapi
of Republic Act No. 6235 reading as follows: v. People, G.R. No. 200370, June 7, 2017)
SEC. 9. Every ticket issued to a passenger by the Requisites (No body LAV)
airline or air carrier concerned shall contain among 1. Passengers Not subjected to Body search;
others the following condition printed thereon: 2. Limited to visual search
"Holder hereof and his hand-carried luggage(s) are 3. Abnormal times; and
subject to search for, and seizure of, prohibited 4. Vehicle not searched. (Valmonte v. Gen. De
materials or substances. Holder refusing to be Villa, G.R. No. 83988, September 29, 1989)
searched shall not be allowed to board the aircraft,"
which shall constitute a part of the contract between Limited to a Visual Search; Vehicle and Body
the passenger and the air carrier. Search Not Allowed
The extent of routine inspections must be limited to a
This constitutes another exception to the proscription visual search. Routine inspections do not give law
against warrantless searches and seizures. As enforcers carte blanche to perform warrantless
admitted by SUSAN and shown in Annex "D" of her searches. (Sapi v. People, G.R. No. 200370, June 7,
Brief, the afore-quoted provision is stated in the 2017)
"Notice to All Passengers" located at the final security
checkpoint at the departure lounge. From the said For as long as the vehicle is neither searched nor its
provision, it is clear that the search, unlike in the Terry occupants subjected to a body search, and the
search, is not limited to weapons. Passengers are inspection of the vehicle is limited to a visual search,
also subject to search for prohibited materials or said routine checks cannot be regarded as violative
substances. of an individual's right against unreasonable
searches. Thus, a search where an officer merely
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draws aside the curtain of a vacant vehicle which is REASONABLE SEARCH V.

parked on the public fair grounds, or simply looks into WARRANTLESS SEARCH
a vehicle, or flashes a light therein is not
unreasonable. (Sapi v. People, G.R. No. 200370, A reasonable search, on the one hand, and a
June 7, 2017) warrantless search, on the other, are mutually
exclusive. While both State intrusions are valid even
Unannounced Checkpoints without a warrant, the underlying reasons for the
We see no need for checkpoints to be announced, as absence of a warrant are different. (Saluday v.
the accused have invoked. Not only would People, G.R. No. 215305, April 3, 2018)
announcements be impractical, it would also
forewarn those who intend to violate the ban. Even Reasonable Search
so, badges of legitimacy of checkpoints may still be A reasonable search arises from a reduced
inferred from their fixed location and the regularized expectation of privacy, for which reason Section 2,
manner in which they are operated. (People v. Article III of the Constitution finds no application.
Escano, G.R. Nos. 129756-58, Jan. 28, 2000) Examples include searches done at airports,
seaports, bus terminals, malls, and similar public
Extensive Search Allowed When Probable places. (Saluday v. People, G.R. No. 215305, April 3,
Cause Present 2018)
However, an extensive search may be conducted on
a vehicle at a checkpoint when law enforcers have Warrantless Search
probable cause to believe that the vehicle's In contrast, a warrantless search is presumably an
passengers committed a crime or when the vehicle "unreasonable search," but for reasons of
contains instruments of an offense. (Sapi v. People, practicality, a search warrant can be dispensed with.
G.R. No. 200370, June 7, 2017) Examples include search incidental to a lawful arrest,
search of evidence in plain view, consented search,
Exclusive reliance on information tipped by and extensive search of a private moving vehicle.
informants goes against the very nature of probable (Saluday v. People, G.R. No. 215305, April 3, 2018)
cause. A single hint hardly amounts to the existence
of such facts and circumstances which would lead a REASONABLE SEARCH: BUS SEARCHES
reasonably discreet and prudent man to believe that
an offense has been committed and that the objects
(Saluday v. People,
sought in connection with the offense are in the place G.R. No. 215305, April 3, 2018)
to be searched. The finding of should be premised on
more than just the initial information relayed by Prior to Entry
assets. It was the confluence of initial tips and a Prior to entry, passengers and their bags and
myriad of other occurrences that ultimately sustained luggages can be subjected to a routine inspection
probable cause. In this case, a radio message cannot akin to airport and seaport security protocol. In this
be the sole basis of the finding of probable cause to regard, metal detectors and x-ray scanning machines
warrant the extensive search of the vehicle of the can be installed at bus terminals. Passengers can
accuse on the police checkpoint. (People v. Yanson, also be frisked. In lieu of electronic scanners,
G.R. No. 238453, July 31, 2019) passengers can be required instead to open their
bags and luggages for inspection, which inspection
c. Warrantless Search by a Private must be made in the passenger's presence. Should
Individual the passenger object, he or she can validly be
refused entry into the terminal.
If the search is made at the behest or initiative of the
proprietor of a private establishment for its own and While in Transit
private purposes, and without the intervention of While in transit, a bus can still be searched by
police authorities, the right against unreasonable government agents or the security personnel of
search and seizure cannot be invoked for only the act the bus owner in the following three instances:
of a private individual, not the law enforcers, is (IPC)
involved. In sum, the protection against (a) Upon receipt of information that a passenger
unreasonable searches and seizures cannot be carries contraband or Illegal articles, the bus
extended to acts committed by private individuals so where the passenger is aboard can be
as to bring it within the ambit of alleged unlawful stopped en route to allow for an inspection of
intrusion by the government. (People v. Marti, G.R. the person and his or her effects. This is no
No. 81561, Jan. 18, 1991) different from an airplane that is forced to
land upon receipt of information about the
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contraband or illegal articles carried by a reasonable search. Otherwise, the intrusion

passenger onboard. becomes unreasonable, thereby triggering the
(b) Whenever a bus picks passengers en route, constitutional guarantee under Section 2, Article III of
the Prospective passenger can be frisked the Constitution.
and his or her bag or luggage be subjected
Does Not Apply to Privately-Owned Cars
to the same routine inspection by
The guidelines do not apply to privately-owned cars.
government agents or private security Neither are they applicable to moving vehicles
personnel as though the person boarded the dedicated for private or personal use, as in the case
bus at the terminal. This is because unlike an of taxis, which are hired by only one or a group of
airplane, a bus is able to stop and pick passengers such that the vehicle can no longer be
passengers along the way, making it flagged down by any other person until the
possible for these passengers to evade the passengers on board alight from the vehicle.
routine search at the bus terminal.
(c) A bus can be flagged down at designated REASONABLE SEARCH: PORT SEARCHES
military or police Checkpoints where State Searches pursuant to port security measures are not
agents can board the vehicle for a routine unreasonable per se. The security measures of x-ray
inspection of the passengers and their bags scanning and inspection in domestic ports are akin to
or luggages. routine security procedures in airports. The reason
behind the exception to the prohibition against
Requisites warrantless searches is that there is a reasonable
In both situations (prior to entry and while in transit), reduced expectation of privacy when coming into
the inspection of passengers and their effects prior to airports or ports of travel.
entry at the bus terminal and the search of the bus
while in transit must also satisfy the following Actual inspection upon showing of probable cause
conditions to qualify as a valid reasonable search: that a crime is being or has been committed is part of
(LIDSE) reasonable security regulations to safeguard the
1. First, as to the manner of the search, it must be passengers passing through ports or terminals. Any
the Least Intrusive and must uphold the dignity perceived curtailment of liberty due to the
presentation of person and effects for port security
of the person or persons being searched,
measures is a permissible intrusion to privacy when
minimizing, if not altogether eradicating, any
measured against the possible harm to society
cause for public embarrassment, humiliation or caused by lawless persons.
ridicule.
2. Second, neither can the search result from any Thus, when the results of the x-ray scan revealed the
Discriminatory motive such as insidious existence of firearms in the bag, the port authorities
profiling, stereotyping and other similar motives. have probable cause to conduct a search of the
In all instances, the fundamental rights of person’s bag. (Dela Cruz v People of the Philippines,
vulnerable identities, persons with disabilities, GR 209387, Jan. 11, 2016)
children and other similar groups should be
protected. 4. EXCLUSIONARY RULE
3. Third, as to the purpose of the search, it must be
Concept
confined to ensuring public Safety.
Any evidence obtained in violation of the right against
4. Fourth, as to the Evidence seized from the
unreasonable searches and seizure shall be
reasonable search, courts must be convinced inadmissible for any purpose in any proceeding.
that precautionary measures were in place to (PHIL. CONST., art. III, § 3[2])
ensure that no evidence was planted against the
accused. Any evidence obtained in violation of the right against
unreasonable searches and seizures shall be
Applies to Other Vehicles inadmissible for any purpose in any proceeding. This
Aside from public transport buses, any moving exclusionary rule instructs that evidence obtained
vehicle that similarly accepts passengers at the and confiscated on the occasion of such
terminal and along its route is likewise covered by unreasonable searches and seizures are deemed
these guidelines. Hence, whenever compliant with tainted and should be excluded for being the
these guidelines, a routine inspection at the terminal proverbial fruit of a poisonous tree. In other words,
or of the vehicle itself while in transit constitutes a evidence obtained from unreasonable searches and
seizures shall be inadmissible in evidence for any
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purpose in any proceeding. (People v. Comprado, Constantino-David, G.R. No. 181881, Oct.
G.R. No. 213225, April 4, 2018) 18, 2011)
To Whom Directed: The State Customs, community norms, and practices may,
The constitutional proscription against unlawful therefore, limit or extend an individual’s reasonable
searches and seizures therefore applies as a expectation of privacy. Hence, the reasonableness of
restraint directed only against the government and its a person’s expectation of privacy must be determined
agencies tasked with the enforcement of the law. on a case-to-case basis since it depends on the
Thus, it could only be invoked against the State to factual circumstances surrounding the case. (Sps.
whom the restraint against arbitrary and Hing v. Choachuy, G.R. No. 179736, June 26, 2013)
unreasonable exercise of power is imposed. (People
v. Marti, G.R. No. 81561, Jan. 18, 1991) In assessing the challenge that the State has
impermissibly intruded into these zones of privacy, a
If the search is made at the behest or initiative of the court must determine whether a person has exhibited
proprietor of a private establishment for its own and a reasonable expectation of privacy and, if so,
private purposes, and without the intervention of whether that expectation has been violated by
police authorities, the right against unreasonable unreasonable government intrusion. (Disini v. Sec. of
search and seizure cannot be invoked for only the act Justice, G.R. No. 203335, Feb. 18, 2014)
of private individual, not the law enforcers, is
involved. In sum, the protection against A government employee has a burden of proving that
unreasonable searches and seizures cannot be he has legitimate expectation of privacy either in his
extended to acts committed by private individuals so office or computer files. He can prove this by alleging
as to bring it within the ambit of alleged unlawful and demonstrating the following: he used a password
intrusion by the government. (People v. Marti, G.R. on his computer, did not share his office with co-
No. 81561, Jan. 18, 1991) workers and kept the same locked. However, the
existence of a workplace privacy policy may limit or
D. PRIVACY OF COMMUNICATIONS AND erode the reasonable expectation of privacy. (Pollo v.
CORRESPONDENCE Constantino-David, G.R. No. 181881, Oct. 18, 2011)
1. PRIVATE AND PUBLIC Private Communications Can Be Made Public

COMMUNICATIONS Private communications can be made public where a
Concept secret involves public questions which the State
Forms of communication and correspondence should and ought to know, the State may infringe that
considered private and protected by this provision privacy of communication by some process or by
include: appealing to the Court for the purpose of determining
(a) Letters whether or not the privacy should be maintained. The
court may allow intrusions on privacy of
(b) Messages
communication and correspondence only on the
(c) Telephone calls
ground of probable cause. (Bernas, The 1987
(d) Telegrams and the like (Bernas, The 1987 Constitution of the Republic of the Philippines, 2009)
Constitution of the Republic of the
Philippines, 2009) Public Figure
The right of privacy of a "public figure" is necessarily
Reasonable Expectation of Privacy Test narrower than that of an ordinary citizen. (Ayer v.
In ascertaining whether there is a violation of the right Capulong, G.R. No. 82380, April 29, 1988)
to privacy, courts use the "reasonable expectation of
privacy" test. This test determines whether a person Personal Matters
has a reasonable expectation of privacy and whether Section 7, Article III of the 1987 Constitution grants
the expectation has been violated. the right of the people to information on matters of
public concern. Personal matters are exempt or
The reasonableness of a person’s expectation of outside the coverage of the people’s right to
privacy depends on a two-part test: information on matters of public concern. The data
(a) Subjective: Whether, by his conduct, the treated as "strictly confidential" under EO 420 being
individual has exhibited an expectation of private matters and not matters of public concern,
privacy; and these data cannot be released to the public or the
(b) Objective: This expectation is one that press. (KMU v. Dir. Gen. of NEDA, G.R. No. 167798,
April 19, 2006)
society recognizes as reasonable. (Pollo v.
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2. INTRUSION, WHEN ALLOWED such as the applicability of the exclusionary rule.

The privacy of communication and correspondence (Bernas, The 1987 Constitution of the Republic of the
shall be inviolable except: Philippines, 2009)
(a) Upon lawful order of the court, or
(b) When public safety or order requires Exclusionary rule will not apply if the recipient of the
otherwise as prescribed by law. (PHIL. message granted access to the message(s) sent.
CONST., art. III, § 3[1]) (Office of the Court Administrator v. Judge Eliza B.
Yu, A.M. No. MTJ-12-1813, Mar. 14, 2017)
a. Upon Lawful Order of the Court General rule: The constitutional proscription against
unreasonable search and seizure applies as a
Probable Cause Required restraint against the government and its agencies. It
The constitutional text does not give any ground. It is can only be invoked against the State. If the search
submitted that the requirement of probable cause in is made at the initiative of a private person for private
the preceding section (Art. III, Sec. 2) should be purposes, without the intervention of police
followed. After all, the privacy right is but an aspect authorities, the right cannot be invoked because only
of the right to be secure in one’s person. (Bernas, The the act of a private individual is involved and not of
1987 Constitution of the Republic of the Philippines, law enforcers. The protection of unreasonable search
2009) and seizure cannot be extended to acts committed by
private individuals. (People v. Marti, G.R. No. 81561)
b. When Public Safety or Order
Requires Otherwise as However, applied to wife who took documents
Prescribed by Law and papers from husband’s clinic without the
latter's knowledge and consent
Prescribed by Law The constitutional injunction declaring the privacy of
It should be based upon a government official’s communication and correspondence to be inviolable
assessment that public safety and order demand is no less applicable simply because it is the wife
such intrusion, as provided by law. It is not only that (who thinks herself aggrieved by her husband's
the discretion of the executive officer is limitable by infidelity) who is the party against whom the
law but also that a public officer who exercises this constitutional provision is to be enforced. The only
power must be able to point to a law under which he exception to the prohibition in the Constitution is if
acts. (Bernas, The 1987 Constitution of the Republic there is a lawful order from a court or when public
of the Philippines, 2009) safety or order requires otherwise, as prescribed by
law. Any violation of this provision renders the
Public Order and Safety evidence obtained inadmissible for any purpose in
The security of human lives, liberty, and property any proceeding.
against the activities of invaders, insurrectionists, and
rebels. (1971 Constitutional Convention, Nov. 25, The intimacies between husband and wife do not
1972) justify any one of them in breaking the drawers and
cabinets of the other and in ransacking them for any
3. EXCLUSIONARY RULE telltale evidence of marital infidelity. A person, by
contracting marriage, does not shed his/her integrity
Concept or his right to privacy as an individual and the
constitutional protection is ever available to him or to
Any evidence obtained in violation of the right to
her.
privacy of communication and correspondence shall
be inadmissible for any purpose in any proceeding.
The law insures absolute freedom of communication
(Phil. Const., art. III, § 3[2])
between the spouses by making it privileged. Neither
To Whom Directed: The State husband nor wife may testify for or against the other
without the consent of the affected spouse while the
To come under the exclusionary rule, however, the
evidence must be obtained by government agents marriage subsists. Neither may be examined without
the consent of the other as to any communication
and not by private individuals acting on their own.
received in confidence by one from the other during
the marriage, save for specified exceptions. But one
This does not mean however that private individuals
cannot be held liable. Almost all these liberties are thing is freedom of communication; quite another is a
compulsion for each one to share what one knows
also guaranteed by Article 32 of the Civil Code,
with the other. And this has nothing to do with the
making private violations actionable even if the
violation does not have a constitutional consequence
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duty of fidelity that each owes to the other. (Zulueta (b) The substance of the conversation need not
v. CA, G.R. No. 107383, Feb. 20, 1996) be specifically alleged in the information.
(c) Under Section 3 of R.A. 4200, a peace
R.A. 10175 (CYBERCRIME PREVENTION ACT) officer, who is authorized by a written order
of the Court, may execute any of the acts
Certain Cybercrime Offenses under RA 10175 were
declared to be unlawful in the said law in
assailed for violating both the right against
unreasonable searches and seizures and the right to cases involving the crimes of:
privacy. The court held that relevant to any 1. Treason
discussion of the right to privacy is the concept 2. Espionage
known as the Zones of Privacy, as discussed earlier. 3. Provoking war and disloyalty in case of war
4. Piracy and mutiny in the high seas
In assessing the challenge that the State has 5. Rebellion (conspiracy and proposal to
impermissibly intruded into these zones of privacy, a commit; inciting to commit)
court must determine whether a person has exhibited 6. Sedition (conspiracy to commit and inciting
a reasonable expectation of privacy and, if so, to commit)
whether that expectation has been violated by 7. Kidnapping
unreasonable government intrusion. The usual 8. Violations of C.A. No. 616 (punishing
identifying information regarding a person includes espionage and other offenses against
his name, his citizenship, his residence address, his national security)
contact number, his place and date of birth, the name e. R.A. 4200 does not distinguish between a
of his spouse, if any, his occupation, and similar data.
party to the private communication or a
The law punishes those who acquire or use such
third person. Hence, both could be held
identifying information without right, implicitly to
cause damage. Petitioners failed to show how liable under R.A. 4200 if they commit any
government effort to curb computer-related identity of the prohibited acts under R.A. 4200.
theft violates the right to privacy and correspondence (Ramirez v. CA, G.R. No. 93833, Sept. 28,
as well as the right to due process of law. 1995)
f. The use of a telephone extension to
However, Section 12 on real-time collection of traffic overhear a private conversation is not a
data was declared unconstitutional for the authority violation of R.A. 4200 because it is not
that Section 12 gives law enforcement agencies is similar to any of the prohibited devices
too sweeping and lacks restraint. While it says that under the law. Also, a telephone extension
traffic data collection should not disclose identities or is not purposely installed for the purpose
content data, such restraint is but an illusion. of secretly intercepting or recording
Admittedly, nothing can prevent law enforcement private communication. (Gaanan v. IAC,
agencies holding these data in their hands from G.R. No. L- 69809, Oct. 16, 1986)
looking into the identity of their sender or receiver and
what the data contains. This will unnecessarily Online Social Network Privacy
expose the citizenry to leaked information or, worse, Before one can have an expectation of privacy in his
to extortion from certain bad elements in these or her Online Social Network activity, it is first
agencies. Section 12, of course, limits the collection necessary that said user manifest the intention to
of traffic data to those “associated with specified keep certain posts private. In the cyber world,
communications.” But this supposed limitation is no utilization of privacy tools is the manifestation of the
limitation at all since, evidently, it is the law user’s invocation of his or her right to informational
enforcement agencies that would specify the target privacy.
communications. The power is virtually limitless,
enabling law enforcement authorities to engage in That the photos are viewable by “friends only” does
“fishing expedition,” choosing whatever specified not necessarily bolster the contention to the right to
communication they want. This evidently threatens privacy. In this regard, the cyber community is agreed
the right of individuals to privacy. (Disini v. Sec. of that the digital images under this setting still remain
Justice, G.R. No. 203335, Feb. 18, 2014) to be outside the confines of the zones of privacy in
view of the following:
R.A. 4200 (ANTI-WIRETAPPING ACT)
(a) Facebook “allows the world to be more open
(a) Only protects letters, messages, telephone and connected by giving its users the tools to
calls, telegrams and the like. interact and share in any conceivable way”
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(b) A good number of Facebook users “befriend” 1. PRIOR RESTRAINT AND

other users who are total strangers; SUBSEQUENT PUNISHMENT
(c) The sheer number of “Friends” one user has,
usually by the hundreds; and
PRIOR RESTRAINT (CENSORSHIP)
(d) A user’s Facebook friend can “share” the
former’s post, or “tag” others who are not Concept
Facebook friends with the former, despite its Prior restraint refers to official governmental
restrictions on the press or other forms of expression
being visible only to his or her own Facebook
in advance of actual publication or dissemination.
friends. Freedom from prior restraint is largely freedom from
government censorship of publications, whatever the
Setting a post’s or profile detail’s privacy to “Friends” form of censorship, and regardless of whether it is
is no assurance that it can no longer be viewed by wielded by the executive, legislative or judicial branch
another user who is not Facebook friends with the of the government. (Chavez v. Gonzales, G.R. No.
source of the content. 168338, Feb. 15, 2008)
Therefore, a Facebook user who opts to make use of Essence of Censorship

a privacy tool to grant or deny access to his or her The Session Law of Minnesota mandated the
post or profile detail should not be denied the abatement, as public nuisances, of malicious,
informational privacy right which necessarily scandalous, and defamatory publications. After
accompanies said choice. Otherwise, using these publishing articles that criticized certain local public
privacy tools would be a feckless exercise, such that officials and personalities, The Saturday Press,
if, for instance, a user uploads a photo or any owned by the petitioner Near, was enjoined from
personal information to his or her Facebook page and further publication. The court held that the operation
sets its privacy level at "Only Me" or a custom list so and effect of the statute in substance is that public
that only the user or a chosen few can view it, said authorities may bring the owner or publisher of a
photo would still be deemed public by the courts as if newspaper or periodical before a judge upon a
the user never chose to limit the photo’s visibility and charge of conducting a business of publishing
accessibility. Such position, if adopted, will not only scandalous and defamatory matter...and unless the
strip these privacy tools of their function but it would owner or publisher is able to disposed to bring
also disregard the very intention of the user to keep competent evidence to satisfy the judge that the
said photo or information within the confines of his or charges are true and are published with good
her private space. (Vivares v. St. Theresa’s College, motives and for justifiable ends, his newspaper or
G.R. No. 202666, Sept. 29, 2014) periodical is suppressed and further publication is
made punishable as a contempt. This is of the
E. FREEDOM OF SPEECH AND essence of censorship. (Near v. Minnesota, 283 U.S.
EXPRESSION 697, June 1, 1931; Bernas, The 1987 Constitution of
The doctrine on freedom of speech was formulated the Republic of the Philippines, 2009)
primarily for the protection of “core” speech such as
speech which communicates political, social, or Presumed Invalid and Unconstitutional
religious ideas. Those enjoy the same degree of General Rule: Any system of prior restraints of
protection. (Bernas, The 1987 Philippine expression comes to court bearing a heavy
Constitution: A Comprehensive Reviewer, 2011). Presumption against its constitutional validity. The
Government thus carries a heavy burden of
Includes every form of expression, whether oral, showing justification for in enforcement of such
written, tape, or disc recorded. It also includes restraint. There, thus a reversal of the normal
movies, symbolic speech (wearing of arm-bands), presumption of validity that inheres in every
peaceful picketing, and conduct which amounts to legislation. (SWS v. COMELEC, G.R. No. 147571,
speech. (Bernas, The 1987 Philippine Constitution: A May 5, 2001)
Comprehensive Reviewer, 2011).
Exception: The technical effect of Article IX (C) (4)
of the Constitution may be seen to be that no
presumption of invalidity arises in respect of
exercises of supervisory or regulatory authority on
the part of the Comelec for the purpose of securing
equal opportunity among candidates for political
office, although such supervision or regulation may
result in some limitation of the rights of free speech
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and free press. For supervision or regulation of the (c) Security of community life may be protected
operations of media enterprises is scarcely against incitements to acts of violence or
conceivable without such accompanying limitation. overthrow by force of orderly government.
Thus, the applicable rule is the general, time-honored (Near v. Minnesota, 283 U.S. 697, June 1,
one — that a statute is presumed to be constitutional 1931)
and that the party asserting its unconstitutionality
must discharge the burden of clearly and
Speech During War Time
convincingly proving that assertion. (National Press
In the landmark case of Schenck v. United States, the
Club v. COMELEC, G.R. No. 102653 March 5, 1992)
Supreme Court affirmed the conviction of Charles
Schenck and Elizabeth Baer for violating the
Any prior restraint upon the freedom of the press
Espionage Act of 1917 through actions that
bears a heavy presumption against its
obstructed the “recruiting or enlistment service”
constitutionality. In other words, the government
during World War I.
must clearly make out a case to overcome this
The ruling established that Congress has more
presumption, which it failed to do in this case. The
latitude in limiting speech in times of war than in
word “security” is so broad that it should not be used
peacetime. When a nation is at war, many things that
to abrogate the fundamental law. The publication
might be said in time of peace are such a hindrance
would not cause an inevitable, immediate, and direct
to its effort that their utterance will not be endured so
event that would imperil the safety of the American
long as men fight, and that no Court could regard
forces, such that there was no grave and irreparable
them as protected by any constitutional right.
danger. The US Supreme Court also held that the 1st
Amendment does not tolerate prior restraints
In many places and in ordinary times, the defendants,
predicated upon beliefs that untoward consequences
in saying all that was said in the circular, would have
may result therefrom. The press must be left free to
been within their constitutional rights. But the
publish news, whatever the source, without
character of every act depends upon the
censorship or restraint because only a free and
circumstances in which it is done.
unrestrained press can effectively expose
government deception to the people. (New York
The question in every case is whether the words
Times v. United States, 403 U.S. 713, June 30, 1971)
used are used in such circumstances and are of such
a nature as to create a clear and present danger that
Government Acts Precluded
they will bring about the substantive evils that
Freedom from prior restraint precludes governmental
Congress has a right to prevent. It is a question of
acts that:
proximity and degree. (Schenck v. United States, 249
1. Requires approval of a proposal to publish;
U.S. 47, March 3, 1919)
2. Licensing or permits as prerequisites to
publication including the payment of license
SUBSEQUENT PUNISHMENT
taxes for the privilege to publish; and
3. Injunctions against publication.
Concept
Even the closure of the business and printing offices The aspect of freedom from liability subsequent to
of certain newspapers, resulting in the publication precludes liability for completed
discontinuation of their printing and publication, are publications of views traditionally held innocent.
deemed as previous restraint or censorship. Otherwise, the prohibition on prior restraint would be
meaningless, as the unrestrained threat of
Any law or official that requires some form of subsequent punishment, by itself, would be an
permission to be had before publication can be effective prior restraint.
made, commits an infringement of the constitutional
right, and remedy can be had at the courts. (Chavez Thus, opinions on public issues cannot be punished
v. Gonzales, G.R. No. 168338, Feb. 15, 2008) when published, merely because the opinions are
novel or controversial, or because they clash with
When Prohibition on Prior Restraint Does Not current doctrines. This fact does not imply that
Apply (WOS) publishers and editors are never liable for what they
(a) When the nation is at War. (Chavez v. print. Such freedom gives no immunity from laws
Gonzales, G.R. No. 168338, Feb. 15, 2008) punishing scandalous or obscene matter, seditious or
(e.g., The government can prevent disloyal writings, and libelous or insulting words.
publication about the number or location of
As classically expressed, the freedom of the press
its troops) embraces at the very least the freedom to discuss
(b) Obscene publications
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truthfully and publicly matters of public concern, furtherance of that interest. (Chavez v. Gonzales,
without previous restraint or fear of subsequent G.R. No. 168338, Feb. 15, 2008)
punishment. For discussion to be innocent, it must be
truthful, must concern something in which people in CONTENT-NEUTRAL REGULATION
general take a healthy interest, and must not
endanger some important social end that the
government by law protects. (Bernas, The 1987 Concept
Constitution of the Republic of the Philippines, 2009) A content-neutral regulation is merely concerned with
the incidents of the speech, or one that merely
2. CONTENT-BASED AND CONTENT controls the time, place or manner, and under well-
NEUTRAL REGULATIONS defined standards. (Chavez v. Gonzales, G.R. No.
168338, Feb. 15, 2008)
CONTENT-BASED REGULATION
Subject to Intermediate Approach
Concept When the speech restraints take the form of a
A content-based restraint or censorship is where the content-neutral regulation, only a substantial
restriction is based on the subject matter of the governmental interest is required for its validity.
utterance or speech. (Chavez v. Gonzales, G.R. No. Because regulations of this type are not designed to
168338, Feb. 15, 2008) suppress any particular message, they are not
subject to the strictest form of judicial scrutiny but an
Subject to the Clear and Present Danger Rule intermediate approach—somewhere between the
A governmental action that restricts freedom of mere rationality that is required of any other law and
speech or of the press based on content is given the the compelling interest standard applied to content-
strictest scrutiny in light of its inherent and invasive based restrictions. The test is called intermediate
impact. Only when the challenged act has overcome because the Court will not merely rubberstamp the
the clear and present danger rule will it pass validity of a law but also require that the restrictions
constitutional muster, with the government having the be narrowly-tailored to promote an important or
burden of overcoming the presumed significant governmental interest that is unrelated to
unconstitutionality. Unless the government can the suppression of expression. (Chavez v. Gonzales,
overthrow this presumption, the content-based G.R. No. 168338, Feb. 15, 2008)
restraint will be struck down. (Chavez v. Gonzales,
G.R. No. 168338, Feb. 15, 2008) Intermediate Approach: O’Brien Test for a
Valid Content-Neutral Regulation
Clear and Present Danger Test
Whether the words used are used in such A governmental regulation is sufficiently justified if:
circumstances and are of such a nature as to create (CISUNOG)
a clear and present danger that they will bring about 1. It is within the Constitutional power of the
the substantive evils that Congress has a right to Government;
prevent. It is a question of proximity and degree. 2. It furthers an Important or Substantial
(Chavez v. Gonzales, G.R. No. 168338, Feb. 15, governmental interest;
2008) 3. The governmental interest is Unrelated to the
suppression of free expression; and
Requisites of a Valid Content-Based Regulation 4. The incident restriction on alleged freedom of
With respect to content-based restrictions, the speech & expression is NO Greater than is
government must: (HIIR)
essential to the furtherance of that interest.
1. The government must show the type of Harm the
(Chavez v. Gonzales, G.R. No. 168338, Feb. 15,
speech sought to be restrained would bring about
2008)
— especially the gravity and the imminence of the
threatened harm – otherwise the prior restraint
will be invalid; 3. FACIAL CHALLENGES AND
2. The regulation which restricts the speech content OVERBREADTH DOCTRINE
must serve an important or substantial
Specificity of Regulation and Vagueness
government Interest, which is unrelated to the Doctrine
suppression of free expression; and The vagueness doctrine is an analytical tool
3. The Incidental Restriction on speech must be developed for testing "on their faces" statutes in free
no greater than what is essential to the speech cases or, as they are called in American law,
First Amendment cases. A facial challenge is allowed
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to be made to a vague statute and also to one which Overbreadth Doctrine

is overbroad because of possible "'chilling effect' on Under the overbreadth doctrine, a proper
protected speech that comes from statutes violating governmental purpose, constitutionally subject to
free speech. A person who does not know whether state regulation, may not be achieved by means that
his speech constitutes a crime under an overbroad or unnecessarily sweep its subject broadly, thereby
vague law may simply restrain himself from speaking invading the area of protected freedoms.
in order to avoid being charged of a crime. The
overbroad or vague law thus chills him into silence. Prohibiting placing of campaign decals on private
(Lagman v. Medialdea, G.R. No. 231658) cars is overbroad, and thus invalid prohibition.
(Adiong v. COMELEC, G.R. No. 103956 March 31,
It is best to stress that the vagueness doctrine has a 1992)
special application only to free-speech cases. They
are not appropriate for testing the validity of penal Banning the publishing of survey results is also
statutes. (Lagman v. Medialdea, G.R. No. 231658) overbroad because it does not meet the O’Brien test,
since it suppresses one type of expression while
A facial challenge is allowed to be made to a vague allowing others like editorials. (SWS v. COMELEC,
statute and to one which is overbroad because of G.R. No. 147571, May 5, 2001)
possible 'chilling effect' upon protected speech. The
theory is that when statutes regulate or proscribe Summary of Rules
speech and no readily apparent construction General Rule: The overbreadth and vagueness
suggests itself as a vehicle for rehabilitating the doctrines then have special application only to free
statutes in a single prosecution, the transcendent speech cases. They are inapplicable for testing the
value to all society of constitutionally protected validity of penal statutes.
expression is deemed to justify allowing attacks on
overly broad statutes with no requirement that the Rationale: All penal laws, like the cybercrime
person making the attack demonstrate that his own law, have of course an inherent chilling effect,
conduct could not be regulated by a statute drawn an in terrorem effect or the fear of possible
with narrow specificity. This rationale does not apply prosecution. But to prevent the State from
to penal statutes. legislating criminal laws because they instill
such kind of fear is to render the state
In sum, the doctrines of strict scrutiny, overbreadth, powerless in addressing and penalizing
and vagueness are analytical tools developed for socially harmful conduct.
testing 'on their faces' statutes in free speech cases
or, as they are called in American law, First
Exceptions:
Amendment cases. They cannot be made to do
(a) When a penal statute is challenged as
service when what is involved is a criminal statute.
With respect to such statute, the established rule is applied
that one to whom application of a statute is (b) When a penal statute encroaches upon the
constitutional will not be heard to attack the statute freedom of speech, a facial challenge
on the ground that impliedly it might also be taken as grounded on the overbreadth and vagueness
applying to other persons or other situations in which doctrine is acceptable. (Disini v. Sec. of
its application might be unconstitutional. As has been Justice, G.R. No. 203335, Feb. 18, 2014)
pointed out, vagueness challenges in the First
Amendment context, like overbreadth challenges The facial challenge has expanded its scope to cover
typically produce facial invalidation, while statutes statutes not only regulating free speech, but also
found vague as a matter of due process typically are those involving religious freedom, and other
invalidated only 'as applied' to a particular defendant. fundamental rights because of the expanded scope
of judicial power. (Imbong v. Ochoa, G.R. No.
"On its face" invalidation of statutes results in striking 204819, April 8, 2014)
them down entirely on the ground that they might be
applied to parties not before the Court whose As Applied v. Facial Challenge
activities are constitutionally protected. It constitutes Distinguished from an as-applied challenge which
a departure from the ‘case and controversy’ considers only extant facts affecting real litigants, a
requirement of the Constitution and permits decisions facial invalidation is an examination of the entire law,
to be made without concrete factual settings and in pinpointing its flaws and defects, not only on the
sterile abstract contexts. (Estrada v. Sandiganbayan, basis of its actual operation to the parties, but also on
G.R. No. 148560, Nov. 19, 2001) the assumption or prediction that its very existence
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may cause others not before the court to refrain from (Gonzales v. COMELEC, G.R. No. L-27833, April 18,
constitutionally protected speech or activities. 1969)
General Rule: In an "as applied" challenge, the Applies to Content-Based Regulation; Presumed
petitioner who claims a violation of his constitutional Unconstitutional
right can raise any constitutional ground – absence A governmental action that restricts freedom of
of due process, lack of fair notice, lack of speech or of the press based on content is given the
ascertainable standards, overbreadth, or vagueness. strictest scrutiny in light of its inherent and invasive
Here, one can challenge the constitutionality of a impact. Only when the challenged act has overcome
statute only if he asserts a violation of his own rights. the clear and present danger rule will it pass
It prohibits one from assailing the constitutional muster, with the government having the
constitutionality of the statute based solely on burden of overcoming the presumed
the violation of the rights of third persons not unconstitutionality. Unless the government can
before the court. This rule is also known as the overthrow this presumption, the content-based
prohibition against third-party standing. restraint will be struck down. (Chavez v. Gonzales,
G.R. No. 168338, Feb. 15, 2008)
Exception: A petitioner may for instance mount a
"facial" challenge to the constitutionality of a statute As Applied to Broadcast Media
even if he claims no violation of his own rights under Radio station DYRE was summarily closed for
the assailed statute where it involves free speech on national security reasons because it allegedly aired
grounds of overbreadth or vagueness of the subversive programs. The Court ruled that all forms
statute. of media are entitled to the protection of the freedom
of speech and expression clause. The clear and
Rationale: To counter the "chilling effect" on present danger test may be applied to test the limits
protected speech that comes from statutes violating of free speech. That the words are used in such
free speech. (Disini v. Sec. of Justice, G.R. No. circumstances and are of such nature as to create a
203335, Feb. 18, 2014) clear and present danger that they will bring about
the substantive evils that Congress has a right to
4. TESTS TO DETERMINE THE prevent. The SC recognized that the government
also has a right to be protected against broadcasts
VALIDITY OF GOVERNMENTAL
that incite the listeners to violently overthrow it.
REGULATION
However, the clear and present danger test is not an
Generally, restraints on freedom of speech and all-embracing interpretation that is applicable to all
expression are evaluated by either or a combination utterances in all forums. Freedom of television and
of three tests. As articulated in our jurisprudence, the radio broadcasting is lesser in scope than the
Court has applied either the dangerous tendency freedom accorded to newspaper and print media.
doctrine or clear and present danger test to resolve Radio broadcasting receives the most limited
free speech challenges. More recently, the Court has protection from the free expression clause.
concluded that it has generally adhered to the clear Broadcast media have a uniquely pervasive
and present danger test. (Chavez v. Gonzales, G.R. presence in the lives of all citizens – it reaches even
No. 168338, Feb. 15, 2008) the privacy of the home. Broadcast media is uniquely
accessible to all, even children – selectivity is more
a. Clear and Present Danger Test difficult in radio and TV. In other words, the
audiences of radio and TV have lesser opportunity to
Concept cogitate, analyze, and reject the utterances. (Eastern
This test is used for statements against lower courts. Broadcasting v. Dans Jr., G.R. No. L-59329, July 19,
Whether the words used are used in such 1985)
circumstances and are of such a nature as to create
a clear and present danger that they will bring about Applied to Cases involving the Court’s Power of
the substantive evils that Congress has a right to Contempt
prevent. It is a question of proximity and degree. The power of contempt should be balanced with the
right to freedom of expression, especially when it
“Clear” connotes a causal connection with the danger may have the effect of stifling comment on public
of the substantive evil arising from the utterance matters. The power to punish for contempt is not
questioned. “Present” refers to the time element that exercised without careful consideration of the
is identified with imminent and immediate danger. circumstances of the allegedly contumacious act,
and the purpose of punishing the act. Especially
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where freedom of speech and press is involved, this Applied to Seditious Speech
Court has given a restrictive interpretation as to what Citizen Perez made this remark at a political
constitutes contempt. An article which does not discussion at a town municipio: “and the Filipinos, like
impede, obstruct, or degrade the administration of myself, must use bolos for cutting off Wood’s head
justice is not contumacious. The question in every for having recommended a bad thing for the
case is whether the words used are used in such Philippines.” The court held that criticism, no matter
circumstances and are of such a nature as to create how severe, on the Executive, the Legislature, and
a clear and present danger that they will bring about the Judiciary, is within the range of liberty of speech,
the substantive evils that congress has a right to unless the intention and effect be seditious. In this
prevent. It is a question of proximity and degree. case, the Court found a seditious tendency which
(Roque v. Chief of Staff, G.R. No. 214986, February could easily produce disaffection among the people
15, 2017) and a state of feeling incompatible with a disposition
to remain loyal to the Government and obedient to
b. Dangerous Tendency Rule the laws. (People v. Perez, G.R. No. L-21049, Dec.
22, 1923; Bernas, The 1987 Constitution of the
Concept Republic of the Philippines, 2009)
If the words uttered create a dangerous tendency
which the state has a right to prevent, then such c. Balancing of Interests Test
words are punishable. It is not necessary that some
definite or immediate acts of force, violence, or Concept
unlawfulness be advocated. It is sufficient that such The balancing of interests test is used as a standard
acts be advocated in general terms. Nor is it when courts need to balance conflicting social values
necessary that the language used be reasonably and individual interests, and requires a conscious
calculated to incite persons to acts of force, violence and detailed consideration of the interplay of interests
or unlawfulness. It is sufficient if the natural tendency observable in a given situation of type of situation.
and probable effect of the utterance be to bring about (Chavez v. Gonzales, G.R. No. 168338, Feb. 15,
the substantive evil the utterance be to bring about 2008)
the substantive evil which the legislative body seeks
to prevent. (Cabansag v. Fernandez, G.R. No. L- Republic Act 4880 among other things prohibits the
8974, Oct. 18, 1957) too early nomination of political candidates and limits
the period for partisan political activity. Its purpose is
This is used for statements against the Supreme to prevent the debasement of the political process. In
Court and permits the application of restrictions determining the validity of the law, free speech as a
when: social value must be weighed against the political
(a) There is a rational connection between the process as a social value. (Gonzales v. COMELEC,
speech restrained and the danger G.R. No. L-27833, April 18, 1969)
apprehended; and
The dangerous tendency rule and the clear and
(b) The tendency of one to create the other is
present danger rule were evolved in the context of
shown. (Gonzales v. COMELEC, G.R. No. L- prosecution for seditious speech. They are thus
27833, April 18, 1969) couched in terms of degree of evil and proximity of
the evil. But not all evils easily lend themselves, like
sedition to measurement of proximity and degree.
Applied to the Cases Involving Independence of For legislation therefore whose object is not the
the Court prevention of evil measurable in terms of proximity
The "dangerous tendency" rule has been adopted in and degree, another test had to be evolved. The
cases where extreme difficulty is confronted balancing of interests serves this purpose. It is used,
determining where the freedom of expression ends for instance, for commercial speech. (People v.
and the right of courts to protect their independence Perez, G.R. No. L-21049, Dec. 22, 1923; Bernas,
begins. There must be a remedy to borderline cases The 1987 Constitution of the Republic of the
and the basic principle of this rule lies in that the Philippines, 2009)
freedom of speech and of the press, as well as the
right to petition for redress of grievance, while Factors to Consider
guaranteed by the constitution, are not absolute. Although the urgency of the public interest sought to
They are subject to restrictions and limitations, one be secured by Congressional power restricting the
of them being the protection of the courts against individual's freedom, and the social importance and
contempt. (Cabansag v. Fernandez, G.R. No. L- value of the freedom so restricted, are to be judged
8974, Oct. 18, 1957) in the concrete, not on the basis of abstractions, a
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wide range of factors are necessarily relevant in individual interests,

ascertaining the point or line of equilibrium. Among and requires a
these are: conscious and
(a) The social values and importance of the detailed consideration
specific aspect of the particular freedom of the interplay of
restricted by the legislation; interests observable
(b) The specific thrust of the restriction, i.e., in a given situation of
whether the restriction is direct or indirect, type of situation.
whether or not the persons affected are few;
(c) The value and importance of the public 5. STATE REGULATION OF
interest sought to be secured by the DIFFERENT TYPES OF MASS MEDIA
legislation — the reference here is to the
Four Aspects of Freedom of the Press
nature and gravity of the evil which Congress
(a) Freedom from prior restraint
seeks to prevent;
(b) Freedom from punishment subsequent to
(d) Whether the specific restriction decreed by
publication
Congress is reasonably appropriate and
(c) Freedom of access to information
necessary for the protection of such public
(d) Freedom of circulation. (Chavez v. Gonzales,
interest; and
G.R. No. 168338, Feb. 15, 2008)
(e) Whether the necessary safeguarding of the
public interest involved may be achieved by
Print v. Broadcast Media
some other measure less restrictive of the
While all forms of communication are entitled to the
protected freedom. (J. Castro, Separate broad protection of freedom of expression clause, the
Opinion in Gonzales v. COMELEC, G.R. No. freedom of film, television and radio broadcasting is
L-27833, April 18, 1969) somewhat lesser in scope than the freedom
accorded to newspapers and other print media.
Summary
TEST CRITERION According to U.S. Courts, the three major reasons
Clear and Present Whether the words why broadcast media stands apart from print media
Danger used are used in such are:
circumstances and (a) The scarcity of the frequencies by which the
are of such a nature medium operates [i.e., airwaves are
as to create a clear physically limited while print medium may be
and present danger limitless];
that they will bring (b) Its "pervasiveness" as a medium; and
about the substantive (c) Its unique accessibility to children.
evils that Congress
has a right to prevent.
According to Philippine jurisprudence, first, the
It is a question of
difference in treatment, in the main, is in the
proximity and degree.
regulatory scheme applied to broadcast media that is
Dangerous Tendency If the words uttered not imposed on traditional print media, and narrowly
create a dangerous
confined to unprotected speech (e.g., obscenity,
tendency which the pornography, seditious and inciting speech), or is
state has a right to
based on a compelling government interest that also
prevent, then such has constitutional protection, such as national
words are punishable. security or the electoral process.
There should be a
rational connection Second, regardless of the regulatory schemes that
between the speech broadcast media is subjected to, the Court has
restrained and the consistently held that the clear and present danger
danger apprehended test applies to content-based restrictions on media,
and the tendency of
without making a distinction as to traditional print or
one to create the other broadcast media. (Chavez v. Gonzales, G.R. No.
is shown. 168338, Feb. 15, 2008)
Balancing of Interests Courts need to
balance conflicting
social values and
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Clear and Present Danger Rule: Applicable to from unwarranted publicity, from the wrongful
Broadcast Media IF Content-Based Regulation publicizing of the private affairs and activities of an
All forms of media, whether print or broadcast, are individual which are outside the realm of legitimate
entitled to the broad protection of the freedom of public concern. (Ayer v. Capulong, G.R. No. 82380
speech and expression clause. The test for April 29, 1988, On the proposed motion picture
limitations on freedom of expression continues to be entitled "The Four Day Revolution" involving Sen.
the clear and present danger rule. (Eastern Juan Ponce Enrile)
Broadcasting v. Dans, G.R. No. L-59329 July 19,
1985) Television Censorship
PD No. 1986 gives the MTRCB the power to screen,
However, the clear and present danger rule applies review and examine all "television programs." By the
to all media, including broadcast, but only when the clear terms of the law, the Board has the power to
challenged act is a content-based regulation that approve, delete and/or prohibit the exhibition and/or
infringes on free speech, expression and the press. television broadcast of television programs. The law
(Chavez v. Gonzales, G.R. No. 168338, Feb. 15, also directs the MTRCB to apply contemporary
2008) Filipino cultural values as standard to determine
those which are objectionable for being immoral,
Motion Pictures Censorship indecent, contrary to law and/or good customs,
When the MTRCB classified the movie Kapit sa injurious to the prestige of the Republic of the
Patalim as "For-Adults-Only," the Supreme Court Philippines and its people, or with a dangerous
dismissed this petition for certiorari solely on the tendency to encourage the commission of violence or
ground that there are not enough votes for a ruling of a wrong or crime.
that there was a grave abuse of discretion in the
classification. It is significant to note that in Iglesia ni Cristo v. CA,
the Court declared that freedom of religion has been
The test to determine whether freedom of expression accorded a preferred status by the framers of our
may be limited is the clear and present danger of an fundamental laws. Yet despite the fact that freedom
evil of a substantive character that the State has a of religion has been accorded a preferred status, still
right to prevent. Such danger must not only be clear the Court, did not exempt the Iglesia ni Cristo’s
but also present. religious program from petitioner’s review power.
(a) There should be no doubt that what is feared
may be traced to the expression complained If the Court, in Iglesia ni Cristo, did not exempt
of. The causal connection must be evident. religious programs from the jurisdiction and review
(b) Also, there must be reasonable power of petitioner MTRCB, with more reason, there
apprehension about its imminence. The time is no justification to exempt therefrom "The Inside
Story" which, is protected by the constitutional
element cannot be ignored. Nor does it
provision on freedom of expression and of the press,
suffice if such danger be only probable. a freedom bearing no preferred status.
The basic postulate, wherefore, is that where the Thus, MTRCB has power to review both religious
movies, theatrical productions radio scripts, shows like the INC program, as well as public affairs
television programs, and other such media of and documentary programs like The Inside Story.
expression are concerned — included as they are in (MTRCB v. ABS-CBN, G.R. No. 155282, Jan. 17,
freedom of expression — censorship, especially so if 2005)
an entire production is banned, is allowable only
under the clearest proof of a clear and present Live TV coverage of a criminal case may be
danger of a substantive evil to public morals, public allowed...“mere fear of possible undue influence is
health or any other legitimate public interest. not tantamount to actual prejudice resulting in the
(Gonzales v. Katigbak, G.R. No. L-69500 July 22, deprivation of the right to a fair trial.” (In Re: Petition
1985) For Radio And TV Coverage Of The Multiple Murder
Case Against Zaldy Ampatuan et al., A.M. No. 10-11-
A limited intrusion into a person's privacy has long 5-SC, June 14, 2011)
been regarded as permissible where that person is a
public figure and the information sought to be elicited Radio Censorship
from him or to be published about him constitute of a In Santiago v. Far Eastern Broadcasting, the case
public character. The right of privacy cannot be hinges on whether the petitioner has a clear legal
invoked resist publication and dissemination of right to broadcast any speech over one of the radio
matters of public interest. The interest sought to be stations owned and operated by the respondent
protected by the right of privacy is the right to be free
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without first submitting the manuscript, and whether that those decisions, in the aggregate, be intelligent
there is a corresponding duty devolved by law upon and well informed. To this end, the free flow of
the respondent to permit the petitioner to do so. commercial information is indispensable. And if it is
The Court ruled that it is not the duty of the indispensable to the proper allocation of resources in
respondent as a public service corporation to a free enterprise system, it is also indispensable to
broadcast speeches without requiring the submission the formation of intelligent opinions as to how that
of the manuscript thereof in advance, but that, on the system ought to be regulated or altered. (Virginia
contrary, the laws and regulations expressly State Board of Pharmacy v. Virginia Citizens
authorize the respondent to make such requirement. Consumer Council, 425 U.S. 748, May 24, 1976)
(a) Section 2 of Act No. 3180, which is the
franchise of the respondent corporation, Accorded Lesser Protection
provides that the broadcasting service shall Although the Constitution accords a lesser protection
be open to the general public subject to the to commercial speech than to other constitutionally
general regulations of the grantee for the guaranteed expression, nevertheless the First
Amendment protects commercial speech from
allotment of time and the class of
unwarranted governmental regulation. (Central
communications acceptable for Hudson Gas v. Public Service Commission, 447 U.S.
broadcasting. 557, June 20, 1980)
(b) Commonwealth Act No. 98, where the
Secretary of the Interior "shall examine all Central Hudson Test for a Valid Commercial
programs, sustaining or sponsored, of all Speech Regulation
broadcasting stations," with the power "to For commercial speech to come within the First
Amendment: (FISDO)
eliminate or cancel from the program such
1. Speech must not be False or misleading or
number or parts thereof as in his opinion proposing an illegal activity;
are neither moral, educational nor 2. Governmental Interest sought to be served by
entertaining, and prejudicial to public the regulation must be Substantial;
interest." 3. The regulation must Directly advance the
(c) Department Order No. 13, which requires governmental interest asserted; and
all broadcasting stations to submit daily to 4. The regulation must not be Overbroad – not
the Secretary of the Interior at least twenty- more extensive than is necessary to serve that
four hours in advance of the actual interest. (Central Hudson Gas v. Public Service
broadcasting hour, two copies of all Commission, 447 U.S. 557, June 20, 1980)
programs to be broadcasted by the
stations. Further, it is provided that if a
program contains any speeches, ... copies 6. UNPROTECTED SPEECH
of these or a gist thereof, may be required
by the Secretary of the Interior to be a. Hate Speech and Fighting Words
submitted together with the program.
HATE SPEECH
(Santiago v. Far Eastern Broadcasting, Speech that demeans on the basis of race, ethnicity,
G.R. No. L-48683, Nov. 8, 1941) gender, religion, age, disability, or any other similar
ground is hateful. (Matal v. Tam, 582 U.S., June 19,
Commercial Speech 2017)
Commercial speech is speech that does no more
than propose a commercial transaction. (Central Speech that carries no meaning other than the
Hudson Gas v. Public Service Commission, 447 U.S. expression of hatred for some group, such as a
557, June 20, 1980) particular race, esp. in circumstances in which the
communication is likely to provoke violence. (Black’s
Advertising, however tasteless and excessive it Law Dictionary, 10th ed.)
sometimes may seem, is nonetheless dissemination
of information as to who is producing and selling what No Hate Speech Exception to Free Speech
product, for what reason, and at what price. So long The proudest boast of our free speech jurisprudence
as we preserve a predominantly free enterprise is that we protect the freedom to express “the thought
economy, the allocation of our resources in large that we hate.” (Matal v. Tam, 582 U.S., June 19,
measure will be made through numerous private 2017)
economic decisions. It is a matter of public interest
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FIGHTING WORDS b. Defamation and Libel

Words which by their very utterance, inflict injury or
tend to incite an immediate breach of the peace. It Definition
has been well observed that such utterances are no A libel is a public and malicious imputation of a crime,
essential part of any exposition of ideas, and are of or of a vice or a defect, real or imaginary, or any act,
such slight social value as a step to truth that any omission, condition, status, or circumstance tending
benefit that may be derived from them is clearly to cause the dishonor, discredit, or contempt of a
outweighed by the social interest in order and natural or juridical person, or to blacken the memory
morality. (Chaplinsky v. New Hampshire, 315 U.S. of one who is dead. (REVISED PENAL CODE, art. 353)
568, March 9, 1942)
Libel Not a Constitutionally Protected Speech
Test Libel is not a constitutionally protected speech and
The test is what men of common intelligence would that the government has an obligation to protect
understand would be words likely to cause an private individuals from defamation. (Disini v. Sec. of
average addressee to fight. (Chaplinsky v. New Justice, G.R. No. 203335, Feb. 18, 2014)
Hampshire, 315 U.S. 568, March 9, 1942)
Elements
Fighting Words – No Constitutional Protection IF The elements of libel are: (APIM)
Defamatory or Tortious 1. The Allegation of a discreditable act or condition
"Fighting words" are not entitled to constitutional concerning another;
protection and may be penalized. (Chavez v. 2. Publication of the charge;
Gonzales, G.R. No. 168338, Feb. 15, 2008) 3. Identity of the person defamed; and
4. Existence of Malice.
Fighting words are not subject to subsequent
punishment unless they are defamatory or tortious. (Disini v. Sec. of Justice, G.R. No. 203335,
Fighting words refer to profane or vulgar words that Feb. 18, 2014)
are likely to provoke a violent response from an
audience. Profane or vulgar words like "Fuck the Proof that Statement is False
draft," when not directed at any particular person, In the absence of proof that the defendant knew that
ethnic or religious group, are not subject to the statement was false or published with reckless
subsequent punishment. As aptly stated, "one man’s disregard of whether or not it was true, the defendant
vulgarity may be another man’s lyric." If profane or cannot be held liable for libel. (Guingguing v. Court of
vulgar language like "Fuck the draft" is not subject to Appeals, G.R. No. 128959, Sept. 30, 2005)
subsequent punishment, then with more reason it
cannot be subject to prior restraint. Without a law When is Malice Present
punishing the actual utterance or publication of an There is malice when the author of the imputation is
expression, an expression cannot be subject to prior prompted by ill-will or spite and speaks not in
restraint because such expression is not unlawful or response to duty but merely to injure the reputation
illegal. (J. Carpio, Separate Opinion in Soriano v. of the person who claims to have been defamed.
Laguardia, G.R. No. 164785, April 29, 2009; citing (Alonzo v. CA, G.R. No. 110088, Feb. 1, 1995)
Cohen v. California, 403 U.S. 15, June 7, 1971)
Every Defamatory Imputation Presumed
Summary Malicious
HATE SPEECH FIGHTING WORDS
Speech that demeans Words which by their General Rule: Every defamatory imputation is
on the basis of race, very utterance, inflict presumed to be malicious, even if it be true, if no
ethnicity, gender, injury or tend to incite good intention and justifiable motive for making it is
religion, age, disability, an immediate breach shown.
or any other similar of the peace. Exceptions:
ground is hateful. (a) A private communication made by any
Protected Speech Unprotected Speech person to another in the performance of any
(if defamatory or legal, moral or social duty; and
tortious) (b) A fair and true report, made in good faith,
without any comments or remarks, of any
judicial, legislative or other official
proceedings which are not of confidential
nature, or of any statement, report or speech
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delivered in said proceedings, or of any other Privileged Communications

act performed by public officers in the
exercise of their functions. (REVISED PENAL c. Absolutely Privileged
CODE, art. 354) Communications
Doctrine of Fair Commentaries Those which are not actionable even if the author has
The enumeration under Art. 354 is not an exclusive acted in bad faith.
list of qualifiedly privileged communications since fair
commentaries on matters of public interest are This classification includes statements made by
likewise privileged. members of Congress in the discharge of their
functions as such, official communications made by
The doctrine of fair commentaries means "that while public officers in the performance of their duties, and
in general every discreditable imputation publicly allegations or statements made by the parties or their
made is deemed false, because every man is counsel in their pleadings or motions or during the
presumed innocent until his guilt is judicially proved, hearing of judicial proceedings, as well as the
and every false imputation is deemed malicious, answers given by witnesses in reply to questions
nevertheless, when the discreditable imputation is propounded to them, in the course of said
directed against a public person in his public proceedings, provided that said allegations or
capacity, it is not necessarily actionable. In order that statements are relevant to the issues, and the
such discreditable imputation to a public official may answers are responsive or pertinent to the questions
be actionable, it must either be a false allegation of propounded to said witnesses.
fact or a comment based on a false supposition.
(Yuchengco v. The Manila Chronicle, G.R. No. d. Qualifiedly Privileged
184315, Nov. 25, 2009) Communications
Cyberlibel – Only the Original Author is Liable Those which contain defamatory imputations but are
Only the original author of the statement should be not actionable unless found to have been made
prosecuted for libel. Because of the unique culture of without good intention justifiable motive.
cyberspace, the inclusion of those who just shared
the statement in the case would have a chilling effect To this genre belong "private communications" and
upon them. This makes the law overbroad and "fair and true report without any comments or
therefore in violation of freedom of expression. (Disini remarks” under article 354 of the Revised Penal
v. Sec. of Justice, G.R. No. 203335, Feb. 18, 2014) Code. (Manila Bulletin v. Domingo, G.R. No. 170341,
July 5, 2017)
Contempt is Akin to a Case of Libel
Contempt is akin to a case of libel for both constitute While generally every defamatory imputation is
limitations upon freedom of the press or freedom of presumed malicious, if the communication is
expression guaranteed by our Constitution. What is privileged, the presumption does not arise. The
considered a privilege in one may likewise be plaintiff assumes the burden of proving malice.
considered in the other. The principle of privileged (Bernas, The 1987 Constitution of the Republic of the
communications can also be invoked in contempt Philippines, 2009)
charges.
Requisites of a Qualifiedly Privileged
When a lawyer has become a public figure for being Communication under Article 354, No. 1 of the
involved in a public issue, the controversy involving Revised Penal Code – “Private Communications”
such individual becomes a matter of public interest.
Therefore, the media has the right to report the In order to prove that a statement falls within the
disciplinary case as legitimate news. Such will not be purview of a qualified privileged communication
considered as a violation of the confidentiality rule in under Article 354, No. 1, the following requisites
disciplinary proceedings against lawyers. (Atty. must concur: (DAG)
Raymund P. Palad v. Lolit Solis, et al., G.R. No. 1. The person who made the communication had a
206691, Oct. 3, 2016) legal, moral, or social Duty to make the
communication, or at least, had an interest to
protect, which interest may either be his own or
of the one to whom it is made;
2. The communication is Addressed to an officer or
a board, or superior, having some interest or duty
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in the matter, and who has the power to furnish damages for a defamatory falsehood relating to his
the protection sought; and official conduct.
3. The statements in the communication are made
in Good faith and without malice. (Syhunliong v. Actual malice means there was knowledge that it was
Rivera, G.R. No. 200148, June 4, 2014) false or with reckless disregard of whether it was
false or not. (NY Times v. Sullivan, 376 U.S. 254,
1964).
Group/Class Libel
Where the defamation is alleged to have been
General Rule: Every defamatory imputation is
directed at a group or class, it is essential that the
presumed to be malicious, even if it be true, if no
statement must be so sweeping or all-embracing as good intention and justifiable motive for making it is
to apply to every individual in that group or class, or
shown.
sufficiently specific so that each individual in the class
or group can prove that the defamatory statement Exception: If the defamed is a public figure/official,
specifically pointed to him, so that he can bring the there is no presumption of malice. Instead, the public
action separately, if need be. (Newsweek v. IAC, official/figure defamed must prove ‘actual malice.’
G.R. No. L-63559, May 30, 1986)
Fair Commentaries
If the group is a very large one, then the alleged These are privileged and constitute a valid defense
libelous statement is considered to have no in an action for libel or slander. When the
application to anyone in particular, since one might discreditable imputation is directed against a public
as well defame all mankind. Not only does the group person in his public capacity, it is not necessarily
as such have no action; the plaintiff does not actionable. In order for it to be actionable, it must
establish any personal reference to himself. As the either be a false allegation of fact or a comment
size of these groups increases, the chances for based on a false supposition.
members of such groups to recover damages on
tortious libel become elusive. This principle is said to If the comment is an expression of opinion based on
embrace two (2) important public policies: established facts, then it is immaterial that the opinion
a. First, where the group referred to is large, the happens to be mistaken, as long as it might
courts presume that no reasonable reader reasonably be inferred. The insertion of an old
would take the statements as so literally picketing footage in a news report was not libelous
applying to each individual member; and because it did not convey anything derogatory in
b. Second, the limitation on liability would nature, and it was actually simultaneously voiced
satisfactorily safeguard freedom of speech and over by the narration of the news report. The report
expression, as well as of the press, effecting a was also merely quoted from the contents and
allegations in the petition and is merely a summary of
sound compromise between the conflicting
the petition. (GMA Network v. Bustos, G.R. No.
fundamental interests involved in libel cases. 146848, Oct. 17, 2006)
(MVRS Publication v. Islamic Da’wah Council
of the Philippines, G.R. No. 135306. Jan. 28, LIBEL AGAINST PRIVATE INDIVIDUALS
2003)
New York Times Standard Not Applicable to
LIBEL AGAINST PUBLIC OFFICIALS AND Defamed Private Individuals
PUBLIC FIGURES So long as they do not impose liability without fault,
the States may define for themselves the appropriate
Public Figure standard of liability (less demanding than the New
Those who, by reason of the notoriety of their York Times standard – actual malice) for a publisher
achievements or the vigor and success with which or broadcaster of defamatory falsehood injurious to a
they seek the public's attention. (Gertz v. Welch, 418 private individual.
U.S. 323, June 25, 1974)
The States, however, may not permit recovery of
Public Official presumed or punitive damages when liability is not
Those who hold governmental office. (Gertz v. based on knowledge of falsity or reckless disregard
Welch, 418 U.S. 323, June 25, 1974) for the truth, and the private defamation plaintiff who
establishes liability under a less demanding standard
New York Times Standard – Actual Malice than the New York Times test may recover
Public officials/figures must prove that the statement compensation only for actual injury. (Gertz v. Welch,
was made with ‘actual malice’ in order to recover 418 U.S. 323, June 25, 1974)
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Rationale administration and instructing a fictitious wife to teach

Because private individuals characteristically have their children to burn photos of the President, the
less effective opportunities for rebuttal than do public Court held that such act constitutes inciting to
officials and public figures, they are more vulnerable sedition. It suggests or incites rebellious conspiracies
to injury from defamation. Because they have not or riots and tends to turn the people against the
voluntarily exposed themselves to increased risk of constituted authorities, or to provoke violence from
injury from defamatory falsehoods, they are also opposition groups who may seek to silence the writer,
more deserving of recovery. The state interest in which is the sum and substance of the offense under
compensating injury to the reputation of private consideration. (Mendoza v. People, G.R. No. L-2990,
individuals is therefore greater than for public officials Dec. 17, 1951)
and public figures.
Reason Why Seditious Utterances are
To extend the New York Times standard to media Prohibited
defamation of private persons whenever an issue of Manifestly, the legislature has authority to forbid the
general or public interest is involved would abridge to advocacy of a doctrine designed and intended to
an unacceptable degree the legitimate state interest overthrow the Government without waiting until there
in compensating private individuals for injury to is a present and immediate danger of the success of
reputation and would occasion the additional difficulty the plan advocated. If the State were compelled to
of forcing courts to decide on an ad hoc basis which wait until the apprehended danger became certain,
publications and broadcasts address issues of then its right to protect itself would come into being
general or public interest and which do not. (Gertz v. simultaneously with the overthrow of the
Welch, 418 U.S. 323, June 25, 1974) Government, when there would be neither
prosecuting officers nor courts for the enforcement of
e. Sedition and Speech in Relation the law. (Gitlow vs. New York, 268 U.S. 652, June 7,
to Rebellion 1925)
Seditious Speech is an Unprotected Speech Tests Applied to Seditious Words

Criticism is permitted to penetrate even to the 1. Clear and Present Danger Test
foundations of Government. Criticism, no matter how A political party applied for a permit to hold a public
severe, on the Executive, the Legislature, and the meeting in Manila. The Mayor refused to grant
Judiciary, is within the range of liberty of speech, permit. The refusal of the Mayor to grant permit for
unless the intention and effect be seditious. But when the holding of a public meeting was predicated upon
the intention and effect of the act is seditious, the fear that in view of the bitterness of the speeches
constitutional guaranties of freedom of speech and expected from the minority men who were fresh from
press and of assembly and petition must yield to a political defeat and were smarting with charges of
punitive measures designed to maintain the prestige fraud against those in power, there might be breach
of constituted authority, the supremacy of the of the peace and of public order. The Court ruled that
constitution and the laws, and the existence of the the danger apprehended was not imminent and the
State. (People v. Perez, G.R. No. L-21049, Dec. 22, evil to be prevented was not a serious one. Thus, the
1923) Mayor was ordered by the Supreme Court in
mandamus proceedings to issue a permit. (Primicias
The freedom of speech secured by the Constitution v. Fugoso, G.R. No. L-1800, Jan. 27, 1948)
does not confer an absolute right to speak or publish
without responsibility whatever one may choose. It is 2. Dangerous Tendency Test
not unbridled license that gives immunity for every Citizen Perez made this remark at a political
possible use of language and prevents the discussion at a town municipio: “and the Filipinos, like
punishment of those who abuse this freedom. So myself, must use bolos for cutting off Wood’s head
statutes against sedition have guaranty, although for having recommended a bad thing for the
they should not be interpreted so as to agitate for Philippines.” The court held that criticism, no matter
institutional changes. Thus, another limit of free how severe, on the Executive, the Legislature, and
speech and writing is seditious speech which is the Judiciary, is within the range of liberty of speech,
prohibited under Art. 142 of the Revised Penal Code. unless the intention and effect be seditious. In this
(Mendoza v. People, G.R. No. L-2990, Dec. 17, case, the Court found a seditious tendency which
1951) could easily produce disaffection among the people
and a state of feeling incompatible with a disposition
When a fictitious suicide photo and letter were to remain loyal to the Government and obedient to
published in newspapers of general circulation the laws. (People v. Perez, G.R. No. L-21049, Dec.
expressing disappointment in the Roxas 22, 1923)
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Utterances Must Incite the Public to Commit sexual acts, normal or perverted, actual or simulated;
Sedition and (b) patently offensive representations or
It is not inciting to sedition when it is not proved that descriptions of masturbation, excretory functions,
the defendant incited the people to rise publicly and and lewd exhibition of the genitals. What remains
tumultuously in order to attain any of the ends clear is that obscenity is an issue proper for judicial
mentioned in Art. 139 (sedition), which are: determination and should be treated on a case to
(a) To prevent the promulgation or execution of case basis and on the judge’s sound discretion.
any law or the holding of any popular (Fernando v. CA, G.R. No. 159751, Dec. 6, 2006)
election;
(b) To prevent the National Government, or any Sex and obscenity are not synonymous. Obscene
provincial or municipal government, or any material is material which deals with sex in a manner
appealing to prurient interest. The portrayal of sex,
public officer thereof from freely exercising its
(e.g., in art, literature and scientific works), is not itself
or his functions, or prevent the execution of sufficient reason to deny material the constitutional
any administrative order; protection of freedom of speech and press. Sex, a
(c) To inflict any act of hate or revenge upon the great and mysterious motive force in human life has
person or property of any public officer or indisputably been a subject of absorbing interest to
employee; mankind through the ages; it is one of the vital
(d) To commit, for any political or social end, any problems of human interest and public concern.
act of hate or revenge against private (Gonzales v. Kalaw-Katigbak, G.R. No. L-69500, Jul.
persons or any social class; and 22, 1985)
(e) To despoil, for any political or social end, any
Relative Obscenity
person, municipality or province, or the
The Court noted that there was “no perfect definition
National Government of all its property or any of obscenity” and that ultimately therefore “obscenity
part thereof. (People vs. Arrogante, 39 O.G. is an issue proper for judicial determination and
1974) should be treated on a case to case basis and on the
judge’s sound discretion.” (Soriano v. Laguardia,
f. Obscenity/Pornography G.R. No. 164785, April 29, 2009)
Concept; Miller Test for Obscenity Obscenity is an Unprotected Speech

As obscenity is an unprotected speech which the
There is no perfect definition of "obscenity" but the State has the right to regulate, the State in pursuing
latest word is that of Miller v. California which its mandate to protect, as parens patriae, the public
established basic guidelines, to wit: (PILV) from obscene, immoral and indecent materials must
1. Whether to the average person, applying justify the regulation or limitation. One such
contemporary standards would find the work, regulation is Article 201 of the Revised Penal Code.
taken as a whole, appeals to the Prurient (Fernando v. CA, G.R. No. 159751, Dec. 6, 2006)
Interest;
Necessarily, that the confiscated materials are
2. Whether the work depicts or describes, in a
obscene must be proved. (Fernando v. CA, G.R. No.
patently offensive way, sexual conduct 159751, Dec. 6, 2006)
specifically defined by the applicable state Law;
and Procedure for Conviction Under Art. 201
3. Whether the work, taken as a whole, lacks (a) The authorities must apply for the issuance
serious literary, artistic, political, or scientific of a search warrant from a judge, if in their
Value. (Fernando v. CA, G.R. No. 159751, Dec. opinion, an obscenity rap is in order;
6, 2006; Miller v. California, 413 U.S. 15, June 21, (b) The authorities must convince the court that
1973) the materials sought to be seized are
"obscene", and pose a clear and present
But, it would be a serious misreading of Miller to danger of an evil substantive enough to
conclude that the trier of facts has the unbridled warrant State interference and action;
discretion in determining what is "patently offensive. (c) The judge must determine whether or not the
No one will be subject to prosecution for the sale or same are indeed "obscene:" the question is
exposure of obscene materials unless these
to be resolved on a case-to-case basis and
materials depict or describe patently offensive "hard
core" sexual conduct. Examples included (a) patently on His Honor's sound discretion.
offensive representations or descriptions of ultimate
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(d) If, in the opinion of the court, probable cause The Davis definition, however, has been expanded in
exists, it may issue the search warrant U.S. jurisprudence to include non-theistic beliefs.
prayed for; (Estrada v. Escritor, A.M. NO. P-02-1651, June 22,
(e) The proper suit is then brought in the court 2006)
under Article 201 of the Revised Penal Code;
Every violation of the free exercise clause involves
(f) Any conviction is subject to appeal. The
compulsion, whereas a violation of the non-
appellate court may assess whether or not establishment clause need not involve compulsion.
the properties seized are indeed "obscene." (Bernas, The 1987 Philippine Constitution: A
(Pita v. CA, G.R. No. 80806, Oct. 5, 1989) Comprehensive Reviewer, 2011)
Mere Possession Not Punishable; Publicity is

Necessary Accorded Preferred Status
Mere possession of obscene materials, without Freedom of religion is accorded preferred status by
intention to sell, exhibit, or give them away, is not the framers of our fundamental law. And the
punishable under Article 201 of the RPC, considering Supreme Court has consistently affirmed this
the purpose of the law is to prohibit the dissemination preferred status, well aware that it is designed to
of obscene materials to the public. The offense in any protect the broadest possible liberty of conscience, to
of the forms under Article 201 is committed only when allow each man to believe as his conscience directs,
there is publicity. The law does not require that a to profess his beliefs, and to live as he believes he
person be caught in the act of selling, giving away or ought to live, consistent with the liberty of others and
exhibiting obscene materials to be liable, for as long with the common good. (Re: Letter of Tony
as the said materials are offered for sale, displayed Valenciano, A.M. No. 10-4-19-SC, March 7, 2017)
or exhibited to the public. (Fernando v. CA, G.R. No.
159751, Dec. 6, 2006) Religious freedom, although not unlimited, is a
fundamental personal right and liberty and has a
F. FREEDOM OF RELIGION preferred position in the hierarchy of values.
No law shall be made respecting an establishment of Contractual rights, therefore, must yield to freedom
religion, or prohibiting the free exercise thereof. The of religion. It is only where unavoidably necessary to
free exercise and enjoyment of religious profession prevent an immediate and grave danger to the
and worship, without discrimination or preference, security and welfare of the community that
shall forever be allowed. No religious test shall be infringement of religious freedom may be justified,
required for the exercise of civil or political rights. and only to the smallest extent necessary. (Estrada
(PHIL. CONST., art. III, § 5) v. Escritor, A.M. NO. P-02-1651, June 22, 2006)
The constitutional assurance of religious freedom 1. NON-ESTABLISHMENT CLAUSE

provides two guarantees: AND FREE EXERCISE CLAUSES
1. The Establishment Clause
2. The Free Exercise Clause (Imbong v. Ochoa, Non-establishment clause
G.R. No. 204819, April 8, 2014)
Concept
In Philippine jurisprudence, religion, for purposes of The establishment clause principally prohibits the
the religion clauses, has thus far been interpreted as State from sponsoring any religion or favoring any
theistic. In 1937, the Philippine case of Aglipay v. religion as against other religions. It mandates a strict
Ruiz involving the Establishment Clause, defined neutrality in affairs among religious groups.
religion as a profession of faith to an active power that Essentially, it prohibits the establishment of a state
binds and elevates man to his Creator. religion and the use of public resources for the
support or prohibition of a religion. (Imbong v. Ochoa,
Twenty years later, the Court cited the Aglipay G.R. No. 204819, April 8, 2014)
definition in American Bible Society v. City of Manila,
a case involving the Free Exercise clause. The latter Basis
also cited the American case of Davis v. Beason in In Philippine jurisdiction, there is substantial
defining religion, viz: it has reference to one’s views agreement on the values sought to be protected by
of his relations to His Creator and to the obligations the Establishment Clause, namely, voluntarism and
they impose of reverence to His being and character insulation of the political process from interfaith
and obedience to His Will. dissension:
a. Voluntarism
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Voluntarism, has both a personal and a social

dimension. As a personal value, it refers to the In effect, what non-establishment calls for is
inviolability of the human conscience which is also government neutrality in religious matters. Such
protected by the free exercise clause. From the government neutrality may be summarized in four
religious perspective, religion requires voluntarism general propositions:
because compulsory faith lacks religious efficacy. (a) Government must not prefer one religion
Compelled religion is a contradiction in terms. over another or religion over irreligion
because such preference would violate
As a social value, it means that the growth of a voluntarism and breed dissension.
religious sect as a social force must come from the (b) Government funds must not be applied to
voluntary support of its members because of the
religious purposes because this too would
belief that both spiritual and secular society will
benefit if religions are allowed to compete on their violate voluntarism and breed interfaith
own intrinsic merit without benefit of official dissension.
patronage. (c) Government action must not aid religion
because this too can violate voluntarism and
b. Insulation of the Political breed interfaith dissension.
Process From Interfaith (d) Government action must not result in
Dissension excessive entanglement with religion
Such voluntarism cannot be achieved unless the because this too can violate voluntarism and
political process is insulated from religion and unless breed interfaith dissension. (Re: Letter of
religion is insulated from politics. Non-establishment Tony Valenciano; citing Bernas, The 1987
thus calls for government neutrality in religious Constitution of the Republic of the
matters to uphold voluntarism and avoid breeding Philippines, 2009)
interfaith dissension. (Estrada v. Escritor, A.M. NO.
P-02-1651, June 22, 2006)
Limiting the prohibition for religious use of the
structure to 20 years obviously opens the facility to
Prohibited Acts of the State Under the
use for any purpose at the end of that period. It
Establishment Clause
cannot be assumed that a substantial structure has
The non-establishment clause reinforces the wall of
no value after that period and hence the unrestricted
separation between Church and State. It simply
use of a valuable property is in effect a contribution
means that:
of some value to a religious body. Congress did not
(a) The State cannot set up a Church.
base the 20-year provision on any contrary
(b) The State cannot pass laws which aid one
conclusion. If, at the end of 20 years, the building is,
religion, aid all religion, or prefer one religion for example, converted into a chapel or otherwise
over another. used to promote religious interests, the original
(c) The State cannot force nor influence a federal grant will in part have the effect of advancing
person to go to or remain away from church religion. To this extent the Act therefore trespasses
against his will or force him to profess a belief on the Religion Clauses. The restrictive obligations of
or disbelief in any religion. a recipient institution under §751 (a) (2) cannot,
(d) The State cannot punish a person for compatibly with the Religion Clauses, expire while
entertaining or professing religious beliefs or the building has substantial value. The limitation of
federal interest in the facilities to a period of 20 years
disbeliefs, for church attendance or
violates the Religion Clauses of the First
nonattendance.
Amendment, as the unrestricted use of valuable
(e) No tax in any amount, large or small, can be property after 20 years is in effect a contribution to a
levied to support any religious activity or religious body. (Tilton v. Richardson, 403 U.S. 672,
institution whatever they may be called or June 28, 1971)
whatever form they may adopt or teach or
practice religion. When viewed in its overall context, the creche display
(f) The State cannot openly or secretly violates the Establishment Clause. The creche
participate in the affairs of any religious angel's words endorse a patently Christian message:
organization or group and vice versa. Glory to God for the birth of Jesus Christ. Moreover,
nothing in the creche's setting detracts from that
message. Although the government may
Its minimal sense is that the State cannot establish or
acknowledge Christmas as a cultural phenomenon, it
sponsor an official religion. (Re: Letter of Tony
may not observe it as a Christian holy day by
Valenciano, A.M. No. 10-4-19-SC, March 7, 2017)
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suggesting that people praise God for the birth of Ownership of Sectarian Educational Institutions
Jesus. (County of Allegheny v. ACLU, 492 U.S. 573, Educational institutions, other than those established
July 2, 1989) by religious groups and mission boards, shall be
owned solely by citizens of the Philippines or
It is not necessary that there be a direct corporations or associations at least sixty per centum
governmental compulsion for the non-establishment of the capital of which is owned by such citizens. The
clause to be violated. Enactment of laws which Congress may, however, require increased Filipino
coerce or influence, directly or indirectly, any equity participation in all educational institutions.
individual to follow a religion or irreligion is sufficient (PHIL. CONST., art. XIV, §4[2])
for the said clause to be violated. (Bernas, The 1987
Constitution of the Republic of the Philippines, 2009) d. Jurisprudence
The expulsion or excommunication of members of a The holding of Catholic masses at the basement of
religious institution or organization is a matter best the QC Hall of Justice is not a case of establishment,
left to the discretion of church officials, and the laws but merely accommodation.
and canons of said institution or organization. It is not (a) There is no law, ordinance or circular issued
for the courts to exercise control over church by any duly constitutive authorities expressly
authorities in the performance of their discretionary mandating that judiciary employees attend
and official functions. (Bernas, The 1987 Constitution the Catholic masses at the basement.
of the Republic of the Philippines, 2009)
(b) When judiciary employees attend the
masses to profess their faith, it is at their own
Permitted Acts of the State Under the
initiative, without any coercion from the
Establishment Clause
judges or administrative officers.
(c) No government funds are being spent
c. Constitutionally Created because the lightings and air conditioning
continue to be operational even if there are
Tax Exemptions no religious rituals there.
Charitable institutions, churches and parsonages or
(d) The basement has neither been converted
convents appurtenant thereto, mosques, non-profit
cemeteries, and all lands, buildings, and into a Roman Catholic chapel nor has it been
improvements, actually, directly, and exclusively permanently appropriated for the exclusive
used for religious, charitable, or educational use of its faithful.
purposes shall be exempt from taxation. (PHIL. (e) The allowance of the masses has not
CONST., art. VI, § 28[3]) prejudiced other religions
(f) In no case shall a particular part of a public
Limited Public Aid to Chaplaincies building be a permanent place for worship for
No public money or property shall be appropriated, the benefit of any and all religious groups.
applied, paid, or employed, directly or indirectly, for There shall also be no permanent display of
the use, benefit, or support of any sect, church,
religious icons in all halls of justice in the
denomination, sectarian institution, or system of
religion, or of any priest, preacher, minister, or other country. In case of religious rituals, religious
religious teacher, or dignitary as such, except when icons and images may be displayed but their
such priest, preacher, minister, or dignitary is presentation is limited only during the
assigned to the armed forces, or to any penal celebration of such activities. After any
institution, or government orphanage or leprosarium. religious affair, the icons and images shall be
(PHIL. CONST., art. VI, § 29[2]) hidden or concealed from public view. (Re:
Letter of Tony Valenciano, A.M. No. 10-4-19-
Religious Instruction in Public Elementary and SC, March 7, 2017)
High Schools
At the option expressed in writing by the parents or
Aglipay of the Philippine Independent Church sought
guardians, religion shall be allowed to be taught to
to prohibit the issuance and sale of such stamps
their children or wards in public elementary and high
commemorating a Catholic Eucharistic Congress for
schools within the regular class hours by instructors
violating the command that no public money should
designated or approved by the religious authorities of
be appropriated to support any system of religion.
the religion to which the children or wards belong,
The SC held that the statute contemplates no
without additional cost to the Government. (PHIL.
religious purpose. The stamps were not sold for the
CONST., art. XIV, § 3[3])
benefit of the Catholic Church, but merely to
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advertise the Philippines as the seat of the furnished to students are in fact instrumental in
Eucharistic Congress. Thus, the resulting teaching religion. (Board of Education v. Allen, 392
propaganda possibly in favor of the Catholic Church U.S. 236, June 10, 1968)
is merely incidental and should not frustrate the main
purpose of the law, which is to generate profit and The menorah display does not have the prohibited
boost tourism. (Aglipay v. Ruiz, G.R. No. L-45459, effect of endorsing religion, given its "particular
March 13, 1937) physical setting." Its combined display with a
Christmas tree and a sign saluting liberty does not
Government programs that neutrally provide benefits impermissibly endorse both the Christian and Jewish
to a broad class of citizens and without reference to faiths, but simply recognizes that both Christmas and
religion do not violate the non-establishment clause, Chanukah are part of the same winter-holiday
as when government furnishes a disabled child season, which has attained a secular status in our
enrolled in a sectarian school with a sign language society. The widely accepted view of the Christmas
interpreter to facilitate his education because the tree as the preeminent secular symbol of the
service is part of a general government program that Christmas season emphasizes this point. The tree,
neutrally distributes benefits to any child qualifying as moreover, by virtue of its size and central position in
disabled under the IDEA, without regard to the the display, is clearly the predominant element, and
sectarian or non-sectarian or public or non-public the placement of the menorah beside it is readily
nature of the school the child attends. Neither does understood as simply a recognition that Christmas is
the IDEA create a financial incentive for parents to not the only traditional way of celebrating the season.
choose a sectarian school. Most cases, where The absence of a more secular alternative to the
governmental aids were struck down, challenged menorah negates the inference of endorsement.
programs which gave direct grants of government Similarly, the presence of the mayor's sign confirms
aid, relieving sectarian schools of costs they that in the particular context the government's
otherwise would have borne. In this case, the child is association with a religious symbol does not
the primary beneficiary and whatever benefits that represent sponsorship of religious beliefs but simply
may accrue to the school is merely incidental. a recognition of cultural diversity. Given all these
(Zobrest, et al. v. Catalina Foothills School District, considerations, it is not sufficiently likely that a
509 U.S. 1, June 18, 1993) reasonable observer would view the combined
display as an endorsement or disapproval of his
If there is nothing unconstitutional or illegal in holding individual religious choices. (County of Allegheny v.
a fiesta and having a patron saint for the barrio, then ACLU, 492 U.S. 573, July 2, 1989)
any activity intended to facilitate the worship of the
patron saint (such as the acquisition and display of The RH Law does not violate the Establishment
his image) cannot be branded as illegal. The barrio Clause. The petitioners are misguided in their
fiesta is a socio-religious affair. Its celebration is an supposition that the State cannot enhance its
ingrained tradition in rural communities. The fiesta population control program through the RH Law
relieves the monotony and drudgery of the lives of the simply because the promotion of contraceptive use is
masses. Not every governmental activity which contrary to their religious beliefs. Indeed, the State is
involves the expenditure of public funds and which not precluded to pursue its legitimate secular
has some religious tint is violative of the constitutional objectives without being dictated upon by the policies
provisions regarding separation of church and state, of any one religion. (Imbong v. Ochoa, G.R. No.
freedom of worship and banning the use of public 204819, April 8, 2014)
money or property. (Garces v. Estenzo, G.R. No. L-
53487, May 25, 1981) Free Exercise Clause
The express purpose of the statute was the Concept
furtherance of educational opportunities for the The right to religious profession and worship has a
young, and the law merely makes available to all two-fold aspect: freedom to believe and freedom to
children the benefits of a general program to lend act on one’s belief. The first is absolute as long as the
school books free of charge, and the financial benefit belief is confined within the realm of thought. The
is to parents and children, not to schools. Parochial second is subject to regulation where the belief is
schools, in addition to their sectarian function, translated into external acts that affect the public
perform the task of secular education, and, on the welfare. (Re: Letter of Tony Valenciano, A.M. No. 10-
basis of this meager record, the Court cannot agree 4-19-SC, March 7, 2017)
with appellants that all teaching in a sectarian school
is religious or that the intertwining of secular and The court determines whether an act is a religious
religious training is such that secular textbooks ceremony and not any religious group or sect, or a
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follower of the said group or sect. (Bernas, The 1987 in that person’s religion. Also, as a lawyer and a
Constitution of the Republic of the Philippines, 2009) judge, is expected to abide by the law. Her conduct
affects the credibility of the courts in dispensing
Freedom to believe justice. Thus, in finding respondent administratively
Absolute as long as the belief is confined within the liable for violation of her marriage obligations under
realm of thought. The individual is free to believe (or our laws, this court protects the credibility of the
disbelieve) as he pleases concerning the hereafter. judiciary in administering justice. (Perfecto v.
He may not be required to prove his beliefs. He may Esidera, A.M. NO. RTJ-15-2417, July 22, 2015)
not be punished for his inability to do so. Religion,
after all, is a matter of faith. "Men may believe what Basis
they cannot prove." Everyone has a right to his The basis of the free exercise clause is the respect
beliefs and he may not be called to account because for the inviolability of the human conscience. Under
he cannot prove what he believes. (Re: Letter of Tony this part of religious freedom guarantee, the State is
Valenciano, A.M. No. 10-4-19-SC, March 7, 2017) prohibited from unduly interfering with the outside
manifestations of one's belief and faith. (Imbong v.
Freedom to act on one's beliefs Ochoa, G.R. No. 204819, April 8, 2014)
But where the individual externalizes his beliefs in
acts or omissions that affect the public, his freedom Permitted Acts of the State Under the Free
to do so becomes subject to the authority of the State. Exercise Clause
As great as this liberty may be, religious freedom, like The free exercise clause does not relieve one of the
all other rights guaranteed in the Constitution, can be obligations to comply with a law that incidentally
enjoyed only with a proper regard for the rights of forbids (or requires) the performance of an act that
others. It is error to think that the mere invocation of his religious belief requires (or forbids):
religious freedom will stalemate the State and render 1. If the law is not specifically directed to religious
it impotent in protecting the general welfare. The practice.
inherent police power can be exercised to prevent 2. If the law is constitutional as applied to those who
religious practices inimical to society. (Re: Letter of engage in the specified act for non-religious
Tony Valenciano, A.M. No. 10-4-19-SC, March 7, purposes.
2017)
If the law is not specifically directed to religious
Purpose
practice and is applied equally to all, regardless of
The Free Exercise Clause accords absolute
whether they do the act for religious or non-religious
protection to individual religious convictions and
purposes, it does not offend the free exercise clause.
beliefs and proscribes government from questioning
a person’s beliefs or imposing penalties or disabilities
The balancing of interests test, whereby government
based solely on those beliefs. The Clause extends
actions that substantially burden a religious practice
protection to both beliefs and unbelief. (Estrada v.
must be justified by a compelling governmental
Escritor, A.M. NO. P-02-1651, June 22, 2006)
interest, is inapplicable to an across-the-board
However, a law advancing a legitimate governmental criminal prohibition of a particular form of conduct.
Otherwise, this would create an extraordinary right to
interest is not necessarily invalid as one interfering
ignore general laws in the name of religion for as long
with the free exercise of religion merely because it
as no compelling State interest intervenes.
also has an incidental and detrimental effect on the
same. (Centeno v. Villalon-Pornillos, G.R. No. (Employment Division v. Smith, 494 U.S. 872, April
17, 1990)
113092, Sept. 1, 1994)
A law that burdens religious practice need not be
Benevolent neutrality and claims of religious freedom
justified by a compelling governmental interest, if it is
cannot shield respondent judge from liability for
a) neutral and b) of general applicability. However,
misconduct under our laws. She knowingly entered
into a civil marriage with her first husband. She knew when the law is not neutral or not of general
application, the same must undergo the most
its effects under our laws. She had sexual relations
with her second husband while her first marriage was rigorous of scrutiny:
1. It must be justified by a compelling governmental
subsisting. She cannot claim that engaging in sexual
relations with another person during the subsistence interest.
of a marriage is an exercise of her religious 2. It must be narrowly tailored to advance the said
expression. Legal implications and obligations attach interest. (Church of the Lukumi Babalu Aye, Inc.
to any person who chooses to enter civil marriages. v. Hialeah, 508 U.S. 520, June 11 1993)
This is regardless of how civil marriages are treated
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The Supreme Court upheld the exemption of Prohibited Acts of the State Under the Free
members of the Iglesia ni Cristo, from the coverage Exercise Clause
of a closed shop agreement between their employer A state statute which forbids any person to solicit
and a union because it would violate the teaching of money or valuables for any alleged religious cause,
their church not to join any group. (Victoriano v. unless a certificate therefor shall first have been
Elizalde Rope Workers’ Union, G.R. No. L-2524, procured from a designated official, who is required
Sept. 12, 1974) to determine whether such cause is a religious one
and who may withhold his approval if he determines
An exemption may be accorded to the Jehovah’s that it is not, is a previous restraint upon the free
Witnesses with regard to the observance of the flag exercise of religion and a deprivation of liberty
ceremony out of respect for their religious beliefs, without due process of law in violation of the
however ‘bizarre’ those beliefs may seem to others. Fourteenth Amendment. (Cantwell v. Connecticut,
Nevertheless, their right not to participate in the flag 310 U.S. 296, May 19, 1940)
ceremony does not give them a right to disrupt such
patriotic exercises. (Ebralinag v. Division The religious views espoused by respondents might
Superintendent, G.R. No. 95770, March 1, 1993) seem incredible, if not preposterous, to most people.
But if those doctrines are subject to trial before a jury
City Ordinance No. 3000, as amended, which charged with finding their truth or falsity, then the
requires obtaining of a Mayor's permit before any same can be done with the religious beliefs of any
person can engage in any of the businesses, trades sect. When the triers of fact undertake that task, they
or occupations enumerated therein, does not impose enter a forbidden domain. The First Amendment
any charge upon the enjoyment of a right granted by does not select any one group or any one type of
the Constitution, nor tax the exercise of religious religion for preferred treatment. It puts them all in that
practices. Hence, it cannot be considered position. Thus, the District Court ruled properly when
unconstitutional, even if applied to plaintiff Society. it withheld from the jury all questions concerning the
(American Bible Society v. City of Manila, G.R. No. L- truth or falsity of the religious beliefs or doctrines of
9637, April 30, 1957) respondents. This course was required by the First
Amendment's guarantee of religious freedom.
The First Amendment does not prohibit the (United States v. Ballard, 322 U.S. 78, April 24, 1944)
challenged regulation from being applied to petitioner
even though its effect is to restrict the wearing of the The provisions of City Ordinance No. 2529, as
headgear (yarmulke) required by his religious beliefs. amended, which requires the payment of license fee
That Amendment does not require the military to for conducting the business of general merchandise,
accommodate such practices as wearing a yarmulke cannot be applied to plaintiff society, for in doing so,
in the face of its view that they would detract from the it would impair its free exercise and enjoyment of its
uniformity sought by dress regulations. Here, the Air religious profession and worship, as well as its rights
Force has drawn the line essentially between of dissemination of religious beliefs. (American Bible
religious apparel that is visible and that which is not, Society v. City of Manila, G.R. No. L-9637, April 30,
and the challenged regulation reasonably and even- 1957)
handedly regulates dress in the interest of the
military's perceived need for uniformity. (Goldman v. The State's claim that it is empowered, as parens
Weinberger, 475 U.S. 503, March 25, 1986) patriae, to extend the benefit of secondary education
to children regardless of the wishes of their parents
Not all acts done by those who are priests, bishops, cannot be sustained against a free exercise, for the
ustadz, imams, or any other religious make such act Amish have introduced convincing evidence that
immune from any secular regulation. The religious accommodating their religious objections by forgoing
also have a secular existence. They exist within a one or two additional years of compulsory education
society that is regulated by law. The tarpaulin, on its will not impair the physical or mental health of the
face, does not convey any religious doctrine of the child, or result in an inability to be self-supporting or
Catholic church. That the position of the Catholic to discharge the duties and responsibilities of
church appears to coincide with the message of the citizenship, or in any other way materially detract
tarpaulin regarding the RH Law does not, by itself, from the welfare of society. (Wisconsin v. Yoder, 406
bring the expression within the ambit of religious U.S. 205, May 15, 1972)
speech. (Diocese of Bacolod v. COMELEC, G.R. No.
205728, Jan. 21, 2015) The ordinances' texts and operation demonstrate
that they are not neutral, but have as their object the
suppression of Santeria's central element, animal
sacrifice. That this religious exercise has been
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targeted is evidenced by Resolution 87-66's not simply dismiss a claim under the Free Exercise
statements of "concern" and "commitment," and by Clause because the conduct in question offends a
the use of the words "sacrifice" and "ritual" in law or the orthodox view for this precisely is the
Ordinances 87-40, 87-52, and 87-71. Moreover, the protection afforded by the religion clauses of the
latter ordinances' various prohibitions, definitions, Constitution, i.e., that in the absence of legislation
and exemptions demonstrate that they were granting exemption from a law of general
"gerrymandered" with care to proscribe religious applicability, the Court can carve out an exception
killings of animals by Santeria church members but when the religion clauses justify it.
to exclude almost all other animal killings. Although
Ordinance 87-72 appears to apply to substantial The Court thus lays down the doctrine that in
nonreligious conduct and not to be overbroad, it must Philippine jurisdiction, we adopt the benevolent
also be invalidated because it functions in tandem neutrality approach not only because of its merits as
with the other ordinances to suppress Santeria discussed above, but more importantly, because our
religious worship. (Church of the Lukumi Babalu Aye, constitutional history and interpretation indubitably
Inc. v. Hialeah, 508 U.S. 520, June 11 1993) show that benevolent neutrality is the launching pad
from which the Court should take off in interpreting
2. BENEVOLENT NEUTRALITY AND religion clause cases. The ideal towards which this
CONSCIENTIOUS OBJECTORS approach is directed is the protection of religious
liberty not only for a minority, however small – not
Benevolent neutrality protects religious realities, only for a majority, however large – but for each of us
tradition and established practice with a flexible to the greatest extent possible within flexible
reading of the principle. constitutional limits. (Estrada v. Escritor, A.M. NO. P-
02-1651, June 22, 2006)
Accommodations are government policies that take
religion specifically into account not to promote the Sherbert Test
government’s favored form of religion, but to allow This is the applicable test for benevolent neutrality.
individuals and groups to exercise their religion The test involves the following:
without hindrance. Their purpose or effect therefore 1. Does the law burden the person of his free
is to remove a burden on, or facilitate the exercise of, exercise of religion;
a person’s or institution’s religion. 2. Is the person sincere in his belief; and
3. Does the State have a compelling interest in
The government may take religion into account to implementing the law/regulation/policy? (Estrada
exempt, when possible, from generally applicable v. Escritor, A.M. No. P-02-1651, Aug. 4, 2003)
governmental regulation individuals whose religious
beliefs and practices would otherwise thereby be Conscientious objectors
infringed, or to create without state involvement an
atmosphere in which voluntary religious exercise A person who for moral or religious reasons is
may flourish. Accommodation is forbearance and not opposed to participating in any war, and who may be
alliance. it does not reflect agreement with the excused from military conscription but remains
minority, but respect for the conflict between the subject to service in civil work for the nation’s health,
temporal and spiritual authority in which the minority safety or interest. (Black’s Law Dictionary, 9th ed.)
finds itself.
RH Law
Benevolent neutrality gives room for accommodation Sections 7, 23 and 24 commonly mandate that a
of religious exercises as required by the Free hospital or a medical practitioner to immediately refer
Exercise Clause. It allows breaches in the wall of a person seeking health care and services under the
separation to uphold religious liberty, which after all law to another accessible healthcare provider despite
is the integral purpose of the religion clauses. their conscientious objections based on religious or
ethical beliefs.
Although the Philippines’ constitutional history and
interpretation mandate benevolent neutrality, In this case, the conscientious objector's claim to
benevolent neutrality does not mean that the Court religious freedom would warrant an exemption from
ought to grant exemptions every time a free exercise obligations under the RH Law, unless the
claim comes before it. But it does mean that the Court government succeeds in demonstrating a more
will not look with hostility or act indifferently towards compelling state interest in the accomplishment of an
religious beliefs and practices and that it will strive to important secular objective. Necessarily so, the plea
accommodate them when it can within flexible of conscientious objectors for exemption from the RH
constitutional limits; it does mean that the Court will Law deserves no less than strict scrutiny.
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The obligation to refer imposed by the RH Law opposed to participation in war in any form." (Estrada
violates the religious belief and conviction of a v. Escritor A.M. No. P-02-1651, June 22, 2006. See
conscientious objector. Once the medical also Gerona v. Secretary of Education, G.R. No. L-
practitioner, against his will, refers a patient seeking 13954, Aug. 12, 1959)
information on modem reproductive health products,
services, procedures and methods, his conscience is As seen in U.S. v. Seeger, supra, it may also be used
immediately burdened as he has been compelled to as a ground for exemption from compulsory military
perform an act against his beliefs. service. It also includes those with a sincere and
meaningful belief which occupies in the life of its
In case of conflict between the religious beliefs and possessor a place parallel to that filled by the God of
moral convictions of individuals, on one hand, and those admittedly qualifying for the exemption. (380
the interest of the State, on the other, to provide U.S. 163, March 8, 1965)
access and information on reproductive health
products, services, procedures and methods to 3. TESTS TO DETERMINE THE
enable the people to determine the timing, number VALIDITY OF GOVERNMENTAL
and spacing of the birth of their children, the Court is REGULATION
of the strong view that the religious freedom of health
providers, whether public or private, should be TESTS FOR CONSTITUTIONALITY OF
accorded primacy. STATUTES
Accordingly, a conscientious objector should be
Abington Test
exempt from compliance with the mandates of the To withstand the strictures of the Establishment
RH Law. If he would be compelled to act contrary to
Clause: (SAIR)
his religious belief and conviction, it would be 1. There must be a Secular legislative purpose; and
violative of "the principle of non-coercion" enshrined
2. A primary effect that neither Advances nor
in the constitutional right to free exercise of religion.
(Imbong v. Ochoa, G.R. No. 204819, April 8, 2014) Inhibits Religion.
Conscientious Objection to Military Service If the purpose and the primary effect of the enactment
Escritor was the court interpreter at the RTC of Las is the advancement or inhibition of religion, then the
Pinas. A complaint for disgraceful and immoral enactment exceeds the scope of legislative power as
conduct under the Revised Administrative Code was circumscribed by the Constitution. (School Dist. of
filed against Escritor because of living with a man not Abington Tp. v. Schempp, 374 U.S. 203, June 17,
her husband. As a defense, she asserted that this 1963)
conjugal arrangement was in conformity with her
religious congregation which was the Jehovah’s Lemon Test
witnesses. In discussing the Free Exercise Clause, The Lemon test requires a challenged policy to meet
the court tackled United States v. Seeger, which the following criteria to pass scrutiny under the
involved four men who claimed "conscientious Establishment Clause. The test for determining
objector" status in refusing to serve in the Vietnam whether a law meets the requirements of the
War. One of the four, Seeger, was not a member of Establishment Clause is that: (SAIREE)
any organized religion opposed to war, but when 1. The statute must have a Secular legislative
specifically asked about his belief in a Supreme purpose;
Being, Seeger stated that "you could call (it) a belief 2. Its primary or principal effect must be one that
in a Supreme Being or God. These just do not neither Advances nor Inhibits Religion; and
happen to be the words that I use." Forest Peter, 3. The statute must not foster an Excessive
another one of the four claimed that after Entanglement with religion. (Lemon v.
considerable meditation and reflection "on values Kurtzman, 403 U.S. 602, June 28, 1971)
derived from the Western religious and philosophical
tradition," he determined that it would be "a violation
Agostini Test for Excessive Entanglement
of his moral code to take human life and that he
To determine/assess excessive entanglement, the
considered this belief superior to any obligation to the
following must be taken into consideration:
state." The Court avoided a constitutional question by
1. The character and purposes of the benefitted
broadly interpreting not the Free Exercise Clause, but
the statutory definition of religion in the Universal institutions;
Military Training and Service Act of 1940 which 2. The nature of the aid that the State provides; and
exempt from combat anyone "who, by reason of 3. The resulting relationship between the
religious training and belief, is conscientiously government and religion, e. g., whether it was
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neutral and nonideological. (Agostini v. Felton, to force citizens of the Philippine Islands — and these
521 U.S. 203, June 23, 1997) women despite their being in a sense lepers of
society are nevertheless not chattels but Philippine
Mitchell Test for Determining a Statute’s Effect citizens protected by the same constitutional
Three primary criteria for determining whether a guaranties as are other citizens — to change their
statute/government aid has the effect of advancing domicile from Manila to another locality.
religion: (Villavicencio v. Lukban, G.R. No. L-14639, March
1. If it results in governmental indoctrination; 25, 1919)
2. If it defines its recipients by reference to religion;
or The order of the Court of Appeals releasing petitioner
on bail constitutes such lawful order as contemplated
3. If it creates an excessive entanglement.
by the above provision. The condition imposed by the
Court of Appeals is simply consistent with the nature
The US Supreme Court further held that under the and function of a bail bond, which is to ensure that
neutrality principle, aid that is offered to a broad petitioner will make himself available at all times
range of groups or persons without regard to religion whenever the Court requires his presence. Besides,
are valid. One way to assure the said neutrality is a closer look at the questioned condition will show
through the principle of private choice, wherein the that petitioner is not prevented from changing abode;
government is not considered to have provided any he is merely required to inform the court in case he
support of religion when aid to schools, even if direct, does so. (Yap Jr. v. Court of Appeals, G.R. No.
is a) neutrally available and b) before reaching or 141529, June 6, 2001)
benefitting any religious school, first passes through
the hands of numerous private citizens who are free Right to Travel
to direct the aid elsewhere. (Mitchell v. Helms, 530
AO1 does not infringe upon petitioners’ right to travel
US 793, June 28 2000)
but merely bars motorcycles, bicycles, tricycles,
pedicabs, and any non- motorized vehicles as the
The right of the people to information on matters of
mode of traveling along limited access highways. The
public concern shall be recognized. (Phil Const., art.
right to travel does not mean the right to choose any
III, § 7)
vehicle in traversing a toll way. The right to travel
refers to the right to move from one place to another.
Subject to reasonable conditions prescribed by law,
Petitioners can traverse the toll way any time they
the State adopts and implements a policy of full
choose using private or public four-wheeled vehicles.
public disclosure of all its transactions involving
Petitioners are not denied the right to move from
public interest. (Phil Const., art. II, § 28)
Point A to Point B along the toll way. Petitioners are
free to access the toll way, much as the rest of the
G. LIBERTY OF ABODE AND FREEDOM public can. The mode by which petitioners wish to
OF MOVEMENT travel pertains to the manner of using the toll way, a
subject that can be validly limited by regulation.
The liberty of abode and of changing the same within (Mirasol v. DPWH, G.R. No. 158793, June 8, 2006)
the limits prescribed by law shall not be impaired
except upon lawful order of the court. Neither shall City councils are authorized to enact curfew
the right to travel be impaired except in the interest of ordinances (as what respondents have done in this
national security, public safety or public health, as case) and enforce the same through their local
may be provided by law. (PHIL. CONST., art. III, § 6) officials. In other words, PD 603 provides sufficient
statutory basis - as required by the Constitution - to
1. SCOPE AND LIMITATIONS restrict the minors' exercise of the right to travel.
Considering that the right to travel is a fundamental
Rights Guaranteed right in our legal system guaranteed no less by our
(a) Freedom to choose and change one’s place Constitution, the strict scrutiny test is the applicable
of abode test. (SPARK v. Quezon City, G.R. No. 225442, Aug.
8, 2017)
(b) Freedom to travel within the country and
outside No Right of Return to One’s Country
Essentially, the right involved is the right to return to
Liberty of Abode one's country, a totally distinct right under
But one can search in vain for any law, order, or international law, independent from although related
regulation, which even hints at the right of the Mayor to the right to travel. Thus, the Universal Declaration
of the city of Manila or the chief of police of that city of Humans Rights and the International Covenant on
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Civil and Political Rights treat the right to freedom of criminal proceeding is the People of the Philippines.
movement and abode within the territory of a state, It is to their best interest that criminal prosecutions
the right to leave a country, and the right to enter should run their course and proceed to finality without
one's country as separate and distinct rights. The undue delay, with an accused holding himself
Declaration speaks of the "right to freedom of amenable at all times to Court Orders and processes.
movement and residence within the borders of each (Silverio v. CA, G.R. No. 94284, April 8, 1991)
state" separately from the "right to leave any country,
including his own, and to return to his country." [The DOJ] does not have inherent power to issue a
(Marcos v. Manglapus, G.R. No. 88211, Sept. 15, hold-departure order, unlike the courts, or to restrict
1989) the right to travel in [any way]. It is limited to the
powers expressly granted to it by law and may not
Limitations extend the same on its own accord or by any skewed
(a) LIBERTY OF ABODE: Lawful order of the interpretation of its authority. Without a valid
court and within the limits prescribed by law. legislation, the DOJ's actions will perpetually be met
(b) RIGHT TO TRAVEL: May be curtailed even with legal hurdles to the detriment of the due
by administrative officers in the interest of administration of justice. (Genuino v. De Lima, G.R.
national security, public safety, or public No. 197930, April 17, 2018)
health, as may be provided by law.
(PHIL. CONST., art. III, § 6) H. RIGHT TO INFORMATION
The right of the people to information on matters of

2. WATCH-LIST AND HOLD public concern shall be recognized. (PHIL. CONST.,
DEPARTURE ORDERS art. III, § 7)
Watch-list Orders vs. Hold Departure Orders Subject to reasonable conditions prescribed by law,
1. Watch-list Orders issued against: the State adopts and implements a policy of full
(c) Accused in criminal cases (irrespective of public disclosure of all its transactions involving
nationality in RTC or below); OR public interest. (PHIL. CONST., art. II, § 28)
(d) Any person with pending case in DOJ
2. Hold Departure Orders issued against: Rights Guaranteed
(a) Right to information on matters of public
(e) Accused on criminal cases (irrespective of concern
nationality in courts below RTC); (b) Right of access to official records and
(f) aliens (defendant, respondent, and witness documents
in pending civil or labor case, or any case
pending before administrative agency of the These are political rights available to citizens only.
government); and They are "subject to such limitations as may be
(g) Any person motu proprio by the Secretary of provided by law." (Bernas, The 1987 Philippine
Justice or request of heads of departments, Constitution: A Comprehensive Reviewer)
Constitutional Commissions, Congress, or
Not absolute
Supreme Court
The constitutional guarantee to information does not
7. Both issued by the Secretary of Justice open every door to any and all information. It is
(Department Circular No. 41) limited to matters of public concern, and is subject to
such limitations as may be provided by law. Likewise,
Article III, Section 6 of the 1987 Constitution should the State’s policy of full public disclosure is restricted
by no means be construed as delimiting the inherent to transactions involving public interest, and is further
power of the Courts to use all means necessary to subject to reasonable conditions prescribed by law.
carry their orders into effect in criminal cases pending (Sereno v. Committee on Trade and Related Matters
before them. When by law jurisdiction is conferred on of NEDA, G.R. No. 175210, Feb. 1, 2016)
a Court or judicial officer, all auxiliary writs, process
and other means necessary to carry it into effect may 1. Scope and limitations
be employed by such Court or officer. Holding an
accused in a criminal case within the reach of the Matters of Public Concern
Courts by preventing his departure from the The people have the right to information on matters
Philippines must be considered as a valid restriction of public concern, and access to official records shall
on his right to travel so that he may be dealt with in
accordance with law. The offended party in any
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be allowed to citizens as may be provided by law. It (Aquino-Sarmiento v. Morato, G.R. No. 92541;
is a self-executing provision. Legaspi v. CSC, G.R. No. L-72119; Bantay Republic
Act or BA-RA 7941 v. COMELEC, G.R. No. 177271,;
The threshold question is, therefore, whether or not Valmonte v. Belmonte Jr., G.R. No. 74930,; Antolin
the information sought is of public interest or public v. Domondon, G.R. No.165036; Chavez v. Public
concern. "Public concern" like "public interest" is a Estates Authority, G.R. No. 133250)
term that eludes exact definition. Both terms embrace
a broad spectrum of subjects which the public may The right to information is paramount, and that the
want to know, either because these directly affect wiretapping issue is subservient to this right. The
their lives, or simply because such matters naturally “Hello Garci” tapes should be played, because
arouse the interest of an ordinary citizen. In the final prohibiting its airing would be prior restraint.
analysis, it is for the courts to determine in a case by (Chavez v. Gonzales, G.R. No. 168338)
case basis whether the matter at issue is of interest
or importance, as it relates to or affects the public. Limitations
(Legazpi v. CSC, G.R. No. L-72119, May 29, 1987) Restrictions to the right to information may be:
(g) Based on kinds of information
In case of conflict, there is a need to strike a balance (a) Based on access
between the right of the people and the interest of the (b) Based on reasonable regulation for the
Government to be protected. (Sereno v. Committee convenience of and for order in the office that
on Trade and Related Matters of NEDA, G.R. No. has custody of the documents
175210, Feb. 1, 2016)
(Baldoza v. Dimaano, A.M. No. 1120-MJ, 1976)
(c) Based on availability.
Examples of Matters of Public Concern
according to jurisprudence:
(a) Loanable funds of GSIS Based on Kinds of Information
(b) Civil service eligibility of sanitarian
The constitutional guarantee of the people's
employees
right to information do not cover: (BENT DISC)
(c) Appointments made to public offices and the
utilization of public property (h) Banking transactions
(d) National board examinations such as the (i) Executive Sessions
CPA Board Exams (j) National Security matters
(e) Names of nominees of partylists (k) Trade secrets
(f) Negotiations leading to the consummation of (l) Diplomatic correspondence
the transaction (m) Intelligence information
(Valmonte v. Belmonte, G.R. No. 74930; Legazpi v. (n) Supreme Court deliberations
CSC, G.R. No. L-72119; Gonzales v. Narvasa, G.R. (o) Closed Door cabinet meetings
No. 140835; Antolin v. Domondon, G.R. No.165036;
Bantay Republic v. COMELEC, G.R. No. 177271; There are certain classes of information which may
Chavez v. PEA and Amari, G.R. No. 133250) be withheld from the public and even from Congress.
These are national security matters or confidential
Examples of Matters of Public Information diplomatic matters, trade secrets and banking
according to Jurisprudence: transactions, the identity of informants in criminal
(a) Decision and voting slips of the MTRCB investigations, confidential or classified matters
board for the classification of movies which come to the knowledge of public officials by
(b) Civil Service eligibility of sanitarians reason of their office.
(c) Party-list nominees through medium other (Chavez v. PCGG, G.R. No 130716)
than the “Certified List”
Before a definite proposition is reached by an
(d) GSIS loans granted to former Batasang
agency, there are no official acts, transactions, or
Pambansa members decisions yet which can be accessed by the public
(e) Examination papers and answer keys in the under the right to information. Only when there is an
CPA Board Exam official recommendation can a definite proposition
(f) Definite propositions and “official arise and, accordingly, the public’s right to
recommendations” of agencies preceding information attaches.
and even before the consummation of the (DFA v. BCA International, G.R. No. 210858)
contract
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Without doubt, therefore, ensuring and promoting the public concern. (Valmonte v. Belmonte Jr., G.R. No.
free exchange of ideas among the members of the 74930, Feb. 13, 1989)
committee tasked to give tariff recommendations to
the President were truly imperative. The fact that Access to Court Records
some members of the committee were not part of the The right of the public to be informed of the
President's Cabinet was of no moment. The Court proceedings in court is not founded in the desire or
regarded the meeting of the committee as a Closed- necessity of people to know about the doing of
door Cabinet meeting. others, but in the necessity of knowing whether its
(Sereno v. Committee on Trade and Related Matters servant, the judge, is properly performing his duty.
of NEDA, G.R. No. 175210, supra)
Unlike court orders and decisions, however,
The chemical composition of special lubricants is a pleadings and other documents filed by parties to a
trade secret. The ingredients constitute the very case need not be matters of public concern or
fabric of the company’s business. To compel its interest. For they are filed for the purpose of
disclosure is to cripple their business and to place it establishing the basis upon which the court may
at an undue disadvantage. Trade secrets should issue an order or a judgment affecting their rights and
receive greater protection from discovery because interests.
they deserve economic value from being generally
unknown and not readily ascertainable by the public. In fine, access to court records may be permitted at
(Air Philippines v. Pennswell, Inc, G.R. No. 172835) the discretion and subject to the supervisory and
protective powers of the court, after considering the
Based on Access actual use or purpose for which the request for
(a) Opportunity to inspect and copy records at access is based and the obvious prejudice to any of
his expense (Chavez v. PEA and Amari, the parties. (Hilado v. Judge Reyes, G.R. No.
supra) 163155)
(b) Not the right to compel custodians of official
records to prepare lists, abstracts, Court deliberations are traditionally recognized as
privileged communications (deliberative process
summaries and the like (Valmonte v.
privilege). This privilege may be invoked by judges
Belmonte, supra) and also by court officials and employees who are
privy to these deliberations. It is understood that the
A distinction has to be made between the discretion rule extends to documents and other
to refuse outright the disclosure of or access to a communications which are part of or are related to
particular information and the authority to regulate the deliberative process. However, to invoke the
the manner in which the access is to be afforded. The privilege, there must be a showing that the document
first is a limitation upon the availability of access to is both predecisional and deliberative. Court records
the information sought, which only the Legislature which can be shown to possess both these qualities
may impose. The second pertains to the government cannot be the subject of subpoena.
agency charged with the custody of public records. (In Re: Production of Court Records and Documents
(Legaspi v. CSC, G.R. No. 72119, May 29, 1987) and the Attendance of Court officials and employees
as witnesses under the subpoenas of Feb 10,2012
The regulations which the Register of Deeds, or the and the various letters for the Impeachment
Chief of the General Land Registration Office, or the Prosecution Panel dated Jan 19 and 25, 2012, Feb.
Secretary of Justice is empowered to promulgate are 14, 2012)
confined to prescribing the manner and hours of
examination to the end that damage to, or loss of, the Diplomatic Negotiations
records may be avoided, that undue interference with It is clear that while the final text of the JPEPA may
the duties of the custodian of the books and not be kept perpetually confidential – since there
documents and other employees may be prevented, should be “ample opportunity for discussion before a
that the right of other persons entitled to make treaty is approved” – the offers exchanged by the
inspection may be insured, and the like. (Subido v. parties during the negotiations continue to be
Ozaeta, G.R. No. L-1631, May 29, 1987) privileged even after the JPEPA is published. It is
reasonable to conclude that the Japanese
Although citizens are afforded the right to information representatives submitted their offers with the
and, pursuant thereto, are entitled to access to official understanding that “historic confidentiality” would
records, the Constitution does not accord them a govern the same. Disclosing these offers could
right to compel custodians of official records to impair the ability of the Philippines to deal not only
prepare lists, abstracts, summaries and the like in with Japan but with other foreign governments in
their desire to acquire information on matters of
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future negotiations. (Akbayan v. Aquino, G.R. No. ones; meant to encompass only those functions that
170516) form the core of presidential authority.
Negotiations for Treaties and Executive

Agreements Requisites:
Information regarding negotiations for treaties and 1. The communications relate to a "quintessential
executive agreements prior to conclusion of the and non-delegable power" of the President;
agreement is privileged information. (Senate v. 2. The communications are "received" by a close
Ermita, G.R. No. 169777, April 20, 2006)) advisor of the President; and
3. There is no adequate showing of a compelling
Deliberative Process Privilege
need that would justify the limitation of the
U.S. courts have established two fundamental
requirements, both of which must be met, for the privilege and of the unavailability of the
deliberative process privilege to be invoked: information elsewhere by an appropriate
(a) Predecisional – The communication must be investigating authority. (Neri v. Senate
predecisional, i.e., antecedent to the Committee, G.R. No. 180643, March 25, 2008)
adoption of an agency policy; and
(b) Deliberative – The communication must be Publication of Laws and Regulations
deliberative, i.e., a direct part of the The very first clause of Section I of Commonwealth
Act 638 reads: "There shall be published in the
deliberative process in that it makes
Official Gazette..." The word "shall" used therein
recommendations or expresses opinions on imposes upon respondent officials an imperative
legal or policy matters. duty. That duty must be enforced if the Constitutional
right of the people to be informed on matters of public
The deliberative process privilege exempts materials concern is to be given substance and reality. The law
that are 'predecisional' and 'deliberative,' but requires itself makes a list of what should be published in the
disclosure of policy statements and final opinions Official Gazette. It is needless to add that the
'that have the force of law or explain actions that an publication of presidential issuances "of a public
agency has already taken. nature" or "of general applicability" is a requirement
of due process. It is a rule of law that before a person
As a qualified privilege, the burden falls upon the may be bound by law, he must first be officially and
government agency asserting the deliberative specifically informed of its contents. Publication is
process privilege to prove that the information in necessary to apprise the public of the contents of
question satisfies both requirements - predecisional [penal] regulations and make the said penalties
and deliberative. The agency bears the burden of binding on the persons affected thereby. (Tanada v.
establishing the character of the decision, the Tuvera, G.R. No. L-63915, April 24, 1985).
deliberative process involved, and the role played by
the documents in the course of that process. It may Other Constitutional Provisions Related to the
be overcome upon a showing that the discoverant's Right to Information
interests in disclosure of the materials outweigh the Subject to reasonable conditions prescribed by law,
government's interests in their confidentiality. The the State adopts and implements a policy of full
determination of need must be made flexibly on a public disclosure of all its transactions involving
case-by-case, ad hoc basis, and the factors relevant public interest. (PHIL. CONST., art. II, § 28)
to this balancing include: the relevance of the
evidence, whether there is reason to believe the I. EMINENT DOMAIN
documents may shed light on government
misconduct, whether the information sought is Private property shall not be taken for public use
available from other sources and can be obtained without just compensation. (PHIL. CONST., art. III, §
without compromising the government's deliberative 9)
processes, and the importance of the material to the
discoverant's case. (DFA v. BCA International, G.R. 1. CONCEPT
No. 210858, June 29, 2016)
Presidential Communications Privilege Eminent domain is the authority and right of the
State, as sovereign, to take private property for public
Applies to decision-making of the President; rooted
in the constitutional principle of separation of power use upon observance of due process of law and
payment of just compensation. The State's power of
and the President's unique constitutional role; applies
to documents in their entirety, and covers final and eminent domain is limited by the constitutional
mandate that private property shall not be taken for
post-decisional materials as well as pre-deliberative
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public use without just compensation. (Republic v. Necessity

BPI, G.R. No. 203039, Sept. 11, 2013) (a) The necessity must be of public character.
(b) Political question when power is exercised by
Examples of the uses to which the power of eminent Congress;
domain may be put
(c) Generally justiciable when exercised by a
(a) PHIL. CONST., art. XII, § 18: public utilities
delegate (except when delegation is grant of
(b) PHIL. CONST., art. XIII, § 4: land reform
authority for special purpose).
(c) PHIL. CONST., art. XVIII, § 22: idle or
abandoned agricultural lands
The power of eminent domain is available only when
(Bernas, The 1987 Philippine Constitution: A the owner does not want or opposes the sale of his
Comprehensive Reviewer, 2011) property. Thus, if a valid contract exists between the
government and the owner, the government cannot
Scope and limitations exercise the power of eminent domain as a substitute
In the hands of Congress the scope of the power is, to the enforcement of the contract.
like the scope of legislative power itself, plenary.
(Barlin v. Ramirez, G.R. No. L-2832, November 24, Where the landowner agrees voluntarily to the taking
1906) of his property by the government for public use, he
thereby waives his right to the institution of a formal
The exercise of such right is not unlimited, for two expropriation proceeding covering such property.
mandatory requirements should underlie the Failure for a long time of the owner to question the
Government’s exercise of the power of eminent lack of expropriation proceedings covering a property
domain, namely: that the government had taken constitutes a waiver
1. that it is for a particular public purpose; and of his right to gain back possession. The landowner’s
2. that just compensation be paid to the property remedy in such case is an action for the payment of
just compensation, not ejectment. (Republic of the
owner. (Mactan-Cebu International Airport
Philippines v. Primo Mendoza and Maria Lucero,
Authority v. Lozada, Sr., G.R. No. 176625, 2010) G.R. No. 185091, Aug. 8, 2010)
Who May Exercise (CELPQ) The claim of Telephone Company A’s right of
(a) Generally, Congress eminent domain cannot be properly resolved in a
(b) Delegated Executive, pursuant to legislation complaint for forcible entry or unlawful detainer.
enacted by Congress Eminent domain or expropriation is the inherent right
(c) Local government units, pursuant to an of the state to condemn private property to public use
ordinance enacted by their respective upon payment of just compensation. The power is
legislative bodies (under LGC) exercised by the legislature and may be delegated to
(d) Public corporations, as may be delegated local governments, other public entities, and public
by law utilities. Expropriation may be judicially claimed only
by filing a complaint for expropriation. An
(e) Quasi-public corporations e.g. PNR,
expropriation suit falls under the jurisdiction of the
PLDT, Meralco. regional trial court because it is a case incapable of
pecuniary estimation. It deals with the government’s
The delegated power of eminent domain of local exercise of its authority and right to take property for
government is strictly speaking not a power of public use. The right of an expropriator to file a
eminent but of inferior domain — a share merely in complaint for expropriation is not allowed in an action
eminent domain. Hence, it is only as broad as the such as a forcible entry or unlawful detainer suit.
authority delegated to it. (Bernas, The 1987 These actions are summary in nature. Therefore, in
Philippine Constitution: A Comprehensive Reviewer, this case, the Court cannot award expropriation.
2011) Nevertheless, the resolution of this case is without
prejudice to the filing of a separate case for
Requisites For Valid Exercise: (TaPuCom) expropriation. (PLDT v. Citi Appliance, G.R. No.
1. There is a Taking of private property 214546, October 9, 2019)
2. Taking is for Public use
The exercise of the right of eminent domain, whether
3. Payment of just Compensation
directly by the State or by its authorized agents, is
necessarily in derogation of private rights. It is one of
the harshest proceedings known to the law.
Consequently, when the sovereign delegates the
power to a political unit or agency, a strict
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construction will be given against the agency 4. Property is devoted to Public use; and
asserting the power. The authority to condemn is to 5. The entrance must be Permanent
be strictly construed in favor of the owner and against (Republic v. Ortigas & Co., Ltd. Partnership, G.R. No.
the condemnor. (Jesus is Lord School v. Municipality 171496, March 3, 2014)
of Pasig, G.R. No. 152230, Aug. 9, 2005)
The owner of a property taken is entitled to be
Eminent Domain is the taking of private property for compensated when there is taking of private property
public use, thus no expropriation proceeding can for some public purpose. The Constitution proscribes
continue if the property to be expropriated will not be taking of private property without just compensation,
for public use. Considering that Corp A is no longer any taking must entail a corresponding appropriation
using respondent X’s properties for the purpose of for that purpose. When the road or street was
building the Substation Project, it may be allowed to delineated upon government request and taken for
discontinue with the expropriation proceedings, public use, the government must compensate the
subject to the approval of the court. However, in order owner for his or her sacrifice, lest it violates the
to determine whether the expropriation may be constitutional provision against taking without just
dismissed, it must not fall under the following compensation. (Republic v. Ortigas & Co., Ltd.
exceptions: first, the trial court’s order already Partnership, G.R. No. 171496, March 3, 2014)
became final and executory, second, the government
already took possession of the property; and lastly, NPC is liable on the basis that its acquisition of a
the expropriation case already caused prejudice to right-of-way easement over the portion of
the landowner. (National Power Corporation v. respondents' land was a taking under the power of
Posada, G.R. No. 191945, March 11, 2015) eminent domain. A right-of-way easement or burden
becomes a "taking" under eminent domain when
THERE IS TAKING OF PRIVATE PROPERTY there is material impairment of the value of the
property or prevention of the ordinary uses of the
The power of eminent domain must be distinguished property for an indefinite period. The intrusion into the
from police power. When the State exercises "police property must be so immediate and direct as to
power," property is merely "regulated." There is no subtract from the owner's full enjoyment of the
transfer of ownership. By eminent domain, property property and to limit his or her exploitation of it.
is "taken." There is transfer of ownership. Hence, due to the nature of the easement done by
"Regulation" is not compensable but "taking" must be NPC in this case, which will deprive the normal use
compensated. (Bernas, The 1987 Philippine of the land for an indefinite period and expose the
Constitution: A Comprehensive Reviewer, 2011). property owners' lives and limbs to danger, just
compensation must be based on the full market value
In the context of the State's inherent power of of the affected property. (NPC v Sps. Asoque, G.R.
eminent domain, there is "taking" where the owner is No. 172507, September 14, 2016)
actually deprived or dispossessed of his property;
where there is a practical destruction or a material Expropriation is not limited to the acquisition of real
impairment of the value of his property; or when he is property with a corresponding transfer of title or
deprived of the ordinary use thereof. (PNOC v. possession. The right-of-way easement resulting in a
Maglasang, G.R. No. 155407, Nov. 11, 2008) restriction or limitation on property rights over the
land traversed by transmission lines also falls within
Neither can it be said that the right of eminent domain the ambit of the term expropriation. The ownership of
may be exercised by simply leasing the premises to land extends to the surface as well as to the subsoil
be expropriated. Where, as here, the owner was under it. Underground tunnels impose limitations on
compensated and not deprived of the ordinary and the owner’s use of the property for an indefinite
beneficial use of his property by its being diverted to period and deprive them of its ordinary use. (NPC v.
public use, there is no taking within the constitutional Lucman Ibrahim, G.R. No. 168732, June 29, 2007)
sense. (PNOC v. Maglasang, G.R. No. 155407, Nov.
11, 2008) There was a full taking on the part of NPC,
notwithstanding that the owners were not completely
Elements of Taking (BEAPP) and actually dispossessed. It is settled that the taking
1. Utilization of the property must be in such a way of private property for public use, to be compensable,
as to oust the owner and deprive him of the need not be an actual physical taking or
Beneficial enjoyment of his property; appropriation. (NAPOCOR v. Heirs of Macabangkit
2. The expropriator Enters the property; Sangkay, G.R. No. 165828, Aug. 24, 2011)
3. Entry is made under warrant or color of legal
Authority;
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Compensable taking includes destruction, restriction, The City of Manila, acting through its legislative
diminution, or interruption of the rights of ownership branch, has the express power to acquire private
or of the common and necessary use and enjoyment lands in the city and subdivide these lands into home
of the property in a lawful manner, lessening or lots for sale to bona fide tenants or occupants
destroying its value. (NAPOCOR v. Heirs of thereof, and to laborers and low-salaried employees
Macabangkit Sangkay, G.R. No. 165828, Aug. 24, of the city. That only a few could actually benefit from
2011) the expropriation of the property does not diminish its
public use character. It is simply not possible to
The Republic may, in the exercise of the sovereign provide all at once land and shelter for all who need
power of eminent domain, require the telephone them. Corollary to the expanded notion of public use,
company to permit interconnection of the government expropriation is not anymore confined to vast tracts
telephone system and that of the PLDT, as the needs of land and landed estates. It is therefore of no
of the government service may require, subject to the moment that the land sought to be expropriated in
payment of just compensation to be determined by this case is less than half a hectare only. (Phil.
the court. Nominally, of course, the power of eminent Columbian Association v. Hon. Panis, G.R. No. L-
domain results in the taking or appropriation of title 106528, Dec. 21, 1993)
to, and possession of, the expropriated property; but
no cogent reason appears why the said power may The purpose in setting up the marker is essentially to
not be availed of to impose only a burden upon the recognize the distinctive contribution of the late Felix
owner of condemned property, without loss of title Manalo to the culture of the Philippines, rather than
and possession. (Republic v. PLDT, G.R. No. L- to commemorate his founding and leadership of the
18841, Jan. 27, 1969) Iglesia ni Cristo. The practical reality that greater
benefit may be derived by members of the Iglesia ni
A regulation that deprives any person of the profitable Cristo than by most others could well be true but such
use of his property constitutes a taking and entitles a peculiar advantage still remains to be merely
him to compensation, unless the invasion of rights is incidental and secondary in nature. (Manosca v. CA,
so slight as to permit the regulation to be justified G.R. No. 106440, Jan. 29, 1996)
under the police power. Similarly, a police regulation
that unreasonably restricts the right to use business 2. JUST COMPENSATION
property for business purposes amounts to a taking
of private property, and the owner may recover Just compensation is the full and fair equivalent of the
therefor. (OSG v. Ayala, G.R. No. 177056, Sept. 18, property sought to be expropriated. The general rule
2009) is that the just compensation to which the owner of
the condemned property is entitled to is the market
TAKING IS FOR PUBLIC USE value. Market value is that sum of money which a
person desirous but not compelled to buy, and an
The "public use" requirement for a and exercise of owner willing but not compelled to sell, would agree
the power of eminent domain is a flexible and on as a price to be paid by the buyer and received by
evolving concept influenced by changing conditions. the seller. The general rule, however, is modified
It is accurate to state then that at present whatever where only a part of a certain property is
may be beneficially employed for the general welfare expropriated. In such a case, the owner is not
satisfies the requirement of public use. Specifically, restricted to compensation for the portion actually
urban renewal or redevelopment and the taken, he is also entitled to recover the consequential
construction of low-cost housing is recognized as a damage, if any, to the remaining part of the property.
public purpose, not only because of the expanded (Republic v. BPI, G.R. No. 203039, Sept. 11, 2013)
concept of public use but also because of specific The word 'just' is used to modify the meaning of the
provisions in the Constitution. (Sumulong v. word 'compensation' to convey the idea that the
Guerrero, G.R. No. L-48685, Sept. 30, 1987) equivalent to be given for the property to be taken
shall be real, substantial, full and ample." (Republic
Public use means “public usefulness, utility or v. San Miguel Vda. De Ramos, G.R. No. 211576,
advantage, or what is productive of general benefit; Feb. 19, 2020, citing Evergreen Manufacturing Corp.
so that any appropriating of private property by the v. Republic, G.R. Nos. 218628 & 218631, Sept. 6,
State under its right of eminent domain for purposes 2017)
of great advantage to the community, is a taking for
public use.” (Gohld Realty Co. v. Hartford, 104 A. 2d To stress, compensation, to be just, it must be of such
365, 368-9 Conn., 1954; Bernas, The 1987 Philippine value as to fully rehabilitate the affected owner; it
Constitution: A Comprehensive Reviewer, 2011) must be sufficient to make the affected owner whole.
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(Republic v. San Miguel Vda. De Ramos, G.R. No. Just Compensation in Expropriation by LGUs
211576, Feb. 19, 2020) The exercise of the power of eminent domain by a
local government unit is now governed by Section 19
Inclusions in the Loss of the affected owner of Republic Act 7160. For properties under
The loss incurred by the affected owner necessarily expropriation, the law now requires the deposit of an
includes all incidental costs to facilitate the transfer of amount equivalent to fifteen percent (15%) of the fair
the expropriated property to the expropriating market value of the property based on its current tax
authority, including the CGT due on the forced sale declaration. (Knecht v. Municipality of Cainta, G.R.
and other transfer taxes. These costs must be taken No. 145254, 2006).
into consideration in determining just compensation
in the same way these costs are factored into the Includes Payment in Full Without Delay
selling price of real property in an arm's length Just compensation does not only refer to the full and
transaction. Notably, the value of the expropriated fair equivalent of the property taken; it also means,
property, as declared by the affected owner, is one of equally if not more than anything, payment in full
the factors listed under Section 5 of RA 8974. without delay. (Land Bank of the Philippines v.
(Republic v. San Miguel Vda. De Ramos, G.R. No. Gallego, G.R. No. 173226, July 29 2013)
211576, Feb. 19, 2020)
Tax Benefit as Just Compensation
If municipal property is acquired in its corporate or The tax benefit granted to the establishments can be
private capacity, the State must pay just deemed as their just compensation for private
compensation. But if it is any other property such as property taken by the State for public use. The
public buildings or held by the municipality for the
taxation power can also be used as an implement for
State in trust for the inhabitants, the State is free to the exercise of the power of eminent domain.
dispose of it at will, without any compensation. (Land
(Commissioner of Internal Revenue v. Central Luzon
Bank v. Spouses Orilla, G.R. No. 157206, June 27, Drug Corporation, G.R. No. 159647, April 15, 2005)
2008)
Excludes Value of Excavated Soil
The concept of just compensation does not imply
fairness to the property owner alone. Compensation The Court also upheld the CA ruling, which deleted
must be just not only to the property owner, but also the inclusion of the value of the excavated soil in the
to the public which ultimately bears the cost of payment for just compensation. There is no legal
expropriation. (DPWH v. Spouses Tecson, G.R. No. basis to separate the value of the excavated soil from
179334, July 1, 2013) that of the expropriated properties. In the context of
expropriation proceedings, the soil has no value
separate from that of the expropriated land. Just
Judicial Function compensation ordinarily refers to the value of the
The final determination of just compensation is land to compensate for what the owner actually
vested in courts. In the recent case of Alfonso v. Land loses. Such value could only be that which prevailed
Bank, this Court ruled that courts may deviate from at the time of the taking. (Republic of the Philippines,
the basic formula provided by administrative represented by the National Irrigation Administration
agencies if it finds, in its discretion, that other factors v. Rural Bank of Kabacan Inc., G.R. No. 185124, Jan.
must be taken into account in the determination of 25, 2012)
just compensation. Deviation, however, must be
grounded on a reasoned explanation based on the Who Are Entitled to Just Compensation:
evidence on record. Absent this, the deviation will be (a) Owner of the property
considered as grave abuse of discretion. (Land Bank (b) All owning, occupying or claiming to the
of the Philippines v. Franco, G.R. No. 203242, March property who have lawful interest in the
12, 2019)
property to be condemned (e.g. mortgagee,
While it is true that "the determination of the amount lessee, vendee under an executory contract).
of just compensation is within the court's discretion, it (Vda. De Ouano v. Republic, G.R. No.
should not be done arbitrarily or capriciously. Rather, 168770, Feb. 9, 2011)
it must always be based on all established rules,
upon correct legal principles and competent Payment for Consequential Damages
evidence." The court cannot base its judgment on No actual taking of the building is necessary to grant
mere speculations and surmises. (Republic v. consequential damages. Consequential damages
Spouses Salvador, G.R. No. 205428, June 7, 2017) are awarded if as a result of the expropriation, the
remaining property of the owner suffers from an
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impairment or decrease in value. (Republic v. BPI, property or the filing of the complaint, whichever
G.R. No. 203039, Sept. 11, 2013) came first. (ROC, Rule 67, § 4)
To determine just compensation, the trial court Just Compensation in Agrarian Cases
should first ascertain the market value of the Under CARL, the final decision on the value of just
property, to which should be added the consequential compensation lies solely on the Special Agrarian
damages after deducting therefrom the Court. There is no need to exhaust administrative
consequential benefits which may arise from the remedies through the various Adjudication Board of
expropriation. If the consequential benefits exceed the Department of Agrarian Reform before a party
the consequential damages, these items should be can go to the Special Agrarian Court for
disregarded altogether as the basic value of the determination of just compensation. (Landbank of the
property should be paid in every case. (Republic v. Philippines v Manzano, GR 188243, January 24,
BPI, G.R. No. 203039, Sept. 11, 2013, citing B.H. 2018)
Berkenkotter & Co. v. Court of Appeals, G.R. No.
89980, Dec. 14, 1992) The Special Agrarian Court is “required to consider”
the facts in CARL and the formula in the
Consequential damages are only awarded if as a administrative issuances. Consideration of these
result of the expropriation, the remaining property of guidelines, however, does not mean that these are
the owner suffers from an impairment or decrease in the sole bases for arriving at the just compensation.
value. In this case, no evidence was submitted to The courts are not precluded from considering other
prove any impairment or decrease in value of the factors. A’s argument on mandatory adherence to the
subject property as a result of the expropriation. More provisions of law and the administrative orders must
significantly, given that the payment of capital gains fail. (Landbank of the Philippines v Manzano, GR
tax on the transfer of the subject property has no 188243, January 24, 2018)
effect on the increase or decrease in value of the
remaining property, it can hardly be considered as Settled is the rule that when the agrarian reform
consequential damages that may be awarded to process is still incomplete, such as in this case where
respondents. (Republic v. Spouses Salvador, G.R. the just compensation due the landowner has yet to
No. 205428, June 7, 2017) be settled, just compensation should be determined
and the process be concluded under RA 6657. (Land
Likewise, the award of consequential damages is Bank of the Philippines, v. Heirs of Jesus Alsua, G.R.
improper because only a portion, and not the entire No. 211351, Feb. 4, 2015)
area, of the respondents' property was expropriated.
It must be proven by sufficient evidence that the In determining just compensation, the cost of
remaining portion suffers from an impairment or acquisition of the land, the current value of like
decrease in value. Only 218 sqm. out of the 380 sqm. properties, its nature, actual use and income, the
was expropriated. In order for there to be an award sworn valuation by the owner, the tax declarations,
of consequential damages, there must be evidence and the assessment made by government
supporting that the remaining 162 sqm. suffered from assessors, shall be considered. The social and
any impairment or decrease in value. (Republic v. economic benefits contributed by the farmers and the
San Miguel Vda. De Ramos, G.R. No. 211576, Feb. farm workers and by government to the property as
19, 2020) well as the non-payment of taxes or loans secured
from any government financing institution on the said
Reckoning period land shall be considered as additional factors to
The value of the property must be determined either determine its valuation. (RA 6657, sec. 17, otherwise
as of the date of the taking of the property or the filing known as Comprehensive Agrarian Reform Law of
of the complaint, "whichever came first." (Eslaban v. 1988)
De Onorio, G.R. No. 146062, June 18, 2001)
It is not adequate to merely use the formula in an
If the objections to and the defenses against the right administrative order of the Department of Agrarian
of the plaintiff to expropriate the property are Reform or rely on the determination of a land
overruled, or when no party appears to defend as assessor to show a final determination of the amount
required by this Rule, the court may issue an order of of just compensation. Courts are still tasked with
expropriation declaring that the plaintiff has a lawful considering all factors present, which may be stated
right to take the property sought to be expropriated, in formulas provided by administrative agencies.
for the public use or purpose described in the When acting within the bounds of the Comprehensive
complaint, upon the payment of just compensation to Agrarian Reform Law, special agrarian courts "are
be determined as of the date of the taking of the not strictly bound to apply the DAR’s formula to its
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minute detail, particularly when faced with situations deposited with the court. (Landbank of the
that do not warrant the formula's strict application; Philippines v Manzano, GR 188243, January 24,
they may, in the exercise of their discretion, relax the 2018)
formula's application to fit the factual situations
before them. The Comprehensive Agrarian Reform The foregoing clearly dictates that valuation of the
Law merely provides for guideposts to ascertain the land for purposes of determining just compensation
value of properties. Courts are not precluded from should not include the inflation rate of the Philippine
considering other factors that may affect the value of Peso because the delay in payment of the price of
property. (Land Bank of the Philippines v. Franco, expropriated land is sufficiently recompensed
G.R. No. 203242, March 12, 2019) through payment of interest on the market value of
the land as of the time of taking from the landowner.
Effect of Non-Payment of Just Compensation (NAPOCOR v. Manalastas, G.R. No. 196140, Jan.
Non-payment of just compensation does not entitle 27, 2016)
the private landowners to recover possession of their
expropriated lot. But, the prolonged occupation of the Under Article III, Section 9 of the 1987 Constitution,
government without instituting expropriation “private property shall not be taken for public use
proceedings will entitle the landowner to damages. without just compensation.” The SC notes that for
Such pecuniary loss entitles him to adequate almost 20 years, the DPWH had been enjoying the
compensation in the form of actual or compensatory use of X’s property without paying the full amount of
damages, which in this case should be the legal just compensation under the Compromise
interest (6%) on the value of the land at the time of Agreement. In keeping with substantial justice, the
taking, from said point up to full payment. (City of Court imposes the payment of legal interest on the
Iloilo v. Besana, G. R. No. 168967, Feb. 12, 2010) remaining just compensation due to X. (Republic of
the Philippines v. Fetalvero, G.R. No. 198008,
While the prevailing doctrine is that "the non-payment February 4, 2019.)
of just compensation does not entitle the private
landowner to recover possession of the expropriated The concept of delay does not pertain to the length
lots, however, in cases where the government failed of time that elapsed from the filing of the Complaint
to pay just compensation within five (5) years from until its resolution. Rather, it refers to the fact that
the finality of the judgment in the expropriation property was taken for public use before
proceedings, the owners concerned shall have the compensation was deposited with the court having
right to recover possession of their property. This is jurisdiction over the case. There will be delay if the
in consonance with the principle that "the property was taken for public use before
government cannot keep the property and dishonor compensation was paid or deposited with the court.
the judgment." To be sure, the five-year period Hence, between the taking of the property and the
limitation will encourage the government to pay just actual payment, legal interests accrue in order to
compensation punctually. This is in keeping with place the owners in a position as good as the position
justice and equity. After all, it is the duty of the they were in before the taking occurred. (National
government, whenever it takes property from private Power Corporation v. Heirs of Gregorio Ramoran,
persons against their will, to facilitate the payment of G.R. No. 193455, June 13, 2016)
just compensation. We defined just compensation as
not only the correct determination of the amount to The respondents are not entitled to legal interest on
be paid to the property owner but also the payment the amount of just compensation. The rationale for
of the property within a reasonable time. Without imposing interest on just compensation is to
prompt payment, compensation cannot be compensate the property owners for the income that
considered "just." (Republic v. Lim, G.R. No. 161656, they would have made if they had been properly
June 29, 2005) compensated. In the instant case, however, the
respondents received the amount of P457,800.00
Effect of Delay in Payment of Just before petitioner Republic took possession of the
Compensation subject property. Otherwise stated, there was full and
Imposition of legal interest per annum on the just prompt payment of just compensation at the time of
compensation due to the landowner is in the nature taking. (Republic v. San Miguel Vda. De Ramos, G.R.
of damages for delay of payment. If property is taken No. 211576, Feb.19, 2020)
for public use before compensation is deposited with
the court having jurisdiction over the case, the final
compensation must include interests on its just value
to be computed from the time the property is taken to
the time when compensation is actually paid or
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3. EXPROPRIATION BY LOCAL The City of Manila failed to comply with any of the
GOVERNMENT UNITS aforesaid requirements. The exercise of eminent
domain cannot override the guarantees of due
Requisites Before an LGU Can Exercise the Power process conferred upon the property owners. (Heirs
of Eminent Domain (OPJO): of JBL Reyes v. City of Manila, G.R. Nos. 132431 &
1. An Ordinance is enacted by the local legislative 137146, Feb. 13, 2004)
council authorizing the local chief executive, in
behalf of the LGU, to exercise the power of JUDICIAL REVIEW
eminent domain or pursue expropriation
Matters That May be Reviewed by the Courts: (ANP)
proceedings over a particular private property.
(a) The Adequacy of the compensation
2. The power of eminent domain is exercised for
(b) The Necessity of the taking
Public use, purpose or welfare, or for the benefit
(c) The “Public Use” character of the taking
of the poor and the landless.
3. There is payment of Just compensation, as
If the expropriation is pursuant to a specific law
required under Section 9, Article III of the passed by Congress, the courts cannot question the
Constitution, and other pertinent laws. public use character of the taking. Any law fixing the
4. A valid and definite Offer has been previously amount of just compensation is not binding on the
made to the owner of the property sought to be courts because it is a question of fact which is always
expropriated, but said offer was not accepted. subject to review by the courts. (Bernas, The 1987
(Local Government Code, sec. 19) Constitution: A Commentary, 2009)
Immediate Entry The statements made in tax documents by the

In the case of LGUs, entry into the property may be assessor may serve as one of the factors to be
made before payment provided that a deposit is considered but they cannot exclude or prevail over a
made in an amount set by the court (15%). The local court determination made after expert
government unit may immediately take possession of commissioners have examined the property and all
the property upon the filing of the expropriation pertinent circumstances are taken into account and
proceedings and upon making a deposit with the after the parties have had the opportunity to fully
proper court of at least fifteen percent (15%) of the plead their cases before a competent and unbiased
fair market value of the property based on the current tribunal. (Manotok v. NHA, G.R. No. L-55166, May
tax declaration of the property to be expropriated. 21, 1987)
(LOCAL GOVERNMENT CODE, sec. 19)
A previous decision is no obstacle to the legislative
Limitations on the Exercise of the Eminent arm of the Government in thereafter (over two years
Domain Powers of LGUs later in this case) making its own independent
Order of priority in acquiring land for socialized assessment of the circumstances then prevailing as
housing: Private lands rank last in the order of priority to the propriety of undertaking the expropriation of
for purposes of socialized housing. the properties in question and thereafter by enacting
the corresponding legislation as it did in this case.
RA No. 7279 (Urban Development & Housing Act) (Republic v. De Knecht, G.R. No. 87335, Feb. 12,
lays down the mandatory priority in the acquisition of 1990)
lands:
(a) Those owned by the government EMINENT DOMAIN V. POLICE POWER
(b) Alienable lands of the public domain
(c) Unregistered, idle, or abandoned lands The two actions are radically different in nature and
(d) Those within declared Areas of Priority purpose. The action to recover just compensation is
Development, Zonal Improvement, Slum based on the Constitution while the action for
damages is predicated on statutory enactments.
Improvement, or Resettlement Program sites
Indeed, the former arises from the exercise by the
Bagong Lipunan Improvement Sites and State of its power of eminent domain against private
Services (BLISS) which have not been property for public use, but the latter emanates from
acquired the transgression of a right.
(e) Privately owned lands (last in the priority)
(f) Other modes of acquisition must first be The fact that the owner rather than the expropriator
exhausted. brings the former does not change the essential
nature of the suit as an inverse condemnation, for the
suit is not based on tort, but on the constitutional
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prohibition against the taking of property without just the government or in the private sector. (Bernas, The
compensation. It would very well be contrary to the 1987 Constitution: A Commentary, 2009)
clear language of the Constitution to bar the recovery
of just compensation for private property taken for a Does Not Include the Right to Compel Others
public use solely on the basis of statutory The provision guarantees the right to form
prescription. (NAPOCOR v. Heirs of Mabangkit associations. It does not include the right to compel
Sangkay, G.R. No. 165828, Aug. 24, 2011) others to form an association. (Bernas, The 1987
Constitution: A Commentary, 2009)
Article III, Section 9 of the Constitution provides a
substantive guarantee that private property that is Article III, Section 8 guarantees the freedom to
taken by the state for public use should be paid for associate as well as the freedom not to associate.
with just compensation. If the state does not agree The provision is not a basis to compel others to form
with the property owner on a price, the state, through or join an association. (Acosta v. Ochoa, G.R. Nos.
the competent government agency, should file the 211559, 211567, 212570 & 215634, Oct. 15, 2019)
proper expropriation action under Rule 67 of the
Revised Rules of Court. In case of a taking without Aspect of Right of Liberty
the proper expropriation action filed, the property The right to form associations shall not be impaired
owner may file its own action to question the propriety except through a valid exercise of police power. It is
of the taking or to compel the payment of just therefore an aspect of the general right of liberty.
compensation. Among these inverse condemnation
actions is a complaint for payment of just It is also an aspect of the freedom of contract.
compensation and damages. When an inverse (Bernas, The 1987 Philippine Constitution: A
condemnation is filed, the provisions for the Comprehensive Reviewer, 2011)
appointment of commissioners under Rule 32 — not
Sections 5, 6, 7, or 8 of Rule 67 of the Rules of Court Aspect of Freedom of Expression and of Belief
— will be followed. (NPC v. Sps. Asoque, G.R. No. Insofar as the associations may have for their object
172507, Sept. 14, 2016) the advancement of beliefs and ideas, the freedom of
association is an aspect of the freedom of speech
MISCELLANEOUS APPLICATION and expression, subject to the same limitation.
(Bernas, The 1987 Philippine Constitution: A
Comprehensive Reviewer, 2011)
General Rule
The value must be that as of the time of the filing of
Hierarchy of Civil Liberties
the complaint for expropriation.
The Constitution recognizes a hierarchy of values.
Hence, the degree of protection an association
Exception
enjoys depends on the position which the
When the filing of the case comes later than the time
association's objective or activity occupies in the
of taking and meanwhile the value of the property has
constitutional hierarchy of values. (Bernas, The 1987
increased because of the use to which the
Philippine Constitution: A Comprehensive Reviewer,
expropriator has put it, the value is that of the time of
2011)
the earlier taking.
Not Absolutely Guaranteed to Top-level and
Exceptions to the Exception Middle Managers
If the value increased independently of what the The [Constitutional] Commission intended the
expropriator did, then the value is that of the FILING absolute right to organize of government workers,
of the case. supervisory employees, and security guards to be
Even before compensation is given, entry may be constitutionally guaranteed. By implication, no similar
made upon the property condemned by depositing absolute constitutional right to organize for labor
the money or an equivalent form of payment such as purposes should be deemed to have been granted to
government bonds. top-level and middle managers. As to them the right
of self-organization may be regulated and even
J. RIGHT TO ASSOCIATION abridged conformably to Art. III, § 8.
Scope If these managerial employees would belong to or be

Persons, both in the public and private sectors, may affiliated with a Union, the latter might not be assured
form unions, associations, and societies. The right is of their loyalty to the Union in view of evident conflict
recognized as belonging to the people whether of interests. The Union can also become company-
employed or unemployed, and whether employed in dominated with the presence of managerial
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employees in Union membership (United Pepsi-Cola Automatic or Compulsory Membership

Supervisory Union (UPSU) v. Laguesma, G.R. No. Compulsory membership is an annotation on a lot
122226, March 25, 1998) owner's certificate of title. Hence, petitioners were
bound by this annotation. The constitutional
IRR of RA 10951; Sports Shooter Applicant guarantee of freedom of association can only be
Section 4.10 of the Rules Implementing RA 10951 invoked against the State, and does not apply to
does not compel a sports shooter applicant to join a private transactions, like a sale, where a condition
gun club or sports shooting association; it only was validly imposed by the vendor. Automatic
provides that they must submit a certification from the membership in a homeowners' association does not
president of a recognized gun club or sports shooting violate lot owners' right to freedom of association
association that he or she is joining the competition. because they were not forced to buy their lots from
Thus, Section 4.10 does not violate Article III, Section the developer. (Cezar Yatco Real Estate Services,
8 of the Constitution. (Acosta v. Ochoa, G.R. Nos. Inc. v. Bel-Air Village Association, Inc., G.R. No.
211559, 211567, 212570 & 215634, Oct. 15, 2019) 211780, Nov. 21, 2018.)
Registration Not a Limitation to the Right A closed shop agreement is legal since it is a valid
The registration of labor unions is not a limitation to form of union security. (Villar v. Inciong, G.R. No. L-
the right of assembly or association, which may be 50283-84, April 20, 1983).
exercised with or without said registration. The latter
is merely a condition sine qua non for the acquisition Organization of the Integrated Bar of the
of legal personality by labor organizations, Philippines Legally Unobjectionable
associations or unions and the possession of the Compulsory membership in the Integrated Bar of the
"rights and privileges granted by law to legitimate Philippines does not violate the freedom of
labor organizations". Such requirement is a valid association. [It] has become an imperative means to
exercise of the police power, because the activities in raise the standards of the legal profession, improve
which labor organizations, associations and union of the administration of justice, and enable the Bar to
workers are engaged affect public interest, which discharge its public responsibility fully and effectively.
should be protected. (Philippine Assoc. of Free Labor (In Re: Edillion, AC-1928, December 19, 1980)
Unions v. Sec. of Labor, G.R. No. L-22228, Feb. 27,
1969) Right to Strike of Employees in the Public
Sector
State Not Obligated to Accord Official Status To grant employees of the public sector the right to
The right to organize does not equate to the state’s strike, there must be a clear and direct legislative
obligation to accord official status to every single authority therefor. In the absence of any express
association that comes into existence. It is one thing legislation allowing government employees to strike,
for individuals to galvanize themselves as a recognizing their right to do so, or regulating the
collective, but it is another for the group that they exercise of the right, employees in the public service
formed to not only be formally recognized by the may not engage in strikes, walkouts and temporary
state, but also bedecked with all the benefits and work stoppages like workers in the private sector.
privileges that are attendant to official status. In (Bangalisan v. CA, G.R. No. 124678, July 31, 1997).
pursuit of public interest, the state can set reasonable
regulations — procedural, formal, and substantive — In cases of CSC employees (e.g., SSS, public
with which organizations seeking state imprimatur school teachers)
must comply. (Quezon City PTCA Federation, Inc. vs Government employees may, through their unions or
DepEd, G.R. No. 188720, February 23, 2016) associations, either petition the Congress for the
betterment of the terms and conditions of
B.P. 222 employment which are within the ambit of legislation
B.P. 222, which prevents political parties and groups or negotiate with the appropriate government
from supporting directly or indirectly any barangay agencies for the improvement of those which are not
candidate’s campaign for election does not violate fixed by law. If there be any unresolved grievances,
the right to form associations. [T]he ban is narrow, the dispute may be referred to the Public Sector
not total, and has the purpose of preventing the clear Labor - Management Council for appropriate action.
and imminent danger of the debasement of the But employees in the civil service may not resort to
electoral process. It operates only on concerted or strikes, walk-outs and other temporary work
group action of political parties. (Occeña v. stoppages, like workers in the private sector, to
COMELEC, G.R. No. L-60258, 1984) pressure the Government to accede to their
demands. (Social Security System Employees
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Association (SSEA) v. Court of Appeals, G.R. No. (b) If it imposes new conditions or dispenses
85279, July 28, 1989) with those expressed
(c) If it authorizes for its satisfaction something
Other Constitutional Provisions Related to the different from that provided in its terms.
Right to Association: (Bernas, The 1987 Philippine Constitution: A
The State shall guarantee the rights of all workers to
Comprehensive Reviewer, 2011) (Clemens
self-organization, collective bargaining and
negotiations, and peaceful concerted activities, v. Nolting, 42 Phil. 702, Jan. 24, 1922)
including the right to strike in accordance with law.
(Phil Const., art. III, § 3, par. 2) L. ADEQUATE LEGAL ASSISTANCE
AND FREE ACCESS TO COURTS
The right to self-organization shall not be denied to
government employees. (Phil Const., art. IX-B, § 2, Free access to the courts and quasi-judicial bodies
par. 5) and adequate legal assistance shall not be denied to
any person by reason of poverty. (PHIL. CONST., art.
K. NON-IMPAIRMENT OF CONTRACTS 3, § 11)
No law impairing the obligation of contracts shall be The new Constitution has expanded the right so that
passed. (PHIL. CONST., art. 3, § 10) in addition to giving free access to courts it now
guarantees free access also to "quasi judicial bodies"
The non-impairment clause is a limit on the exercise and to "adequate legal assistance" as well. (Bernas,
of legislative power and not of judicial or quasi- The 1987 Philippine Constitution: A Comprehensive
judicial power. The SEC, through the hearing panel Reviewer, 2011)
that heard the petition for approval of the
Rehabilitation Plan, was acting as a quasi-judicial Those protected include low paid employees,
body and thus, its order approving the plan cannot domestic servants and laborers. (Cabangis v.
constitute an impairment of the right and the freedom Almeda Lopez, G.R. No. 47685, September 20,
to contract. (BPI v. SEC, G.R. No. 164641, 2007) 1940)
Not absolute ‘Pauper’ vs. ‘Indigent’

Jurisprudence has established that a valid exercise They need not be persons so poor that they must be
of police power is superior to the obligation of suppored at public expense. "It suffices that plaintiff
contracts. (Bernas, The 1987 Philippine Constitution: is indigent... And the difference between 'paupers'
A Comprehensive Reviewer, 2011) and 'indigent' persons is that the latter are 'persons
who have no property or sources of income sufficient
Settled is the rule that the non-impairment clause of for their support aside from their own labor though
the Constitution must yield to the loftier purposes self-supporting when able to work and in
targeted by the Government. The right granted by employment.'" (Acar v. Rosal, G.R. No. L-21707,
this provision must submit to the demands and March 18,1967)
necessities of the State's power of regulation. Such
authority to regulate businesses extends to the Indigent Party
banking industry which, as this Court has time and A party may be authorized to litigate his action, claim
again emphasized, is undeniably imbued with public or defense as an indigent if the court, upon an ex
interest. (Goldenway v. Merchandising Corporation parte application and hearing, is satisfied that the
v. Equitable PCI Bank, G.R. No. 195540, 2013) party is one who has no money or property sufficient
and available for food, shelter and basic necessities
Non-Impairment Clause Prevails: for himself and his family.
(a) Against the removal of tax exemptions,
where the consideration for the contract is Such authority shall include an exemption from
the tax exemption itself payment of docket and other lawful fees, and of
transcripts of stenographic notes which the court may
(b) Regulation on loans
order to be furnished him. The amount of the docket
and other lawful fees which the indigent was
What Constitutes Impairment exempted from paying shall be a lien on any
(a) If it changes the terms and conditions of a judgment rendered in the case favorable to the
legal contract either as to the time or mode of indigent, unless the court otherwise provides. (ROC,
performance. Rule 3, § 21)
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Indigent Litigants Exempt From Payment of the Court clarified that sheriff’s expenses are not
Legal Fees considered as legal fees. (In Re Letter of Chief Public
Indigent litigants Attorney Acosta, AM No. 11-10-03-O, July 30, 2013)
whose gross income and that of their immediate
family do not exceed an amount double the monthly M. RIGHTS UNDER CUSTODIAL
minimum wage of an employee; and INVESTIGATION
who do not own real property with a fair market value
as stated in the current tax declaration of more than (1) Any person under investigation for the
three hundred thousand (P300,000.00) pesos commission of an offense shall have the right to be
shall be exempt from the payment of legal fees. informed of his right to remain silent and to have
competent and independent counsel preferably of his
The legal fees shall be a lien on any judgment own choice. If the person cannot afford the services
rendered in the case favorable to the indigent litigant of counsel, he must be provided with one. These
unless the court otherwise provides. rights cannot be waived except in writing and in the
presence of counsel.
To be entitled to the exemption herein provided, the
litigant shall execute an affidavit that he and his (2) No torture, force, violence, threat, intimidation, or
immediate family do not earn a gross income any other means which vitiate the free will shall be
abovementioned, and they do not own any real used against him. Secret detention places, solitary,
property with the fair value aforementioned, incommunicado, or other similar forms of detention
supported by an affidavit of a disinterested person are prohibited.
attesting to the truth of the litigant’s affidavit. The
current tax declaration, if any, shall be attached to the (3) Any confession or admission obtained in violation
litigant’s affidavit. (ROC, Rule 141, § 19) of this or Section 17 hereof shall be inadmissible in
evidence against him.
Matter of Right
If the applicant for exemption meets the salary and (4) The law shall provide for penal and civil sanctions
property requirements under Section 19 of Rule 141, for violations of this section as well as compensation
then the grant of the application is mandatory and is to and rehabilitation of victims of torture or similar
a matter of right. (Algura v. The Local Government practices, and their families. (PHIL. CONST., art. 3, §
Unit of the City of Naga G.R. No. 150135, Oct. 30, 12)
2006)
Miranda Rights Under Sec. 12(1)
Matter of Discretion 1. The right to remain silent.
On the other hand, when the application does not 2. The right to have competent and independent
satisfy one or both requirements, then the application counsel preferably of his own choice.
should not be denied outright; instead, the court 3. The right to be informed of such rights. (People
should apply the "indigency test" under Section 21 of v. Rapeza, G.R. No. 169431, April 3, 2007)
Rule 3 – that the applicant has no money or property
sufficient and available for food, shelter and basic 1. Meaning of custodial investigation
necessities for himself and his family – and use its
sound discretion in determining the merits of the Custodial investigation involves any questioning
prayer for exemption. (Algura v. The Local initiated by law enforcement officers after a person
Government Unit of the City of Naga G.R. No. has been taken into custody or otherwise deprived
150135, Oct. 30, 2006)
of his freedom of action in any significant way.
Sheriff’s Expenses
It is only after the investigation ceases to be a
Sheriff’s expenses are not exacted for any service general inquiry into an unsolved crime and begins
rendered by the court; they are the amount deposited
to focus on a particular suspect, the suspect is
to the Clerk of Court upon filing of the complaint to
taken into custody, and the police carries out a
defray the actual travel expenses of the sheriff,
process server or other court-authorized persons in process of interrogations that lends itself to
the service of summons, subpoena and other court eliciting incriminating statements that the rule
processes that would be issued relative to the trial of begins to operate. (People v. Marra, G.R. No.
the case. Thus, in In Re: Exemption of Cooperatives 108494, Sept. 20, 1994)
from Payment of Court and Sheriff’s Fees Payable to
the Government in Actions Brought Under R.A. 6938,
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The invocation of these rights applies during Investigations can be conducted by:
custodial investigation. (People v. Chavez, G.R. No. (a) Police authorities, including:
207950, Sept. 22, 2014) 1. Municipal police
2. Philippine Constabulary
Applies to Invitation, “Request for Appearance” (b) NBI officers
& Voluntary Surrender (c) CAFGU members
Republic Act No. 7438 expanded the definition of
(d) Barangay Captains (People v. Ochate, G.R.
custodial investigation to “include the practice of
issuing an ‘invitation’ to a person who is investigated No. 127154, July 30, 2002, Bernas, The
in connection with an offense he is suspected to have 1987 Constitution of the Republic of the
committed, without prejudice to the liability of the Philippines, 2009)
‘inviting’ officer for any violation of law. This means
that even those who voluntarily surrendered before a Instances when the Miranda Rights do not
police officer must be apprised of their Miranda apply:
rights. For one, the same pressures of a custodial (a) The rights are not available before
setting exist in this scenario. (People v. Bitancor, GR. government investigators become involved.
No. 207950; Sept. 22, 2014) Thus, admissions made in an administrative
investigation conducted by officials of the
The circumstances surrounding the appearance of
Philippine Airlines do not come under
the accused in the police station falls within the
definition of custodial investigation. He was identified Section 12. (People v. Ayson, G.R. No.
as a suspect and when he was given a “request for 85215, July 7, 1989)
appearance”, he was already singled out as the (b) The rights are not available when the
probable culprit. When he appeared before the police confession or admission is made to a private
station, the pressure of custodial setting was present. individual. (People v. Tawat, G.R. No. L-
Furthermore, based on his testimony, the police was 62871, May 25, 1984)
inside the station during the confrontation. A "request (c) The rights do not apply to a person
for appearance" issued by law enforcers to a person undergoing audit because an audit examiner
identified as a suspect is akin to an "invitation." Thus, is not a law enforcement officer. (Navallo v.
he is covered by the rights of an accused while under
Sandiganbayan, G.R. No. 97214, July 16,
custodial investigation. Any admission obtained from
the "request for appearance" without the assistance 1994)
of counsel is inadmissible in evidence. (Lopez v. (d) The rights do not apply to a verbal admission
People, G.R. No. 212186, June 29, 2016) made to a radio announcer who was not part
of the investigation. (People v. Ordono, G.R.
Does Not Apply to Police Lineups No. 132154, June 29, 2000)
As a rule, a police lineup is not part of the custodial (e) The rights do not apply to an admission made
investigation. The right to be assisted by counsel to a mayor who is approached not as mayor
attaches only during custodial investigation and but as confidante. (People v. Zuela, G.R. No.
cannot be claimed by the accused during 112177, Jan. 28, 2000)
identification in a police line-up because it is not part
(f) The rights do not apply to an interview
of the custodial investigation process. This is
because during a police line-up, the process has not recorded on video in the presence of
yet shifted from the investigatory to the accusatory newsmen, but the Supreme Court warned
and it is usually the witness or the complainant who that trial courts should admit similar
is interrogated and who gives a statement in the confessions with extreme caution. (People v.
course of the line-up. (People v. Lara, G.R. No. Endino, G.R. No. 133026, Feb. 20, 2001)
199877, Aug. 13, 2012) (g) The rights do not apply to persons who
voluntarily surrender, where no written
However, the moment there is a move or even an confession was sought to be presented in
urge of said investigators to elicit admissions or evidence as a result of a formal custodial
confessions or even plain information which may
investigation. (People v. Taylaran, G.R. No.
appear innocent or innocuous at the time, from said
suspect, he should then and there be assisted by L-49149, Oct. 23, 1981)
counsel, unless he waives the right, but the waiver (h) The rights do not apply to spontaneous
shall be made in writing and in the presence of statements, not elicited through questioning
counsel. (Gamboa v. Judge Cruz, G.R. No. L-56291 by the authorities, but given in an ordinary
June 27, 1988) manner whereby the accused orally admits
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having committed the crime. (People v. (b) Preliminary examination and investigation
Baloloy, G.R. No. 140740, April 12, 2002) after charges are filed
(i) Person in a police line-up not entitled to (c) Period of trial
counsel. (Gamboa v. Judge Cruz, G.R. No.
L-56291 June 27, 1988)
(j) Administrative proceedings. (Cudia v. 2. Rights of a person under custodial
Superintendent of the PMA, G.R. No. investigation
211362, Feb. 24, 2015) The Miranda doctrine requires that: (S3A)
(k) Signing of arrest reports and booking sheets. 1. Any person under custodial investigation has the
It is not an extra-judicial statement and right to remain Silent;
cannot be the basis of a judgment of 2. Anything he says can and will be used Against
conviction. The Booking Sheet is merely a him in a court of law;
statement of the accused's being booked and 3. He has the right to talk to an Attorney before
of the date which accompanies the fact of an being questioned and to have his counsel present
arrest. (People v. Bandin, G.R. No. 104494, when being questioned; and
Sept. 10, 1993) 4. If he cannot Afford an attorney, one will be
(l) Signing of marked money. A person’s right provided before any questioning if he so desires.
against self-incrimination was not violated for (People v. Cabanada, G.R. No. 221424, July 19,
his signing and possession of the marked 2017)
bills did not constitute a crime; (People v.
Linsangan, G.R. No. 88589, G.R. No. 88589 RIGHT TO REMAIN SILENT
April 16, 199) If the individual is alone and indicates in any manner
that he does not wish to be interrogated, the police
may not question him. The mere fact that he may
Summary of When Rights are Available have answered some questions or volunteered some
AVAILABLE NOT AVAILABLE statements on his own does not deprive him of the
1. After a person has 1. During a police right to refrain from answering any further inquiries
been taken into line-up [Exception: until he has consulted with an attorney and thereafter
custody Once there is a consents to be questioned. (Miranda v. Arizona, 384
2. When a person is move among the U.S. 436, Jun. 13, 1966)
deprived of his investigators to
freedom of action elicit admissions or Silence Not an Implied Admission of Guilt
in any significant confessions from Clearly, when appellant remained silent when
way the suspect] confronted by the accusation of "AAA" at the police
3. When a person is 2. During station, he was exercising his basic and fundamental
issued an administrative right to remain silent. At that stage, his silence should
invitation for an investigations not be taken against him. Thus, it was error on the
investigation in 3. Confessions made part of the trial court to state that appellant’s silence
connection with an by an accused at should be deemed as implied admission of guilt.
offense he is the time he (People v. Guillen, G.R. No. 191756, Nov. 25, 2013)
suspected to have voluntarily
committed surrendered to the A person under investigation has the right to refuse
4. When a person police or outside to answer any question. His silence, moreover, may
voluntarily the context of a not be used against him. (Bernas, The 1987
surrenders to the formal investigation Constitution of the Republic of the Philippines, 2009)
police 4. Statements made
The investigation is to a private person Must Include an Explanation that Anything Said
being conducted by 5. Signing of arrest Can and Will be Used Against Him
the government with reports and The warning of the right to remain silent must be
respect to a criminal booking sheets accompanied by the explanation that anything said
offense (police, DOJ, Signing and can and will be used against the individual in court.
NBI) possession of marked This warning is needed in order to make him aware
money not only of the privilege, but also of the
consequences of forgoing it. (Miranda v. Arizona, 384
When Rights End U.S. 436, June 13, 1966)
The Criminal Process includes:
(a) Investigation prior to the filing of charges
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RIGHT TO COMPETENT AND INDEPENDENT

COUNSEL Counsel of Choice Not Exclusive
The right to counsel does not mean that the accused
must personally hire his own counsel. The
Purpose constitutional requirement is satisfied when a counsel
The right to counsel at all times is intended to is:
preclude the slightest coercion as would lead the 1. Engaged by anyone acting on behalf of the
accused to admit something false. The lawyer,
person under investigation; or
however, should never prevent an accused from
freely and voluntarily telling the truth. (People v. 2. Appointed by the court upon petition of the said
Mojello, G.R. No. 145566, March 9, 2004) person or by someone on his behalf. (People v.
Espiritu, G.R. No. 128287, Feb. 2, 1999)
Being independent refers to those who do not have
an adverse interest to that of the accused. (Bernas, The phrase "preferably of his own choice" does not
The 1987 Philippine Constitution: A Comprehensive convey the message that the choice of a lawyer by a
Reviewer, 2011) person under investigation is exclusive as to preclude
other equally competent and independent attorneys
Moreover, being independent does not mean that the from handling the defense; otherwise the tempo of
choice of a lawyer by a person under investigation is custodial investigation will be solely in the hands of
exclusive as to preclude other equally competent and the accused who can impede, nay, obstruct the
independent attorneys from handling the defense. progress of the interrogation by simply selecting a
(People v. Mojello, G.R. No. 145566, March 9, 2004) lawyer who, for one reason or another, is not
available to protect his interest. (People v. Mojello,
Non-Independent Counsel G.R. No. 145566, March 9, 2004)
The Constitution further requires that the counsel be
independent; thus, he cannot be: The Miranda rights or the Section 12(1) rights were
(a) A special counsel conceived for the first of these three phases, that is,
(b) Public or private prosecutor when the inquiry is under the control of police
(c) Counsel of the police officers. It is in this situation that the psychological if
(d) A municipal attorney whose interest is not physical atmosphere of custodial investigations,
in the absence of proper safeguards, is inherently
admittedly adverse to that of the accused
coercive. Outside of this situation, Section 12(1) no
(e) Barangay captain longer applies and Sections 14 and 17 come into play
(f) Lawyer applying for a position in the NBI instead. (Bernas, The 1987 Constitution of the
where it was NBI conducting the Republic of the Philippines, 2009)
investigation
(People v. Reyes, G.R. No. 178300, March 17, RIGHT TO BE INFORMED OF HIS RIGHTS
2009; People v. Tomaquin, G.R. No. 133188, The right to be informed of his rights is more than the
July 23, 2004; People v. Januario, G.R. No. routine-reading out of the rights. It implies a
98252, Feb. 7, 1997) correlative obligation on the part of the police
investigator to explain, and contemplates an effective
Competent Counsel: Effective and Vigilant communication that results in understanding what is
A competent counsel is an effective and vigilant conveyed. Short of this, there is a denial of the right,
counsel. An "effective and vigilant counsel" as it cannot be said that the person has been
necessarily and logically requires that the lawyer be informed of his right. (Bernas, The 1987 Constitution
present and able to advise and assist his client from of the Republic of the Philippines, 2009)
the time the confessant answers the first question
asked by the investigating officer until the signing of Prior to any questioning, the person must be warned
the extrajudicial confession. (People v. Tomaquin, that he has a right to remain silent, that any statement
G.R. No. 133188, July 23, 2004) he does make may be used as evidence against him,
and that he has a right to the presence of an attorney,
Mandatory; Must be Provided if Person Cannot either retained or appointed. The defendant may
Afford waive effectuation of these rights, provided the
The right to counsel is mandatory. Thus, if the person waiver is made voluntarily, knowingly and
under custodial investigation cannot afford the intelligently. If, however, he indicates in any manner
services of a competent and independent counsel, he and at any stage of the process that he wishes to
must be provided with one. (PHIL. CONST., art. III, § consult with an attorney before speaking, there can
12[1]) be no questioning. (Miranda v Arizona, 384 U.S. 436,
Jun. 13, 1966)
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3. Requisites of a valid waiver 1. The accused willingly and voluntarily submitted

The rights of persons under custodial investigation his confession; and
cannot be waived except: 2. Knowingly and deliberately manifested that he
1. In writing; and was not interested in having a lawyer assist him
2. In the presence of counsel. (PHIL. CONST., art. during the taking of that confession. (People v.
III, § 12[1]) Jara, G.R. No. L-61356-57, Sept. 30, 1986)
R.A. 7438 Extrajudicial Confession (Sec. 2) A confession is not rendered involuntary merely
Any extrajudicial confession made by a person because defendant was told that he should tell the
arrested, detained or under custodial investigation:
truth or that it would be better for him to tell the
1. Shall be in writing; and
truth. (People v. Calvo, G.R. No. 91694, G.R. No.
2. Signed by such person in the presence of his
91694 March 14, 1997)
counsel or in the latter's absence:
(a) Upon a valid waiver, and Effect of Absence of a Valid Waiver: Confession
(b) In the presence of any of the following as Inadmissible in Evidence
chosen by him/her: In the absence of a valid waiver, any confession
1. Parents obtained during the police custodial investigation
2. Elder brothers and sisters relative to the crime, including any other evidence
3. Spouse secured by virtue of the said confession is
inadmissible in evidence even if the same was not
4. Municipal mayor
objected to during the trial by the counsel of the
5. Municipal judge appellant. (People v. Samontañez, G.R. No. 134530,
6. District school supervisor Dec. 4, 2000)
7. Priest or minister of the gospel
Any inquiry a “bantay bayan” makes has the color of
RA 7438 does not propose that the persons a state-related function and objective insofar as the
mentioned above appear in the alternative or as a entitlement of a suspect to his constitutional rights
substitute for counsel without any condition or clause. provided for under Article III, Section 12 of the
It is explicitly stated therein that before the above- Constitution, otherwise known as the Miranda Rights,
mentioned persons can appear two (2) conditions is concerned. (People v. Lauga, G.R. No. 186228,
must be met: Mar.15, 2010)
1. Counsel of the accused must be absent, and
2. A valid waiver must be executed. (People v. Rights under Section 12 can be lost by neglect.
Ordono, G.R. No. 132154, June 29, 2000) Where the defense fails to raise objections to the
admissibility of evidence immediately, as required by
Extrajudicial Confession Section 36 of Rule 132 of the Rules of Court the
Under the present laws, a confession to be accused is deemed to have waived his right to object
admissible must be: (WAVES) to admissibility. (Bernas, The 1987 Constitution of the
1. Made in Writing, and in the language known to Republic of the Philippines, 2009)
and understood by the confessant;
2. Made with the Assistance of competent and 4. Exclusionary Doctrine
independent counsel;
Any confession or admission obtained in violation of
3. Given Voluntarily and intelligently where the the rights of a person under custodial investigation
accused realized the legal significance of his act; hereof shall be inadmissible in evidence against him.
4. Express and categorical; and (PHIL. CONST., art. III, § 12[3])
5. Signed, or if the confessant does not know how
to read and write, thumbmarked by him. (People Nature
v. Olivarez, Jr., G.R. No. 77865, Dec. 4, 1998) According to the exclusionary rule, once the primary
source (the "tree") is shown to have been unlawfully
Burden of Proof: Lies With the Prosecution obtained, any secondary or derivative evidence (the
Whenever a protection given by the Constitution is "fruit") derived from it is also inadmissible. Stated
waived by the person entitled to that protection, the otherwise, illegally seized evidence is obtained as a
presumption is always against the waiver. direct result of the illegal act, whereas the "fruit of the
Consequently, the prosecution must prove with poisonous tree" is the indirect result of the same
strongly convincing evidence to the satisfaction of illegal act. The "fruit of the poisonous tree" is at least
this Court that indeed: once removed from the illegally seized evidence, but
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it is equally inadmissible. The rule is based on the confession before Judge Dicon was made without the
principle that evidence illegally obtained by the State advice and assistance of counsel and hence
should not be used to gain other evidence because inadmissible in evidence, it could however be treated
the originally illegally obtained evidence taints all as a verbal admission of the accused, which could be
evidence subsequently obtained. (People v. established through the testimonies of the persons
Samontañez, G.R. No. 134530, Dec. 4, 2000) who heard it or who conducted the investigation of
the accused. (People v. Baloloy, G.R. No. 140740,
Covers Both Confession & Admission April 12, 2002)
Admission – an act, declaration or omission of a Applicable to Accused Aliens

party as to a relevant fact. The fact that all accused are foreign nationals does
not preclude application of the "exclusionary rule"
Confession – a declaration of an accused because the constitutional guarantees embodied in
acknowledging his guilt of the offense charged, or of the Bill of Rights are given and extend to all persons,
any offense necessarily included therein. (Aquino v. both aliens and citizens.(People v. Wong Chien Ming,
Paiste, G.R. No. 147782, June 25, 2008) G.R. Nos. 112801-11, Apr. 12, 1996)
Only Covers Confession or Admission Made

During Custodial Investigation Exclusionary Rule Not Applicable to the Violator
Infractions of the so-called Miranda rights render of the Right
inadmissible only the extrajudicial confession or The constitutional provision makes the confessions
admission made during custodial investigation. The and admissions inadmissible “against him,” that is,
admissibility of other evidence, provided they are against the source of the confession or admission.
relevant to the issue and is not otherwise excluded And it is he alone who can ask for exclusion. They
by law or rules, is not affected even if obtained or are, however, admissible against the person violating
taken in the course of custodial investigation. the constitutional prohibition, to the extent that
admissibility is allowed by the ordinary rules on
The fact that that accused was not assisted by evidence. (Bernas, The 1987 Constitution of the
counsel during the investigation and inquest Republic of the Philippines, 2009)
proceedings does not in any way affect his
culpability. It has already been held that "the Inter Alios Acta Rule
infractions of the so-called Miranda rights render General Rule: An extrajudicial confession is binding
inadmissible only the extrajudicial confession or only on the confessant and is not admissible against
admission made during custodial investigation." his or her co-accused because it is considered as
Here, appellant's conviction was based not on his hearsay against them. The rights of a party cannot be
alleged uncounseled confession or admission but on prejudiced by an act, declaration, or omission of
the testimony of the prosecution witness. (People v. another.
Bio, G.R. No. 195850, Feb. 16, 2015)
Exception: An admission made by a conspirator
However, there is merit in Juanito’s claim that his under Section 31, Rule 130 of the Rules of Court.
constitutional rights during custodial investigation This provision states that the act or declaration of a
were violated by Judge Dicon when the latter conspirator in furtherance of the conspiracy and
propounded to him incriminating questions without during its existence may be given in evidence against
informing him of his constitutional rights. It is settled the co-conspirator after the conspiracy is shown by
that at the moment the accused voluntarily evidence other than such act of declaration. It is
surrenders to, or is arrested by, the police officers, admissible against a co-accused when it is used as
the custodial investigation is deemed to have started. circumstantial evidence to show the probability of
So, he could not thenceforth be asked about his participation of said co-accused in the crime.
complicity in the offense without the assistance of
counsel. Judge Dicon’s claim that no complaint has Thus, in order that the admission of a conspirator
yet been filed and that neither was he conducting a may be received against his or her co-conspirators, it
preliminary investigation deserves scant is necessary that:
consideration. The fact remains that at that time (a) The conspiracy be first proved by evidence
Juanito was already under the custody of the police other than the admission itself;
authorities, who had already taken the statement of (b) The admission relates to the common object;
the witnesses who were then before Judge Dicon for and
the administration of their oaths on their statements. (c) It has been made while the declarant was
At any rate, while it is true that Juanito’s extrajudicial
engaged in carrying out the conspiracy.
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(People v. Cachuela, G.R. No. 191752, June (e) Assistance of counsel

10, 2013) (f) Right to be informed of the nature and cause
of accusation
In order that an extra-judicial confession may be used (g) Right to speedy, impartial, and public trial
against a co-accused of the confessant, there must (h) Right to confrontation
be a finding of other circumstantial evidence which (i) Compulsory process
when taken together with the confession would (j) Trials in absentia
establish the guilt of a co-accused beyond
reasonable doubt. (People v. Constancio, G.R. No.
206226, April 04, 2016) 1. Criminal Due Process
Even after charges are filed, the police may still Concept
attempt to extract extrajudicial confessions or As to procedural due process, the requirement that
admissions outside judicial supervision. For this no person shall be held to answer for a criminal
reason, Section 12(1) still applies. (Bernas, The 1987 offense without due process of law simply requires
Constitution of the Republic of the Philippines, 2009) that the procedure established by law be followed. If
that procedure fully protects life, liberty and property
N. RIGHTS OF THE ACCUSED of the citizens in the state, then it will be held to be
due process of law. (U.S. v. Ocampo, G.R. No. L-
5527, Dec. 22, 1910)
(a) All persons, except those charged with
offenses punishable by reclusion perpetua
This presupposes that the penal law being applied
when evidence of guilt is strong, shall, before satisfies the substantive requirements of due
conviction, be bailable by sufficient sureties, process. (Bernas, The 1987 Philippine Constitution:
or be released on recognizance as may be A Comprehensive Reviewer, 2011)
provided by law. The right to bail shall not be
impaired even when the privilege of the writ In criminal proceedings then, due process is satisfied
of habeas corpus is suspended. Excessive if the accused is "informed as to why he is proceeded
bail shall not be required. (PHIL. CONST., art. against and what charge he has to meet, with his
3, § 13) conviction being made to rest on evidence that is not
tainted with falsity after full opportunity for him to
rebut it and the sentence being imposed in
(b) (1) No person shall be held to answer for a
accordance with a valid law. It is assumed, of course,
criminal offense without due process of law. that the court that rendered the decision is one of
competent jurisdiction." (Nunez v. Sandiganbayan,
(2) In all criminal prosecutions, the accused G.R. Nos. L-50581-50617, Jan. 30, 1982)
shall be presumed innocent until the
contrary is proved, and shall enjoy the right Another aspect of due process is the right to be tried
to be heard by himself and counsel, to be by an impartial judge (cold neutrality of an
informed of the nature and cause of the independent, wholly-free, disinterested and impartial
accusation against him, to have a speedy, tribunal). (Bernas, The 1987 Philippine Constitution:
impartial, and public trial, to meet the A Comprehensive Reviewer, 2011).
witnesses face to face, and to have
There must be allegation and proof that the judges
compulsory process to secure the have been unduly influenced, not simply that they
attendance of witnesses and the production might be, by the barrage of publicity because the
of evidence in his behalf. However, after subliminal effects of publicity are basically
arraignment, trial may proceed unbeknown and beyond knowing. (Bernas, The 1987
notwithstanding the absence of the accused Constitution of the Republic of the Philippines, 2009)
provided that he has been duly notified and
his failure to appear is unjustifiable. (PHIL. Right to Appeal
CONST., art. 3, § 14) The right to appeal is not a natural right or a part of
due process; it is merely a statutory privilege, and
Rights of the Accused [D-BIH-CIS-CPA] may be exercised only in the manner and in
(a) Criminal due process accordance with the provisions of law. (Manila Mining
Corp. v. Amor, G.R. No. 182800, April 20, 2015)
(b) Bail
(c) Presumption of innocence
(d) Right to be heard
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Due Process and Military Tribunal For the purpose of determining whether an offense is
A military commission or tribunal cannot try and punishable by reclusion perpetua, what is
exercise jurisdiction, even during the period of martial determinative is the penalty provided for by law
law, over civilians for offenses allegedly committed regardless of the attendant circumstances.
by them as long as civil courts are open and
functioning, and that any judgement rendered by To require more than that would practically entail a
such body relating to a civilian is null and void for lack full-dress trial thereby defeating the purpose of bail
of jurisdiction on the part of the military tribunal which is to enable the accused to obtain liberty
concerned. (Bernas, The 1987 Constitution of the pending trial.
Republic of the Philippines, 2009)
Strong evidence means “proof evident” or
2. Bail “presumption great.”
Concept (a) Persons who are members of the AFP facing

Bail is the security given for the release of a person a court martial
in custody of the law, furnished by him or a
bondsman, to guarantee his appearance before any Trial Court Conviction
court as required under the conditions hereinafter
If convicted by the trial court, bail is only discretionary
specified. Bail may be given in the form of corporate
pending appeal (Magno v. Abbas, G.R. No. L-19361,
surety; property bond, cash deposit, or recognizance.
Feb.y 26, 1965; Comendador, et al. v. Villa, G.R. No.
(ROC, Rule 114, § 1)
93177, Aug. 2, 1991)
Purpose
When a person who is out on bail is convicted, the
To honor the presumption of innocence until his guilt
bondsman must surrender him for execution of the
is proven beyond reasonable doubt
final judgement. (ROC, Rule 114, § 2[d])
To enable him to prepare his defense without being
subjected to punishment before conviction (Cortes v.
Under Section 13, Article 3, Before Conviction,
Catral, A.M. No. RTJ-97-1387, Sept. 10, 1997)
Bail is Either:
A. A matter of right: When the offense charged is
The main purpose of bail is to relieve an accused
punishable by any penalty lower than reclusion
from the rigors of imprisonment until his conviction
perpetua. To this extent, the right is absolute.
and secure his appearance at the trial. Thus, as bail
B. A matter of discretion: When the offense
is intended to secure one’s provisional liberty, the
charged is punishable by reclusion perpetua, it shall
same cannot be posted before custody over him has
be denied if the evidence of guilt is strong. Once it is
been acquired by the judicial authorities, either by
determined that the evidence of guilt is not strong,
lawful arrest or voluntary surrender. Only those who
bail becomes a matter of right. (People v. Nitcha,
have been either arrested, detained, or otherwise
G.R. No. 113517, Jan. 19, 1995)
deprived of their freedom, will ever have the occasion
to seek the protective mantle extended by the right to
Discretion refers to the court’s discretion to determine
bail. But the person seeking provisional release need
whether or not the evidence of guilt is strong.
not wait for a formal complaint or information to be
filed against him. (Paderanga v. Court of Appeals,
Do not confuse interpretation of Bail under Bill of
G.R. No. 115407, Aug. 28, 1995)
Rights with the interpretation of Bail under Rule 114
of the Revised Rules of Criminal Procedure as to:
General Rule: All persons actually detained
(a) Bail as a Matter of Right (Sec 4),
shall, before conviction be entitled to bail. (PHIL.
CONST., art. 3, § 13). (b) Bail as a Matter of Discretion (Sec 5),
(c) Non-Bailable offenses (Sec 7).
Since bail is constitutionally available to “all persons”,
it must be available to one who is detained even Strong Evidence Means Evident Proof or
before formal charges are filed. Presumption is Great
Evident proof means clear, strong evidence which
Exceptions: leads a well-guarded dispassionate judgment to the
conclusion that the offense has been committed as
(a) Persons charged with offenses punishable charged, and that the accused is the guilty agent.
by reclusion perpetua, life imprisonment and
death, when evidence of guilt is strong Presumption is great when the circumstances
testified to are such that the inference of guilt
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naturally to be drawn therefrom is strong, clear, and Bail for the provisional liberty of the accused,
convincing to an unbiased judgment and excuses all regardless of the crime charged, should be allowed
reasonable probability of any other conclusion. independently of the merits of the charge, provided
(People v. Judge Cabral, G.R. No. 131909, Feb. 18, his continued incarceration is clearly shown to be
1999) injurious to his health or to endanger his life. Indeed,
denying him bail despite imperiling his health and life
Since the grant of bail is discretionary and can only would not serve the true objective of preventive
be determined by judicial findings, such discretion incarceration during the trial.
can only be exercised after evidence is submitted to
the court, the petitioner has the right of cross Accordingly, we conclude that the Sandiganbayan
examination and to introduce his own evidence in arbitrarily ignored the objective of bail to ensure the
rebuttal. (Santos v. Judge How, A.M. No. RTJ-05- appearance of the accused during the trial; and
1946, Jan. 26, 2007) unwarrantedly disregarded the clear showing of the
fragile health and advanced age of Enrile. As such,
Bail is a matter of right when the offense charged is the Sandiganbayan gravely abused its discretion in
punishable by any penalty lower than reclusion denying Enrile’s Motion to Fix Bail. (Juan Ponce
perpetua (Art. III, Sec 13, 1987 Constitution). Bail Enrile v. Sandiganbayan, G.R. No. 213847, Aug. 18,
becomes a matter of discretion if the offense charged 2015)
is punishable by death, reclusion perpetua, or life
imprisonment. Consequently, bail will be denied if the A person is considered to be “in the custody
evidence of guilt presented by the prosecution is of law” when:
strong (Art. III, Sec. 7, 1987 Constitution). In this
case, X is charged with violating Sec. 5 Art. II of RA (a) He is arrested by virtue of a warrant of arrest
9165, which is punishable by life imprisonment. or by warrantless arrest.
Hence, X’s bail becomes a matter of judicial (b) He has voluntarily submitted himself to the
discretion if the evidence of his guilt is not strong. jurisdiction of the court by surrendering to the
proper authorities.
When bail is discretionary, the trial court must
conduct bail hearings to determine whether the The Court held that when the person has actually
evidence of guilt of the accused is strong. During the posted a bail bond, which was accepted by the court,
bail hearings, the prosecution has the burden of he has effectively submitted himself to the jurisdiction
proof. The court’s grant or denial of the bail of the court over his person. (Paderanga v. Court of
application must contain a summary of the Appeals, G.R. No. 115407, Aug. 28, 1995)
prosecution’s evidence which should be the basis of
the judge in its conclusion in determining the weight Other Rights in Relation to Bail:
of the evidence of the accused's guilt. The
jurisprudential standard on providing a summary of A. The right to bail shall not be impaired even when
the prosecution’s evidence entails that the summary the privilege of the writ of habeas corpus is
of the evidence presented during the prior hearing is suspended
formally recognized as having been presented and, Excessive bail shall not be required (PHIL. CONST.,
most importantly, considered. A summary is art. 3, § 13).
necessarily a reasonable recital of any evidence
presented by the prosecution. An incomplete Factors to be considered in setting the amount
enumeration or selective inclusion of pieces of of bail: (F3P3 CAWN)
evidence cannot be considered a summary (People (k) Financial Ability of the accused to give bail
v. Tanes y Belmonte, G.R. No. 240596, April 3, 2019) (l) Forfeiture of other bail
(m) The accused was a Fugitive from justice
Health Considerations when arrested
A mere claim of illness is not a ground for bail. Bail is (n) Probability of the accused appearing at the
not a sick pass for an ailing or aged detainee or
trial
prisoner needing medical care outside the prison
facility. (People v. Fitzgerald, G.R. No. 149723, Oct. (o) Penalty for the offense charged
27, 2006) (p) Pendency of other cases where the accused
is on bail
BUT SEE: The currently fragile state of Enrile’s (q) Character and reputation of the accused
health presents another compelling justification for (r) Age and health of the accused
his admission to bail. (s) Weight of the evidence against the accused
(t) Nature and circumstance of the offense
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(ROC, Rule 114, § 9) Bail in Deportation Proceedings

As a general rule, the constitutional right to bail is
Where the right to bail exists, it should not be available only in criminal proceedings. Thus, they do
rendered nugatory by requiring a sum that is not apply in deportation proceedings, which are
excessive. (De La Camara v. Enage, G.R. Nos. L- administrative in nature. However, see Mejoff v.
32951-2, Sept. 17, 1971) Director of Prisons, where the court applied the
general principles of international law found in the
To fix bail at an amount equivalent to the civil liability UDHR and ordered released under a bond in a
of which petitioner is charged is to permit the Habeas Corpus petition. (Bernas, The 1987
impression that the amount paid as bail is an exaction Philippine Constitution: A Comprehensive Reviewer,
of the civil liability that accused is charged of; this we 2011)
cannot allow because bail is not intended as a
punishment, nor as a satisfaction of civil liability Bail in Extradition Cases
which should necessarily await the judgment of the Our extradition law does not provide for the grant of
appellate court. (Yap v. CA, G.R. 141529, June 6, bail to an extraditee. There is no provision prohibiting
2001) him or her from filing a motion for bail, a right to due
process under the Constitution.
Courts Cannot Strictly Require Cash Bond
The condition that the accused may have provisional However, an extradition proceeding, while ostensibly
liberty only upon his posting of a cash bond is administrative, bears all earmarks of a criminal
abhorrent to the nature of bail and transgresses our process. A potential extraditee may be subject to
law on the matter. The allowance of a cash bond in arrest, to a prolonged restraint of liberty, and forced
lieu of sureties is authorized in this jurisdiction only to transfer to the demanding state following the
because our rules expressly provide for it. And even proceedings.
where cash bail is allowed, the option to deposit cash
in lieu of a surety bond primarily belongs to the The standard used in granting bail in extradition
accused. cases is “clear and convincing evidence.” This
standard should be lower than proof beyond
Recognizance reasonable doubt but higher than preponderance of
An obligation of record entered into before a court evidence.
guaranteeing the appearance of the accused for trial.
It is in the nature of a contract between the surety and The potential extraditee must prove by “clear and
the state. The details on how recognizance can be convincing evidence” that :
obtained or when it is applicable is left to legislation. (a) he is not a flight risk and will abide with all the
(Bernas, The 1987 Constitution of the Republic of the orders and processes of the extradition court,
Philippines, 2009) and
(b) that there exist special, humanitarian, and
Apart from bail, a person may attain provisional compelling reasons for him to be released on
liberty through recognizance, which is an obligation
bail. (Government of Hong Kong v. Olalia,
of record entered into by a third person before a
court, guaranteeing the appearance of the accused Jr., G.R. No.153675, April 19, 2007)
for trial. It is in the nature of a contract between the
surety and the state. (People v. Abner, G.R. No. L- Right to Bail of Military Personnel
2508, Oct. 27, 1950) Tradition has recognized the non-existence of the
right to bail because of the disciplinary structure of
Dismissal of Appeal in Criminal Cases Due to the military and because soldiers are allowed the
Jumping of Bail fiduciary right to bear arms and can therefore cause
The Court of Appeals/Supreme Court may, upon great havoc. (Bernas, The 1987 Philippine
motion of the appellee or motu proprio, dismiss the Constitution: A Comprehensive Reviewer, 2011).
appeal if the appellant:
(a) If appellant escapes from prison or Right to a Hearing
confinement; In cases where the accused is charged with an
(b) If appellant jumps bail; or offense punishable by reclusion perpetua, a hearing,
(c) If appellant flees to another country during mandatory in nature and which should be summary
or otherwise in the discretion of the court, is required
the pendency of the appeal
with the participation of both the defense and a duly
(ROC, Rule 124, § 8; Rule 125, § 1) notified representative of the prosecution for the
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purpose of ascertaining whether or not the evidence sentence. (Dumlao v. COMELEC, G.R. No. L-52245,
of guilt is strong. Jan. 22, 1980)
The constitutional right to bail necessarily includes Conviction in Illegal Drugs Cases
the right to a hearing. When bail is denied without a To convict an accused of the illegal sale of dangerous
hearing, a fundamental right is violated. Hence, the drugs, the prosecution must not only prove that the
presentation of evidence for the prosecution in sale took place, but also present the corpus delicti in
private inquiry, in the absence of the detainee, and evidence. The only time that conviction may be
the subsequent issuance of an order on the basis of sustain despite noncompliance with the chain of
the private inquiry, cannot be allowed. The hearing, custody requirements is if there were justifiable
however, need not be separate and distinct from the grounds provided. Before the courts may consider
trial itself. And it need only be summary. The right to the seized drugs as evidence despite noncompliance
a prompt hearing is waived by agreeing to with the legal requirements, justifiable grounds must
postponements. be identified and proven. The prosecution must
establish the steps taken to ensure that the integrity
Parallel to the accused’s right to a hearing is the and evidentiary value of the seized items were
prosecution’s right to present evidence. If the preserved. It is the positive duty to establish its
prosecution is denied such right, the grant of bail is reason for the procedural lapses. (People v. Ternida
void. (Bernas, The 1987 Constitution of the Republic y Munar, G.R. No. 212626, June 3, 2019)
of the Philippines, 2009)
Both the RTC and CA seriously overlooked the long-
3. Presumption of innocence standing legal tenet that the starting point of every
criminal prosecution is that the accused has the
Concept constitutional right to be presumed innocent. This
Its principal effect is that no person shall be convicted presumption of innocence is overturned only when
unless the prosecution has proved him guilty beyond the prosecution has discharged its burden of proof in
reasonable doubt. (Bernas, The 1987 Constitution: A criminal cases that it has proven the guilt of the
Comprehensive Reviewer, 2011) accused beyond reasonable doubt, with each and
every element of the crime charged in the information
Petitioner, which is a corporate entity, has no proven to warrant a finding of guilt for that crime or
personality to invoke the right to be presumed for any other crime necessarily included therein.
innocent which right is available only to an individual
who is an accused in a criminal case (Feeder This burden of proof never shifts. The accused can
International Line v. CA, G.R. 94262, May 31, 1991). simply rely on his right to be presumed innocent. It is
thus immaterial, in this case or in any other cases
Prima Facie Presumption involving dangerous drugs, that the accused put forth
The Constitution does not prohibit the legislature a weak defense.
from providing that proof of certain facts leads to a
prima facie presumption of guilt, provided that the The prosecution therefore, in cases involving
facts proved have a reasonable connection to the dangerous drugs, always has the burden of proving
ultimate fact presumed. (U.S. v Luling, G.R. No. L- compliance with RA 9165, which lays down the
11162, Aug. 12, 1916) procedure that police operatives must follow to
maintain the integrity of the confiscated drugs used
Accusation Not Synonymous With Guilt as evidence. In this case, there were far too many
An accusation, according to the fundamental law, is unexplained absences in the procedure: the time and
not synonymous with guilt. The challenged proviso place in the markings on the sachets, certificate of
(par. 2, § 4 of BP Blg. 52) contravenes the inventory, pictures during the actual buy-bust
constitutional presumption of innocence, as a operation, inventory of the evidence and witnesses
candidate is disqualified from running for public office present. The chain of custody was clearly broken.
on the ground alone that charges have been filed
against him before a civil or military tribunal. It The Court cannot presume that the accused
condemns before one is fully heard. A person committed the crimes they have been charged with
disqualified to run for public office on the ground that as the State must fully establish that. Nor can the
charges have been filed against him is virtually Court shirk from their responsibility of protecting the
placed in the same category as a person already liberties of our citizenry just because the lawmen are
convicted of a crime with the penalty of arresto, which shielded by the presumption of the regularity of their
carries with it the accessory penalty of suspension of performance of duty. This by no means defeats the
the right to hold office during the term of the much stronger presumption of innocence in favor of
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every person whose life, property and liberty comes unexplained or not contradicted by the accused, the
under the risk of forfeiture on the strength of a false conviction founded on such evidence will be valid.
accusation of committing some crime. When catching However, the prosecution must still prove the guilt of
drug pushers, police officers must always be advised the accused beyond reasonable doubt. The
to do so within the bounds of the law. existence of a disputable presumption does not
preclude the presentation of contrary evidence.
With the chain of custody having been compromised, Neither has it been shown how Section 14 does away
the X deserves acquittal as his right to the with the requirement that the prosecution must prove
presumption of innocence has not been overturned. the participation of the accused in the hazing beyond
(People vs. Dagdag, G.R. No. 225503, Jun. 26, reasonable doubt. (Fuertes v. Senate of the
2019) Philippines, G.R. No. 208162, Jan. 07, 2020)
The presumption of regularity in the performance of 4. Right to counsel

duty cannot overcome the stronger presumption of
innocence in favor of the accused. The right of the In criminal cases, the right of an accused person to
accused to be presumed innocent until proven guilty be assisted by a member of the bar is immutable.
is a constitutionally protected right; therefore, the Otherwise, there would be a grave denial of due
burden lies with the prosecution to prove the process. Thus, even if the judgment had become final
accused’s guilt beyond reasonable doubt. In this and executory, it may still be recalled, and the
case, the prosecution failed to prove the corpus accused afforded the opportunity to be heard by
delicti of the crimes of sale and possession of illegal himself and counsel.
drugs due to unexplained breaches of procedure
committed by the buy-bust team in the seizure,
custody, and handling of the seized drugs. Given the The right to counsel is absolute and may be invoked
fact that a buy-bust operation is a planned operation, at all times. More so, in the case of an on-going
it is questionable why the buy-bust team could not litigation, it is a right that must be exercised at every
have ensured the presence of the required witnesses step of the way, with the lawyer faithfully keeping his
pursuant to Sec 21, Art II of RA 9165, or at the very client. (Telan v. CA, G.R. No. 95026 Oct. 4, 1991)
least marked, photographed, and inventoried the
seized items immediately after seizure or Duty of Court to Inform Accused of his Right to
confiscation. In other words, the prosecution was not Counsel
able to overcome the presumption of innocence of X. (a) Inform accused that he has the right to have
(People v. Fulinara y Fabelania, G.R. No. 237975,
his own counsel before being arraigned;
Jun. 19, 2019)
(b) After giving such information, to ask accused
Continues Pending Appeal whether he desires the aid of counsel;
Presumption of innocence persists even when there (c) If he so desires to procure the services of
is conviction by lower court and case is still on counsel, the court must grant him reasonable
appeal. Such presumption is not destroyed until there time to do so; and
is proof that accused is guilty beyond reasonable (d) If he so desires to have counsel but is unable
doubt based on evidence. (Bernas, The 1987 to employ one, the court must assign a
Constitution: A Comprehensive Reviewer, 2011) counsel de officio to defend him.
(People v. Agbayani, G.R. No. 122770, Jan 16,
Equipoise Rule 1998) (ROC, Rule 116, § 6)
Where the evidence in a criminal case is evenly
balanced, the constitutional presumption of
The right to counsel of an accused is guaranteed by
innocence tilts the scales in favor of the accused.
our Constitution, our laws and our Rules of Court.
(People v. Erguiza, G.R. No. 171348, Nov. 26 2008)
During custodial investigation, arraignment, trial and
even on appeal, the accused is given the option to be
Anti-Hazing Law
represented by a counsel of his choice. But when he
Section 14 of the Anti-Hazing Law provides that an
neglects or refuses to exercise this option during
accused's presence during a hazing is prima facie
arraignment and trial, the court shall appoint one for
evidence of his or her participation. However, this
him. While the right to be represented by counsel is
does not violate the constitutional presumption of
absolute, the accused's option to hire one of his own
innocence. The constitutional presumption of
choice is limited. (People v. Serzo, G.R. No. 118435,
innocence is not violated when there is a logical
June 20, 1997)
connection between the fact proved and the ultimate
fact presumed. When such prima facie evidence is
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When an accused unaided by counsel qualifiedly The real nature of the crime charged is determined
admits his guilt to an ambiguous or vague information from the recital of facts in the information. It is not
from which a serious crime can be deduced, it is not based on the caption, preamble or from the cited
prudent for the trial court to render a serious provision of law allegedly violated. (People v.
judgment finding the accused guilty of a capital Labado, G.R. No. L-38548, July 24, 1980)
offense without absolutely any evidence to determine
and clarify the true facts of the case. (People v. In a situation where a court (in a fused action for the
Holgado, G.R. No. L-2809, March 22, 1950) enforcement of criminal and civil liability) may validly
order an accused-respondent to pay an obligation
Waiver arising from a contract, a person’s right to be notified
Accused persons are perfectly entitled to waive [their of the complaint, and the right to have the complaint
right to counsel] and they may defend themselves in dismissed if there is no cause of action, are
person. The law expressly authorizes them to defend completely defeated. If the accused-respondent is
themselves in person, without the assistance of completely unaware of the nature of the liability
counsel. It is understood, of course, that they waive claimed against him or her at the onset of the case,
their right to be assisted by counsel when they not he is blindsided. It is a clear violation of a person's
only do not appoint or request one, but voluntarily right to due process. (Gloria S. Dy v. People of the
submit to trial, and especially when they actually Philippines, GR No. 189081, August 10, 2016)
exercise therein the right of defense by cross-
examining the witnesses for the prosecution and by Qualifying and Aggravating Circumstances Must
introducing evidence in their own behalf. (US v. Go be Alleged
Leng, G.R. No. 6707, February 8, 1912) The complaint or information shall state the
designation of the offense given by the statute, aver
5. Right to be informed of the nature the acts or omissions constituting the offense, and
and cause of accusation specify its qualifying and aggravating circumstances.
Purpose If there is no designation of the offense, reference
(a) To furnish the accused with a description of shall be made to the section or subsection of the
the charge against him as will enable him to statute punishing it. (ROC, Rule 110, § 8)
make his defenses.
Since the qualifying circumstance of “common law
(b) To avail himself of his conviction or acquittal
spouse” was not alleged in the Information for rape
against a further prosecution for the same against appellant, he could not be convicted of rape
cause. in the qualified form as he was not properly informed
To inform the court of the facts alleged. (U.S. v. of the nature and cause of accusation against him. In
Karelsen, G.R. No. 1376, Jan. 21, 1904) a criminal prosecution, it is a fundamental rule that
every element of the crime charged must be alleged
Sufficiency of Complaint or Information in the complaint or information. (People v. Begino,
A complaint or information is sufficient if it states the: G.R. No. 181246, March 20, 2009)
1. Name of the accused;
2. Designation of the offense given by the statute; Date of Commission of the Crime
3. Acts or omissions complained of as constituting General Rule: It is unnecessary to state in the
the offense; information the precise date that the offense was
4. Name of the offended party; committed
5. Approximate date of the commission of the Exception: When it is an essential element of the
offense; and offense. (People v. Bugayong, G.R. No. 126518,
Dec. 2, 1998)
6. Place where the offense was committed.
When the time given in the complaint is not essential,
When an offense is committed by more than one it need not be proven as alleged. The complaint will
person, all of them shall be included in the complaint be sustained if there is proof that the offense was
or information. (ROC, Rule 110, § 6) committed at any time within the period of the statute
of limitations and before the commencement of the
If the information fails to allege the material elements action. The date of commission is not an element of
of the offense, the accused cannot be convicted rape. The gravamen of rape is carnal knowledge of a
thereof even if the prosecution is able to present woman. (People v. Rafon, G.R. No. 169059, Sept. 5,
evidence during the trial with respect to such 2007)
elements.
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The Supreme Court has upheld complaints and The right to speedy trial is considered violated only
information in prosecutions for rape which merely when the proceeding is attended by vexatious,
alleged the month and year of its commission. capricious and oppressive delays. Courts are
(People v. Ching, G.R. No. 177150, Nov. 22, 2007) required to do more than a mathematical
computation of the number of postponements of the
Waiver scheduled hearings of the case and to give particular
The right to assail the sufficiency of the information regard to the facts and circumstances peculiar to
or the admission of evidence may be waived by the each case. (Nelson Imperial, et al. v. Maricel M.
accused-appellant. An information which lacks Joson, et al.; Santos O. Francisco v. Spouses Gerard
certain essential allegations may still sustain a and Maricel Joson Nelson; Imperial, et al. v. Hilarion
conviction when the accused fails to object to its C. Felix, et al., G.R. Nos. 160067, 170410, 171622,
sufficiency during the trial, and the deficiency was Nov. 17, 2010)
cured by competent evidence presented therein.
(People v. Palarca G.R. No. 146020, May 29, 2002) Where a prosecuting officer, without good cause,
secures postponements of the trial of a defendant
6. Right to speedy, impartial and public against his protest beyond a reasonable period of
trial time, as in this instance for more than a year, the
accused is entitled to relief by a proceeding in
a. Right to Speedy Trial mandamus to compel a dismissal of the information,
or if he be restrained of his liberty, by habeas corpus
Factors Used in Determining Whether the Right to obtain his freedom. (Conde v. Rivera, G.R. No. L-
21741, Jan. 25, 1924)
to a Speedy Trial Has Been Violated: (TL-RAP)
1. Time expired from the filing of the information
Dismissal Based on the Right to Speedy Trial
2. Length of delay involved
If the dismissal is valid, it amounts to an acquittal and
3. Reasons for the delay can be used as basis to claim double jeopardy. This
4. Assertion or non-assertion of the right by the would be the effect even if the dismissal was made
accused with the consent of the accused. (Bernas, The 1987
5. Prejudice caused to the defendant (Bernas, The Constitution: A Comprehensive Reviewer, 2011)
1987 Constitution: A Comprehensive Reviewer
2011) Speedy Trial v. Speedy Disposition of Cases
The right to a speedy trial is available only to an
The test of violation of the right to speedy trial has accused and is a peculiarly criminal law concept,
always been to begin counting the delay from the while the broader right to a speedy disposition of
time the information is filed, not before the filing. The cases may be tapped in any proceedings conducted
delay in the filing of the information, which in the by state agencies. In this case, the appropriate right
instant case has not been without reasonable cause, involved is the right to a speedy disposition of cases,
is therefore not to be reckoned with in determining the recovery of ill-gotten wealth being a civil suit.
whether there has been a denial of the right to (Coconut Producers Federation, Inc. et al. v.
speedy trial. (Martin v. General Fabian Ver, G.R. No. Republic of the Philippines; Wigberto E. Tanada, et
L-62810 July 25, 1983) al., intervenors; Danilo S. Ursua v. Republic of the
Philippines, G.R. Nos. 177857-58 & G.R. No.
Trial includes hearing, reception of evidence and 178193, Jan. 24, 2012)
other processes, such as decision in the first
instance, appeal and final executory decision in the b. Right to Impartial Trial
last instance. (Bernas, The 1987 Constitution of the
Republic of the Philippines, 2009) The accused is entitled to the “cold neutrality of an
impartial judge.” It is an element of due process.
Remedy if the Right to Speedy Trial was When a judge has previously convicted a person of a
violated: crime i.e., arson, he should disqualify himself from
(a) He can move for the dismissal of the case hearing another case involving the same person, but
(b) If he is detained, he can file a petition for the with a different crime, i.e., malversation (Ignacio v.
issuance of writ of habeas corpus. (Bernas, Villaluz, G.R. No. L-37527-52, May 25, 1979)
The 1987 Constitution: A Comprehensive
Reviewer, 2011)
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c. Right to Public Trial It is demandable only during trials. Thus, it cannot be

availed of during preliminary investigations.
The attendance at the trial is open to all irrespective
of their relationship to the accused. However, if the Right of confrontation is available during trial which
evidence to be adduced is offensive to decency or begins only upon arraignment.
public morals, the public may be excluded. (Garcia v.
Domingo, G.R. No. L-30104, July 25, 1973) Section 7 of the Special Rules of Procedure
prescribed for Shari’a courts aforecited provides that
The purpose is to serve as a “safeguard against any if the plaintiff has no evidence to prove his claim, the
attempt to employ our courts as instruments of defendant shall take an oath and judgment shall be
prosecution.” The knowledge that every trial is rendered in his favor by the Court. On the other hand,
subject to the contemporaneous review in the forum should defendant refuse to take an oath, plaintiff may
of the public opinion is an effective restraint on affirm his claim under oath, in which case judgment
possible abuse of judicial power. (Garcia v. Domingo, shall be rendered in his favor. Said provision
G.R. No. L-30104, July 25, 1973) effectively deprives a litigant of his constitutional right
to due process. It denies a party his right to confront
The right of the accused to a public trial is not violated the witnesses against him and to cross-examine
if the hearings are conducted on Saturdays, either them. It should have no place even in the Special
with the consent of the accused or if he failed to Rules of Procedure of the Shari’a courts of the
object thereto. country. (Tampar v. Usman, G.R. No. 82077, Aug.
16, 1991)
A recognized exception to the general rule that a trial
must be public is that the general public may be The principle requiring a testing of testimonial
excluded when the evidence to be presented in the statements by cross-examination has always been
proceeding may be characterized as “offensive to understood as requiring, not necessarily
decency or public morals”. an actual cross-examination, but merely
an opportunity to exercise the right to cross-examine
An accused is entitled to a public trial, at least to the if desired. (Fulgado v. CA, G.R. No. L-61570 Feb. 12,
extent of having his friends, relatives and counsel 1990)
present – no matter with what offense he may be
charged. (In Re: Oliver, 333 U.S. 257, March 8, 1948) 8. Right to compulsory processes
Compulsory process to secure:
7. Right of confrontation (a) The attendance of witnesses
(a) The production of evidence in his behalf
Purpose
1. To afford the accused an opportunity to cross- The 1973 and 1987 Constitutions expanded the right
examine the witness to compulsory process which now includes the right
To allow the judge the opportunity to observe the to secure the production of evidence in one's behalf.
conduct or demeanor of the witness (Bernas, The By analogy, U.S. v. Ramirez which laid down the
1987 Constitution: A Comprehensive Reviewer, requisites for compelling the attendance of
2011) witnesses, may be applied to this expanded concept.
Thus, the movant must show:
Exceptions to the right to face witnesses: 1. That the evidence is really material;
(a) The admissibility of “dying declarations” 2. That he is not guilty of neglect in previously
(b) Trial in absentia under Section 14(2) obtaining the production of such evidence;
(c) With respect to child testimony 3. That the evidence will be available at the time
(Bernas, The 1987 Constitution: A desired; and
Comprehensive Reviewer, 2011) 4. That no similar evidence could be obtained.
(Bernas, The 1987 Constitution: A
Where a party has had the opportunity to cross- Comprehensive Reviewer, 2011)
examine an opposing witness but failed to avail
himself of it, he necessarily forfeits the right to cross-
Subpoena and Subpoena Duces Tecum
examine and the testimony given on direct
examination of the witness will be received or allowed Subpoena is a process directed to a person requiring
to remain in the record. (People v. Seneris, G.R. No. him or her to attend and to testify at the hearing or
L-48883, Aug. 6, 1980) the trial of an action, or at any investigation
conducted by competent authority, or for the taking
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of his or her deposition. It may also require him or mentions as name by which he is known, the witness
her to bring with him or her any books, documents, or is to be understood as referring to him. (Bernas, The
other things under his or her control, in which case it 1987 Constitution of the Republic of the Philippines,
is called a subpoena duces tecum. (Rule 21, §1, 2009)
Rules of Court)
Presence of the Accused Not Absolutely
The right to compulsory process of securing the Required
attendance of witnesses cannot be invoked on After repeated warnings, the trial judge ordered the
appeal if he made no effort during the trial to avail accused removed from court and told him that the
himself of it. (Bernas, The 1987 Constitution: A trial would continue in his absence until he promised
Commentary, 2009) to conduct himself in a manner befitting a courtroom.
On appeal, the SC held that the behavior of the
Preliminary investigation is not too early a stage to accused had forfeited his right to be present.
stand guard against any significant erosion of the (Bernas, The 1987 Constitution of the Republic of the
constitutional right to due process. At this stage, the Philippines, 2009 citing Illinois v. Allen)
accused should not be denied access to evidence
favorable to him since preliminary investigation can Judgement In Absentia
result in arrest or deprivation of liberty. (Bernas, The While the accused is entitled to be present during
1987 Constitution: A Commentary, 2009) promulgation of judgment, the absence of his counsel
during such promulgation does not affect its validity.
9. Trial in absentia Promulgation of judgment in absentia is valid
provided that the essential elements are
Trial in absentia simply means that the accused present:
waives his right to meet the witnesses face to face. 1. That the judgment be recorded in the criminal
The trial may proceed, despite the absence of the
docket; and
accused. Its purpose is to prevent unnecessary
delays in trial caused by the failure of the accused to 2. That a copy be served upon the accused or
attend provided that his absence is unjustifiable. counsel. Recording the decision in the criminal
(Bernas, The 1987 Constitution of the Republic of the docket of the court satisfies the requirement of
Philippines, 2009) notifying the accused of the decision wherever he
may be. (Estrada v. People, G.R. No. 162371,
Aug. 25, 2005)
Requisites (ANU)
1. The accused has been validly Arraigned and WHEN PRESENCE OF THE ACCUSED IS A
2. Accused has been duly Notified; and DUTY
3. His failure to appear is Unjustifiable. (Parada v. (a) Arraignment and Plea
Veneracion, A.M. No. RTJ-96-1353, March 11, (b) During Trial, for identification
1997) (c) Promulgation of Sentence
Exception: Light offense where accused need not
This is allowed to speed up disposition of criminal personally appear.
cases. (People v. Salas, G.R. No. L-66469, July 29,
1986) It is important to state that the provision of the
Constitution authorizing the trial in absentia of the
Voluntary Waiver accused in case of his non-appearance after
Trial in absentia can also take place when the arraignment despite due notice simply means that he
accused voluntarily waives his right to be present. thereby waives his right to meet the witnesses face
The right may be waived provided that after to face among others. An express waiver of
arraignment he may be compelled to appear for the appearance after arraignment, as in this case, is of
purpose of identification by the witnesses of the the same effect. However, such waiver of
prosecution, or provided he unqualifiedly admits in appearance and trial in absentia does not mean that
open court after his arraignment that he is the person the prosecution is thereby deprived of its right to
named as the defendant in the case on trial. require the presence of the accused for purposes of
identification by its witnesses which is vital for the
Thus, for an accused to be excused from attending conviction of the accused. Such waiver of a right of
trial, it is not enough that he vaguely agrees to be the accused does not mean a release of the accused
identified by witnesses in his absence. He must from his obligation under the bond to appear in court
unqualifiedly admit that every time a witness whenever so required. The accused may waive his
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right but not his duty or obligation to the court. until the February 22, 2018 resolution. No
(Carredo v. People, G.R. No. 77542, March 19, 1990) clarificatory hearing was set by the OMB upon X’s
submission of a counter-affidavit; neither was X
O. RIGHT TO SPEEDY TRIAL AND required to send additional documents. Not having
SPEEDY DISPOSITION OF CASES acted in accordance with its own periods, the burden
of proof falls to the prosecution to justify the delay.
All persons shall have the right to a speedy The prosecution may establish that the issues are so
disposition of their cases before all judicial, quasi- complex and the evidence so voluminous as to
judicial, or administrative bodies. (PHIL. CONST., art. render delay inevitable; however, the transaction in
III, § 16) this case involves only one contract, with two pages,
and the records are not voluminous such that it would
Concept require additional time for the prosecutor to review.
The right to speedy disposition of cases is a relative
and flexible concept. To determine whether or not a X did not waive his right to speedy disposition of
person's right to speedy disposition of cases is cases either. With or without the prodding of the
violated, there are four factors to consider. The four accused, the Rules of Procedure of the OMB and the
(4) factors — (1) the length of the delay; (2) the Rules of Court fixed the period for termination of a PI;
reason for the delay; (3) the respondent's assertion the OMB has the positive duty to observe the
of the right; and (4) prejudice to the respondent — specified periods under the rules. Mere inaction on
are to be considered together, not in isolation. The the part of the accused, without more, does not
qualify as an intelligent waive of this constitutional
interplay of these factors determine whether the
delay was inordinate. (Baya v. Sandiganbayan, G.R. right. Since the prosecution failed to provide amply
justification for the delay in the PI, it can be concluded
Nos. 204978-83, July 6, 2020)
that X’s right to speedy disposition of cases was
violated. (Perez v. Sandiganbayan, G.R. No. 245862,
In evaluating criminal cases invoking the right to
speedy disposition of cases, a case is deemed to November 3, 2020)
have commenced from the filing of the formal
complaint and the subsequent conduct of the Waiver
preliminary investigation. (Republic v. The person must invoke his or her constitutional right
Sandiganbayan, G.R. No. 231144, Feb. 19, 2020) to speedy disposition of cases in a timely manner and
failure to do so even when he or she has already
A mere mathematical reckoning of the time involved, suffered or will suffer the consequences of delay
therefore, would not be sufficient. In the application constitutes a valid waiver of that right. (Baya v.
of the constitutional guarantee of the right to speedy Sandiganbayan, G.R. Nos. 204978-83, July 6, 2020)
disposition of cases, particular regard must also be
taken of the facts and circumstances peculiar to each Remedy
case. (Binay v. Sandiganbayan, G.R. 120681, Oct. 1, The remedy for violation of the right to a speedy
1999) disposition of a case is dismissal obtained through
mandamus. (Lumanlaw v. Hon. Peralta, G.R. No.
In this case, since the preliminary investigation was 164953, Feb. 13, 2006)
terminated beyond the 10-day period provided in the
Revised Rules of Criminal Procedure, the burden of Speedy Trial v. Speedy Disposition of Cases
proof thus shifted towards the prosecution to prove SPEEDY
SPEEDY TRIAL
that the delay was not unreasonable. The period of DISPOSITION
delay in this case — 5 years — was extraordinarily Sec. 14 Sec. 16
long that there could conceivably be no procedural Only applies to the Covers all phases of
rule that would justify said delay. (Javier v. trial phase of criminal judicial, quasi-judicial
Sandiganbayan, G.R. No. 237997, Jun. 10, 2020) cases and administrative
proceedings
The Rules of Procedure of the OMB do not prescribe
a period to conclude a PI. Here, PI shall be conducted
in accordance with Sec. 3, Rule 112 of the ROC. Also
based on Rule 112, Sec. 4, the investigating officers
of the OMB has 10 days within which to determine In resolving questions involving the right to speedy
the presence of probable cause. The complaint was disposition of cases, the Court is guided by the ruling
filed on April 27, 2016; X was directed to file a in Cagang v. Sandiganbayan.
counter-affidavit on October 13, 2016. After that, the (a) The right to speedy disposition of cases is
case remained stagnant for nearly two years–that is, different from the right to speedy trial. The
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latter may only be invoked in criminal they are deemed to have waived their right to
prosecutions, while the former may be speedy disposition of cases. (Perez v.
invoked before any tribunal. Sandiganbayan, G.R. No. 245862, Nov. 3,
(b) A case is deemed initiated upon the filing of 2020)
a formal complaint prior to a preliminary
investigation. Delays beyond the reasonable Application
periods for preliminary investigation set by The fact finding investigation of the Ombudsman
the Ombudsman will be taken against the lasted nearly 5 years and 5 months. It is clear that the
prosecution. Ombudsman had taken an unusually long period just
to investigate the criminal complaint and to determine
(c) Courts must determine which party carries
whether cases be filed against the respondents. It is
the burden of proof. If the right is invoked incumbent for the State to prove that the delay was
within the given time periods, the defense reasonable which it failed. At no time should the
has the burden of proof that the right was progress and success of the preliminary investigation
justifiably invoked. It must prove whether the of a criminal case be made dependent upon the
case is motivated by malice or clearly only ratification of a treaty by the Senate that would
politically motivated and is attended by utter provide to the prosecutorial arm of the State, already
lack of evidence, and second, that the powerful and overwhelming in terms of its resources,
defense did not contribute to the delay. If the an undue advantage unavailable at the time of the
delay occurs beyond the given time period, investigation. To allow the delay under those terms
would definitely violate fair play and nullify due
the prosecution has the burden of justifying
process of law. The guarantee of speedy disposition
the delay. It must prove that it followed the of cases under Section 16 of Article III applies to all
prescribed procedure in the conduct of cases pending before all judicial, quasi-judicial or
preliminary investigation and in the administrative bodies. Thus, the fact-finding
prosecution of the case, that the complexity investigation should not be deemed separate from
of the issues and the volume of evidence the preliminary investigation conducted by the
made the delay inevitable, and that no Ombudsman if the aggregate time spent for both
prejudice was suffered by the accused as a constitutes inordinate and oppressive delay in the
result of the delay. disposition of the case. (People v. Sandiganbayan,
(a) Determination of the length of delay is never G.R. Nos. 188165 & 189063, Dec. 11, 2013)
mechanical. Courts must consider the entire
context of the case, from the amount of P. RIGHT AGAINST SELF-
evidence to be weighed to the simplicity or INCRIMINATION
complexity of the issues raised.
No person shall be compelled to be a witness against
himself. (PHIL. CONST., art. 3, § 17)
An exception to this rule is if there is an allegation
that the prosecution of the case was solely motivated
Concept
by malice. Malicious intent may be gauged from the
It is the duty of the prosecution, in order to convict
behavior of the prosecution throughout the
one of a crime, to produce evidence showing guilt
proceedings. If malicious prosecution is properly
beyond a reasonable doubt; and the accused cannot
alleged and substantially proven, the case would
be called upon either by express words or acts to
automatically be dismissed without need of further
assist in the production of such evidence; nor should
analysis of the delay. Another exception would be the
his silence be taken as proof against him. He has a
waiver of the accused to the right to speedy
right to rely on the presumption of innocence until the
disposition of cases or the right to speedy trial. If it
prosecution proves him guilty of every element of the
can be proven that the accused acquiesced to the
crime with which he is charged. (US v. Navarro, G.R.
delay, the constitutional right can no longer be
No. 1272, Jan. 11, 1904)
invoked. In all cases of dismissals due to inordinate
delay, the causes of the delays must be properly laid
The right against self-incrimination is not merely a
out and discussed by the relevant court.
formal technical rule the enforcement of which is left
to the discretion of the court; it is mandatory; it
(b) he right to speedy disposition of cases or the
secures to a defendant a valuable and substantive
right to speedy trial must be timely raised. right; it is fundamental to our scheme of justice.
The respondent or the accused must file the Therefore, the court may not extract from a
appropriate motion upon the lapse of the defendant's own lips and against his will an
statutory or procedural periods. Otherwise, admission of his guilt. Nor may a court as much as
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resort to compulsory disclosure, directly or indirectly, when they held that the extraction of petitioner’s urine
of facts usable against him as a confession of the for purposes of drug testing was merely a mechanical
crime or the tendency of which is to prove the act. (Dela Cruz v. People, G.R. No. 200748, July 23,
commission of a crime. 2014)
Thus, an accused has: EXCLUSIONS

(a) The right to forego testimony, and
The essence of the right against self-incrimination is
(b) The right to remain silent, unless he chooses testimonial compulsion, that is, the giving of evidence
to take the witness stand. (Chavez v. CA, against himself through a testimonial act. Purely
G.R. No. L-29169, Aug. 19, 1968) mechanical acts are not included in the prohibition as
the accused does not thereby speak his guilt, hence
Option of Refusal to Answer, not a Prohibition of the assistance and guiding hand of counsel is not
Inquiry required.
The right against self-incrimination prescribes an
option of refusal to answer incriminating questions Thus, the right against self-incrimination does not
and not a prohibition of inquiry. It simply secures to a apply in the following cases:
witness, whether he be a party or not, the right to (a) A woman charged with adultery may be
refuse to answer any particular incriminatory compelled to submit to physical examination
question, i.e., one the answer to which has a to determine her pregnancy.
tendency to incriminate him for some crime. (People (b) An accused may be compelled to submit to
v. Ayson, G.R. No. 85215, July 7, 1989)
physical examination (e.g. ultraviolet exam,
paraffin test) and to have a substance taken
1. Extent of the right
from his body for medical determination as to
whether he was suffering from gonorrhea
Against Testimonial Compulsion
which was contracted by his victim. (Bernas,
The kernel of the right is not against all compulsion,
but against testimonial compulsion. The right against The 1987 Constitution of the Republic of the
self-incrimination is simply against the legal process Philippines, 2009)
of extracting from the lips of the accused an (c) To expel morphine from the defendant’s
admission of guilt. It does not apply where the mouth.
evidence sought to be excluded is not an (d) To have the outline of the defendant’s foot
incrimination but as part of object evidence. (Agustin traced to determine its identity with bloody
v. CA, G.R. No. 162571, June 15, 2005) footprints.
(e) To be photographed or measured, or his
Covers Writing in a Prosecution for Falsification
garments or shoes removed or replaced, or
Writing is something more than moving the body, or
to move his body to enable the foregoing
the hands, or the fingers; writing is not a purely
mechanical act, because it requires the application of things to be done. (Dela Cruz v. People, G.R.
intelligence and attention. Writing means that the No. 200748, July 23, 2014)
accused is to furnish a means to determine whether (f) To be compelled to wear a pair of pants or
or not he is the falsifier. (Beltran v. Samson, G.R. No. garments for size (Bernas, The 1987
32025, Sept. 23, 1929) Constitution of the Republic of the
Philippines, 2009)
Purely Mechanical Act: Must Be Related to the
Offense Charged Over the years, the Supreme Court has expressly
Petitioner was arrested for extortion; he resisted excluded several kinds of object evidence taken from
having his urine sample taken; and finally, his urine the person of the accused from the realm of self-
sample was the only available evidence that was incrimination. These include:
used as basis for his conviction for the use of illegal (a) Photographs, hair, and other bodily
drugs. The drug test was a violation of petitioner's substances.
right to privacy and right against self-incrimination.
(b) Examination of a woman’s genitalia, in an
Cases where non-testimonial compulsion has been action for annulment filed by her husband, to
allowed reveal, however, that the pieces of evidence verify his claim that she was impotent, her
obtained were all material to the principal cause of orifice being too small for his penis.
the arrest. In the instant case, we fail to see how a (c) DNA testing and its results. (Agustin v. CA,
urine sample could be material to the charge of G.R. No. 162571, June 15, 2005)
extortion. The RTC and the CA, therefore, both erred
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when a particular question is addressed to him, the

The right against self-incrimination does not apply to answer to which may incriminate him for some
records required by law to be kept which are the offense, that he may refuse to answer on the strength
appropriate subjects of governmental regulation and of the constitutional guaranty. (People v. Ayson, G.R.
where restrictions are validly established. (Shapiro v. No. 85215, July 7, 1989)
United States, 335 U.S. 1, June 21, 1948)
A question tends to incriminate when the answer of
WHEN TO INVOKE; WAIVER the accused or the witness would establish a fact,
which would be a necessary link in a chain of
General Rule:
evidence to prove the commission of a crime by the
The right against self-incrimination is available in any
accused or the witness. Further, a crime or a criminal
civil, criminal, or administrative proceeding. (People
act may contain two or more elements and that a
v. Ayson, G.R. No. 85215, July 7, 1989)
question would have a tendency to incriminate, even
if it tends to elicit only one of said elements. (Isabela
Expanded Application
Sugar Co. v. Macadaeg, G.R. No. L-5924, Oct. 28,
(a) The right is extended to respondents in
1953)
administrative investigations that partake of
the nature of or are analogous to criminal Not Self-Executing; May Be Waived
proceedings. The right against self-incrimination is not self-
(b) The right extends to all proceedings executing or automatically operational. It must be
sanctioned by law. claimed. If not claimed by or in behalf of the witness,
(c) The right extends to all cases in which the protection does not come into play. It follows that
punishment is sought to be visited upon a the right may be waived, expressly, or impliedly, as
witness, whether a party or not. by a failure to claim it at the appropriate time. (People
(d) The right extends to legislative v. Ayson, G.R. No. 85215, July 7, 1989)
investigations.
When a person, however, voluntarily answers an
(e) The right extends to administrative incriminating question, he is deemed to have waived
proceedings which possess a criminal or his right. Moreover, after the accused has pleaded
penal aspect, i.e. medical board guilty, for the purpose of ascertaining the proper
investigation. penalty to be imposed or for any other legal
(f) The right extends to investigations purposes, the court may properly ask such questions
conducted by a fact-finding ad hoc board. which are necessary to that end. (Bernas, The 1987
(Standard Chartered Bank v. Senate Committee Constitution of the Republic of the Philippines, 2009)
on Banks, G.R. NO. 167173, Dec. 27, 2007;
Pascual v. Board of Medical Examiners, G.R. No. Where the witness, in answer to previous
L-25018, May 26, 1969; Galman v. Pamaran, G.R. incriminating questions, said, "I do not remember,"
that is clearly a refusal to answer, and the privilege is
Nos. 71208-09, Aug. 30, 1985)
not deemed waived thereby. (Isabela Sugar Co. v.
Macadaeg, G.R. No. L-5924, Oct. 28, 1953)
Forfeiture proceedings
Proceedings for forfeiture of proper are deemed
Not a Valid Waiver; Judgement Void; Habeas
criminal or penal, and, hence, the exemption of
Corpus is a Proper Remedy
defendants in criminal case from the obligation to be
In this case, petitioner is a defendant in a criminal
witnesses against themselves are applicable thereto
case. He was called by the prosecution as the first
(Cabal v. Kapunan, G.R. No. L-19052 Dec. 29,
witness in that case to testify for the People during
1962).
the first day of trial thereof. Petitioner objected and
invoked the privilege of self-incrimination. This he
Available Only When the Incriminatory Question
broadened "by the clear cut statement that “he will
is Asked
not testify.” But petitioner's protestations were met
The right against self-incrimination can be claimed
with the judge's emphatic statement that it "is the
only when the specific question, incriminatory in
right of the prosecution to ask anybody to act as
character, is actually put to the witness. It cannot be
witness on the witness stand including the accused,"
claimed at any other time. It does not give a witness
and that defense counsel "could not object to have
the right to disregard a subpoena, to decline to
the accused called on the witness stand." The
appear before the court at the time appointed, or to
cumulative impact of all these is that accused-
refuse to testify altogether. The witness receiving a
petitioner had to take the stand. He was thus
subpoena must obey it, appear as required, take the
stand, be sworn and answer questions. It is only
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peremptorily asked to create evidence against Accused v. Ordinary Witness

himself. ACCUSED ORDINARY
WITNESS
The Court ruled that there is therefore no waiver of The defendant in a cannot The witness receiving
the privilege. To be effective, a waiver must be be compelled to testify or a subpoena must
certain and unequivocal, and intelligently, produce evidence in the obey it, appear as
understandably, and willingly made; such waiver criminal case in which he required, take the
following only where liberty of choice has been fully is the accused, or one of stand, be sworn and
accorded. the accused. He cannot answer questions.
be compelled to do so
Habeas corpus is a high prerogative writ. It is even by subpoena or
traditionally considered as an exceptional remedy to other process or order of
release a person whose liberty is illegally restrained the Court.
such as when the accused's constitutional rights are The defendant in a A witness cannot
disregarded. Such defect results in the absence or criminal action can refuse refuse to take the
loss of jurisdiction and therefore invalidates the trial to testify altogether. He witness stand. It is
and the consequent conviction of the accused whose can refuse to take the only when a particular
fundamental right was violated. That void judgment witness stand, be sworn, question is addressed
of conviction may be challenged by collateral attack, answer any question. to which may
which precisely is the function of habeas corpus. This incriminate himself for
writ may issue even if another remedy which is less some offense that he
effective may be availed of by the defendant. Thus, may refuse to answer
failure by the accused to perfect his appeal before the on the strength of the
Court of Appeals does not preclude a recourse to the constitutional
writ. The writ may be granted upon a judgment guaranty.
already final. (Chavez v. CA, G.R. No. L-29169, Aug.
19, 1968) As to an accused in a criminal case, it is settled that
he can refuse outright to take the stand as a witness.
WHO MAY INVOKE An accused occupies a different tier of protection
from an ordinary witness. Under the Rules of Court,
Only Applies to Natural Persons in all criminal prosecutions the defendant is entitled
Unlike the search and seizure clause, which protects among others –
both natural persons and corporations, the privilege (a) To be exempt from being a witness against
against self-incrimination is a personal one, applying himself, and
only to natural individuals. Thus, a corporation may (b) To testify as witness in his own behalf; but if
be compelled to submit to the visitorial powers of the
he offers himself as a witness he may be
state even if this results in disclosure of criminal acts
of the corporation. Moreover, a corporate officer may cross-examined as any other witness;
not prevent the production of corporate papers on the however, his neglect or refusal to be a
ground that they may incriminate him personally, for witness shall not in any manner prejudice or
in such a situation it would not be a case of the officer be used against him.
incriminating himself but the corporation
incriminating him. (Bernas, The 1987 Constitution of The right of the defendant in a criminal case to be
the Republic of the Philippines, 2009) exempt from being a witness against himself signifies
that he cannot be compelled to testify or produce
evidence in the criminal case in which he is the
accused, or one of the accused. He cannot be
compelled to do so even by subpoena or other
process or order of the Court. He cannot be required
to be a witness either for the prosecution, or for a co-
accused, or even for himself. In other words – unlike
an ordinary witness (or a party in a civil action) who
may be compelled to testify by subpoena, having only
the right to refuse to answer a particular incriminatory
question at the time it is put to him – the defendant in
a criminal action can refuse to testify altogether. He
can refuse to take the witness stand, be sworn,
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answer any question. (Rosete v. Lim, G.R. No. Examples of Immunity Statutes
136051, June 8, 2006) (a) PD No. 749 (Granting Immunity from
Prosecution to Givers of Bribes and Other
2. Immunity statutes Gifts and to their Accomplices in Bribery and
Other Graft Cases against Public Officers,
Nature and Purpose July 18, 1975);
A state response to the constitutional exception – the (b) PD No. 1731 (Providing for Rewards and
right against self-incrimination – to its vast powers, Incentives to Government Witnesses and
especially in the field of ordinary criminal prosecution
Informants and other Purposes, October 8,
and in law enforcement and administration, is the use
of an immunity statute. Immunity statutes seek a 1980);
rational accommodation between the imperatives of (c) PD No. 1732 (Providing Immunity from
an individual’s constitutional right against self- Criminal Prosecution to Government
incrimination (considered the fount from which all Witnesses and for other Purposes, October
statutes granting immunity emanate) and the 8, 1980);
legitimate governmental interest in securing (d) PD No. 1886 (creating the Agrava Fact-
testimony. By voluntarily offering to give information Finding Board, October 22, 1983);
on the commission of a crime and to testify against (e) 1987 Constitution, Article XIII, Section 18(8)
the culprits, a person opens himself to investigation
(empowering the Commission on Human
and prosecution if he himself had participated in the
Rights to grant immunity);
criminal act. To secure his testimony without
exposing him to the risk of prosecution, the law (f) RA No. 6646 (An Act Introducing Additional
recognizes that the witness can be given immunity Reforms in the Electoral System and for
from prosecution. In this manner, the state interest is other Purposes, January 5, 1988);
satisfied while respecting the individual’s (g) Executive Order No. 14, August 18, 1986;
constitutional right against self-incrimination. (Quarto (h) RA No. 6770 (Ombudsman Act of 1989,
v. Ombudsman, G.R. No. 169042, Oct. 5, 2011) November 17, 1989);
(i) RA No. 6981 (Witness Protection, Security
Kinds of Immunity Statutes and Benefit Act, April 24, 1991);
(a) Use Immunity – prohibits use of witness'
(j) RA No. 7916 (The Special Economic Zone
compelled testimony and its fruits in any
Act of 1995, July 25, 1994); RA No. 9165
manner in connection with the criminal
(Comprehensive Dangerous Drugs Act of
prosecution of the witness.
2002, June 7, 2002);
(b) Transactional Immunity – grants immunity
(k) RA No. 9416 (An Act Declaring as Unlawful
to the witness from prosecution for an
Any Form of Cheating in Civil Service
offense to which his compelled testimony
Examinations, etc., March 25, 2007); and
relates. (Galman v. Pamaran, G.R. Nos.
(l) RA No. 9485 (Anti-Red Tape Act of 2007,
71208-09, Aug. 30, 1985)
June 2, 2007) (Quarto v. Hon. Ombudsman,
G.R. No. 169042, Oct. 5, 2011)
Source of Immunity: The Legislative
The power to grant immunity from prosecution is
essentially a legislative prerogative. The exclusive
Authority to Grant Immunity: The Executive, But
power of Congress to define crimes and their nature
Reviewable by Courts
and to provide for their punishment concomitantly
While the legislature is the source of the power to
carries the power to immunize certain persons from
grant immunity, the authority to implement is lodged
prosecution to facilitate the attainment of state
elsewhere. The authority to choose the individual to
interests, among them, the solution and prosecution
whom immunity would be granted is a constituent
of crimes with high political, social and economic
part of the process and is essentially an executive
impact. In the exercise of this power, Congress
function. (Quarto v. Ombudsman, G.R. No. 169042,
possesses broad discretion and can lay down the
Oct. 5, 2011)
conditions and the extent of the immunity to be
granted. (Quarto v. Ombudsman, G.R. No. 169042,
On the other hand, it is the trial court that determines
Oct. 5, 2011)
whether the prosecution’s preliminary assessment of
the accused-witness’ qualifications to be a state
witness satisfies the procedural norms. This
relationship is in reality a symbiotic one as the trial
court, by the very nature of its role in the
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administration of justice, largely exercises its 1. Requisites and limitations

prerogative based on the prosecutor’s findings and
evaluation. The court is given this power once it has 1. A first jeopardy attached prior to the second;
already acquired jurisdiction over the crime and the 2. The first jeopardy has been validly terminated;
accused. The discharge of an accused is part of the and
exercise of jurisdiction but is not a recognition of an
3. A second jeopardy is for the same offense as in
inherent judicial function. (Quarto v. Ombudsman,
G.R. No. 169042, Oct. 5, 2011) the first. (Cerezo v. People, G.R. No. 185230,
June 1, 2011)
Extent of Judicial Review of a Bestowed
Immunity a. A first jeopardy attached prior to
An immunity statute does not, and cannot, rule out a the second
review by the Supreme Court of the Ombudsman’s
exercise of discretion. Like all other officials under WHEN JEOPARDY WHEN JEOPARDY
our constitutional scheme of government, all their ATTACHES DOES NOT ATTACH
acts must adhere to the Constitution. The parameters [ICAPA] 1. If information does
of the Court’s review, however, are narrow as the 1. After a valid not charge any
Court is not a trier of facts. Since the determination Indictment; offense. (People v.
of the requirements under Section 17, Rule 119 of the 2. Before a Judge Consulta,
Rules of Court (Discharge of Accused to be State
Competent court; G.R. No. L-41251,
Witness) is highly factual in nature, the Court must,
thus, generally defer to the judgment of the 3. After March 31, 1976)
Ombudsman who is in a better position (than the Arraignment; 2. If, upon pleading
Sandiganbayan or the defense) to know the relative 4. When a valid Plea guilty, the accused
strength and/or weakness of the evidence presently has been entered; presents evidence
in his possession and the kind, tenor and source of and of complete self-
testimony he needs to enable him to prove his case. 5. When the accused defense, and the
Thus, the Court rules on the basis of a petition for has been court thereafter
certiorari under Rule 65 and address mainly the Acquitted or acquits him
Ombudsman’s exercise of discretion. The room for convicted, or the without entering a
intervention only occurs when a clear and grave
case dismissed or new plea of not
abuse of the exercise of discretion is shown. (Quarto
v. Ombudsman, G.R. No. 169042, Oct. 5, 2011) otherwise guilty for accused.
terminated without There is no valid
Q. RIGHT AGAINST DOUBLE JEOPARDY his express plea here. (People
consent. v. Balisacan, G.R.
No person shall be twice put in jeopardy of (Cerezo v. People, No. L-26376, Aug.
punishment for the same offense. If an act is G.R. No. 185230, 31, 1966)
punished by a law and an ordinance, conviction or June 1, 2011) 3. If the information
acquittal under either shall constitute a bar to another for an offense
prosecution for the same act. (PHIL. CONST., art. 3, § cognizable by the
21) RTC is filed with
the MTC. There is
Kinds of Jeopardy
no jurisdiction
SAME OFFENSE SAME ACT
here. (People v.
“No person shall be “When an act is punished
twice put in jeopardy of by a law and an Ibasan, Sr., G.R.
punishment for the ordinance, conviction or No. L-61652, June
same offense.” acquittal under either 22, 1984)
shall constitute a bar to 4. If a complaint filed
another prosecution for for preliminary
the same act.” investigation is
Conviction, acquittal, or Only conviction or dismissed.
dismissal of the case acquittal – not dismissal (People v. Daco,
without the express without the express G.R. No. L-17210,
consent of the accused consent of the accused –
Nov. 30, 1962)
will bar a subsequent will bar a subsequent
prosecution. prosecution.
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Judgement Must be Rendered by a Court of Dismissal before arraignment

Competent Jurisdiction Reinvestigation against the companions of the
The MeTC took cognizance of the Information for accused would not subject them to double jeopardy.
reckless imprudence resulting in parricide while the The case against them was dismissed before they
criminal case for parricide was still pending before were arraigned. (People v. Jugueta, G.R. No.
the RTC. We held that once jurisdiction is acquired 202124, April 5, 2016)
by the court in which the Information is filed, it is there
retained. Therefore, as the offense of reckless b. The first jeopardy has been
imprudence resulting in parricide was included in the validly terminated
charge for intentional parricide pending before the
RTC, the MeTC clearly had no jurisdiction over the (a) Acquittal;
criminal case filed before it, the RTC having retained (b) Conviction; or
jurisdiction over the offense to the exclusion of all
other courts. The requisite for jeopardy to attach that
Dismissal without the express consent of the
the judgment be rendered by a court of competent
accused [ViD-ReMs]
jurisdiction is therefore absent. A decision rendered
(a) Dismissal based on Violation of the right to a
without jurisdiction is not a decision in contemplation
of law and can never become executory. Hence, the speedy trial amounts to an acquittal
remand of the case to the RTC for trial would not (b) Dismissal based on demurrer to evidence is
amount to double jeopardy. (People v. Honrales, a dismissal on the merits
G.R. Nos. 182651 & 182657, Aug. 25, 2010) (c) Dismissal on motion of the prosecution,
subsequent to a motion for reinvestigation
The RTC issued its September 5, 2006 order in filed by the accused
defiance of the TRO issued by the CA. The records (d) Discharge of an accused to be a state
show that the CA had issued a TRO on April 19, witness. This amounts to an acquittal
2006, which should have prohibited the RTC from (e) Dismissal on the merits
further proceeding on the case. But the RTC, instead,
continued with the presentation of the prosecution’s
If the first dismissal was based on the merits, there
evidence and issued the assailed September 5, 2006
should be no second prosecution. If the first dismissal
order. Under this circumstance, the RTC’s
was not based on the merits and was erroneous, one
September 5, 2006 order was actually without force
should look at whether the dismissal was with the
and effect and would not serve as basis for the
consent of the accused. If not, there should be no
petitioners to claim that their right against double
second prosecution. (Bernas, The 1987 Philippine
jeopardy had been violated. The RTC, clearly, acted
Constitution: A Comprehensive Reviewer, 2011)
with grave abuse of discretion in issuing its
September 5, 2006 order in view of the earlier TRO
Under Sec. 9, Rule 113 ( now Sec. 9, Rule 117) of
issued by the CA. (Villalon v. Chan, G.R. No. 196508,
the Rules of Court, the defense of double jeopardy is
Sept. 24, 2014)
available to the accused only where he was either
convicted or acquitted or the case against him was
The RTC clearly exceeded its jurisdiction when it
dismissed or otherwise terminated without his
entertained the joint Motion for Reconsideration with
consent. (People v. Bulaong, G.R. No. L-19344)
respect to the accused-respondents who were at
large. Being at large, accused-respondents have not
When there was no denial of the right to speedy trial
regained their standing in court. Once an accused
and the dismissal was upon the instance of the
jumps bail or flees to a foreign country, or escapes
accused, reinstatement of the case did not violate the
from prison or confinement, he loses his standing in
right against double jeopardy. (Bernas, The 1987
court; and unless he surrenders or submits to the
jurisdiction of the court, he is deemed to have waived
2011)
any right to seek relief from the court. Thus, accused-
respondents were not placed in double jeopardy
Verbal orders
because, from the very beginning, the lower tribunal
There is no showing that this verbal order of
had acted without jurisdiction. Verily, any ruling
dismissal was ever reduced to writing and duly
issued without jurisdiction is, in legal contemplation,
signed by him. Thus, it did not yet attain the effect of
necessarily null and void and does not exist. In
a judgment of acquittal, so that it was still within the
criminal cases, it cannot be the source of an acquittal.
powers of the judge to set it aside and enter another
(People v. De Grano, G.R. No. 167710, June 5,
order, now in writing and duly signed by him,
2009)
reinstating the case. (Abay Sr. v. G.R. No. L-66132
June 27, 1988)
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Termination with consent, waiver of right of a statute. The rule in such a case is that if the
General Rule: Equivalent to a waiver of the defense one act results in two different offenses,
of double jeopardy. prosecution under one is a bar to prosecution
(a) Motion to dismiss for lack of jurisdiction under the other. (Bernas, The 1987 Constitution
(b) Motion to dismiss on the ground that the facts of the Republic of the Philippines, 2011).
alleged in the information did not constitute
the offense. This amounts to estoppel. Same Evidence Test
(c) Pleading not guilty to the second charge, Whether the evidence needed in one case will
instead of moving to quash support a conviction in the other. (U.S. v. Tan Oco,
Consenting to a provisional dismissal (Bernas, The G.R. No. 11338, Aug. 15, 1916)
1987 Philippine Constitution: A Comprehensive
Reviewer, 2011) However, this applies only in a more general sense,
hence it is the test laid down under Section 9 of Rule
Provisional Dismissal 117 of the Revised Rules of Criminal Procedure that
A case shall not be provisionally dismissed except should apply. This states that one offense must
with the express consent of the accused and with necessarily be included in the other, i.e., whether one
notice to the offended party. (ROC, Rule 117, § 8). offense is identical with the other or whether one
offense necessarily includes or is necessarily
The provisional dismissal of offenses punishable by included in the other. Identity of offenses does not
imprisonment not exceeding 6 years or a fine of any require one-to-one correspondence between the
amount, or both, shall become permanent 1 year facts and law involved in the two charges. (Bernas,
after issuance of the order without the case having The 1987 Philippine Constitution: A Comprehensive
been revived. With respect to offenses punishable Reviewer, 2011)
by imprisonment of more than 6 years, their
provisional dismissal shall become permanent 2 Different Provisions, different crimes
years after issuance of the order without the case Where two different laws (or articles of the same
having been revived. code) define two crimes, prior jeopardy as to one
of them is no obstacle to a prosecution of the other,
A motion of the accused for a provisional dismissal of although both offenses arise from the same facts,
a case is an express consent to such provisional if each crime involves some important act which is
dismissal. If a criminal case is provisionally dismissed not an essential element of the other. (Loney v.
with the express consent of the accused, the case People, G.R. No. 152644, February 10, 2006)
may be revived only within the periods provided in the
new rule. On the other hand, if a criminal case is If one provision requires proof of an additional fact or
provisionally dismissed without the express consent element which the other does not, an acquittal or
of the accused or over his objection, the new rule conviction or a dismissal of the information under one
would not apply. The case may be revived or refiled does not bar prosecution under the other. ( People v.
even beyond the prescribed periods subject to the Tiozon, G.R. No. 89823, G.R. No. 89823, June 19,
right of the accused to oppose the same on the 1991)
ground of double jeopardy or that such revival or
refiling is barred by the statute of limitations. (People Supervening Facts
v. Panfilo Lacson, G.R. 149453, Oct. 7, 2003) A conviction for an offense will not bar a prosecution
for an offense which necessarily includes the offense
c. A second jeopardy is for the same charged in the former information where:
offense as in the first 1. The graver offense developed due to a
supervening fact arising from the same act or
Same Offense [IAN-2] omission constituting the former charge.
1. Exact identity between the offenses charged in 2. The facts constituting the graver offense became
the first and second cases. known or were discovered only after the filing of
2. One offense is an attempt to commit or a the former information.
frustration of the other offense. The plea of guilty to the lesser offense was made
3. One offense is necessarily included or necessary without the consent of the prosecutor and the
includes the other. (Bernas, The 1987 offended party. (ROC, Rule 117, § 7)
Constitution of the Republic of the Philippines,
2009) If the facts could have been discovered by the
4. The situation is different when one act violates prosecution but were not discovered because of the
two different statutes or two different provisions
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prosecution’s incompetence, it would not be otherwise, petitioner will be unduly exposed to double
considered a supervening event. jeopardy, which the Court cannot countenance.
(Navaja v. De Castro
Ordinances and National Statute Punishing the G.R. No. 180969, Sept. 11, 2017)
Same Act
The constitutional protection, against double d. Limitations
jeopardy is available although the prior offense
charged under an ordinance be different from the Motions for Reconsideration
offense charged subsequently under a national At any time before a judgment of conviction becomes
statute such as the Revised Penal Code, provided final, the court may, upon motion of the accused or at
that both offenses spring from the same act or set of its own instance, but with the consent of the accused,
acts. (People v. Relova G.R. No. L-45129 March 6, grant a new trial or reconsideration. (ROC, Rule 121,
1987) § 1)
Quasi Offense From the phraseology of the rule, it is evident that a

Once convicted or acquitted of a specific act of motion for new trial or a motion for reconsideration
reckless imprudence, the accused may not be applies when the judgment is one of conviction; and
prosecuted again for that same act. For the essence it is the accused, not the prosecution which avails of
of the quasi offense of criminal negligence under the same. (Riano, Criminal Procedure, 583, 2014)
Article 365 of the Revised Penal Code lies in the
execution of an imprudent or negligent act that, if Appeals
intentionally done, would be punishable as a felony. Any party may appeal from a judgment or final order,
The law penalizes thus the negligent or careless act, unless the accused will be placed in double jeopardy.
not the result thereof. The gravity of the consequence (ROC, Rule 122, § 1)
is only taken into account to determine the penalty, it
does not qualify the substance of the offense. And, General Rule: The prosecution may not appeal an
as the careless act is single, whether the injurious acquittal, and an acquittal is immediately final. (ROC,
result should affect one person or several persons, Rule 120, § 7)
the offense (criminal negligence) remains one and
the same, and cannot be split into different crimes Exception: The prosecution may appeal an order
and prosecutions. To do so would be a violation of of dismissal when:
the mantle of protection afforded by the Double 1. The dismissal is on motion or with the
Jeopardy Clause. (Ivler v. San Pedro, G.R. No. express consent of the accused. (ROC, Rule
172716, Nov. 17, 2010)
117, § 7)
Continuous Crimes
Petitioner’s acts of allegedly preventing Ms. Exception to the Exception:
Magsigay from appearing and testifying in a (a) If motion is based on violation of the right to
preliminary investigation proceeding and offering in a speedy trial or on a demurrer to evidence.
evidence a false affidavit were clearly motivated by a (People v. Velasco, G.R. No. 140633, Feb. 4,
single criminal impulse in order to realize only one 2002)
criminal objective, which is to obstruct or impede the (b) The dismissal does not amount to an
preliminary investigation proceeding in I.S. Case No. acquittal or dismissal on the merits. (People
04-1238. Thus, applying the principle of delito v. Salico, G.R. No. L-1567, Oct. 13, 1949)
continuado (continuous crime), petitioner should only (c) The question to be passed upon is purely
be charged with one (1) count of violation of PD 1829 legal. (People v. Desalisa, L-15516, Dec.17,
which may be filed either in Jagna, Bohol where Ms.
1966)
Magsigay was allegedly prevented from appearing
and testifying in I.S. Case No. 04-1238, or in (d) The dismissal violates the right of due
Tagbilaran City, Bohol where petitioner allegedly process of the prosecution. (People v.
presented a false affidavit in the same case. Sandiganbayan et. al., G.R. No. 164577, July
However, since he was already charged – and in fact, 5, 2010)
convicted in a Judgment dated July 3, 2007 – in the (e) The dismissal or acquittal was made with
MTCC-Tagbilaran, the case in MCTC-Jagna should grave abuse of discretion. (People v.
be dismissed as the events that transpired in Jagna, Sandiganbayan et. al., G.R. No. 164577, July
Bohol should only be deemed as a partial execution 5, 2010)
of petitioner’s single criminal design. Consequently,
the criminal case in MCTC-Jagna must be dismissed;
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Although, as a rule, dismissal of a criminal case may vice versa, that identical material cannot be the
be used to abate an administrative case based on the subject of two separate libels. The two offenses, one
same facts, the same does not hold true if it were the a violation of Article 353 of the Revised Penal Code
other way around, that is, the dismissal of the and the other a violation of Section 4(c)(4) of R.A.
administrative case is being invoked to abate the 10175 involve essentially the same elements and are
criminal case. However, if the two actions are based in fact one and the same offense. Charging the
on the same facts and evidence, such as in this case, offender under both laws would be a blatant violation
dismissal in administrative case may be used to of the proscription against double jeopardy. As to
negate criminal liability. (People v. Sandiganbayan Section 4(c)(2) on Child Pornography, the Court said
et. al., G.R. No. 164577, July 5, 2010). that Section 4(c)(2) merely expands the ACPA’s
scope so as to include identical activities in
Effect of an accused’s appeal of his conviction cyberspace. As previously discussed, ACPA’s
(a) Waiver of right to double jeopardy definition of child pornography in fact already covers
(b) The appellate court may place a penalty the use of “electronic, mechanical, digital, optical,
higher than that of the original conviction. magnetic or any other means.” Thus, charging the
(Trono v. United States, 199 U.S. 521, 26 offender under both Section 4(c)(2) and ACPA would
S.C.T. 121, 50 L. Ed. 2920, 1905) likewise be tantamount to a violation of the
constitutional prohibition against double jeopardy.
(Disini v. Sec. of Justice, G.R. No. 203335, Feb. 18,
An appeal in a criminal case opens the entire case 2014)
for review on any question including one not raised
by the parties. When an accused appeals from the R. RIGHT AGAINST INVOLUNTARY
sentence of the trial court, he waives the
constitutional safeguard against double jeopardy and SERVITUDE
throws the whole case open to the review of the
appellate court, which is then called upon to render (a) No person shall be detained solely by reason
such judgment as law and justice dictate, whether of his political beliefs and aspirations.
favorable or unfavorable to the appellant. (People v. (b) No involuntary servitude in any form shall
Torres, G.R. No. 189850, Sept. 22, 2014) exist except as a punishment for a crime
whereof the party shall have been duly
Res Judicata convicted. (PHIL. CONST., art. 3, § 18)
Res judicata is a doctrine of civil law and thus has no
bearing on criminal proceedings. Res judicata Involuntary Servitude
applies only when there is a final judgment on the Every condition of enforced or compulsory service of
merits of a case; it cannot be availed of in an one to another no matter under what form such
interlocutory order even if the order is not appealed. servitude may be disguised. (Rubi v. Provincial
Even if the argument is expanded to contemplate Board, G.R. No. L-14078, March 7, 1919)
double jeopardy, double jeopardy will not apply
because it requires that the accused has been A private person who contracts obligations of
convicted or acquitted or that the case against the rendering services in a civil capacity to the Army as
accused has been dismissed or terminated without an employee in its offices cannot, by law, either civil
his express consent. (People v. Escobar, G.R. No. or military, be compelled to fulfill them by
214300, July 26, 2017) imprisonment and deportation from his place of
residence. (In Re A.O. Brooks, G.R. No. L-507,
e. Cybercrime Prevention Act November 5, 1901).
Section 7 of RA 10175 which provides for Slavery

prosecution under both the Revised Penal Code and The status or condition of a person over whom any or
the Cybercrime Prevention Act was assailed as all of the powers attaching to the right of ownership
unconstitutional for violating the rule on double are charged. (R.A. No. 10364, Sec. 3(e))
jeopardy. The provision was declared
unconstitutional as to Section 4(c)(4) on Libel and Debt Bondage
Section 4(c)(2) on Child Pornography. However, with The pledging by the debtor of his or her personal
respect to the other prohibited acts, the Court left the services or labor or those of a person under his or her
determination of the correct application of Section 7 control as security or payment for a debt, when the
to actual cases. In relation to Section 4(c)(4) on length and nature of services is not clearly defined or
Libel, the Court said that if the published material on when the value of the services as reasonably
print, said to be libelous, is again posted online or
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assessed is not applied toward the liquidation of the Code, it need only be disproportionate to the
debt. (R.A. 10364, Sec. 3(i)) circumstances of the offense and of the offender.
Political Prisoners It has been held that to come under the constitutional
A state cannot hold “political prisoners”. (Bernas, The ban on excessive and inhuman punishment, the
1987 Constitution: A Comprehensive Reviewer, 152, punishment must be ‘flagrantly and plainly
2011) oppressive,’ ‘wholly disproportionate to the nature of
the offense as to shock the moral sense of the
Exceptions [P2EPOM]: community.’ (People v. Estoista, G.R. No. L-5793,
1. Punishment for a crime. Aug. 27, 1953)
2. Personal military or civil service in the interest of
national defense. Cruel and Inhuman
3. In naval enlistment, a person who enlists in a Involves torture or lingering suffering (e.g., being
merchant ship may be compelled to remain in drawn and quartered).
service until the end of the voyage.
4. Posse Comitatus (every able-bodied person is Degrading
ultimately responsible for keeping peace) for the It exposes a person to public humiliation (e.g., being
apprehension of criminals. tarred and feathered, then paraded throughout town).
5. Return to work order issued by the DOLE
Excessive Fine
Secretary or the President.
When under any circumstance, the fine is
6. Minors under patria potestas are obliged to obey
disproportionate to the offense.
their parents. (Bernas, The 1987 Philippine
Constitution: A Comprehensive Reviewer, 152, Guides for Determining Whether a Punishment
2011)
is “Cruel and Unusual”
(a) It must not be so severe as to be degrading
to the dignity of human beings.
S. RIGHT AGAINST EXCESSIVE FINES,
(b) It must not be applied arbitrarily.
AND CRUEL AND INHUMAN
(c) It must not be unacceptable to contemporary
PUNISHMENTS
society.
(d) It must not be excessive.
Excessive fines shall not be imposed, nor cruel,
degrading or inhuman punishment inflicted. Neither
shall death penalty be imposed, unless, for Note
compelling reasons involving heinous crimes, the It must serve a penal purpose more effectively than
Congress hereafter provides for it. Any death penalty a less severe punishment would. (Brennan
already imposed shall be reduced to reclusion concurring in Furman v. Georgia, 408 U.S. 238,
perpetua. 1972)
The employment of physical, psychological, or R.A. 9346 prohibited the imposition of the death
degrading punishment against any prisoner or penalty. Only by an Act of Congress can it be reborn.
detainee or the use of substandard or inadequate (Bernas, The 1987 Philippine Constitution: A
penal facilities under subhuman conditions shall be Comprehensive Reviewer, 2011)
dealt with by law. (PHIL. CONST., art. III, § 19)
Anti-Hazing Law
“Cruel and unusual,” as these words are found in the The Anti Hazing Law does not violate the prohibition
Constitution, do not have the same meaning as on cruel and unusual punishment. The prohibition
“clearly excessive” found in Article 5 of the Revised contemplates "extreme corporeal or psychological
Penal Code. The fact that the punishment authorized punishment.“ Penalties like fines or imprisonment
by the statute is severe does not make it cruel and may be cruel, degrading, or inhuman only when they
unusual. Thus, to be “cruel and unusual” or are "flagrantly and plainly oppressive and wholly
“excessive” within the meaning of the constitution, disproportionate to the nature of the nature of the
the penalty must be flagrantly disproportionate to the offense as to shock the moral sense of the
offense no matter under what circumstances the community." However, if the penalty has a legitimate
offense may be committed; but to be “clearly purpose, then the punishment is proportionate, and
excessive” under Article 5 of the Revised Penal the constitutional prohibition is not violated. The Anti-
Hazing Law seeks to punish the conspiracy of silence
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and secrecy, tantamount to impunity, that would death penalty. (REVISED PENAL CODE, art.
otherwise shroud the crimes committed. Hence, the 47)
penalty has a legitimate purpose, and the
constitutional prohibition is not violated. (Fuertes v. The duty of a judge when an accused pleads guilty to
Senate of the Philippines, G.R. No. 208162, Jan. 07, a capital offense is to look into the evidence to see if
2020) death is the proper penalty. (People v. Vinuya, G.R.
No. 125925, Jan. 28, 1999)
DEATH PENALTY
Death penalty was abolished because: T. NON-IMPRISONMENT FOR DEBTS
(a) It inflicts traumatic pain not just on the convict
No person shall be imprisoned for debt or non-
but also on his family, even if the penalty is payment of a poll tax. (PHIL. CONST., art. 3, § 20)
not carried out.
(b) There was no convincing evidence that it is Debt
effective as a deterrent of serious crime. A contractual obligation, whether express or implied,
(c) Penology favors reformative rather than resulting in any liability to pay money. Thus, all other
vindictive penalties. types of obligations are not within the scope of this
(d) Life is too precious a gift to be placed at the prohibition. (Bernas, The 1987 Philippine
discretion of a human judge. Constitution: A Comprehensive Reviewer, 2011)
(e) The law itself, by imposing so many
safeguards before such is carried out, Imprisonment for Fraudulent Debt
1. The fraudulent debt constitutes a crime (e.g.
manifests a reluctance to impose it. (Bernas,
estafa); and
The 1987 Philippine Constitution: A
2. The debtor has been duly convicted.
Legislature may re-impose it, subject to the BP 22

following conditions:
The gravamen of the offense punished by BP 22 is
1. That Congress defines what is meant by heinous
the act of making and issuing a worthless check or a
crimes;
check that is dishonored upon its presentation for
2. That Congress specify and penalize by death, payment. It is not the non-payment of an obligation
only those crimes that qualify as heinous in which the law punishes. The law is not intended or
accordance with the definition set in heinous designed to coerce a debtor to pay his debt. The
crimes law or death penalty law; and thrust of the law is to prohibit, under pain of penal
3. That Congress, in enacting this death penalty bill, sanctions, the making of worthless checks and
be singularly motivated by “compelling reasons putting them in circulation. (Lozano v. Martinez, G.R.
involving heinous crimes.” (People v. Echegaray, No. L-63419, Dec. 18, 1986)
G.R. No. 117472, Feb. 7, 1997)
Subsidiary Imprisonment
Heinous Crimes If an accused fails to pay the fine imposed upon him,
Heinous crimes are those which are grievous, this may result in his subsidiary imprisonment
odious, and hateful; and by reason of their manifest because his liability is ex delicto and not ex contractu.
wickedness, viciousness, atrocity, and perversity, are (Alejo v. Judge Inserto, A.M. No. 1098 CFI, May 31,
repugnant and outrageous to the common standards 1976)
and norms of decency and morality in a just, civilized,
and ordered society. (People v. Echegaray, G.R. No. Poll Tax
117472, Feb. 7, 1997) It is a capitation tax imposed on all persons of a
certain age. At present it is the tax one pays for his
Instances When Death Penalty Shall Not Be or her residence certificate which generally serves as
Imposed a personal identification instrument. (Bernas, The
(a) Guilty person is 70 years old and above; 1987 Philippine Constitution: A Comprehensive
(b) Guilty person is below 18 years old; and Reviewer, 2011)
(c) Where upon appeal or automatic review of
the case by the SC, the required majority
vote is not obtained for the imposition of the
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U. EX POST FACTO LAWS AND BILLS OF Application

ATTAINDER The prohibition on ex post facto laws only applies to
retrospective penal laws. (Bernas, The 1987
No ex post facto law or bill of attainder shall be Philippine Constitution: A Comprehensive Reviewer,
enacted. (PHIL. CONST., art. 3, § 22) 2011)
1. EX POST FACTO LAW When Laws are Penal

1. Makes an action done before the passing of the (a) When it prescribes a criminal penalty
law, and which was innocent when done, imposable in a criminal trial.
criminal, and punishes such action. (b) If it prescribes a burden equivalent to a
2. Aggravates the crime or makes it greater than criminal penalty (e.g. disqualification from the
when it was committed. practice of a profession) even in
3. Changes the punishment and inflicts a greater administrative proceedings. (Bernas, The
punishment than that which the law annexed to 1987 Philippine Constitution: A
the crime when it was committed. Comprehensive Reviewer, 2011)
4. Alters the legal rules of evidence and receives
Instances when the prohibition on ex-post facto
less testimony than the law required at the time
laws is inapplicable
of the commission of the offense in order to Extradition treaty - As the Court of Appeals correctly
convict the accused. concluded, the Treaty is neither a piece of criminal
5. Assumes to regulate civil rights and remedies but legislation nor a criminal procedural statute. "It
in effect imposes a penalty or deprivation of a merely provides for the extradition of persons wanted
right, which when done was lawful. for prosecution of an offense or a crime which offense
6. Deprives a person accused of a crime of some or crime was already committed or consummated at
lawful protection to which he has become entitled the time the treaty was ratified." (Wright v. CA, G.R.
such as the protection of a former conviction or No. 113213, Aug. 15, 1994)
acquittal, or a proclamation of amnesty. (Bernas,
Probation Law and its amendments - Presidential
The 1987 Philippine Constitution: A
Decree No. 1990, like the Probation Law that it
Comprehensive Reviewer, 2011) amends, is not penal in character. It may not be
considered as an ex post facto law. (Fajardo v. CA,
Characteristics of an Ex Post Facto Law: G.R. No. 128508, Feb. 1, 1999)
1. Refers to criminal matters
2. Retrospective Change of court jurisdiction - R.A 7975, which
3. Causes prejudicial to the accused amended P.D. 1606 as regards the Sandiganbayan's
(Bernas, The 1987 Philippine Constitution: A jurisdiction, its mode of appeal and other procedural
Comprehensive Reviewer, 2011) matters, has been declared by the Court as not a
penal law, but clearly a procedural statute, i.e. one
Illustrations which prescribes rules of procedure by which courts
A law shortening the prescriptive period for a crime is applying laws of all kinds can properly administer
ex post facto. (People v. Sandiganbayan, G.R. No. justice. Not being a penal law, the retroactive
101724, July 3, 1992) application of R.A. 8249 cannot be challenged as
unconstitutional. On the removal of the intermediate
Analogous to an ex post facto law and covered by the review of facts, the Supreme Court still has the power
same prohibition would be an official interpretation of of review to determine if he presumption of innocence
a penal law given by the Department of Justice which has been convincing overcome. (Lacson v. Executive
is subsequently changed to the prejudice of one who Secretary, G.R. No. 128096, Jan. 20, 1999)
had relied on the earlier interpretation. (Co v. Court
of Appeals, G.R. No. 100776, October 28,1993) House rental law - The petitioner's contention that BP
877 is an ex post facto law must also be rejected. It
Where the Court had denied Ombudsman jurisdiction is not penal in nature and the mere fact that it
over cases before RTC but later reversed its decision contains penal provisions does not make it so. At any
while the case was already before the rate, she is not being prosecuted under the said
Sandiganbayan, there is no ex post facto law penal provisions. (Juarez v. CA, G.R. No. 93474, Oct.
because no new law was passed. The Courts 7, 1992)
interpretation retroacts to the date the [Ombudsman
Act] took effect. (Castro v. Judge Deloria, G.R. No. Preventive suspension pendente lite - Section 13 of
163586, January 27, 2009) Republic Act 3019, as among the crimes subjecting
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the public officer charged therewith with suspension 3. On a Named individual or easily ascertainable
from office pending action in court, is not a penal members of a group
provision which violates the constitutional prohibition 4. The penal burden is imposed directly by the law
against the enactment of ex post facto law. The RPC Without judicial trial.
clearly states that suspension from the employment (Bernas, The 1987 Philippine Constitution: A
or public office during the trial or in order to institute Comprehensive Reviewer, 2011)
proceedings shall not be considered as penalty. It is
not a penalty because it is not imposed as a result of “Frequently a bill of attainder was doubly
judicial proceedings. In fact, if acquitted, the official objectionable because of its ex post facto features.
concerned shall be entitled to reinstatement and to This is the historic explanation for uniting the two
the salaries and benefits which he failed to receive mischiefs in one clause... Therefore, if a statute is a
during suspension (Bayot v. Sandiganbayan, G.R. bill of attainder, it is also an ex post facto law. But if it
Nos. L-61776 to No. L-61861, March 23, 1984) is not an ex post facto law, the reasons that establish
that it is not are persuasive that it cannot be a bill of
IRR of RA 10951; Class-A Light Weapons attainder”. (People v. Ferrer, G.R. No. L-32613-14,
There is no retroactive application mandated in the Dec. 27, 1972)
Rules Implementing RA 10951. On the contrary,
firearm licenses to possess Class-A light weapons The bill of attainder does not need to be directed at a
issued before the passage of RA 10591 are still specifically named person. It may also refer to easily
recognized both under RA 10591 and its ascertainable members of a group in such a way as
Implementing Rules. If the IRR were indeed in the to inflict punishment on them without judicial trial.
nature of an ex post facto law, then private individuals (Cummings v. Missouri, 4 Wall 277, 323 US, 1867)
who possess Class-A light weapons under the old
law must be expressly punished under the new law For a law to be considered a bill of attainder, it must
because the new law only allows them to own and contain all the following: a specification of certain
possess small arms. Yet, as expressly provided in individuals or a group of individuals, the imposition of
the law, existing license holders of Class-A light a punishment, penal or otherwise, and the lack of
weapons may renew their licenses under the new law judicial trial. (Fuertes v. Senate of the Philippines,
and Implementing Rules. Therefore, the IRR of RA G.R. No. 208162, Jan. 07, 2020)
No. 10591 is not an ex post facto law. (Acosta v.
Ochoa, G.R. Nos. 211559, 211567, 212570 & Anti-Hazing Law
215634, Oct. 15, 2019) The Anti-Hazing Law is not a bill of attainder. There
is no lack of judicial trial. The mere filing of an
2. BILL OF ATTAINDER Information against the accused is not a finding of
guilt. The accused is not being charged merely
A bill of attainder is a legislative act which inflicts because he/she is a member of a fraternity/sorority,
punishment without a judicial trial. If the punishment but because he/she is allegedly a principal in the
be less than death, the act is termed a bill of pains hazing that led to the victim’s death. These are
and penalties. (Cummings v. Missouri, 4 Wall 277, matters for the trial court to decide. The prosecution
323 US, 1867) must still prove the offense. (Fuertes v. Senate of the
Philippines, G.R. No. 208162, Jan. 07, 2020)
Nature of a bill of attainder as a legislative
adjudication of guilt V. WRITS OF HABEAS CORPUS,
Its essence is the substitution of a legislative for a
KALIKASAN, HABEAS DATA, AND
judicial determination of guilt.
AMPARO
The constitutional ban against bills of attainder
serves to implement the principle of separation of 1. WRIT OF HABEAS CORPUS
powers by confining legislatures to rule-making and
thereby forestalling legislative usurpation of the The privilege of the writ of habeas corpus shall not be
judicial function. (People v. Ferrer, G.R. Nos. L- suspended except in cases of invasion or rebellion
32613-14, Dec. 27, 1972) when the public safety requires it. (PHIL. CONST., art.
3, § 15)
Elements (LINaW)
Privilege of the Writ of Habeas Corpus
1. There must be a Law The right to have an immediate determination of the
2. The law Imposes a penal burden legality of the deprivation of physical liberty. (Bernas,
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The 1987 Constitution of the Republic of the therefrom if such restraint is illegal. Any restraint
Philippines, 2009) which will preclude freedom of action is sufficient."
Writ of Habeas Corpus The restraint of liberty need not be confined to any
A writ directed to the person detaining another, offense so as to entitle a person to the writ. Habeas
commanding him to produce the body of the prisoner corpus may be availed of as a post-conviction
at a designated time and place, with the day and remedy or when there is an alleged violation of the
cause of his caption and detention, to do, submit to, liberty of abode. (Osorio v Navera, G. R. No. 223272,
and receive whatever the court or judge awarding the February 26, 2018)
writ shall consider in the behalf. (Sombong v. CA,
G.R. No. 111876, Jan. 31, 1996) When Writ Not Allowed or Discharge Authorized
The writ shall not be allowed if it appears that the
To What Habeas Corpus Extends person alleged to be restrained of his liberty is in the
Except as otherwise expressly provided by law, the custody of an officer under process issued by a court
writ of habeas corpus shall extend to all cases of or judge or by virtue of a judgment or order of a court
illegal confinement or detention by which any person of record, and that the court or judge had jurisdiction
is deprived of his liberty, or by which the rightful to issue the process, render the judgment, or make
custody of any person is withheld from the person the order.
entitled thereto. (ROC, Rule 102, Sec. 1)
If the jurisdiction appears after the writ is allowed, the
Habeas corpus is the proper remedy for a person person shall not be discharged by reason of any
deprived of liberty due to mistaken identity. In such informality or defect in the process, judgment, or
cases, the person is not under any lawful process order. Nor shall anything in this rule be held to
and is continuously being illegally detained. (In the authorize the discharge of a person charged with or
Matter of the Petition for Habeas Corpus of Datukan convicted of an offense in the Philippines, or of a
Malang Salibo, G.R. No. 197597, April 8, 2015). person suffering imprisonment under lawful
judgment. (ROC, Rule 102, Sec. 4)
Purpose of the Writ
The primary purpose of the writ is to inquire into all Process
manner of involuntary restraint as distinguished from An application for a writ of habeas corpus may be
voluntary, and to relieve a person therefrom if such made through a petition filed before the:
restraint is illegal. (Agcaoili v. Hon. Farinas, G.R. No. (a) Supreme Court or any of its members;
232395, July 3, 2018) (b) Court of Appeals, or any of its members in
instances authorized by law; or
What is Suspended: The Privilege, Not The Writ (c) Regional Trial Court or any of its presiding
The writ is never suspended. It always issues as a judges.
matter of course. What is suspended is the privilege
of the writ, i.e., once the officer making the return
The court or judge grants the writ and requires the
shows to the court that the person detained is being
officer or person having custody of the person
detained for an offense covered by the suspension,
allegedly restraining of liberty to file a return of the
the court may not inquire further. (Bernas, The 1987
writ. A hearing on the return of the writ is then
Constitution of the Republic of the Philippines, 2009)
conducted.
Remedy Becomes Moot When Restraint
The return of the writ may be heard by a court apart
Becomes Legal
from that which issued the writ. Should the court
The arrest warrants against the accused were issued
issuing the writ designate a lower court to which the
by the court that has jurisdiction over the offense
writ is made returnable, the lower court shall proceed
charged. Since the restraint on the accused has
to decide the petition of habeas corpus. By virtue of
become legal, the remedy of habeas corpus has
the designation, the lower court acquires the power
already become moot and academic. The "great writ
and authority to determine the merits of the petition
of liberty" of habeas corpus "was devised and exists
for habeas corpus. Therefore, the decision on the
as a speedy and effectual remedy to relieve persons
petition is a decision appealable to the court that has
from unlawful restraint, and as the best and only
appellate jurisdiction over decisions of the lower
sufficient defense of personal freedom." Habeas
court. (In the Matter of the Petition for Habeas Corpus
corpus is an extraordinary, summary, and equitable
of Datukan Malang Salibo, G.R. No. 197597, April 8,
writ, consistent with the law's "zealous regard for
2015)
personal liberty." Its primary purpose is “to inquire
into all manner of involuntary restraint as
National Bilibid Inmates; Standing
distinguished from voluntary, and to relieve a person
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The inmates' allegations of suddenly being 2. WRIT OF KALIKASAN

transferred from the National Bilibid Prisons in (Rule 7, A.M. No. 09-6-8-SC)
Muntinlupa City to the National Bureau of Corrections
in Manila City for the purpose of conducting an Definition (Sec. 1)
inspection on their living quarters, if proven, are A remedy available to a natural or juridical person,
sufficient to clothe the party with standing to file an entity authorized by law, people’s organization, non-
application for a writ of habeas corpus, provided that governmental organization, or any public interest
they invoke a violation of a fundamental right granted group accredited by or registered with any
to all citizens, regardless of whether they are government agency, on behalf of persons whose
incarcerated or not. However, mere allegation of a constitutional right to a balanced and healthful
violation of one's constitutional right is not enough. ecology is violated, or threatened with violation by an
The violation of constitutional right must be sufficient unlawful act or omission of a public official or
to void the entire proceedings. (In the Matter of the employee, or private individual or entity, involving
Petition for Writ of Habeas Corpus/Data v. De Lima, environmental damage of such magnitude as to
G.R. Nos. 215585 & 215768, Sept. 8, 2020). prejudice the life, health or property of inhabitants in
two or more cities or provinces.
Suspension of the Privilege of the Writ of
Habeas Corpus Requisites for the issuance of the Writ:
1. There is an actual or threatened violation of the
The President may suspend the privilege for a period constitutional right to a balanced and healthful
not exceeding 60 days. The grounds for the ecology;
suspension of the privilege are: 2. The actual or threatened violation arises from an
**Actual invasion or actual rebellion; and unlawful act or omission of a public official or
1. When the public safety requires the suspension employee, or private individual or entity; and
3. The actual or threatened violation involves or will
The suspension of the privilege of the writ shall apply lead to an environmental damage of such
only to persons judicially charged for rebellion or magnitude as to prejudice the life, health or
offenses inherent in or directly connected with the property of inhabitants in two or more cities or
invasion.
provinces. (Segovia v. The Climate Change
During the suspension of the privilege of the writ, any
Commission, G.R. No. 211010, March 7, 2017)
person thus arrested or detained shall be judicially
charged within three days, otherwise he shall be
released. (PHIL. CONST., art. 7, § 18) Who may file
(a) Natural Persons
Inapplicability of the Writ of Habeas Corpus (b) Juridical Persons
1. To question the conditions of confinement (c) Entity organized by law
2. Once charges have been filed in court (d) NGO
(e) Any public interest group accredited by or
Limitations to the Writ of Habeas Corpus (f) registered with any government agency
(Sec. 1)
DOES NOT
EXTENDS TO
EXTEND TO
Where to file
All cases of illegal Questions of The petition shall be filed with the Supreme Court or
confinement or conditions of with any of the stations of the Court of Appeals. (Sec.
detention by which any confinement; but 3)
person is deprived of his only to the fact and
liberty, or by which the duration of When Is The Writ Issued
rightful custody of any confinement.
person is withheld from Within three (3) days from the date of filing of
the person entitled to it. It is not a means for the petition, if the petition is sufficient in form
the redress of and substance (Sec. 5)
It is essential to inquire grievances or to
into all manner of seek injunctive relief What are the reliefs granted
involuntary restraint and or damages. (In re: Directing the respondent to:
to relieve a person from Major Aquino, G.R. (a) Permanently cease and desist from committing
it if such restraint is 174994, Aug. 31, acts or neglecting the performance of a duty in
illegal. 2007) violation of environmental laws
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(b) Permanently cease and desist from committing affinity in default of those mentioned in the
acts or neglecting the performance of a duty in preceding paragraph.
violation of environmental laws
(c) Protect, preserve, rehabilitate or restore the National Bilibid Inmates
environment; The right of a convicted national inmate to his or her
(d) Monitor strict compliance with the decision and privacy runs counter to the state interest of
preserving order and security inside our prison
orders of the court
systems. There is no longer any reasonable
(e) Make periodic reports on the execution of the final expectation of privacy when one is being monitored
judgment and guarded at all hours of the day. Unless there is
(f) Other reliefs which relate to the right of the people compelling evidence that a public employee engaged
to a balanced and healthful ecology or to the in the gathering, collecting or storing of data or
protection, preservation, rehabilitation or information on the convicted national inmate has
restoration of the environment. committed an unlawful act which threatens the life of
the inmate, a petition for the writ of habeas data
3. WRIT OF HABEAS DATA cannot prosper (In the Matter of the Petition for Writ
of Habeas Corpus/Data v. De Lima, G.R. Nos.
Definition (Sec. 1) 215585 & 215768, Sept. 8, 2020).
The writ of habeas data is a remedy available to any
person whose right to privacy in life, liberty or security 4. WRIT OF AMPARO
is violated or threatened by an unlawful act or
omission of a public official or employee, or of a A remedy available to any person whose right to life,
private individual or entity engaged in the gathering, liberty and security is violated or threatened with
collecting or storing of data or information regarding violation by an unlawful act or omission of a public
the person, family, home and correspondence of the official or employee, or of a private individual or
aggrieved party. entity. (Sec. of National Defense v. Manalo, G.R. No.
180906, Oct. 7, 2008)
Purpose
It bears reiteration that like the Writ of Amparo, The Writ of Amparo does not cover threats to
habeas data was conceived as a response, given the property. To be entitled to a Writ of Amparo,
lack of effective and available remedies, to address petitioners must prove that their rights to life, liberty,
the extraordinary rise in the number of killings and and security are being violated or threatened by an
enforced disappearances. Its intent is to address unlawful act or omission. The intrusion into their farm
violations of or threats to the rights to life, liberty or was merely a violation of property rights. (Pador v.
security as a remedy independently from those Arcayan, G.R. No. 18346, March 12, 2013)
provided under prevailing Rules. Writs of Amparo
and habeas data will not issue to protect purely Examples of Property Rights Not Covered:
property or commercial concerns nor when the (a) Right to be restituted of personal belongings. It is
grounds invoked in support of the petitions therefor already subsumed under the general rubric of
are vague or doubtful. Employment constitutes a property rights which are no longer protected by
property right under the context of the due process the writ of amparo. (Roxas v. Arroyo, G.R. No.
clause of the Constitution. It is evident that 189155, Sept. 7, 2010)
respondent’s reservations on the real reasons for her (b) Merely seeking protection of property rights, like
transfer - a legitimate concern respecting the terms
land in possession of the petitioners. (Castillo v.
and conditions of one’s employment - are what
prompted her to adopt the extraordinary remedy of Cruz, G.R. No. 182165, Nov. 25, 2009)
habeas data. (Manila Electric Company v. Lim, G.R. (c) Violent incidents purely property-related such as
No. 184679, Oct. 5, 2010) acts of terrorism in relation to a disputed land
(Tapuz v. Hon. Judge del Rosario, G.R. No.
Who May File (P-SCP-R) (Sec. 2) 182484, June 17, 2008)
(a) Any person whose right to Privacy is threatened
(b) In case of extrajudicial disappearance or killings: Two-fold Burden for Public Authorities
 Spouse, Children and Parents The burden for the public authorities to discharge in
 Any ascendant, descendant or collateral these situations, under the Rule on the Writ of
Relative of the aggrieved party within the Amparo, is two-fold.
fourth civil degree of consanguinity or 1. The first is to ensure that all efforts at disclosure
and investigation are undertaken under pain of
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indirect contempt from this Court when Extralegal Killings

governmental efforts are less than what the Extralegal killings are killings committed without due
individual situations require. process of law, i.e., without legal safeguards or
2. The second is to address the disappearance, so judicial proceedings. (Mison v. Gallegos, G.R. No.
210759, June 23, 2015)
that the life of the victim is preserved and his or
her liberty and security restored. (Razon v. Enforced Disappearance
Tagitis, G.R. No. 182498, Dec. 3, 2009) Enforced disappearances are attended by the
following characteristics:
The remedy of the writ of amparo provides rapid 1. An arrest, detention or abduction of a person by
judicial relief as it partakes of a summary proceeding a government official or organized groups or
that requires only substantial evidence to make the private individuals acting with the direct or indirect
appropriate reliefs available to the petitioner; it is not
acquiescence of the government.
an action to determine criminal guilt requiring proof
beyond reasonable doubt, or liability for damages 2. The refusal of the State to disclose the fate or
requiring preponderance of evidence, or whereabouts of the person concerned or a
administrative responsibility requiring substantial refusal to acknowledge the deprivation of liberty
evidence that will require full and exhaustive which places such persons outside the protection
proceedings. (Razon v. Tagitis, G.R. No. 182498, of law. (Mison v. Gallegos, G.R. No. 210759,
Dec. 3, 2009) June 23, 2015)
The framers of the Amparo Rule never intended Elements of an Enforced Disappearance
Section 5(c) to be complete in every detail in stating 1. That there be an arrest, detention, abduction or
the threatened or actual violation of a victim’s rights. any form of deprivation of liberty;
As in any other initiatory pleading, the pleader must 2. That it be carried out by, or with the authorization,
of course state the ultimate facts constituting the
support or acquiescence of, the State or a
cause of action, omitting the evidentiary details. In an
Amparo petition, however, this requirement must be political organization;
read in light of the nature and purpose of the 3. That it be followed by the State or political
proceeding, which addresses a situation of organization’s refusal to acknowledge or
uncertainty; the petitioner may not be able to give information on the fate or whereabouts of the
describe with certainty how the victim exactly person subject of the amparo
disappeared, or who actually acted to kidnap, abduct petition; and
or arrest him or her, or where the victim is detained, 4. That the intention for such refusal is to remove
because these information may purposely be hidden the subject person from the protection of the law
or covered up by those who caused the for a prolonged period of time. (Section 3(g) R.A.
disappearance. Section 5(e) merely requires that the
No. 9851; Mison v. Gallegos, G.R. No. 210759,
Amparo petitioner (the respondent in the present
case) allege “the actions and recourses taken to June 23, 2015)
determine the fate or whereabouts of the aggrieved
party and the identity of the person responsible for National Bilibid Inmates
the threat, act or omission.” (Razon v. Tagitis, G.R. The remedy of the writ of amparo may be available
No. 182498, Dec. 3, 2009) even to convicted national inmates, as long as the
alleged abduction was made for the purpose of
Indispensable Element of Gov’t Participation placing the national inmate outside the protection of
The petitioner in an amparo case has the burden of the law. However, considering that the Secretary of
proving by substantial evidence the indispensable Justice has the authority to determine the movement
element of government participation. (Spouses of national inmates between penal facilities, there is
Martin and Santiago v. Tulfo, G.R. No. 205039, Oct. no compelling reason to grant the writ of amparo in
21, 2015) situations where there is an urgent need to remove
the national inmates from their place of confinement
Coverage and to transfer them to another detention facility. (In
The writ shall cover (1) extralegal killings and (2) the Matter of the Petition for Writ of Habeas
enforced disappearances or threats thereof. (The Corpus/Data v. De Lima, G.R. Nos. 215585 &
Rule on Writ of Amparo, A.M. No. 07-9-12-SC, Sec. 215768, Sept. 8, 2020).
1)
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VIII. CITIZENSHIP CITIZENSHIP
What is Citizenship
TOPIC OUTLINE UNDER THE SYLLABUS Citizenship is a legal device denoting political
affiliation. (David v. Senate Electoral Tribunal, G.R.
A. WHO ARE FILIPINO CITIZENS No. 221538, September 20, 2016.)
B. MODES OF ACQUIRING CITIZENSHIP It is one's "personal and … permanent membership

in a political community. … The core of citizenship is
the capacity to enjoy political rights, that is, the right
C. LOSS AND RE-ACQUISITION OF to participate in government principally through the
PHILIPPINE CITIZENSHIP right to vote, the right to hold public office[,] and the
right to petition the government for redress of
D. DUAL CITIZENSHIP AND ALLEGIANCE grievance.” (Go v. Republic of the Philippines, G.R.
202809, July 2, 2014, citing Bernas, The 1987
Constitution of the Republic of the Philippines: A
Commentary, 2009)
A. WHO ARE FILIPINO CITIZENS
The following are citizens of the Philippines:

(d) Those who are citizens of the Philippines at
the time of the adoption of the 1987
Constitution.
(e) Those whose fathers or mothers are citizens
of the Philippines.
(f) Those born before January 17, 1973, of
Filipino mothers, who elect Philippine
citizenship upon reaching the age of majority.
(g) Those who are naturalized in accordance
with law. (PHIL CONST., art. IV, § 1)
Citizens at the time of adoption of the 1987

Constitution
Philippine citizens at the time of the adoption of the
1987 Constitution were those who were citizens
under the 1973 Constitution. In turn, citizens of the
Philippines at the time of the adoption of the 1973
Constitution are those who were citizens under the
1935 Constitution. Thus, what determines citizenship
is the Constitution in effect at the time of a person’s
birth.
Children of Filipino fathers or mothers

If a child is born under the 1973 or 1987 Constitution
and either his father or mother is a Filipino citizen at
the time the child is born, the child is a Filipino citizen
no matter where he may be born. This is how the
principle of jus sanguinis is applied in the 1987
Constitution. (Bernas, The 1987 Philippine
Constitution: A Comprehensive Reviewer, 2011)
Illegitimate Child of a Filipina Mother

The citizenship of an illegitimate child of a Filipina
mother is Filipino. This is true whether the child be
born under the 1935 or under the
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1973 or 1987 Constitution. (Bernas, The 1987 26, 2010, Bernas, The 1987 Philippine Constitution:
Philippine Constitution: A Comprehensive Reviewer, A Comprehensive Reviewer, 2011)
2011)
Kinds of citizenship
Illegitimate Child of a Foreign Mother (k) Natural born citizens
 If the father is unknown, follow the mother's (l) Naturalized citizens
citizenship.
 If the father is known and is Filipino, the Who are Natural Born Citizens
illegitimate child is considered Filipino after (a) Those who are citizens of the Philippines
proving the paternity. (Tecson v. from birth without having to perform any act
COMELEC, G.R. No. 161434, March 3, to acquire or perfect their Philippine
2004) citizenship (Phil Const., art. IV, § 2)
Election of Philippine Citizenship “Having to perform an act” means that the act must
Those born under the 1935 Constitution whose be personally done by the citizen.
mothers were Philippine citizens (at the time at least
of their marriage to an alien father) may elect
The process is certainly not analogous to
Philippine citizenship.
naturalization proceedings to acquire Philippine
citizenship, or the election of such citizenship by one
The Court interprets Section 1, Par. 3 of Article IV of
born of an alien father and a Filipino mother under
the Philippine Constitution as applying not only to
the 1935 Constitution, which is an act to perfect it.
those who elect Philippine citizenship after February
(Poe-Llamanzares v. COMELEC, G.R. No. 221697,
2, 1987 but also to those who, having been born of
March 8, 2016)
Filipino mothers, elected citizenship before that date.
The provision in Paragraph 3 was intended to correct (b) Those born before January 17, 1973, of
an unfair position which discriminates against Filipino Filipino mothers, who elect Philippine
women. (Co v. House of Representatives Electoral citizenship upon reaching the age of majority
Tribunal, G.R. Nos. 92191-92 & 92202-03, July 30, (Phil Const., art. IV, § 2)
1991.)
(c) Those who were repatriated and were
(h) Prior to the 1973 Constitution - If a Filipina originally natural born citizens (Bengzon v.
married an alien, she loses her Filipino HRET, G.R. No. 142840, May 7, 2001)
citizenship. Hence, her child would have to
elect Filipino citizenship upon reaching the Who are Naturalized Citizens
age of majority. Foreigners adopted into the political body of a nation
(i) Under the 1973 Constitution - Children born and clothed with the privileges of a citizen. (So v.
of Filipino mothers were already considered Republic, G.R. No. 170603, Jan. 29, 2007)
Filipinos.
(j) Therefore, the provision on election of Natural Born Citizens v. Naturalized Citizens
citizenship under the 1987 Constitution only In general, the law cannot treat Natural Born Citizens
and those who were naturalized differently except in
applies to those persons who were born
the instances where the Constitution itself makes a
under the 1935 Constitution. distinction. Otherwise there would be a violation of
the equal protection clause. (Bernas, The 1987
In order for the children to elect Filipino citizenship, Constitution of the Republic of the Philippines: A
the mother must have been Filipinos at the time of Commentary, 2009)
their marriage (Cu v. Republic, G.R. No. L-3018, July
18, 1951; Villahermosa v. Commissioner of Natural Born Citizens & Public Office
Immigration, G.R. No. L-1663, Mar. 31, 1948) Under the Constitution, the following must be natural-
born citizens:
The election must be made within a reasonable 1. President (PHIL CONST., art. VII, § 2)
period after reaching the age of majority. The phrase 2. Vice-President (PHIL CONST., art. VII, § 3)
"reasonable time" has been interpreted to mean that 3. Members of Congress (PHIL CONST., art. VI § 3 &
the elections should be made within three (3) years 6)
from reaching the age of majority. (Cuenco v. Sec. of
4. Justices of SC and lower collegiate courts (PHIL
Justice, G.R. No. L-18069, May 26, 1962; Cabiling v.
Commissioner Fernandez Jr., G.R. No. 183133, July CONST., art. VIII, § 7(1))
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5. Ombudsman and his deputies (PHIL CONST., art.  A foundling is presumed born of citizens of
XI, § 8) the country where he is found. (Article 2,
6. Members of Constitutional Commissions: 1961 UN Convention on the Reduction of
 CSC (PHIL CONST., art. IX-B, §1(1)) Statelessness.) (Poe-Llamanzares v.
 COMELEC (PHIL CONST., art. IX-C, §1) COMELEC, G.R. Nos. 221697 & 221698-
 COA (PHIL CONST., art. IX-D, § 1(1)) 700, March 8, 2016)
 Members of the central monetary authority
The conclusion that Petitioner is a natural-born
(PHIL CONST., art. XII, § 20)
Filipina is based on fair and reasonable reading of
 Members of the Commission on Human
constitutional provisions, statutes, and international
Rights (PHIL CONST., art. XIII, § 17(2))
norms having the effect of law, and on the evidence
presented before the COMELEC. (Poe-Llamanzares
Former Filipino Citizens Running for Public
v. COMELEC, G.R. No. 221697, 221698-70, March
Office
6, 2018; Leonen, J., Concurring Opinion)
Natural-born Filipinos who have been naturalized
elsewhere and wish to run for elective public office
The words of our most fundamental law cannot be
must comply with all of the following requirements:
read so as to callously exclude all foundlings from
1. Taking the oath of allegiance to the Republic.
public service. When the names of the parents of a
This effects the retention or reacquisition of one's foundling cannot be discovered despite a diligent
status as a natural-born Filipino. This also search, but sufficient evidence is presented to
enables the enjoyment of full civil and political sustain a reasonable inference that satisfies the
rights, subject to all attendant liabilities and quantum of proof required to conclude that at least
responsibilities under existing laws, provided the one or both of his or her parents is filipino, then this
solemnities recited in Section 5 of Republic Act should be sufficient to establish that he or she is a
No. 9225 are satisfied. natural-born citizen. (David v. SET, G.R. No. 221538,
2. Making a personal and sworn renunciation of any Sept. 20, 2016)
and all foreign citizenship before any public
Treaties & Status of Foundlings
officer authorized to administer an oath. This,
Congress has enacted statutes founded on the
along with satisfying the other qualification premise that foundlings are Filipino citizens at birth.
requirements under relevant laws, makes one It has adopted mechanisms to effect the
eligible for elective public office. constitutional mandate to protect children. Likewise,
the Senate has ratified treaties that put this mandate
FOUNDLINGS into effect.
Natural Born Citizens Section 4(b) of the Republic Act No. 9344 defines the
As a matter of law, foundlings are as a class, natural- "best interest of the child" as the "totality of the
born citizens. While the 1935 Constitution’s circumstances and conditions which are most
enumeration is silent as to foundlings, there is no congenial to the survival, protection and feelings of
restrictive language which would definitely exclude security of the child and most encouraging to the
foundlings either. child's physical, psychological and emotional
development."
No such intent or language in the Constitution
permits discrimination against foundlings. On the Consistent with this statute is our ratification of the
contrary, all three Constitutions (1935, 1973, 1987) United Nations Convention on the Rights of the Child.
guarantee the basic right to equal protection of the This specifically requires the states-parties'
laws. All exhort the State to render social justice. protection of: first, children's rights to immediate
registration and nationality after birth; second,
Domestic laws on adoption also support the principle against statelessness; and third, against
that foundlings are Filipinos. discrimination on account of their birth status. The
Philippines likewise ratified the 1966 International
Foundlings are likewise citizens under international Covenant on Civil and Political Rights. As with the
law: Convention on the Rights of the Child, this treaty
 A foundling is presumed to have the requires that children be allowed immediate
"nationality of the country of birth”. (Article registration after birth and to acquire a nationality.
14, 1930 Hague Convention on Certain (David v. SET, G.R. No. 221538, Sept. 20, 2016)
Questions Relating to the Conflict of
Nationality Laws)
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B. MODES OF ACQUIRING CITIZENSHIP 2. Resided in the Philippines for a continuous period

of 10 years or more;
1. Jus sanguinis - acquisition of citizenship on the 3. Of good moral character; believes in the
basis of blood relationship principles underlying the Philippine Constitution;
2. Jus soli - acquisition of citizenship on the basis conducted himself in a proper and irreproachable
of place of birth manner during the entire period of his residence
3. Naturalization - the legal act of adopting an towards the government and community
alien and clothing him with the privilege of a 4. Must own real estate in the Philippines worth
native born-citizen P5,000 or more OR must have lucrative trade,
(Bernas, The 1987 Constitution of the Republic profession, or lawful occupation;
of the Philippines: A Commentary, 2009) 5. Able to speak or write English or Spanish or
anyone of the principal languages; and
Two ways of acquiring citizenship in the 6. Enrolled his minor children of school age in any
Philippines of the recognized schools where Philippine
Basic Philippine law follows the rule of jus sanguinis history, government and civics are taught or
and provides for naturalization. (Bernas, The 1987
prescribed as part of the school curriculum,
during the entire period of the residence in the
2011)
Philippines required of him. (C.A. 473, § 2)
Naturalization is a mode for both acquisition
(governed by CA 473) and reacquisition (governed Special Qualifications
by CA 63) of Philippine citizenship. (ANY will result to reduction of the 10-year period of
continuous residency requirement to 5 years under
NATURALIZATION no. 2 above)
What is naturalization 1. Having honorably held office under the
Naturalization signifies the act of formally adopting a Government of the Philippines or under that of
foreigner into the political body of a nation by clothing any of the provinces, cities, municipalities, or
him or her with the privileges of a citizen. (So v. political subdivisions thereof;
Republic, G.R. No. 170603, Jan. 29, 2007) 2. Established a new industry or introduced a useful
invention in the Philippines;
Three Modes of Naturalization 3. Married to a Filipino woman;
(a) Administrative Naturalization (R.A. No. 9139) 4. Engaged as a teacher in the Philippines in a
(b) Judicial Naturalization (C.A. No. 473) public or recognized private school not
(c) Legislative Naturalization in the form of a established for the exclusive instruction of
law enacted by Congress granting children of persons of a particular nationality or
Philippine citizenship to an alien race, in any of the branches of education or
industry for a period of 2 years or more; or
C.A. No. 473 v. R.A. No. 9139 5. Born in the Philippines (C.A. 473, § 3)
C.A. No. 473 and R.A. No. 9139 are separate and
distinct laws—the former covers all aliens regardless Denaturalization: Cancellation of
of class while the latter covers native-born aliens who Certificate of Naturalization
lived here in the Philippines all their lives, who never
saw any other country and all along thought that they (a) If it is shown that said naturalization
were Filipinos; who have demonstrated love and certificate was obtained fraudulently or
loyalty to the Philippines and affinity to the customs illegally.
and traditions. (So v. Republic, G.R. No. 170603, (b) If the person naturalized shall, within the five
Jan. 29, 2007) years next following the issuance of said
naturalization certificate, return to his native
a. C.A. No. 473 country or to some foreign country and
establish his permanent residence there:
Qualifications Provided, That the fact of the person
1. Not less than twenty-one years of age on the day naturalized remaining for more than one year
of the hearing of the petition; in his native country or the country of his
former nationality, or two years in any other
foreign country, shall be considered as prima
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facie evidence of his intention of taking up his support and if he/she is married and/or has
permanent residence in the same. dependents, also that of his/her family: Provided,
(c) If the petition was made on an invalid however, That this shall not apply to applicants
declaration of intention. who are college degree holders but are unable to
(d) If it is shown that the minor children of the practice their profession because they are
person naturalized failed to graduate from a disqualified to do so by reason of their citizenship;
public or private high schools recognized by 6. The applicant must be able to read, write and
the Office of Private Education of the speak Filipino or any of the dialects of the
Philippines, where Philippine history, Philippines; and
government and civics are taught as part of 7. The applicant must have mingled with the
the school curriculum, through the fault of Filipinos and evinced a sincere desire to learn
their parents either by neglecting to support and embrace the customs, traditions and ideals
them or by transferring them to another of the Filipino people (R.A No. 9139, § 3)
school or schools. A certified copy of the
decree cancelling the naturalization Disqualifications
certificate shall be forwarded by the clerk of (a) Those opposed to organized government or
the Court to the Department of the Interior affiliated with any association of group of
and the Bureau of Justice. persons who uphold and teach doctrines
(e) If it is shown that the naturalized citizen has opposing all organized governments;
allowed himself to be used as a dummy (b) Those defending or teaching the necessity of
requiring Philippine citizenship as a requisite or propriety of violence, personal assault or
for the exercise, use or enjoyment of a right, assassination for the success or
franchise or privilege (C.A. No. 473, § 18) predominance of their ideas;
(c) Polygamists or believers in the practice of
b. R.A. No. 9139 polygamy;
(d) Those convicted of crimes involving moral
Qualifications turpitude;
1. The applicant must be born in the Philippines and (e) Those suffering from mental alienation or
residing therein since birth; incurable contagious diseases;
2. The applicant must not be less than eighteen (18) (f) Those who, during the period of their
years of age, at the time of filing of his/her residence in the Philippines, have not
petition; mingled socially with Filipinos, or who have
3. The applicant must be of good moral character not evinced a sincere desire to learn and
and believes in the underlying principles of the embrace the customs, traditions and ideals
Constitution, and must have conducted of the Filipinos;
himself/herself in a proper and irreproachable (g) Citizens or subjects with whom the
manner during his/her entire period of residence Philippines is at war, during the period of
in the Philippines in his relation with the duly such war; and
constituted government as well as with the (h) Citizens or subjects of a foreign country
community in which he/she is living; whose laws do not grant Filipinos the right to
4. The applicant must have received his/her primary be naturalized citizens or subjects thereof.
and secondary education in any public school or (R.A. No. 9139, § 4)
private educational institution dully recognized by
the Department of Education, Culture and Sports, c. Effects of Judicial Naturalization
where Philippine history, government and civics
are taught and prescribed as part of the school Effects
curriculum and where enrollment is not limited to (a) The legitimate minor children of the
any race or nationality: Provided, That should naturalized father become Filipinos as well.
he/she have minor children of school age, he/she (b) The wife also becomes a Filipino citizen,
must have enrolled them in similar schools; provided that she does not have any
5. The applicant must have a known trade, disqualification which would bar her from
business, profession or lawful occupation, from being naturalized. (C.A. No. 473, § 15, Tuang
which he/she derives income sufficient for his/her v. Galang, G.R. No. L-18775, Nov. 30, 1963)
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Naturalization & Res Judicata (c) Marriage by a Filipino woman to an alien, if

A naturalization proceeding not being a judicial by the laws of her husband’s country, she
adversary proceeding, the decision rendered therein becomes a citizen thereof.
is not res judicata as to any of the reasons or matters (d) Accepting a commission and serving in the
which would support a judgment cancelling the armed forces of another country, unless
certificate of naturalization for illegal or fraudulent there is an offensive/defensive pact with the
procurement (Republic v. Go Bon Lee, G.R. No. L-
country, or it maintains armed forces in RP
11499, Apr. 29, 1966)
with RP’s consent;
Pursuant to P.D. No. 836 and 923, naturalization (e) Denaturalization;
extends to the alien wife and minor children of the (f) Being found by final judgment to be a
person naturalized upon the wife's showing that she deserter of the AFP
does not suffer from any of the disqualifications under
Letter of Instructions No. 270, and that she and her b. Reacquiring Citizenship
minor children reside permanently in the Philippines
at the time of her husband's naturalization. In other Citizenship may be Reacquired by:
words, the only persons to undergo the proceeding (a) Repatriation
before the Special Committee on Naturalization will
(b) Naturalization
only be the person naturalized and his wife. The
(c) Legislative Act
minor children, in the words of Letter of Presidential
Decree No. 836, follow the acquired Filipino
citizenship of their mother. (Republic v. Lao, G.R. REPATRIATION
Nos. 205218 & 207075, Feb. 10, 2020) Repatriation results in the recovery of the original
nationality. This means that a naturalized Filipino
When Res Judicata Applies who lost his citizenship will be restored to his prior
Res judicata may only be applied in cases of status as a naturalized Filipino citizen. On the other
citizenship when the following concur: hand, if he was originally a natural-born citizen before
1. A person's citizenship must be raised as a he lost his Philippine citizenship, he will be restored
to his former status as a natural-born Filipino.
material issue in a controversy where said person
(Bengzon v. HRET, G.R. No. 142840, May 7, 2001)
is a party;
2. The Solicitor General or his authorized Natural-born Filipinos who are deemed to have lost
representative took active part in the resolution their citizenship may re-acquire the same via
thereof; repatriation proceedings. This involves taking an oath
of allegiance and filing the same with the civil registry.
The finding on citizenship is affirmed by the Supreme (C.A. No. 63, sec. 4)
Court. (Go v. Bureau of Immigration and Deportation,
G.R. no. 191810, Jun. 22, 2015) Repatriation Not a Matter of Right
Repatriation is not a matter of right, but it is a privilege
C. LOSS AND REACQUISITION OF granted by the State. The State has the power to
CITIZENSHIP prescribe by law the qualifications, procedure, and
requirements for repatriation. It has the power to
Philippine citizenship may be lost or reacquired in the determine if an applicant for repatriation meets the
requirements of the law for it is an inherent power of
manner provided by law (PHIL CONST., art. IV, § 3)
the State to choose who will be its citizens, and who
Citizens of the Philippines who marry aliens shall
retain their citizenship, unless by their act or omission can reacquire citizenship once it is lost. (Tabasa v.
CA, G.R. No. 125793, Aug. 29, 2006)
they are deemed, under the law, to have renounced
it. (PHIL CONST., art. IV, § 4)
As distinguished from the lengthy process of
naturalization, repatriation simply consists of the
a. Losing Citizenship taking of an oath of allegiance to the Republic of the
(a) Naturalization in a foreign country (C.A. 63, § Philippines and registering said oath in the Local Civil
1(1)) Registry of the place where the person concerned
(a) Express renunciation or expatriation (CA 63, resides or last resided. He would not even need to
§1(2)) file a petition in court. (Bengson III v. HRET, G.R.
(b) Taking an oath of allegiance to another No.142840, May 7, 2001)
country upon reaching the age of majority;
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Who May be Repatriated: Natural-born Filipinos who became foreign citizens

(a) Filipino women who have lost their Philippine after R.A. 9225 took effect, shall retain their
citizenship by marriage to aliens Philippine citizenship upon taking the same oath. The
(b) Natural-born Filipinos who have lost their taking of oath of allegiance is required for both
Philippine citizenship, including their minor categories of natural-born Filipino citizens who
children, on account of political or economic became citizens of a foreign country. (David v.
Agbay, G.R. No, 199113, March 18, 2015)
necessity (R.A. No. 8171, § 1)
Repatriation and Domicile
How is Repatriation Effected To reacquire domicile he must provide proof of intent
1. By taking the necessary oath of allegiance to the to stay in the Philippines. After he does that, his
Republic of the Philippines. occasional absence from the recovered domicile
2. Registration in the proper civil registry and in the does not have the effect of removing him from the
Bureau of Immigration. domicile for as long as he manifests animus manendi
et revertendi.
The Bureau of Immigration shall thereupon cancel
the pertinent alien certificate of registration and issue The domicile is not established strictly from the time
the certificate of identification as Filipino citizen to the that a person was repatriated under R.A. No. 9225.
repatriated citizen (R.A. No. 8171, § 2) The Court said that other evidence may be admitted
to determine the time that domicile is established.
Who Cannot be Repatriated (OVM2) Also, issue of residence could be decided particularly
(a) Person Opposed to organized government or on the facts-of-the-case basis, as what would a
affiliated with any association or group of series of jurisprudence would also dictate. Hence,
persons who uphold and teach doctrines domicile cannot strictly be established only from a
opposing organized government; person’s repatriation. (Poe-Llamanzares v. Comelec
et al., G.R. Nos. 221697 & 221698-700, March 8,
(b) Person defending or teaching the necessity
2016)
or propriety of Violence, personal assault, or
association for the predominance of their
ideas;
D. DUAL CITIZENSHIP AND DUAL
(c) Person convicted of crimes involving Moral
ALLEGIANCE
turpitude; or
Dual allegiance of citizens is inimical to the national
(d) Person suffering from Mental alienation or interest and shall be dealt with by law. (PHIL CONST.,
incurable contagious diseases. (R.A. No. art. 4, § 5)
8171, § 1)
Dual Citizenship
Effective Date of Repatriation Allows a person who acquires foreign citizenship to
The effective date is the date of application for simultaneously enjoy the rights he previously held as
repatriation not the date when repatriation was a Filipino citizen. This is completely voluntary, and
approved (Lee v. Commission on Elections & results in the application of different laws of two or
Frivaldo, G.R. No. 120295, June 28, 1996) more states to a dual citizen.
Repatriation under R.A. No. 9225 Dual Allegiance

Citizens who lost their citizenship by reason of their a. Aliens who are naturalized as Filipinos but
naturalization as citizens of a foreign country are remain loyal to their country of origin;
deemed to have reacquired their Philippine
citizenship upon taking the oath of allegiance. b. Public officers who, while serving the
government, seek citizenship in another
This reacquisition works to restore natural-born country.
status as though it was never lost at all.
Dual Citizenship vs. Dual Allegiance
Reacquisition v. Retention Dual citizenship arises when, as a result of the
Natural-born Filipinos who have lost their citizenship concurrent application of the different laws of two or
by naturalization in a foreign country shall re-acquire more states, a person is simultaneously considered
their Philippine citizenship upon taking the oath of a national by the said states, as is the case of
allegiance to the Republic of the Philippines. respondent.
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Dual allegiance, on the other hand, refers to the ceremonial formality. (Maquiling v. COMELEC, G.R.
situation in which a person simultaneously owes, by No. 195649, April 16, 2013)
some positive act, loyalty to two or more states.
Derivative Citizenship
While dual citizenship is involuntary, dual allegiance The unmarried child, whether legitimate, illegitimate
is the result of an individual's volition. (Mercado v. or adopted, below eighteen (18) years of age, of
Manzano, G.R. No. 135083, May 26, 1999) those who re-acquire Philippine citizenship upon
effectivity of this Act shall be deemed citizenship of
Prohibition against Dual Allegiance the Philippines. (R.A. 9225 § 4)
The constitution prohibits dual allegiance not dual
citizenship. Dual allegiance arising from e.g., mixed ————- end of topic ————-
marriages or birth in foreign soil was seen as more
insidious than dual citizenship.
To the extent, however, that dual citizenship also

imports dual allegiance, then it must also be "dealt
with by law." In other words, the Constitution
leaves the disposition of the problem of dual
citizenship and dual allegiance to ordinary
legislation.
Unlike those with dual allegiance, who must,
therefore, be subject to strict process with respect to
the termination of their status, for candidates with
dual citizenship, it should suffice if, upon the filing of
their certificates of candidacy, they elect Philippine
citizenship to terminate their status as persons with
dual citizenship considering that their condition is the
unavoidable consequence of conflicting laws of
different states. (Mercado v. Manzano, G.R. No.
135083, May 26, 1999)
R.A. 9225
R.A. 9225 provides that a Filipino who has previously
renounced his Filipino citizenship can reacquire it
without renouncing his foreign citizenship. Likewise,
a Filipino who acquires foreign citizenship after the
effectivity of R.A. 9225 retains his Filipino citizenship.
R.A. 9225 is a law about dual citizenship not dual
allegiance. (AASJS v. Datumanong, G.R. No.
160869, May 11, 2007)
R.A. 9225, however, requires that those who

acquired dual citizenship must specifically renounce
foreign citizenship upon filing of candidacy. (R.A.
9225 § 5[2])
The continued use of foreign passport render the

renunciation of foreign citizenship nugatory. The
renunciation of foreign citizenship must be complete
and unequivocal. The requirement that the
renunciation must be made through an oath
emphasizes the solemn duty of the one making the
oath of renunciation to remain true to what he has
sworn to. Allowing the subsequent use of a foreign
passport because it is convenient for the person to
do so is rendering the oath a hollow act. It devalues
the act of taking of an oath, reducing it to a mere
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IX. LAW ON PUBLIC OFFICERS A. GENERAL PRINCIPLES
TOPIC OUTLINE UNDER THE SYLLABUS: Public Office

The right, authority, and duty created and conferred
A. GENERAL PRINCIPLES by law, by which for a given period, either fixed by
law or enduring at the pleasure of the appointing
B. KINDS OF APPOINTMENT
power, an individual is invested with some portion of
C. DISABILITIES AND INHIBITIONS OF the sovereign functions of the government, to be
PUBLIC OFFICERS exercised by him for the benefit of the public.
(Agpalo, Administrative Law, Law on Public Officers
D. POWERS AND DUTIES OF PUBLIC and Election Law, 247-48, 2005)
OFFICERS
E. DE FACTO VS DE JURE OFFICERS Law on Public Officers
This branch of law deals with public office, its
F. THE CIVIL SERVICE creation, modification and dissolution, as well as the
G. ACCOUNTABILITY OF PUBLIC OFFICERS eligibility of public officers, the manner of their
election or appointment and assumption of office,
1. DISCIPLINE
their rights, duties, powers, inhibitions, and liabilities
a. Grounds
and the modes of terminating their official relations.
b. Jurisdiction
c. Dismissal, Preventive Public Office Refers to Either Two Concepts:
Suspension, 1. Functional unit of government – It is within
Reinstatement, and Back the framework of government organization,
Salaries and refers to any major functional unit of a
d. Condonation Doctrine department or bureau including regional
2. IMPEACHMENT office.
3. THE OMBUDSMAN 2. Position - Held by an individual whose
a. Functions functions are defined by law or regulation
b. Judicial review in (Agpalo, Administrative Law, Law on Public Officers
administrative and Election Law, 247, 2005)
proceedings
c. Judicial review in penal Public Office Not a Property Right
proceedings It is not a property right but a protected right. It cannot
4. THE SANDIGANBAYAN be taken from its incumbent without due process. It is
property in the broad sense since the right to hold
office includes everything of pecuniary value to its
possessor. The right to public office is protected by
the right to security of tenure, which is guaranteed by
the Constitution. A public office is
personal to the public officer and is not transmissible
to his heirs upon his death. No heir may be allowed
to continue holding his office in his place. (Segovia v.
Noel, 47 Phil. 543, 1925)
How created:
1. By the Constitution (e.g. Office of the
President)
2. By valid statutory enactments (e.g. Office of
the Insurance Commissioner)
3. By authority of the law (e.g. the Davide
Commission)
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Essential characteristics of “public office:” Any person, by direct supervision of the law, popular
1. Authority conferred by law; election, or appointment by competent authority,
2. Fixed tenure of office; shall take part in the performance of public functions
3. Power to exercise some of the sovereign in the RP or shall perform in said government or for
functions of government; any of its branches public duties as an employee,
4. Key element of such test is that “officer is agent, or subordinate official, of any rank or class.
carrying out a sovereign function;” Temporary performance of public function is
5. Essential elements to establish public sufficient to constitute a person a public official.
position as “public office” are: (RPC, art. 203)
a. Position must be created by
Constitution, legislature, or through Includes elective and appointive officials and
authority conferred by legislature; employees, permanent or temporary, whether in the
b. Portion of sovereign power of classified or unclassified or exempt service (non-
government must be delegated to career or career), receiving compensation, even
position; nominal, from the government. (Anti-Graft and
c. Duties and powers must be defined, Corrupt Practices Act)
directly or impliedly, by legislature or
through legislative authority; Includes elective and appointive officials and
d. Duties must be performed employees, permanent or temporary, whether in the
independently without control of career or noncareer service, including military and
superior power other than law; and police personnel, whether or not they receive
e. Position must have some compensation, regardless of amount. (Code of
permanency. Conduct and Ethical Standards of Public Officers)
Elements of Public Office: (LSCIP) Officer means any person holding any public office in
1. Created by Law or by authority of law; the govt. of the RP by virtue of an appointment,
2. Possesses a delegation of portion of election, or contract (executed bet. private person
Sovereign powers of government, for benefit and government. (RA 7080)
of the public;
3. Powers conferred and duties imposed Employee
defined by Constitution, legislature, or by its A person in the service of government or any of its
authority; agencies, divisions, subdivisions, or
4. Duties performed Independently and only instrumentalities. (1987 Administrative Code)
controlled by law unless placed under
general control of superior office or body; Public Officer v. Employee, Distinguished
5. Permanent or continuous. (State v. Taylor, An officer is distinguishable from a mere employee in
144 N.W. 2d. 289,1966; Javier v. the sense that:
Sandiganbayan, G.R. 147026-27, 2009). 1. Position has greater importance, dignity and
independence;
Public Officer v. Employee, Definitions 2. Required to take an official oath, and to give
an official bond;
Public Officer 3. Greater liability to account for misfeasance
A person whose duties, not being clerical in nature, or nonfeasance in office;
involves the exercise of discretion in the performance 4. Tenure of office is usually different from that
of the functions of the government when used with of an ordinary employee.
reference to a person having authority to do a
particular act or perform a particular function in the Classifications of Public Officer
exercise of government power, officer includes any 1. Constitutional or statutory
government employee, agent, or body having 2. National or local
authority to do so the act or exercise that function. 3. Legislative, executive or judicial
(1987 Administrative Code) 4. Lucrative or honorary
5. Discretionary or ministerial
6. Appointive or elective
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7. Civil or military Requisites for a Valid appointment

8. De jure or de facto 1. Position is vacant
2. The appointing authority must be vested
B. KINDS OF APPOINTMENT with the power to appoint at the time
appointment is made;
Appointment 3. The appointee should possess all the
The act of designation by the executive officer, board, qualifications including appropriate civil
or body to whom that power has been delegated, of service eligibility and non of the
the individual who is to exercise the powers and disqualifications;
functions of a given office. It is to be distinguished 4. The appointee accepts the appointment by
from the selection or designation by a popular vote. taking the oath and entering into discharge
of duty (Garces v. CA, GR No. 114795, July
Designation 17, 1996)
The mere imposition of new or additional duties upon
an officer to be performed by him in a special manner. Steps in a regular appointment (NCIAO)
It presupposes that the officer is already in the 1. Nomination by President
service by virtue of an earlier appointment, 2. Confirmation by Commission on
performing other functions. Appointments (In case of Presidential
appointments, this confirmation applies only
Election to numbers 1 to 5 in the list of Officers that
The act of selecting or choosing a person by popular the President shall appoint (see below))
vote to occupy the office. 3. Issuance of the commission or the written
authority from a competent source given to
Commission the officer as his warrant for the exercise of
It is the written evidence of appointment. the powers and duties of the office to which
he is commissioned.
Appointment v. Designation 4. Acceptance by the appointee
APPOINTMENT DESIGNATION 5. Oath and assumption
AS TO NATURE
Executive, Irrevocable Legislative, revocable Ad interim appointments are made while Congress
AS TO EFFECT is NOT in session or during its recess, whether such
Selection of an Mere imposition by law of recess is voluntary (before adjournment) or
individual who is to additional duties on an compulsory (when Congress adjourns). The
exercise the functions incumbent official appointment shall cease to be effective upon
of a given office rejection by the COA, or if not acted upon, at the
Results in security of Does not result in adjournment of the next session of Congress,
tenure when completed security of tenure whether regular or special.
Can be subject of a Cannot be subject of a
protest before the CSC protest before the CSC Temporary or acting appointments are those
AS TO EFFECTIVITY which last until a permanent appointment is issued.
connoted permanency implies temporariness The Commission on Appointments cannot confirm
their appointments because confirmation
Nature of Appointments presupposes a valid nomination or ad-interim
It is essentially a discretionary power and cannot be appointment. Thus, the appointee has no personality
delegated, it must be performed by the officer upon to bring a quo warranto proceeding because he is not
whom it is vested according to his best lights, the only entitled to office.
condition being that the appointee should possess
the qualifications required be law. If he does, then the Steps in an ad-interim appointment (AIAC)
appointment cannot be faulted on the ground that 1. Appointment by the appointing authority
there are others better qualified who should have 2. Issuance of the commission
been preferred .(Luego v. Civil Service Commission, 3. Acceptance by the appointee
GR No 69137, August 5, 1986) 4. Confirmation by the CA
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Steps for appointments that do not require

confirmation: (AIA) General Rule: An appointment to an office, once
1. Appointment by the appointing authority made and complete, is not subject to reconsideration
2. Issuance of the commission or revocation.
3. Acceptance by the appointee Exception: An officer is removable at the will of the
appointing power.
Absolute Appointment v. Confirmation Required
It is long settled in the law that where the power of Acceptance may be express when it is done verbally
appointment is absolute, and the appointee has been or in writing. Acceptance is implied when, without
determined upon, no further consent or approval is formal acceptance, the appointee enters upon the
necessary, and the formal evidence of the exercise of the duties and functions of an office.
appointment, the commission, may issue at once.
However, where the assent or confirmation of some Kinds of Appointment under the Civil Service
other officer or body is required, the commission can Law
issue or the appointment may be complete only when 1. Permanent appointments - issued to a person
such assent or confirmation is who meets all the requirements for the position
obtained. In either case, the appointment becomes to which he is being appointed, including the
complete when the last act required of the appointing appropriate eligibility prescribed, in accordance
power is performed. Until the process is completed, with the provisions of the laws, rules, and
the appointee can claim no vested right in the office standards promulgated in pursuance thereof
nor invoke security of tenure. (Corpuz v. CA, G.R.
123989, 1998) 2. Temporary appointments – issued in the
absence of any eligibles, when necessary to
Where the power of appointment is absolute and the public interest, in order to fill a vacancy with a
appointee has been determined upon, no further person who meets all the requirements for the
consent or approval is necessary and the formal position to which he/she is being appointed,
evidence of the appointment, the commission, may except the appropriate civil service eligibility.
issue at once. The appointment is deemed complete ● Appointment in an acting capacity is merely
once the last act required of the appointing authority temporary, one which is good only until
has been complied with. A written memorial that can another appointment is made to take its
render title to public office indubitable is required. place
This written memorial is known as the commission. ● Temporary appointments shall not exceed
For purposes of appointments to the judiciary, 12 months.
therefore, the date the commission has been signed o The appointee may be replaced
by the President is the date of the appointment. Such sooner if a qualified civil service
date will determine the seniority of the members of eligible becomes available.
the Court of Appeals in connection with Section 3, o Where a temporary appointee
Chapter I of BP 129, as amended by RA 8246. In acquires civil service eligibility
other words, the earlier the date of the commission of during his tenure as such, his
an appointee, the more senior he is over the other temporary appointment does not
subsequent appointees. (Re: Seniority among the thereby automatically become
four most recent appointments to the position of permanent. What is required is a
Associate Justices of the Court of Appeals, A.M. 10- new appointment.
4-22-SC, 2010) o Temporary appointment given to a
non-civil service eligible is without a
MODES AND KINDS OF APPOINTMENT definite tenure and is dependent
upon the pleasure of the appointing
General Rule: Acceptance of appointment is not power.
necessary for the completion or validity of o Acquisition of civil service eligibility
appointment. during tenure of a temporary
Exception: Acceptance is necessary to possession appointee does not necessarily
of office, and to enable appointees to the enjoyment translate to permanent
and responsibility of an office. appointment. A new appointment
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which is permanent is necessary. the end of his term, whether or not it is confirmed
(Province of Camarines Sur v. CA, by the Commission.
G.R. No. 104639, 1995)
o Power of President to make Officers that the President Shall Appoint: (E-
temporary appointment: The MA2CJC2AR-NL2)
President may temporarily 1. Heads of Executive departments
designate an officer already in the 2. Ambassadors
government service or any other 3. Other public Ministers and consuls
competent person to perform the 4. Officers of the Armed forces from the rank of
functions of an office in the colonel or naval captain
executive branch, appointment to 5. Other officers whose appointment are
which is vested in him by law, when: vested in him in the Constitution
1. The officer regularly a. Regular members of the Judicial and
appointed to the office is Bar Council
unable to perform his b. The Chairman and Commissioners of
duties by reason of the Civil Service Commission
illness, absence or any c. The Chairman and Commissioners of
other cause; or the COMELEC
2. there exists a vacancy d. The Chairman and Commissioners of
● Instances of Temporary Appointment the Commission on Audit
1. appointee does not possess civil service e. Members of the Regional Consultative
eligibility Commission
2. appointment by the President in an 6. Officers whose appointments are Not
executive office during the absence or otherwise provided for by law
incapacity of the incumbent 7. Officers whom the president may be
3. designation as officer in charge authorized by Law to appoint
4. appointment held at the pleasure of the 8. Officers Lower in rank whose appointments
appointing power the Congress, by law, vested in the
President
3. Regular Appointment - made by the President
while Congress is in session and becomes Constitutional Limitations on the Presidential
effective after the nomination is confirmed by the Power to Appoint:
Commission on Appointments. 1. Nepotism (see discussion and exceptions
below)
4. Provisional Appointment - A person who has 2. Midnight appointments
not qualified in an appropriate examination but 3. Those relating to an Acting President
who otherwise meets the requirements for (Sections 13, 14 and 15 of Art. VII)
appointment to a regular position in the
competitive service, whenever a vacancy occurs The constitutional limitations refer to appointments in
and the filling thereof is necessary in the interest the executive and not the judicial branch of
of the service and there is no appropriate register government. (De Castro v. JBC, G.R. 191002, 2010)
of eligibles at the time of appointment.
Revocability of Appointment
5. Ad Interim Appointment - it is made while General Rule: Appointment to an office once made
Congress is not in session, before confirmation and completed, is not subject to reconsideration or
by the CA; it is immediately effective, and ceases revocation because revocation after a complete
to be valid if disapproved or by-passed by the CA appointment is tantamount to removal.
or until the next adjournment of the Congress.
Exception: Where the appointment is temporary.
6. Midnight Appointment - made by the President (Ong v. Office of the President, GR No 184219,
or acting president within 2 months immediately January 30, 2012)
before the next presidential elections and up to
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Nepotism
Since a public office is a public trust, created for the The rule on nepotism also applies to designations
benefit and in the interest of the people, made in favor of a relative of the authority making a
appointments thereto should be based solely on designation. A designation accomplishes the same
merit and fitness uninfluenced by any personal or purpose as appointment. (Laurel v. Civil Service
filial consideration. Commission, G.R. No. 71562, 1991)
1. The Constitution prohibits the president from
appointing his close relatives (within the 4th civil Vacancy
degree by consanguinity or affinity to the president or There is a vacancy when an office is empty and
his spouse) to high positions in government during without a legally qualified incumbent appointed or
his tenure. No relative of the President, within the 4th elected to it with a lawful right to exercise its powers
civil degree, shall be appointed to/as: and perform its duties. There can be no appointment
a. Constitutional Commission to a non-vacant position.
b. The Office of the Ombudsman
c. Secretary of a Department CAUSES: (I RACED PAR2C)
d. Undersecretary of a Department 1. Impeachment
e. Chairman or Head of Bureaus of Offices 2. Removal from office or resignation of the
f. Any GOCC incumbent
g. Any GOCC subsidiary 3. Abandonment
2. Under the Civil Service Decree, all appointments 4. Conviction of a crime
in the national, provincial, city, and municipal 5. Expiration of term
governments or in any branch or instrumentality, 6. Death
including GOCCs, made in favor of the 7. Permanent disability
appointing or recommending authority, or of the 8. Acceptance of incompatible office
chief of the bureau of the office, or of persons 9. Reaching the age limit
exercising supervision over him, are prohibited. 10. Recall
As used in the Civil Service Law, the term 11. Creation of a new profile
“relative” and members of the family referred to
those within the 3rd degree of consanguinity or For appointments not needing confirmation, removal
affinity. may be by President or officer designated by law. If
the appointment is permanent, removal is allowed
Exceptions: (CTAP) only for cause.
1. Persons employed in Confidential capacity
2. Teachers Principles of Vacancy
3. Physicians 1. A person no matter how qualified cannot be
4. Members of AFP appointed to an office which is not vacant
(Costin v Quimbo, GR No 32271, January 27,
The restriction shall not be applicable to any member 1983)
who, after his or her appointment to any position in 2. One who is legally dismissed from office is, by
an office or bureau, contracts marriage with someone fiction of law, deemed not to have vacated his
in the same office or bureau. In this event, the office (Fernandez v Cuneta, GR No 14392,
employment or retention therein of both husband and May 30, 1960)
wife may be allowed.
The mere issuance of appointment in favor of a ELIGIBILITY AND QUALIFICATION

relative within the third degree of consanguinity or REQUIREMENTS
affinity is sufficient to constitute nepotism. Also, even
if the case is one of falsification of public documents, Eligibility
the requirement of disclosure of relationship to the state of being legally fit to be chosen.
appointing power in the local government units
Eligible
simply aims to ensure strict enforcement of the Under the Admin Code, it is used to refer to a person
prohibition against nepotism. (Galeos v. People, G.R. who obtains a passing grade in a civil service
174730-37, 2011) examination and whose name is entered in the
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register of eligibles from which appointments must Formal Qualifications: (CAP CARES)
be made. (ADMIN CODE, Book V, TITLE 1-a, SEC.5, 1. Citizenship
PAR. (8)) 2. Age
3. Political affiliation
Nature of right to hold Public Office
4. Civil service examination
The right to hold public office is not a natural right. It
exists only because and by virtue of some law 5. Ability to read and write
expressly or impliedly creating and conferring it. 6. Residence
7. Education
The qualifications which relate to an office must be 8. Suffrage
complied with by persons seeking that office. An
election or appointment to office of a person who is Only accountable public officers or those who are
ineligible or unqualified gives him no right to hold the entrusted with the collection and custody of public
office. money, and public ministerial officers whose actions
may affect the rights and interests of individuals are
Qualification required to give an official bond.
acts which a person is required to do before entering
upon position. Means two things: Improper notarization is not among the grounds for
1. Endowments, qualities, or attributes that disqualification as stated under the OEC and LGC.
make an individual eligible for public office Apart from the qualifications provided for in the
2. Act of entering into performance of public Constitution, the power to prescribe additional
office qualifications for elective office and grounds for
disqualification therefrom, consistent with the
constitutional provisions, is vested in Congress.
Two Meanings of Qualifications
(Amora v. COMELEC, G.R. 19228, 2011)
WHEN REFERRING TO
WHEN USED IN THE
THE ACT OF ENTERING An officer who misrepresented his or her
SENSE OF
INTO THE qualification, e.g. educational attainment and
ENDOWMENTS,
PERFORMANCE OF THE eligibility for government service, is guilty of plain and
QUALITIES OR
FUNCTIONS OF A simple dishonesty as it refers to the act of
ATTRIBUTES
PUBLIC OFFICE intentionally making a false statement on any
The individual must Failure of an officer to material fact in securing one’s appointment.
possess the perform an act required by (Momongan v. Sumayo, A.M. No. P-10-2767, 2011)
qualifications at the law could affect the
time of appointment or officer’s title to the office. All public officers and employees shall take an oath
election and or affirmation to uphold and defend the Constitution.
continuously for as Note: (Phil. Const., art. IX-B, § 4)
long as the official ● Prolonged failure or
relationship continues. refusal to take the Limits on Legislature’s Power to Prescribe
Qualifications:
office could result in
1. The legislature may not reduce or increase
Note: forfeiture of office.
the qualifications prescribed in an exclusive
● Property ● An oath of office taken
manner by the Constitution.
qualifications may before one who has no
2. The legislature may prescribe only general
not be imposed authority to administer
for the exercise of oath is no oath at all. qualifications.
the right to run for ● Once proclaimed and 3. The qualifications must be relevant to the
public office. duly sworn in office, a office for which they are prescribed.
● Loss of any of the public officer is entitled
qualifications to assume office and to Where a person is prohibited from holding two offices
during exercise the functions at the same time, his appointment or election to a
second office may operate to vacate the first or he
incumbency will thereof. The pendency
may be ineligible for the second.
be a ground for of an election protest is
termination. not sufficient basis to A person who accepts and qualifies for a second and
enjoin him from incompatible office is deemed to vacate, or by
assuming office. implication, to resign from the first office. The same
rule obtains where the holding of more than one
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position is prohibited by constitutional or statutory competence, integrity, probity

provision although the second position is not and independence. (1987
incompatible with the first. Consti, art. VIII, sec. 7(3))
1. Natural-born citizens of the
In the absence of constitutional inhibition, Congress
Philippines and
has the same right to provide disqualifications that it
has to provide qualifications for office. 2. At the time of their
appointment, at least 35
Those Prescribed by the Constitution Chairman and years of age
POSITION QUALIFICATIONS the 3. With proven capacity for
1. A natural-born citizen of the Commissioners public administration; and
Philippines of the CSC 4. Must not have been
2. A registered voter candidates for any elective
3. Able to read and write position in the elections
President and 4. At least 40 years of age on the immediately preceding their
Vice President day of the election; and appointment.
5. A resident of the Philippines 1. Natural-born citizens of the
for at least 10 years Philippines and
immediately preceding such 2. At the time of their
election. appointment, at least 35
1. A natural-born citizen of the years of age
Philippines 3. Holders of a college degree;
2. On the day of the election, is Chairman and and
at least 35 years of age the 4. Must not have been
3. Able to read and write Commissioners candidates for any elective
Senators of the positions in the immediately
4. A registered voter; and
5. A resident of the Philippines COMELEC preceding elections
for not less than 2 years 5. However, a majority thereof,
immediately preceding the including the Chairman, shall
day of the election be members of the Philippine
1. A natural-born citizen of the Bar who have been engaged
Philippines in the practice of law for at
2. On the day of the election, is least 10 years.
at least 25 years of age 1. A natural-born citizens of the
3. Able to read and write Philippines
Members of the 2. At the time of their
4. Except the party-list
House of appointment, at least 35
representatives, a registered
Representative years of age
voter in the district in which
s 3. Certified Public Accountants
he shall be elected; and
5. A resident thereof for a period with not less than 10 years of
of not less than 1 year auditing experience, or
immediately preceding the Chairman and members of the Philippine
day of the election. the Bar who have been engaged
1. A natural-born citizen of the Commissioners in the practice of law for at
Philippines of the COA least 10 years; and
2. A Member of the SC must be 4. Must not have been
at least 40 years of age; and candidates for any elective
Members of the 3. Must have been for 15 years position in the elections
SC and lower or more, a judge of a lower immediately preceding their
collegiate court court or engaged in the appointment
practice of law in the 5. At no time shall all Members
Philippines. of the Commission belong to
4. A member of the judiciary the same profession.
must be a person of proven
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1. Natural-born citizens of the 2. Posts occupied by Executive officials specified in

Philippines; and Section 13, Article VII without additional
2. A majority of whom shall be compensation in ex officio capacities as provided
Chairman and
members of the Bar. by law and as required by the primary functions
Members of the
Commission on
3. The term of office and other of the officials’ offices. (Funa v. Agra, G.R.
qualifications and disabilities 191644, 2013)
Human Rights
of the Members of the
Commission shall be General Disqualifications under the Constitution:
provided by law. 1. No candidate who lost in an election shall, within
one year after such election, be appointed to any
C. DISABILITIES AND INHIBITIONS office in Government. (Phil. Const. art. IX-B, §VI)
OF PUBLIC OFFICERS 2. No elective official shall be eligible for
appointment or designation in any capacity to
Disqualification any public office or position during his tenure.
It is the presence of circumstances and qualities
(Phil. Const., art. IX-B, §7(1))
which makes an individual ineligible from holding a
public office. Lack of disqualifications is itself a 3. Unless otherwise provided by law or by the
qualification. primary functions of his position, no appointive
official shall hold any other position in
Disqualifications: (IM RIPE C2ORN LG) Government. (Phil. Const., art. IX-B, § 7(2))
1. Mental or physical Incapacity
2. Misconduct or crime Special Disqualifications under the Constitution:
3. Removal or suspension from office 1. The President, Vice-president, the Members of
4. Impeachment the Cabinet, and their deputies or assistants
5. Previous tenure of office shall not, unless otherwise provided in the
6. Being an Elective official Constitution, hold any other office or
7. Consecutive terms employment during their tenure. (Phil. Const. art.
8. Having been a Candidate for any elective VIII, §13)
position 2. No Senator or Member of the House of
9. Holding more than One office Representatives may hold any other office or
10. Relationship with the appointing power employment in the Government, or any
11. Office Newly created or the emoluments of subdivision, agency or instrumentality thereof,
which have been increased including government-owned or controlled
12. Grounds under the Local Government corporations or their subsidiaries, during his
Code term, without forfeiting his seat. Neither shall he
be appointed to any office which may have been
General Rule: Appointive and elective officials created or the emoluments thereof increase
cannot hold multiple employment or office during during the term for which he was elected. (Phil.
their tenure. Const. art. VI, § 13)
3. The Members of the Supreme Court and of other
Exception: Appointive officials may hold other office
when allowed by law or by the primary functions of courts established by law shall not be designated
their positions. (Sec 7, Art IX-B) to any agency performing quasi-judicial or
administrative functions. (Phil. Const. art. VIII, §
Exception to holding multiple offices: 12)
1. Those provided for under the Constitution, such 4. No Member of a Constitutional Commission
as: shall, during his tenure, hold any other office or
a. President as head of NEDA (Art XII, Sec. employment. (Phil. Const. art. IX-A, § 2) The
9) same disqualification applies to the Ombudsman
b. VP may be appointed as Cabinet and his deputies. (Phil. Const. art. XI, § 8)
Member (Art VII, Sec. 3) 5. The Ombudsman and his Deputies shall not be
c. VP as Acting President (Art VII, Sec. 7) qualified to run for any office in the election
d. In and ex-officio capacity (CLU v. Exec.
Sec., G.R. No. 83896, 1991) and
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immediately succeeding their cessation from disqualifications and prohibitions as provided for
office. (Phil. Const. art. XI, § 11) members of the Constitutional Commissions.
6. Members of Constitutional Commissions, the 6. Unless otherwise allowed by law or by the
primary functions of his position, no appointive
Ombudsman and his deputies must not have
official shall hold any other office or employment
been Candidates for any elective position in the in the government or any subdivision, agency, or
elections immediately preceding their instrumentality, including GOCCs or their
appointment. (Phil. Const. art. IX-B, IX-C, IX-D, subsidiaries.
§. 1; art. XI, § 8) 7. No member of the armed forces in the active
7. Members of the Constitutional Commissions, the service shall, at any time, be appointed or
Ombudsman and his deputies are appointed to designated in any capacity to a civilian position
in the government including GOCCs or any of
a term of seven (7) years, without reappointment.
their subsidiaries.
(Phil. Const. art. IX-B, § 1(2); art. IX-C, § 1(2);
Art. IX-D, §. 1(2); art. IX, §11) Spoils Systems and Political Lame Ducks
8. The spouse and relatives by consanguinity or
SPOILS SYSTEM POLITICAL LAME DUCKS
affinity within the fourth civil degree of the
President shall not during his tenure be No elective official No candidate who has lost
appointed as Members of the Constitutional shall be eligible for in any election shall, within
Commissions, or the Office of the Ombudsman, appointment or one year after such
or as Secretaries, Undersecretaries, chairmen or designation in any election, be appointed to
capacity to any public any office in the
heads of bureaus or offices, including
office or position Government of any
government-owned or controlled corporations during his tenure. government-owned or
(Phil. Const.art. VII, § 13, Art. VII) (1987 Const, art. IX-B, controlled corporations or in
sec. 7) any of its subsidiaries.
PD 807, Sec. 49 prohibits the appointment of a (1987 Const, Art. IX-B, Sec.
Senator or Congressman to any office which may The disqualification 6)
have been created or emoluments thereof increased subsists only during
during the term for which he was elected. the tenure in office of Members of the Civil
the elective official. He Service shall not have been
When the Constitution has attached a disqualification may be appointed candidates for any elective
to the holding of any office, Congress cannot remove provided he forfeits his position in the elections
it under the power to prescribe qualifications as to seat. immediately preceding their
such offices as it may create. The Constitution appointment. (1987 Const,
imposes limitations on the right of certain officials to Examples of art. IX-B, sec. 1(1))
hold more than one office at the same time. exceptions:
1. The President, Vice President, Members of the 1. The Vice
Cabinet, their deputies or assistants shall not, President may be
unless otherwise provided in the Constitution, appointed as a
hold any other office or employment during their Cabinet member
tenure. 2. A Congressman
2. A Senator or Member of the House of may sit in the
Representatives may not hold any office or Judicial and Bar
employment in the Government, or any Council
subdivision, agency, or instrumentality, including 3. To be eligible to
GOCCS or their subsidiaries, during his term (not hold any other
tenure) without forfeiting his seat. office, the elected
3. The members of the Supreme Court and of other official must first
courts established bylaw shall not be designated resign from his
to any agency performing quasi-judicial or office
administrative functions.
4. A member of the Constitutional Commission Except for losing
shall not, during his tenure, hold any other office candidates in barangay
or employment. elections no candidate who
5. During their tenure, the Ombudsman and his lost in any election shall,
deputies are subject to the same within 1 year after such
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and for as long as he has not qualified, the holdover

election, be appointed to
officer is the rightful occupant.
any office in the
Government or any
Inhibitions
government-owned or
It is a restraint upon the public officer against the
controlled corporations or in
doing of certain acts which may be legally done by
a any of their subsidiaries.”
others.
(Local Government Code,
Sec. 94)
Inhibitions under the Constitution
1. The President, Vice-President, Cabinet
Members and their deputies and assistants shall
Power of Congress to Prescribe Disqualifications not, during tenure, directly or indirectly practice
In the absence of constitutional inhibition, Congress any other profession, participate in any business
has the same right to provide disqualifications that it or be financially interested in any contract with
has to provide qualifications for office. the Government. They shall strictly avoid conflict
of interest in the conduct of their office.
Restrictions 2. No Senator or Member of the House may hold
1. Congress may not add disqualifications where any other office or employment in the
the Constitution has provided them in such a way Government during his term without forfeiting his
as to indicate an intention that the seat
disqualifications provided shall embrace all that 3. No Senator or Member of the House may
are to be permitted; and personally appear as counsel before any court of
2. When the Constitution has attached a justice or before the Electoral Tribunal, or quasi-
disqualification to the holding of any office, judicial and other administrative bodies
Congress cannot remove it under the power to 4. No Senator or Member of the House shall
prescribe qualifications as to such offices as it directly or indirectly, be interested financially in
may create any contract with, or in any franchise or special
privilege granted by the Government, during his
Divestment term of office
When a public official is in a conflict-of-interest 5. No Member of the Constitutional Commission
situation. Such official must resign from his position shall, during his tenure, hold any other office or
in any private business enterprise within 30 days employment. Neither shall he engage in the
from his assumption of office and/ or divest himself of practice of any profession or in the active
his shareholdings or interest within 60 days from management or control of business which in any
such assumption. way may be affected by the functions of his
office, nor shall he be financially interested,
Duration of Qualification directly or indirectly, in any contract with, or in
Eligibility to an office should be construed as of a any franchise or special privilege granted by the
continuing nature and must exist at the Government during his term of office. This
commencement of the term and during occupancy of inhibition applies as well to the Ombudsman and
the office. The reckoning point in determining the his deputies.
qualifications of an appointee is the date of issuance 6. No officer or employee in the civil service shall
of the appointment and not the date of its approval by engage, directly or indirectly, in any
the CSC or the date of resolution of the protest electioneering or partisan political campaign.
against it (CSC v de la Cruz, GR No 158737, August
31, 2004) Practice of Profession
1. All governors, city and municipality mayors, are
Persons required to take an Oath of Office under prohibited from practicing their profession or
the Constitution engaging in any occupation other than the
1. All public officers and employees exercise of their functions as local chief
2. President, VP, or the acting President executives;
3. All members of the AFP 2. Sanggunian members may practice their
professions, engage in any occupation, or teach
Oath of Office in schools, except during session hours,
It is a qualifying requirement for a public office. Only Sanggunian members who are also members of
when the public officer has satisfied this prerequisite the Bar shall not:
can his right to enter into the position be considered . Appear as counsel before any court
plenary and complete. Until then, he has none at all in any civil case wherein a local
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government unit or any office, agency or certainty that nothing is

instrumentality of the government is the left for judgment or
adverse party; discretion.
a. appear as counsel in any criminal
case wherein an officer or employee of
the national or local government is
accused of an offense committed in
relation to his office; It is susceptible of General Rule: It cannot
b. collect any fee for their appearance delegation and can be be delegated to another
in administrative proceeding involving
compelled by judicial
the local government until of which he is
an official; and action. Exception: Power of the
c. use property and personnel of the President to conclude
Government except when the treaties may be assigned
Sanggunian member concerned is to a treaty panel, which
defending the interest of the can negotiate the treaty
government on
3. Doctors of medicine may practice their his behalf, under his
profession even during official hours of work only instructions and subject
on occasions of emergency, provided that to his approval.
officials concerned do not derive monetary
compensation therefrom.
Ministerial v. Discretionary Powers:
Constitutional Duties of Public Officers
D. POWERS AND DUTIES OF PUBLIC To be accountable to the people, to serve them with
OFFICERS utmost responsibility, integrity, loyalty, and efficiency;
to act with patriotism and justice; and to lead modest
Consequence of Holding Office lives;
To hold an office means to possess or to occupy the 498. Submit a declaration under oath of
office, or to be in possession and administration of assets, liabilities, and net worth upon assumption
the office, which implies nothing less than the actual of officer and thereafter as may be required;
discharge of the functions and duties of the office. 499. Owe the State and Constitution
(Funa v. Agra, G.R. 191644, 2013) allegiance at all times.
Doctrine of necessary implication
All powers necessary to the exercise of the power Duties of Public officers, In General
expressly granted are deemed impliedly granted. The 1. Duty to obey the law
fact that a particular power has not been expressly 2. Duty to accept and continue in office;
conferred does not necessarily mean that it is not
3. Duty to accept burden of office;
possessed by the officer claiming it.
4. Duty as to diligence and care in the
Ministerial Powers v. Discretionary Powers performance of official duties;
Ministerial Powers Discretionary Powers 5. Duty in choice and supervision of
When it is absolute, When it requires the subordinates;
certain, and imperative exercise of reason and 6. Duty to perform official acts honestly,
involving merely discretion in determining faithfully, and to the best of his ability;
execution of a specific how or whether the act 7. Duty not to use his official power to further
duty arising from fixed shall be done or the his own interest
and designated facts. course
pursued. Territorial Limitation and Duration of Authority
Note: The law exacting The authority of all public officers is limited and
its discharge prescribes Note: The officer is confined to that territory over which the law, by virtue
and defines the time, expected to discharge of which they claim, has sovereign force. The
mode, and occasion of its the duty directly and not authority is limited in its exercise to that term during
which he is by law invested with the rights and duties
performance with such through the intervening
of the office.
mind of another.
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Alter Ego Principle act or not to act, the court may require a general
The acts of the Secretaries of the departments, action
performed and promulgated in the regular course of b. Grave abuse of discretion
business are, unless disapproved or reprobated by
the President, presumptively the acts of the
As to the obligation of the officer to perform his
President. (Carpio v Executive Secretary, GR No powers and duties
96409, February 14, 1992)
1. Mandatory — where the provisions of a statute
Limits of the Alter Ego Doctrine relating to public officers are intended for the
There are certain powers that are reserved to the protection of the citizen and to prevent a sacrifice
President which cannot be exercised by the of his property, and by a disregard of such
Secretaries of the departments such as: provision, his rights might be and generally
1. Declaration of Martial Law would be injuriously affected
2. Suspension of the privilege of writ of habeas 2. Permissive — statutes define the time and mode
corpus in which the public officers will discharge their
3. Pardoning Power duties, and those which are obviously designed
4. Purely discretionary powers merely to secure order, uniformity, system and
dispatch in public business.
Principle of Hold-Over
In the absence of any express of implied As to the relationship of the officer to his subordinates
constitutional or statutory provision to the contrary, 1. Power of Control — power of an officer to
the public officer is entitled to hold office until his
manage, direct or govern, including the power to
successor shall have been duly chosen and shall
have qualified. (Lecaroz v. Sandiganbayan, GR No alter or modify or set aside what a subordinate
130872, March 25, 1999) had done in the performance of his duties and to
substitute his judgment for that of the latter
Effect when law fixes specific date for the end of 2. Power of Supervision — it is the power of mere
a term oversight over an inferior body and does not
When the law fixes a specific date for the end of the include any restraining authority over such body.
term, there is an implied prohibition against hold-over
The officer merely sees to it that rules are
(Nueno v Angeles, GR no 89, February 1, 1946)
followed but he himself does not lay down such
Nature of Officer during Hold-Over rules, nor does he have the discretion to modify
During the period of hold-over, the public officer is a or replace them.
de jure officer (Bautista v Fajardo, GR No 13799,
September 23, 1918) RIGHTS OF PUBLIC OFFICERS
1. Right to Wages;
Classifications of Powers and Duties 2. Right to Preference in Promotion subject to
As to their Nature the discretion of the appointing authority;
1. Ministerial — the law exacting its discharge
3. Right to vacation and sick leave;
prescribes and defines the time, mode and
4. Right to Maternity Leave;
occasion of its performance and requires
5. Right to Retirement Pay;
neither judgment nor discretion. This kind of
6. Other rights:
duty is susceptible of delegation.
a. Right to reimbursement for expenses
2. Discretionary — a public officer has the right to
incurred in due performance of duty
decide how and when the duty shall be
(but this does not include
performed. A public officer cannot delegate this
transportation allowance for those
kind of duty.
using government vehicles);
b. Right to be indemnified against
General Rule: Mandamus will not lie for the
performance of a discretionary duty liabilities they may incur in bona fide
discharge of duties;
Exceptions: c. Right to longevity pay.
a. When the discretion granted is only as to the d. Right to self-organization
manner of its exercise and not the discretion to
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Prohibition on Double Compensation person next in rank must be appointed to the

The purpose of the prohibition against additional or vacancy.
double compensation for public officials: to manifest
a commitment to the fundamental principle that a The appointing authority has the discretion to fill the
public office is a public trust. It is expected of a vacancy under the next-in-rank rule or by any other
government official or employee that he keeps method authorized by law (e.g. by transfer).
uppermost in mind the demands of public welfare. He
is there to render public service. He is entitled to be HOLD-OVER
rewarded for the performance of the functions When a public officer’s term has expired or his
entrusted to him, but that should not be the overriding services are terminated, but he should continue
consideration. The temptation to further personal holding his office until his successor is appointed or
ends, public employment as a means for the chosen and qualifies.
acquisition of wealth, is to be resisted. There must be
awareness on the part of the officer or employee of RETIREMENT
the government that he will receive only such Retirement has been defined as a withdrawal from
compensation as may be fixed by law. With such a office, public station, business, occupation, or public
realization, he is expected not to avail himself of duty. It involves a bilateral act of the parties, a
devious or circuitous means to increase the voluntary agreement between the employer and the
remuneration attached to his position. (Veloso v. employee whereby the latter, after reaching a certain
COA, G.R. 193677, 2011) age, agrees and/or consents to sever his
employment with the former. Retirement plans create
Claims for double retirement benefits fall under the a contractual obligation in which the promise to pay
prohibition against the receipt of double benefits is made in consideration of the continued
compensation when they are based on exactly the faithful service of the employee for the requisite
same services and on the same creditable period. period. Before a right to retirement benefits vests in
(Ocampo v. Commission on Audit, G.R 188716, an employee, he must have met the stated conditions
2013) of eligibility with respect to the nature of employment,
age, and length of service. This is a condition
PROMOTION precedent to his acquisition of rights thereunder.
The movement from one position to another with (Reyes v. CA, G.R. 167002, 2011)
increase in duties and responsibilities as authorized
by law and usually accompanied by an increase in If retirement benefits have been given to an entity
pay. disqualified to receive the same, there is an
obligation to return the amounts under the principle
DEMOTION of solutio indebiti (GSIS v. COA, G.R. No. 138381,
There is demotion when an employee is appointed to 2004).
a position resulting in diminution of duties,
responsibilities, status or rank, which may or may not E. DISTINGUISH: DE FACTO AND DE
involve a reduction in salary. Where an employee is JURE OFFICERS
appointed to a position with the same duties and
responsibilities but with rank and salary higher than De Facto Officer
those enjoyed in his previous position, there is no One whose acts, though not those of a lawful officer,
demotion and the appointment is valid. (Bautista v. the law, upon principles of policy and justice, will hold
CSC, G.R. 185215, 2010) valid so far as they involve the interests of the public
and third persons where the duties of the office were
Demotion to a lower rate of compensation is exercised:
equivalent to removal if no cause is shown for it when 1. without a known appointment or election, but
it is not part of any disciplinary action. In this case,
under circumstance of reputation or
demotion is not proper.
acquiescence;
NEXT-IN-RANK RULE 2. with a known and valid appointment or election
The person next in rank shall be given preference in but the office failed to conform to a legal
promotion when the position immediately above his requirement;
is vacated. 3. With a known appointment or election but void
because of:
The concept of next-in-rank does not import any
a. ineligibility of the officer; or
mandatory or peremptory requirement that the
b. want of authority of the appointing or electing
authority;
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c. irregularity in appointment or election not means that the authority to hold office is by some
known to the public; or election or appointment, however irregular or
d. With known appointment or election informal.
pursuant to an unconstitutional law before
De Jure v De Facto Officer
adjudged to be such A de jure officer has a legal right to the office but he
may not be in possession of the office; while a de
Requisites facto officer possesses the office because of the
1. Valid and legitimate office; color of authority.
2. Actual physical possession of the office in good
faith; De Facto v. Usurper
3. Color of right or general acquiescence by the DE FACTO
public USURPER
OFFICER
Legal Effects of Acts of De Facto Officers AS TO MODE OF ACQUIRING POSSESSION OF

So far as the rights of a third person are concerned, OFFICE
the lawful acts of a de facto officer if done within the
scope and by the apparent authority of the office, is Officer under any of One who takes possession
considered valid and binding as if he were the officer the 4 circumstances of an office and undertakes
legally elected and qualified for the office and in full mentioned. to act officially without any
possession thereof. authority, either actual or
apparent.
Entitlement to Salary
General Rule: Rightful incumbent may recover from AS TO COLOR OF AUTHORITY
a de facto officer the salary received by the latter
during the time of wrongful tenure even though the Has color of authority Has neither lawful title nor
latter is in good faith and under color of title. color of right or title to office
Exception: When there is no de jure officer, the de AS TO VALIDITY OF ACTS

facto officer is entitled to salaries for the period when
he actually discharged functions. (Civil Liberties Acts are valid as to Acts are absolutely void and
Union v. Executive Secretary, GR No 83896, the public until such can be impeached in any
February 22, 1991) time as his title to the proceeding at any time,
office is adjudged unless and until he
How De Facto Officer Ousted insufficient continues to act for so long a
A de facto officer may be ousted in a direct time as to afford a
proceeding where the title will be the principal issue, presumption of his right to
not in a collateral action or in an action to which he is act
not a party.
AS TO ENTITLEMENT OF SALARIES
The proper remedy is to institute quo warranto
proceeding under Rule 66 of the ROC. The title to a May be entitled to Not entitled to compensation
public office may not be contested except directly, by compensation for
quo warranto. services rendered
De Jure Officer
One who has the lawful right to the office in all F. CIVIL SERVICE
respects, but who has either been ousted from it, or
who has never actually taken possession of it. When 1. Scope
the officer de jure is also the officer de facto, the
lawful title and possession are united. Civil Service Commission (CSC)
central personnel agency of the government.
Usurper
One who takes possession of the office and
undertakes to act officially without any color of right
or authority, either actual or apparent. Note that it is
the color of authority, not the color of title, that
distinguishes an officer de facto from a usurper. It
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Composition capacity requiring less than 4 years of collegiate

● Chairman and 2 commissioners studies.
● Appointed by the President with consent of 2nd level: professional, technical and scientific
the Commission on Appointments for a term positions in a non-supervisory/supervisory
capacity requiring at least 4 years of college work
of 7 years, without reappointment.
up to division chief level.
3rd level: career executive service positions
Coverage of the Civil Service
All branches, subdivisions, instrumentalities, and The position of department manager is not a third
agencies of the government including GOCC with level position which is appointed by the President.
original charters. For said reason, a PEZA department manager only
needs the approval of the PEZA Director-General to
Authority of the Civil Service Commission validate his appointment or re-appointment. As he
1. Limited to reviewing appointments on the basis need not possess a CESO or CSEE eligibility, the
of the Civil Service Law. CSC has no valid and legal basis in invalidating his
2. Only allowed to check whether the appointee appointment or re-appointment. (Agyao v. CSC, G.R.
possesses the appropriate civil eligibility or the 182591, 2011)
required qualification. CSC has no discretionary
power. 2. Non-career
Characteristics:
Limitations to the power to appoint 1. Entrance on bases other than those of the usual
1. The power does not include authority to make test of merit and fitness;
the appointment itself or to direct the appointing 2. Tenure which is limited to:
authority to change the employment status of an a. Period specified by law;
employee. b. Coterminous with that of appointing
2. No authority to revoke appointment simply authority;
because it believed that another person is better c. Subject to appointing authority’s pleasure;
d. Limited to the duration of a particular project.
qualified.
3. No power to pass upon the qualifications or They, however, enjoy constitutional guarantee that
tenure of the appointing officer or declare the they cannot be removed except for cause and after
latter’s position vacant for an act that produced due hearing.
forfeiture of his office.
4. Cannot change the tenure of office granted to Oppositions to Appointment
appointee such as where the appointing Any person who feels aggrieved by the appointment
of a person may file a protest against the
authority indicated permanent appointment but
appointment.
CSC approved as temporary such appointment.
Causes for protesting appointment
2. Appointments to Civil Service 1. Appointee not qualified;
2. Appointee is not the next-in-rank;
Classifications 3. In the case of appointment by transfer,
reinstatement, or by original appointment, that
1. Career the protestant is not satisfied with the written
Characteristics: special reason(s) given by the appointing
1. Entrance based on merit and fitness to be authority.
determined by competitive examinations or
based on highly technical qualifications; Meaning of “For Cause”
2. Opportunity for advancement to higher career For reasons which the law and sound public policy
positions; and recognized as sufficient warrant for approval, that is,
3. Security of tenure legal cause, and not merely causes which appointing
power in the exercise of discretion may deem
Levels of Positions sufficient. The cause must relate to and affect the
1st level: clerical, trades, crafts and custodial administration of the office, and must be restricted to
service positions involving non-professional/sub- something substantial in nature.
professional in a non-supervisory or supervisory
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Revocation or Recall of Appointment Personnel actions amounting to removal

1. Shortening term is removal
General Rule: Appointment once made is 2. Control does not extend to removal
irrevocable and not subject to reconsideration. 3. Demotion
4. Denial of optional retirement and refusal to
Grounds when CSC has power to recall, on its
own initiative, an appointment initially approved: reinstate
1. Non-compliance with the procedures/criteria
provided in the agency’s merit promotional plan While a temporary transfer or assignment of
2. Failure to pass through the agency’s personnel is permissible even without the employee’s
selection/promotion board prior consent, it cannot be done when the transfer is
3. Violation of the existing collective agreement a preliminary step toward his removal, or is a scheme
between management and employees relative to to lure him away from his permanent position, or
promotion designed to indirectly terminate his service, or force
4. Violation of other existing civil service law, rules his resignation. Such a transfer would in effect
and regulations circumvent the provision which safeguards the tenure
of office of those who are in the Civil Service. (Garcia
v. Lejano, G.R. L-12220, 1960).
3. Personnel Actions
Waiver of security of tenure
Personnel action Acceptance of temporary appointment or
Any action denoting movement or progress of assignment, without reservations is a waiver of
personnel in the civil service. (EO 292, Rule V, § 1, security of tenure.
cited in City Mayor Debulgado v. CSC, G.R. 111471,
1994).
G. ACCOUNTABILITY OF PUBLIC
Includes the following: (PART R2D2)
1. Appointment through certification
OFFICERS
2. Promotion
1. DISCIPLINE
3. Transfer
4. Reinstatement a. GROUNDS
5. Reemployment
6. Detail General Rule: A public officer is not liable for injuries
7. Reassignment sustained by another due to official acts done within
8. Demotion the scope of his authority.
It is the CSC which is empowered to look into the Exceptions: (BM-NID)

validity of creation of positions and appointments of 1. Bad faith;
personnel appointed by the Mayor whose 2. Malice;
appointments were confirmed by the CSC. There 3. Negligence;
being a valid appointment confirmed by CSC and the 4. Death or Injury to persons or damage to property
concerned personnel having rendered services,
payment of their salaries is proper and legal. Administrative liability is separate from and
(Tolentino v. Loyola, G.R. 153809, 2011) independent of criminal liability.
It is a fundamental principle in the law on public
Valid personnel actions officers that administrative liability is separate from
1. Extending temporary appointment, however, this and independent of criminal liability. A simple act or
must not amount to removal. omission can give rise to criminal, civil or
2. Transfer or re-assignment but this must not administrative liability, each independently of the
involve a reduction in rank, status, and salary, others. This is known as the threefold liability rule.
without break in service. Thus, absolution from a criminal charge is not a bar
to an administrative prosecution, and vice versa. The
3. Detail must be made in the interest of public
dismissal of the administrative cases against the
service, absent showing of manifest abuse or petitioners will not necessarily result in the dismissal
improper motive or purpose. of the criminal complaints filed against them.
(Regidor, Jr. v. People, G.R. 166086-92, 2009; Office
of the President v. Cataquiz, G.R. 183445, 2011)
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Proof of damage or actual injury Commentary, 924, 2009, citing Cornejo v. Gabriel, 41
Proof of damage or actual injury is not required for Phil. 188, 1920)
administrative liability to attach to a public officer. It is
enough that the act was contrary to the established Public Officers and employees owe the State and this
norms of conduct for government service. However, Constitution allegiance at all times and any public
an employee of GSIS who altered IP addresses
officer or employee who seeks to change his
without authority, not in the performance of his duties,
will not be guilty of grave misconduct but conduct citizenship or acquire the status of an immigrant of
prejudicial to the best interest of service. To another country during his tenure shall be dealt with
constitute misconduct, the act or acts must have a by law (PHIL. CONST., art. XI, § 18.)
direct relation to and be connected with the
performance of official duties. (GSIS v. Mayordomo,
b. JURISDICTION
G.R. No. 191218, 2011)
Jurisdiction in Disciplinary Cases
Presumption of good faith in the discharge of
1. The Secretaries and heads of agencies and
official duties.
Every public official is entitled to the presumption of instrumentalities, provinces, cities and
good faith in the discharge of official duties. Although municipalities shall have jurisdiction to
a public officer is the final approving authority and the investigate and decide matters involving
employees who processed the transaction were disciplinary action against officers and
directly under his supervision, personal liability does employees under their jurisdiction. Their
not automatically attach to him but only upon those decision shall be final in case the penalty
directly responsible for the unlawful expenditures.
imposed is suspension for not more than 30
(Dimapilis-Baldoz v. Commission on Audit, G.R.
199114, 2013) days or fine in an amount not exceeding 30
days’ salary.
Concept of public office is a public trust 2. In case the decision rendered by a bureau
The concept of public office is a public trust and the or office head is appealable to the
corollary requirement of accountability to the people Commission, the same may be initially
at all times, as mandated under the 1987 appealed to the department and finally to the
Constitution, is plainly inconsistent with the idea that
an elective local official's administrative liability for a Commission and pending appeal, the same
misconduct committed during a prior term can be shall be executor except when the penalty is
wiped off by the fact that he was elected to a second removal, in which case the same shall be
term of office, or even another elective post. Election executory only after confirmation by the
is not a mode of condoning an administrative offense, Secretary concerned.
and there is simply no constitutional or statutory basis 3. The Commission shall decide upon appeal
in our jurisdiction to support the notion that an official
all administrative disciplinary cases
elected for a different term is fully absolved of any
administrative liability arising from an offense done involving the imposition of a penalty of
during a prior term. (Carpio-Morales v. CA and Binay, suspension for more than 30 days, or fine in
G.R. 217126-27, 2015) an amount exceeding 30 days’ salary,
demotion in rank or salary transfer, removal
Public officers and employees must at all times be or dismissal from office.
accountable to the people, serve them with utmost 4. A complaint may be filed directly with the
responsibility, integrity, loyalty, and efficiency, act Commission by a private citizen against a
with patriotism and justice, and lead modest lives. government official or employee in which
case it may hear and decide the case or it
The basic idea of government in the Philippines is
may deputize any department, agency,
that of a representative government, the officers
official, or group of officials to conduct the
being mere agents and not rulers of the people, one
investigation.
where no one man or set of men had a proprietary or
contractual right to an office, but where every officer 5. Disciplinary cases and cases involving
accepts office pursuant to the provisions of law and “personnel actions” affecting employees in
holds the office as a trust for the people whom he the civil service are within the exclusive
represents. (Bernas, 1987 Philippine Constitution: A jurisdiction of the Civil Service Commission,
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which is the sole arbiter of controversies Two kinds of preventive suspension of

relating to the civil service. government employees charged with offenses
6. Executive Order No. 151, or the Presidential punishable by removal or suspension:
1. Preventive suspension pending investigation;
Commission Against Graft and Corruption,
and
exercises jurisdiction to investigate all
administrative complaints involving graft and 2. Preventive suspension pending appeal if the
penalty imposed by the disciplining authority is
corruption filed in any form or manner
suspension or dismissal and, after review, the
against presidential appointees in the
respondent is exonerated.
executive department of the government,
including those in GOCCs. Such jurisdiction
Effect of Decision on Suspension When Made
extends to nonpresidential appointees who Before or After 90 Days:
may have acted in conspiracy or who may
have been involved with a presidential IF THE CASE IS IF THE CASE IS DECIDED
DECIDED BEFORE NOT DECIDED WITHIN 90
appointee. 90 DAYS DAYS
7. The Sandiganbayan has exclusive original
jurisdiction over presidents, directors or The suspension will The suspension may not
trustees, or managers of GOCCs, without last less than 90 exceed the maximum
any distinction with respect to the manner of days. period of 90 days.
their creation, whenever charges of graft
and corruption are involved. Preventive suspension is merely a preventive
8. RA No. 4670, otherwise known as the measure, a preliminary step in an administrative
Magna Carta for Public School Teachers, investigation; the purpose thereof is to prevent the
accused from using his position and the powers and
covers and governs administrative
prerogatives of his office to influence potential
proceedings involving public school witnesses or tamper with records which may be vital
teachers. in the prosecution of the case against him.
(Ombudsman v. Francisco, G.R. 172553, 2011)
c. DISMISSAL, PREVENTIVE
SUSPENSION, REINSTATEMENT It is now settled that Sec. 13 of Republic Act No. 3019
AND BACK SALARIES makes it mandatory for the Sandiganbayan to
suspend any public official against whom a valid
1. Preventive Suspension and Back Salaries information charging violation of that law, Book II,
Title 7 of the Revised Penal Code, or any offense
involving fraud upon government or public funds or
PREVENTIVE SUSPENSION property is filed. The court trying a case has neither
Merely a preventive measure, a preliminary step in discretion nor duty to determine whether preventive
an administrative investigation. The purpose of the suspension is required to prevent the accused from
suspension order is to prevent the accused from using his office to intimidate witnesses or frustrate his
using his position and the powers and prerogatives prosecution or continuing committing malfeasance in
of his office to influence potential witnesses or tamper office. (Villasenor v. Sandiganbayan, G.R. 180700,
with records which may be vital in the prosecution of 2008)
the case against him. If after such investigation, the
charge is established and the person investigated is There is no dispute as to the power of the
found guilty of acts warranting his suspension or Ombudsman to place a public officer charged with an
removal, then, as a penalty, he is suspended, administrative offense under preventive suspension.
removed or dismissed. (Villasenor v. That power is clearly confined under Section 24 of
Sandiganbayan, G.R. No. 180700, 2008) R.A. No. 6770. The law sets forth two conditions that
must be satisfied to justify the issuance of an order of
preventive suspension pending an investigation, to
wit:
1. The evidence of guilt is strong; and\
2. Either the following circumstance co-existing
with the first requirement:
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a.The charge involves dishonesty, Two conditions before an employee may be

oppression or grave misconduct or neglect entitled to back salaries in preventive suspension
in the performance of duty; cases:
1. The employee must be found innocent of the
b. The charge would warrant removal from the
charges; and
service; or
c. The respondent’s continued stay in office 2. His suspension must be unjustified or the official
was innocent. (CSC v. Cruz, G.R. 187858, 2011)
may prejudice the case filed against him.
(Ombudsman v. Valeroso, G.R. 167828, 2007)
The reasoning behind these conditions runs this way:
Prior notice and hearing are not required in the although an employee is considered under
preventive suspension during the pendency of a
issuance of a preventive suspension order.
Settled is the rule that prior notice and hearing are successful appeal, the law itself only authorizes
not required in the issuance of a preventive preventive suspension for a fixed period; hence, his
suspension beyond this fixed period is unjustified and
suspension order. (Carabeo v. CA, G.R.
must be compensated. The rule on payment of back
178000/178003, 2009)
salaries during the period of suspension of a member
GROUNDS FOR PREVENTIVE SUSPENSION OF of the civil service who is subsequently ordered
reinstated, is already settled in this jurisdiction. Such
POLICE OFFICERS [RA 8551, SEC. 55]
payment of salaries corresponding to the period
(Preventive Suspension Pending Criminal Case)
when an employee is not allowed to work may be
The court shall immediately suspend the accused
decreed not only if he is found innocent of the
from office for a period not exceeding 90 days from
charges that caused his suspension (Sec. 35, RA
arraignment:
2260), but also when the suspension is unjustified.
1. Upon the filing of a complaint or information
(CSC v. Cruz, G.R. 187858, 2011).
sufficient in form and substance against a
member of the PNP; The mere reduction of the penalty on appeal does not
2. For grave felonies where the penalty imposed by entitle a government employee to back salaries if he
law is 6 years and 1 day or more. was not exonerated of the charge against him. If the
exoneration of the employee is relative (as
Exception: If it can be shown by evidence that the distinguished from complete exoneration), an inquiry
accused is harassing the complainant and/or into the factual premise of the offense charged and
witnesses, the court may order the preventive of the offense committed must be made. If the
suspension of the accused PNP member even if the administrative offense found to have been actually
charge is punishable by a penalty lower than 6 years committed is of lesser gravity than the offense
and 1 day. charged, the employee cannot be considered
exonerated if the factual premise for the imposition of
General Rule: The period of preventive suspension the lesser penalty remains the same. (CSC v. Cruz,
shall not be more than 90 days. G.R. No. 187858, 2011).
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.
Back salaries during preventive suspension

General Rule: A public official is not entitled to any
compensation if he has not rendered any service.
(Reyes v. Hernandez, G.R. No. Apr. 8, 1941)
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Preventive Suspension Pending Investigation v. is proper because he had given ground for his
Appeal suspension. It does not impair his constitutional
rights because the Constitution itself allows
PREVENTIVE PREVENTIVE
suspension for cause as provided by law and the law
SUSPENSION PENDING SUSPENSION
provides that an employee may be suspended
INVESTIGATION PENDING APPEAL
pending an investigation or by way of penalty.
Not a penalty. It is a If the penalty imposed (Bangalisan v. CA, G.R. 124678, 1997)
measure intended to by the disciplining
enable the disciplining authority is suspension A public officer is entitled after his acquittal not only
authority to investigate or dismissal and, after to reinstatement but also to payment of the salaries,
charges against review, the respondent allowances, and other benefits withheld from him by
respondent by preventing is exonerated. reason of his discharge from the service even if there
the latter from intimidating has been valid suspension from the service pending
or in any way influencing No back salaries shall the adjudication of the criminal case. (P/Chief
witnesses against him. If be due for the period of Superintendent Calinisan v. SPO2 Roaquin, G.R.
the investigation is not preventive suspension 159588, 2010)
finished and a decision is PENDING
not rendered within that INVESTIGATION but Reinstatement v. Backwages:
period, the suspension will only for the period of REINSTATEMENT BACKWAGES
be lifted and the preventive suspension
respondent will PENDING APPEAL, in Restoration to a state or A form of relief that
automatically be the event the employee condition from which one had restores the
reinstated. If after is exonerated. (Gloria v. been removed or separated. income that was
investigation, respondent CA, G.R. 131012, One who is reinstated lost by reason of
is found innocent of the 1999) assumes the position he had unlawful dismissal.
charges and is occupied prior to the dismissal
exonerated, he should be and is, as an ordinary rule,
reinstated. (CSC v. entitled only to the last salary in
Alfonso, G.R. 179452, that position.
2009)
Where to file claims for backwages: The claim for
Reinstatement recovery of back salaries involves settlement of
The issuance of an appointment to a person who has accounts or claims against the government and
been previously appointed to a position in the career should therefore be filed with the Commission on
service and who has, through no delinquency or Audit.
misconduct, been separated therefrom, or to the
restoration of one who has been exonerated of the Amount of Back Salaries
administrative charges filed against him. (Galang v. An illegally terminated civil service employee is
Land Bank, G.R. 175276, 2011) entitled to back salaries limited only to a maximum
period of five years, and not full back salaries from
The rule is settled that back salaries may be awarded his illegal termination up to his reinstatement.
to civil servants only if they have been illegally (Galang v. Land Bank, G.R. 175276, 2011)
dismissed and thenceforth ordered reinstated, or to
those acquitted of the charge against them. (Tanjay
Water District v. Quinit, Jr., G.R. 160502, 2007) IMMUNITY OF PUBLIC OFFICERS
Official immunity
When an official or employee was illegally dismissed Only protects public officials from tort liability for
and his reinstatement has later been ordered, for all damages arising from acts or functions in the
legal purposes he is considered as not having left his performance of their official duties.
office. Therefore, he is entitled to all the rights and
privileges that accrue to him by virtue of the office he Public officers may be sued to restrain them from
held. (Galang v. Land Bank, G.R. 175276, 2011) enforcing an act claimed to be unconstitutional.
A public officer is not entitled to reinstatement and

back salaries, when removal or suspension is lawful.
The denial of salary to an employee during the period
of his suspension, if he should later be found guilty,
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Exceptions: when liability does not devolve 2. Tenure represents the term during which the
ultimately to the State such as: incumbent actually holds office. The tenure
1. A petition to require official to do his duty; may be shorter (or, in case of holdover,
2. A petition to restrain him from doing an act; longer) than the term for reasons within or
3. To recover taxes from him; beyond the power of the incumbent.
4. Those where the officer impleaded may by However, a term, or the time during which
himself alone comply with the decision of the the officer may claim to hold the office as of
court; right, is not affected by the holdover. (Valle
5. Where the government itself has violated its own Verde v. Africa, G.R. 151969, 2009)
laws. 3. Reaching the Age limit (retirement) - 65
years for public officers and employees
Where a public officer has committed an ultra vires 4. Death or permanent disability
act, or where there is a showing of bad faith, malice
or gross negligence, the officer can be held
personally accountable even if such acts are claimed Acts or neglect of officer: (PAIR)
to have been performed in connection with official a. Prescription of Right to Office - Quo
duties. (Wylie v. Rarang, G.R. 74135, 1992) warranto is the proper remedy against a
public officer or employee for his/her ouster
Immunity from suit cannot institutionalize from office which should be commenced
irresponsibility and non-accountability nor grant a within 1 year after the cause of such ouster;
privileged status not claimed by any other official of otherwise the action shall be barred.
the Republic. (Republic v. Sandoval, G.R. 84607,
b. Abandonment of Office - the voluntary
1993)
relinquishment of an office by the holder,
Where the public officer is sued in his personal with the intention of terminating his
capacity, state immunity will not apply. (Lansang v. possession and control thereof. There are,
CA, G.R. 102667, 2000) therefore, two essential elements of
abandonment: first, an intention to abandon
d. CONDONATION DOCTRINE and second, an overt or “external” act by
which the intention is carried into effect.
The condonation doctrine is the doctrine that
provides that a reelected official should no longer be
made accountable for an administrative offense Generally, a person holding a public office
committed during his previous term. may abandon such office by nonuser or
acquiescence. Non-user refers to a neglect
In Carpio-Morales, the Court abandoned the to use a right or privilege or to exercise an
"condonation doctrine," explaining that "election is office. However, nonperformance of the
not a mode of condoning an administrative offense,
duties of an office does not constitute
and there is simply no constitutional or statutory basis
in our jurisdiction to support the notion that an official abandonment where such nonperformance
elected for a different term is fully absolved of any results from temporary disability or from
administrative liability arising from an offense done involuntary failure to
during a prior term." perform. Abandonment may also result
from an acquiescence by the officer in his
The abandonment should be prospectively applied. wrongful removal or discharge, for instance,
(Dimapilis v. Commission on Elections, G.R. No.
after a summary removal, an unreasonable
227158, [April 18, 2017])
delay by an officer illegally removed in taking
TERMINATION OF OFFICIAL RELATION steps to vindicate his rights may constitute
an abandonment of the office. (Canonizado
Modes of Termination: (TAD PAIR CAIRR) v. Aguirre, G.R. 133132, 2001)
c. Acceptance of an Incompatible office - It
Natural causes: (TAD) is a well-settled rule that he who, while
1. Expiration of the Term or tenure of office - occupying one office, accepts another
his/her rights and duties ipso facto ceases, incompatible with the first, ipso facto vacates
unless authorized to holdover. the first office and his title is thereby
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terminated without any other act or disqualification are imposed upon conviction
proceeding. Public policy considerations by final judgment in a trial court
dictate against allowing the same individual b. Abolition of office
to perform inconsistent and incompatible c. Impeachment - way of removing the
duties. The incompatibility contemplated is President, Vice President, Members of the
not the mere physical impossibility of one Supreme Court and the Constitutional
person’s performing the duties of the two Commissions and the Ombudsman.
offices due to a lack of time or the inability to d. Removal - ouster of the incumbent before
be in two places at the same moment, but the expiration of his/her term
that which proceeds from the nature and Grounds:
relations of the two positions to each other i. Members of Congress – each
as to give rise to contrariety and antagonism House may punish its members for
should one person attempt to faithfully and disorderly behavior with the
impartially discharge the duties of one concurrence of 2/3 of ALL its
toward the incumbent of the members. Suspension if imposed
other. (Canonizado v. Aguirre, G.R. shall not exceed 60 days.
133132, 2001). ii. Civil Service Officers or Employees
d. Resignation – Formal renunciation or – for causes provided by law
relinquishment of office. To constitute a
complete and operative act of resignation, As a matter of law, a department
the officer or employee must show a clear secretary’s decision confirming the
intention to relinquish or surrender his removal of an officer under his
position accompanied by the act of authority is immediately executory,
relinquishment. Resignation implies an even pending further remedy by the
expression of the incumbent in some form, dismissed public
express or implied, of the intention to officer. (Dimapilis-Baldoz v.
surrender, renounce and relinquish the Commission on Audit, G.R.
office, and its acceptance by competent and 199114, 2013)Recall - refers to the
lawful authority. A "courtesy resignation" election itself by means of which
cannot properly be interpreted as voters decide whether they should
resignation in the legal sense for it is not retain their local official or elect
necessarily a reflection of a public official's replacement. The ground for recall
intention to surrender his position. Rather, it is “loss of confidence.”
manifests his submission to the will of the
political authority and the appointing power. A petition for recall should be
(Ortiz v. COMELEC, G.R. 78957, 1988) initiated by at least 25% of the total
number of registered voters of the
Cessation from office by virtue of intervening concerned LGU.
resignation did not warrant the dismissal of
the administrative complaint against the REORGANIZATION
public officer, for the act complained of had involves the reduction of personnel, consolidation of
offices, or abolition thereof by reason of economy or
been committed when he or she was still in
redundancy of functions. It alters the existing
the service. (Concerned Citizen v. Catena, structure of government offices or units therein,
A.M. OCA IPI 02-1321-P, 2013) including the lines of control, authority and
responsibility between them to make the bureaucracy
Acts of the government or people: (CAIRR) more responsive to the needs of the public clientele
as authorized by law. It could result in the loss of
a. Conviction of a crime - termination results one’s position through removal or abolition of an
when the penalties of perpetual or office. A valid reorganization for the purpose of
temporary absolute disqualification or economy or for making the bureaucracy more
penalties of perpetual or temporary special efficient must pass the test of good faith; otherwise it
is void ab initio. (Pan v. Pena, G.R. 174244, 2009)
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If the reorganization was done in good faith, the 2. Vice President

abolition of positions, which resulted in loss of 3. Members of the
security of tenure of affected government employees, a. Cabinet
would be valid. Except those who hold constitutional b. Congress
offices, which provide for special immunity as regards c. Supreme Court
salary and tenure, no one can be said to have any
d. Constitutional Commissions
vested right to an office or salary. (Banda v. Ermita,
G.R. No. 166620, 2010) 4. Ombudsman
5. Any firm or entity in which they have
The creation of the Truth Commission does not fall controlling interest, during their tenure
within the President’s power to reorganize. Section
31 of the Revised Administrative Code refers to Statement of Assets and Liabilities and Net Worth
reduction of personnel, consolidation of offices, or (PHIL. CONST., art. XI, § 17.)
abolition thereof by reason of economy or A public officer or employee shall upon assumption
redundancy of functions. These refer to situations of office and as often thereafter as may be required
where a body or an office is already existent but a by law, submit a declaration under oath of his assets,
modification or alteration thereof has to be
liabilities, and net worth.
effected. (Biraogo v. The Philippine Truth
Commission, G.R. 192935-36, 2010).
The following are required to disclose their
The existence of any or some of the following declaration to the public in the manner provided by
circumstances may be considered as evidence of law:
bad faith in the removals made as a result of 1. President
reorganization, giving rise to a claim for 2. Vice President
reinstatement or reappointment by an aggrieved 3. Members of the
party: a. Cabinet
b. Congress
1. Where there is a significant increase in the
c. Supreme Court
number of positions in the new staffing
d. Constitutional Commissions
pattern of the department or agency 4. Other constitutional offices
concerned; 5. Officers of the Armed Forces with general or
2. Where an office is abolished and others are flag rank
performing substantially the same functions
is created; 1. Types of Accountability
3. Where incumbents are replaced by those
less qualified in terms of status of Grounds for Discipline: (DOOD IPOD MINI MUG)
appointment, performance and merit; 1. Discourtesy in the course of official duties;
4. Where there is a reclassification of offices in 2. Refusal to perform Official duty or render
the department or agency concerned and overtime service;
the reclassified offices perform substantially 3. Falsification of Official documents;
the same function as the original offices; 4. Habitual Drunkenness;
5. Where the removal violates the order of 5. Inefficiency and incompetence in the
separation provided in Section 3 hereof. performance of official duties;
(Cotiangco v. Province of Biliran, G.R. 6. Willful refusal to Pay just debts or willful failure to
157139, 2011) pay taxes due to the government;
7. Oppression;
8. Dishonesty;
Prohibition on Financial Accommodation (PHIL.
9. Misconduct;
CONST., art. XI, § 16.)
10. Disgraceful and Immoral conduct;
No loan, guaranty, or other form of financial
11. Neglect of duty;
accommodation for any business purpose may be
12. .Physical or mental Incapacity due to immoral or
granted, directly or indirectly, by any government-
owned or controlled bank or financial institution to vicious habits;
the: 13. Conviction of a crime involving Moral turpitude;
1. President 14. Being notoriously Undesirable;
15. Gambling.
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Negligence v. Dishonesty Misconduct in office

refers to "any unlawful behavior by a public officer in
NEGLIGENCE DISHONESTY
relation to the duties of his office, willful in character.
In the case of public Dishonesty begins The term embraces acts which the office holder had
officials, there is when an individual no right to perform, acts performed improperly, and
negligence when there intentionally makes a failure to act in the face of an affirmative duty to act."
is a breach of duty or false statement in any In grave misconduct, as distinguished from simple
failure to perform the material fact, or misconduct, the elements of corruption, clear intent
obligation, and there is practicing or attempting to violate the law, or flagrant disregard of established
gross negligence when to practice any rule must be manifest. Corruption as an element of
a breach of duty is deception or fraud in grave misconduct consists in the act of an official or
flagrant and order to secure his employee who unlawfully or wrongfully uses his
palpable. Failing to examination, station or character to procure some benefit for
comply with his duty to registration, himself or for another, contrary to the rights of others.
provide a detailed list of appointment or (Gabon v. Merka, A.M. P-11-3000, 2011)
his assets and business promotion. It should be
interests in his SALN emphasized only when Grave misconduct
and for relying on the the accumulated wealth consists in a government official’s deliberate violation
family becomes manifestly of a rule of law or standard of behavior. It is regarded
bookkeeper/accountant disproportionate to the as grave when the elements of corruption, clear
to fill out his SALN and employee’s income or intent to violate the law, or flagrant disregard of
in signing the same other sources of income established rules are present. In particular, corruption
without checking or and his failure to as an element of grave misconduct consists in the
verifying the entries is properly account or official’s unlawful and wrongful use of his station or
negligence. (Presidenti explain his other character to procure some benefit for himself or for
al Anti-Graft sources of income does another person, contrary to duty and the rights of
Commission and the he become susceptible others. Rigging by a public official at a bidding in the
Office of the President to dishonesty. organization where he belongs is a specie of
v. Pleyto, G.R. 176058, (Ombudsman v. Nieto, corruption. (NPC v. CSC, G.R. 152093, 2012)
2011) G.R. 185685, 2011)
Simple neglect of duty
defined as the failure of an employee to give proper
Good Faith attention to a required task or to discharge a duty due
Good faith is ordinarily used to describe that state of to carelessness or indifference. On the other hand,
mind denoting honesty of intention and freedom from gross neglect of duty is characterized by want of even
knowledge of circumstances which ought to put the the slightest care, or by conscious indifference to the
holder upon inquiry. In other words, good faith is consequences, and in cases involving public officials,
actually a question of intention. Although this is by flagrant and palpable breach of duty. It is the
something internal, one can ascertain a person’s omission of that care that even inattentive and
intention not from his own protestation of good faith, thoughtless men never fail to take on their own
which is self-serving, but from evidence of his property. (Land Bank of the Philippines vs. San Juan
conduct and outward acts. (Dumduma v. CSC, G.R. Jr., G.R. 192890, 2013)
182606, 2011)
Every public official who signs or initials documents

in the course of standard operating procedures does
not automatically become a conspirator in a crime
that transpired at some stage in which the official had
no participation. (Peralta v. Desierto, G.R. 153152,
2005)
Even if the dishonest act was committed by the

employee prior to entering government service, such
act is still a ground for disciplinary action. (Orbase
v. Ombudsman, G.R. 175115, 2009)
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When demolition is proper and when improper and conviction of certain offenses listed in Article XI
that may constitute liability: (2) of the Constitution. Precisely the same situation
exists in respect of the Ombudsman and his
WHEN DEMOLITION WHEN DEMOLITION IS
deputies. (In Re Gonzales, A.M. No. 88-4-5433 April
IS PROPER NOT PROPER
15, 1988)
A complaint for If a Sanggunian resolution
damages and injunction only authorized a Mayor to Who may be impeached: (VP-SOC)
against the members of file for unlawful detainer in 1. President
the Philippine army case of resistance to obey 2. Vice President
cannot be held the order or to demolish 3. Supreme Court Justices
personally accountable the building using legal 4. Constitutional Commission members
for the demolition since means, the act of 5. Ombudsman
the act was done in demolition without legal
connection with their order is not proper. After Grounds: (GOT BBC)
official duties in carrying all, the present Local 1. Graft and corruption
the AFP program of Government Code does
2. Other high crimes
“Oplan Linis.” There not expressly provide for
was no showing that the abatement of 3. Treason
such acts constitute nuisance. (Asilo v. People 4. Betrayal of public trust
ultra vires acts nor was of the Philippines, G.R. 5. Bribery
there a showing of bad 159017-18, 2011) 6. Culpable violation of the Constitution
faith on the part of
petitioners. (Philippine It is an exclusive list. Congress cannot add to the
Army, 5th Infantry list of impeachable offenses.
Division v. Spouses These officers cannot be charged in court with
Pamittan, et. al., G.R. offenses that have removal from office as penalty.
187326, 2011) But after an official has been impeached, he can be
charged with the appropriate offense.
Ultra vires acts
acts which are clearly beyond the scope of one's Resignation by an impeachable official does not
authority. They are null and void and cannot be given place him beyond the reach of impeachment
any effect. The doctrine of estoppel cannot operate proceedings; he can still be impeached.
to give effect to an act which is otherwise null and
void or ultra vires. (Acebedo Optical Company v. CA, Other public officers and employees -
G.R. No. 100152, 2000) They may be removed from office as provided by law
but not by impeachment.
2. IMPEACHMENT
Who may initiate impeachment case
The House of Representatives has exclusive power
the power of Congress to remove a public official for
serious crimes or misconduct as provided in the to initiate all cases of impeachment.
Constitution. It is a mechanism designed to check
abuse of power. (Chief Justice Renato C. Corona v. Procedure:
1. Filing of verified complaint. Can be filed by:
Senate of the Philippines sitting as an Impeachment
Court, G.R. No. 200242, 2012) See discussion in a. Any member of the House of
Part V (H)(2)(b) Representatives
b. Any citizen upon a resolution or
There is another reason why the complaint for endorsement by any Member of the House
disbarment here must be dismissed. Members of the c. By at least 1/3 of all the Members of the
Supreme Court must, under Article VIII (7) (1) of the
House of Representatives
Constitution, be members of the Philippine Bar and
may be removed from office only by impeachment d. If the verified complaint or resolution of
(Article XI [2], Constitution). To grant a complaint for impeachment was filed by at least 1/3 of all
disbarment of a Member of the Court during the the Members of the House, it shall constitute
Member's incumbency, would in effect be to the Articles of Impeachment. Trial in the
circumvent and hence to run afoul of the Senate shall proceed.
constitutional mandate that Members of the Court 1. Inclusion of complaint in the order of
may be removed from office only by impeachment for
business within 10 session days
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2. Referral to proper Committee within 3 referral to proper committees, to submission of the

session days thereafter report to the House, subsequent deliberation, and
3. Submission of committee report to the ends with the transmittal of the Article of
Impeachment to the Senate. An impeachment case
House together with corresponding
pertains to a trial in the Senate which commences at
resolution the time the Articles of Impeachment are transmitted
4. The report should be submitted within to the Upper House. (Gutierrez v. House Committee
60 days from referral, after hearing, and on Justice, G.R. 193459, 2011).
by a majority vote of all its members.
5. Calendaring of resolution for Effects of impeachment: (LDR)
consideration by the House 1. Removal from office of the official concerned
6. Should be done within 10 session days 2. Disqualification to hold any office
from receipt thereof 3. Officer still Liable to prosecution, trial, and
7. Vote of at least 1/3 of all the members punishment if the impeachable offense
of the House necessary to: committed also constitutes a felony or crime.
1. Affirm a favorable resolution with
The determination of sufficiency of form and
the Articles of Impeachment of the
substance of an impeachment complaint is an
Committee or exponent of the express constitutional grant of rule-
2. To override its contrary resolution making powers of the House of Representatives. In
the discharge of that power and in the exercise of its
Roles of the 3 branches of Government in discretion, the House has formulated determinable
impeachment: standards as to the form and substance of an
1. Senate has sole power to try and decide cases impeachment complaint. Furthermore, the
of impeachment; Impeachment Rules are clear in echoing the
2. If the President is on trial, the Chief Justice constitutional requirements and providing that there
presides but does not vote; must be a "verified complaint or resolution,” and that
the substance requirement is met if there is "a recital
3. The Supreme Court can determine if Congress
of facts constituting the offense charged and
committed grave abuse of discretion amounting determinative of the jurisdiction of the committee.”
to lack or excess of jurisdiction (ex. recognizing Questions on what constitutes as an impeachable
two impeachment complaints). offense are considered to be purely political
questions and thus left to the sound determination of
For impeachment, judgment of conviction requires the legislature. (Gutierrez v. House Committee on
the concurrence of 2/3 of all the Members of the Justice, G.R. 193459, 2011).
Senate.
3. THE OMBUDSMAN AND THE
Only one impeachment proceeding should be OFFICE OF THE PROSECUTOR
initiated against an impeachable officer within a
period of one year. (Gutierrez v. House Committee THE OFFICE OF THE OMBUDSMAN
on Justice, G.R. 193459, 2011)
Scope
The SC found it well-within its power to determine GOCCs with original charters and those organized
whether Congress committed a violation of the and incorporated under the Corporation Code within
Constitution or gravely abused its discretion in the the jurisdiction of the Sandiganbayan whenever they
exercise of its functions and prerogatives that could are involved in graft and corruption. (People v.
translate as lack or excess of jurisdiction in taking Sandiganbayan, G.R. 147706-07, 2005).
cognizance of two impeachment complaints that are
inquisitorial in function, akin to a preliminary The Ombudsman has the power to grant immunity by
investigation. (Gutierrez v. House Committee on itself and even prior to the filing of information in
Justice, G.R. 193459, 2011). court. RA 6770 fully recognizes this prosecutory
prerogative by empowering the Ombudsman to grant
The 1-year period shall be counted from the time of immunity, subject to “such terms and conditions” as
the filing of the first impeachment complaint. he may determine. The only textual limitation
Impeachment proceedings pertain to the imposed by law on this authority is the need to take
proceedings in the House of Representative which “into account the pertinent provisions of the Rules of
commences from the initiation of the complaint, to the Court,” – i.e., Section 17, Rule 119 of the Rules of
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Court. The rule under RA 6770 clarifies that in cases Qualifications: (Ombudsman and Deputies):
already filed with the courts, the prosecution merely 1. Natural born citizen of the Philippines
makes a proposal and initiates the process of 2. At least 40 years old at time of appointment
granting immunity to an accused-witness in order to 3. Of recognized probity and independence
use him as a witness against his co-accused. If there
4. Member of the Philippine bar
is any distinction at all between the public prosecutor
and the Ombudsman in this endeavor, it is in the 5. Must not have been candidate for any elective
specificity of and the higher priority given by law to office in the immediately preceding election
the Ombudsman’s purpose and objective. This 6. For Ombudsman: He must have been for 10
accounts for the Ombudsman’s unique power to years or more:
grant immunity by itself and even prior to the filing of a. A judge OR
information in court, a power that the public b. Engaged in the practice of law in the
prosecutor himself generally does not enjoy. (Quarto
Philippines
v. Ombudsman, G.R. 169042, 2011).
In the exercise of his duties, the Ombudsman is given Disqualifications and Prohibitions:
full administrative disciplinary authority. His power is 1. Cannot hold any other office or employment
not limited merely to receiving, processing during his tenure;
complaints, or recommending penalties. He is to 2. Cannot engage in the practice of any profession
conduct investigations, hold hearings, summon or in the active management or control of any
witnesses and require production of evidence and business which may be affected by the functions
place respondents under preventive suspension. of his office;
This includes the power to impose the penalty of
3. Cannot be financially interested, directly or
removal, suspension, demotion, fine, or censure of a
public officer or employee. The provisions in RA 6770 indirectly, in any contract with or in any franchise
taken together reveal the manifest intent of the or privilege granted by the Government, any of
lawmakers to bestow on the Office of the its subdivisions, agencies or instrumentalities,
Ombudsman full administrative disciplinary authority. including GOCCs or their subsidiaries.
These provisions cover the entire gamut of
administrative adjudication which entails the Appointment:
authority to, inter alia, receive complaints, conduct 1. Ombudsman and deputies
investigations, hold hearings in accordance with its
2. By the president from a list of at least 6 nominees
rules of procedure, summon witnesses and require
the production of documents, place under preventive prepared by the Judicial and Bar Council.
suspension public officers and employees pending Vacancies will be filled from a list of 3 nominees.
an investigation, determine the appropriate penalty 3. Appointments do NOT require confirmation
imposable on erring public officers or employees as 4. All vacancies shall be filled within 3 months after
warranted by the evidence, and, necessarily, impose they occur.
the said penalty. Thus, it is settled that the Office of 5. Appointees have 7-year term without
the Ombudsman can directly impose administrative
reappointment and are not qualified to run for
sanctions. (Cabalit v. COA, G.R. 180236, 2012)
any office in the election succeeding their
The Office of the Ombudsman is tasked to exercise cessation from office.
disciplinary authority over all elective and appointive 6. Other ombudsman officials and employees
officials, save only for impeachable officers. . By the Ombudsman
(Alejandro v. Office of the Ombudsman Fact-Finding a. In accordance with Civil Service Law
and Intelligence Bureau, G.R. 173121, 2013).
Powers, Functions and Duties
Composition: 1. Investigate on its own, or on complaint by any
1. Ombudsman/Tanodbayan;
person, any act or omission of any public official,
2. Overall Deputy (at least one Deputy each for
employee, office or agency, when such act or
Luzon, Visayas and Mindanao).
omission appears to be illegal, unjust, improper,
3. Deputy for military establishment may be
or inefficient.
appointed
a. May be done on its own initiative or on
complaint in any form.
b. Such may be delegated.
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c. The power to investigate includes the power discharge a duty required by law shall be a
to impose preventive suspension. But, this is ground for disciplinary action against said
not a penalty. officer. (RA 6770, Sec. 15 (3); Ledesma v.
d. Investigate does not mean preliminary CA, G.R. No. 161629, 2005; Article 11 Sec.
investigation. 13(3), 1987 Constitution)
e. The complaint need not be drawn up in the 4. Direct the officer concerned, in any appropriate
usual form. case, and subject to such limitations as may be
f. The illegal act or omission need not be in provided by law to furnish it with copies of documents
relating to contracts or transactions entered into by
connection with the duties of the public
his office involving the disbursement or use of public
officer or employee concerned. funds of properties, and report any irregularity to
g. ANY illegal act may be investigated by the COA for appropriate action.
Ombudsman. In this regard, the 5. Request any government agency for assistance
Ombudsman’s jurisdiction is concurrent with and information necessary in the discharge of its
that of the regular prosecutors. responsibilities, and to examine, if necessary,
2. Direct, upon complaint or at its own instance, any pertinent records and documents and public matters
public official or employee of the government, or any covered by its investigation when circumstances so
subdivision, agency or instrumentality thereof, as well warrant and with due process.
as of any GOCC with original charter, to perform and 6. Determine the cause of mismanagement,
expedite any act of duty required by law, or to stop, inefficiency, red tape, fraud and corruption in the
prevent and correct any abuse or impropriety in the government and make recommendations for their
performance of duties. elimination and the observance of high standards of
a. The Ombudsman has persuasive power, ethics and efficiency.
7. Promulgate its rules of procedure and exercise
and may require that proper legal steps are
such other powers or perform such functions or
taken by the officers concerned. duties as may be provided by law.
b. The public official or employee must be 8. The Office of the Ombudsman enjoys fiscal
employed in: autonomy. Its approved annual appropriations
i. The Government should be automatically and regularly released.
ii. Any subdivision, agency, or
instrumentality Doctrines:
1. The Ombudsman has jurisdiction over
iii. GOCCs with original charters
disciplinary cases against government
c. The Special Prosecutor may prosecute
employees, which includes public school
before the Sandiganbayan, judges accused
teachers. However, Section 9 of the Magna
of graft and corruption, even if they are
Carta for Public School Teachers provides that it
under the Supreme Court.
must first go to a committee appointed by the
3. Direct the officer concerned to take the appropriate
action against a public official or employee at fault, Secretary of Education. (Ombudsman v.
and recommend his removal, suspension, demotion, Estandarte, G.R. 168670, 2007).
fine, censure, or prosecution, and ensure compliance 2. The Office of the Ombudsman has the authority
therewith. to determine the administrative liability of an
a. The Ombudsman does not himself erring public official or employee, and to direct
prosecute cases against public officers or and compel the head of the concerned officer or
employees. agency to implement the penalty imposed. This
b. Final say to prosecute still rests in the power to impose administrative liability is not
executive department. merely recommendatory but actually mandatory.
c. The Ombudsman or Tanodbayan may use (Ombudsman v. Delijero, G.R. 172635, 2010).
mandamus to compel the fiscal to 3. The enumeration of the powers of the
prosecute. Ombudsman in the Constitution is not exclusive.
d. The refusal by any officer without just cause Congress may add additional powers. The
to comply with an order of the Ombudsman Ombudsman Act grants to the Ombudsman fuller
to remove, suspend, emote, fine, censure, authority; he has the power to impose the penalty
or prosecute an officer or employee who is of suspension. (Ombudsman v. CA, G.R.
at fault or who neglects to perform an act or 160675, 2006).
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4. The doctrine of qualified political agency does the Ombudsman which explicitly states that an
not apply to the relationship between the appeal shall not stop the decision from being
Ombudsman and the Special Prosecutor. The executory. No vested right is violated because
Special Prosecutor may only file an information pending appeal the appellant is considered as
only when authorized by the Ombudsman. preventively suspended and will be paid
(Perez v. Sandiganbayan, G.R. 166062, 2006). backwages in case he wins in his appeal. In
5. In administrative cases involving the concurrent addition, under Section 13(8) Article XI of the
jurisdiction of two or more disciplining authorities, Constitution authorizes the Ombudsman to
the body in which the complaint is filed first, and formulate its own rules. (Facura et al. v. CA, et
which opts to take cognizance of the case, al., G.R. 166495, 2011).
acquires jurisdiction to the exclusion of other 9. Section 20 of RA 6770 is merely directory and
tribunals exercising concurrent jurisdiction. In does not prohibit the Ombudsman from
this case, since the complaint was filed first in the conducting an administrative investigation after
Ombudsman, and the Ombudsman opted to the lapse of one year, reckoned from the time the
assume jurisdiction over the complaint, the alleged act was committed. Without doubt, even
Ombudsman’s exercise of jurisdiction is to the if the administrative case was filed beyond the
exclusion of the Sangguniang Bayan exercising one (1) year period stated in Section 20(5), the
concurrent jurisdiction. Jurisdiction could no Ombudsman was well within its discretion to
longer be transferred to the Sangguniang Bayan conduct the administrative investigation.
by virtue of a subsequent complaint filed by the (Ombudsman v. Andutan, G.R. 164679, 2011).
same complainants. (Ombudsman vs. 10. Although the Ombudsman is not precluded by
Rodriquez, G.R. 172700, 2010). Section 20(5) of RA 6770 from conducting the
6. The Office of the Ombudsman shall have investigation, the Ombudsman can no longer
disciplinary authority over all elective and institute an administrative case against a
appointive officials of the Government and its resigned public officer because the latter was not
subdivisions, instrumentalities and agencies, a public servant at the time the case was filed.
including Members of the Cabinet, local (Ombudsman v. Andutan, G.R. 164679, 2011).
government, government-owned or controlled 11. Findings of fact by the Office of the Ombudsman
corporations and their subsidiaries, except over when supported by substantial evidence are
officials who may be removed only by conclusive. Any order, directive or decision
impeachment or over Members of Congress, and imposing the penalty of public censure or
the Judiciary. (RA 7660, sec. 21) However, the reprimand, suspension of not more than one (1)
Office of the Ombudsman shall have the power month's salary shall be final and unappealable.
to investigate any serious misconduct in the In the same vein, the decision of the
office allegedly committed by officials removable Ombudsman absolving a public officer of an
by impeachment, for the purpose of filing a administrative charge is final and unappealable.
verified complaint for impeachment if warranted. (Tolentino v. Atty. Roy Loyola et. al., G.R.
(RA No. 6770, Sec. 22) 153809, 2011).
7. An administrative complaint filed against a public 12. It is worth stressing that the Ombudsman's
officer before the Ombudsman does not bar an finding of probable cause does not touch on the
administrative investigation before the issue of guilt or innocence of the accused. It is
Presidential Anti-Graft Commission. The not the function of the Office of the Ombudsman
jurisdiction of the Ombudsman over to rule on such issue. Hence, Courts do not
administrative complaints is not exclusive, it may interfere in the Ombudsman's exercise of
be exercised concurrently with an authorized discretion in determining probable cause unless
agency. (Lacson v. Executive Secretary, G.R. there are compelling reasons. (Ganaden v.
165399, 2011). Ombudsman, G.R. 170500/170510-11, 2011).
8. Appeals from decisions of the Ombudsman in 13. It is settled that the Office of the Ombudsman
administrative cases do not stay the execution of has the sole power to investigate and prosecute
the penalty imposed. This is in accordance with on its own or on complaint by any person, any
Section 7 Rule III of the Rules of Procedure of act or omission of any public officer or employee,
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office or agency, when such act or omission provisions of the Rules of Court, the
appears to be illegal, unjust, improper or Ombudsman may grant immunity from criminal
inefficient. The power to withdraw the prosecution to any person whose testimony or
Information already filed is a mere adjunct or whose possession and production of documents
consequence of the Ombudsman’s overall or other evidence may be necessary to
power to prosecute. However, while it is the determine the truth in any hearing, inquiry or
Ombudsman who has the full discretion to proceeding being conducted by the Ombudsman
determine whether or not a criminal case should or under its authority, in the performance or in the
be filed in the Sandiganbayan, once the case has furtherance of its constitutional functions and
been filed with said court, it is the statutory objectives. The immunity granted under
Sandiganbayan, and no longer the Ombudsman, this and the immediately preceding paragraph
which has full control of the case so much so that shall not exempt the witness from criminal
the Information may not be dismissed without the prosecution for perjury or false testimony nor
approval of said court. Further, it does not matter shall he be exempt from demotion or removal
whether such filing of a motion to dismiss by the from office. (RA 6770, Sec. 17(2))
prosecution is done before or after the
arraignment of the accused or that the motion Judicial Review in Administrative Proceedings v.
was filed after a reinvestigation. (City of Judicial Review in Penal Proceedings
Tuguerarao v. Ting, G.R. 192435-3, 2011). ADMIN. PENAL
14. The power of the Office of the Ombudsman to
investigate extends to all kinds of malfeasance, Appeals from resolutions Supreme Court is not
of the Office of the precluded from
misfeasance, and non-feasance that have been
Ombudsman in reviewing the
committed during his tenure of office by any administrative Ombudsman’s action
officer or employee of the Government, or of any disciplinary cases should when there is an abuse
subdivision, agency or instrumentality thereof, be taken to the Court of of discretion, in which
including government-owned or controlled Appeals via Petition for case Rule 65 of the
corporations. (Office of the Ombudsman v. De Review under Rule 43 of Rules of Court. (Garcia-
Leon, G.R. 154083, 2013). the Rules of Court. Rueda v. Pascasio, G.R.
(Fabian v. Desierto, G.R. 118141, 1997)
15. A preliminary investigation partakes of an
129742, 1998)
investigative or inquisitorial power for the sole
purpose of obtaining information on what future
Non-Administrative v. Administrative:
action of a judicial nature may be taken. Even the
action of the Secretary of Justice in reviewing a FROM APPEAL TO
prosecutor’s order or resolution via appeal or
Ombudsman (non- Supreme Court via
petition for review cannot be considered a quasi- administrative cases) Rule 65
judicial proceeding. Hence, Section 14, Article
VIII of the Constitution does not thus extend to Ombudsman (administrative Court of Appeals
resolutions issued by the DOJ Secretary. cases ONLY) via Rule 43
(Bondoc v. Tan Tiong, G.R. No. 186652, 2010).
16. The second paragraph of Section 14 of RA 6770
is declared invalid, and as such, the CA may THE OFFICE OF THE SPECIAL PROSECUTOR
impose provisional injunctive writ over the
implementation of prevention suspension order The existing Tanodbayan shall hereafter be known
by the Ombudsman. Furthermore, the as the Office of the Special Prosecutor. It shall
independence granted to the Ombudsman by continue to function and exercise its powers as now
the Constitution means freedom from control or or hereafter may be provided by law, except those
supervision of the Executive Department, not the conferred on the Office of the Ombudsman created
Judiciary. (Carpio-Morales v. CA, G.R. No. under this Constitution. (PHIL. CONST., art. XI, § 7.)
217126-27, 2015)
17. Under such terms and conditions as it may Under the present Constitution, the Special
Prosecutor (Raul Gonzalez) is a mere subordinate of
determine, taking into account the pertinent
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the Tanodbayan Ombudsman) and can investigate Removal; Filling of Vacancy

and prosecute cases only upon the latter's authority 1. In accordance with the provisions of Article XI of
or orders. The Special Prosecutor cannot initiate the the Constitution, treason, bribery, graft and
prosecution of cases but can only conduct the same corruption, other high crimes, or betrayal of
if instructed to do so by the Ombudsman. Even his public trust.
2. The Special Prosecutor may be removed from
original power to issue subpoena, which he still
office by the President for any of the grounds
claims under Section 10(d) of PD 1630, is now provided for the removal of the Ombudsman, and
deemed transferred to the Ombudsman, who may, after due process.
however, retain it in the Spedal Prosecutor in
connection with the cases he is ordered to Prohibitions and Disqualifications
investigate. (Zaldivar v. Sandiganbayan, G.R. No. ● The Special Prosecutor shall not, during their
79690-707, April 27, 1988). tenure, hold any other office or employment.
● Shall not, during said tenure, directly or indirectly
Under PD 1487, as amended by PD 1607, practice any other profession, participate in any
Tanodbayan was both prosecutor and Ombudsman. business, or be financially interested in any
Harmonisation of the laws left the Special Prosecutor contract with, or in any franchise, or special
to continue to exercise powers of the former privilege granted by the government or any
Tanodbayan except those specifically passed on to subdivision, agency or instrumentality thereof,
the Ombudsman. including government-owned or controlled
corporations or their subsidiaries.
Since the power to investigate has been vested to the ● Shall strictly avoid conflict of interest in the
Ombudsman, the Special Prosecutor can only conduct of their office.
investigate and prosecute if authorised by the ● Shall not be qualified to run for any office in the
Ombudsman. election immediately following their cessation
from office.
Appointment ● Shall not be allowed to appear or practice before
1. The President selects from a list of at least the Ombudsman for two (2) years following their
twenty one (21) nominees prepared by the cessation from office.
Judicial and Bar Council ● No spouse or relative by consanguinity or affinity
2. From a list of three (3) nominees for each within the fourth civil degree and no law,
vacancy thereafter, which shall be filled within business or professional partner or associate the
three (3) months after it occurs, Special Prosecutor within one (1) year preceding
3. Each list shall be published in a newspaper of the appointment may appear as counsel or agent
general circulation. on any matter pending before the Office of the
Ombudsman or transact business directly or
In the organization of the Office of the Ombudsman indirectly therewith.
for filling up of positions therein, regional, cultural or ● This disqualification shall apply during the tenure
ethnic considerations shall be taken into account to of the official concerned. This disqualification
the end that the Office shall be as much as possible likewise extends to the law, business or
representative of the regional, ethnic and cultural professional firm for the same period.
make-up of the Filipino nation.
Authority and Responsibilities
Qualifications 1. Shall be composed of the Special Prosecutor
1. Natural born citizens of the Philippines, and his prosecution staff. The Office of the
2. At least forty (40) years old, Special Prosecutor shall be an organic
3. Of recognized probity and independence, component of the Office of the Ombudsman and
4. Member of the Philippine Bar, shall be under the supervision and control of the
5. Must not have been candidates for any elective Ombudsman.
national or local office in the immediately 2. It shall, under the supervision and control and
preceding election whether regular or special. upon the authority of the Ombudsman, have the
following powers:
Term a. To conduct preliminary investigation and
The Special Prosecutor, shall serve for a term of prosecute criminal cases within the
seven (7) years without reappointment. jurisdiction of the Sandiganbayan;
b. To enter into plea bargaining agreements;
and
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c. To perform such other duties assigned to it universities or educational

by the Ombudsman. institutions or foundations;
viii. Members of Congress and officials
4. THE SANDIGANBAYAN thereof classified as Grade 27 and
up under the Compensation and
Jurisdiction in general
Position Classification Act of 1989;
1. Violations of Anti-graft and Corrupt Practices Act;
ix. Members of the judiciary without
2. Republic Act No. 1379
prejudice to the provisions of the
3. Chapter II, Section 2, Title VII, Book II of the
Constitution;
Revised Penal Code
x. Chairmen and members of
4. One or more of the accused are officials
Constitutional Commissions,
occupying the following positions in the
without prejudice to the provisions
government whether in a permanent, acting or
of the Constitution;
interim capacity, at the time of the commission of
xi. All other national and local officials
the offense:
classified as Grade 27 and higher
a. Officials of the executive branch occupying
under the Compensation and
the positions of regional director and higher,
Position Classification Act of 1989.
otherwise classified as Grade '27' and
5. Other offenses or felonies whether simple or
higher, of the Compensation and Position
complexed with other crimes committed by the public
Classification Act of 1989 (Republic Act No. officials and employees mentioned above in relation
6758), specifically including: to their office.
i. Provincial governors, vice-
governors, members of the NOTE: The INFORMATION for the aforementioned
Sangguniang Panlalawigan and offenses committed by the covered public officers, in
provincial treasurers, assessors, order to be under the EXCLUSIVE ORIGINAL
engineers and other provincial JURISDICTION of the Sandiganbayan, must
department heads; allege damage to the government or bribery
ii. City mayors, vice-mayors, arising from the same or closely related
members of the Sangguniang transactions or acts in an amount exceeding One
Panlungsod, city treasurers, million pesos
assessors, engineers and other city (P1,000,000.00). [Sec. 4, RA 8249 as amended by
department heads; RA 10660]
iii. Officials of the diplomatic service
Otherwise, the Regional Trial Court shall have
occupying the position of consul
EXCLUSIVE ORIGINAL JURISDICTION where the
and higher;
information: (a) does not allege any damage to
iv. Philippine army and air force
the government or any bribery; or (b) alleges
colonels, naval captains, and all
damage to the government or bribery arising
officers of higher rank;
from the same or closely related transactions or
v. Officers of the Philippine National
acts in an amount not exceeding One million
Police while occupying the position
pesos (P1,000,000.00).
of provincial director and those [Sec. 4, RA 8249 as amended by RA 10660
holding the rank of senior
superintendent or higher; The modified exclusive original jurisdiction of the
vi. City and provincial prosecutors and Sandiganbayan in relation to the expanded exclusive
their assistants, and officials and original jurisdiction of the RTC shall be effective 05
prosecutors in the Office of the May 2015. All offenses committed by covered public
Ombudsman and special officers prior to 05 May 2015 shall still be under the
prosecutor; Sandiganbayan. [People v. Bacaltos, GR No.
vii. Presidents, directors or trustees, or 248701, 2020; Ampongan v.
managers of government-owned or Sandiganbayan, GR No. 234670, 2019]
controlled corporations, state
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THUS: the government or any bribery; or (b) alleges

damage to the government or bribery arising
INFORMATION JURISDICTION from the same or closely related transactions or
acts in an amount not exceeding One million
pesos (P1,000,000.00). [Sec. 4, RA 8249 as
Damage +
more than Sandiganbayan amended by RA 10660]
PhP1M
2) Subject to the rules promulgated by the
Supreme Court, the cases falling under the
Bribery + more jurisdiction of the Regional Trial Court under this
Sandiganbayan
than PhP1M section (Sec. 4 as amended) shall be tried in a
judicial region other than where the official holds
Damage + office. [Sec. 4, RA 8249 as amended by RA
PhP1M and RTC 10660] Failure to comply with this jurisdictional
below requirement as conferred by law shall cause the
dismissal of the criminal case, with all the actions and
proceedings undertaken declared as null and void,
Bribery + more for lack of jurisdiction even if the Supreme Court has
RTC
than PhP1M not yet promulgated the rules. [Non v.
Sandiganbayan, GR No. 251177, 2020]
No Damage or No
RTC
Bribery 3) In cases where none of the accused are
occupying positions corresponding to Salary
Grade ’27’ or higher, as prescribed in the said
EFFECTIVITY of RA 10660: 05 May 2015 Republic Act No. 6758 (now RA 11466), or military
and PNP officers mentioned above, exclusive
6. Civil and criminal cases filed pursuant to and original jurisdiction thereof shall be vested in the
in connection with Executive Order Nos. 1, proper regional trial court, metropolitan trial
2, 14 and 14- A, issued in 1986. [Cases in
court, municipal trial court, and municipal circuit
connection with the ill-gotten wealth of
Marcos and his family members and trial court, as the case may be, pursuant to their
cronies that are filed and prosecuted by respective jurisdictions as provided in Batas
the PCGG]. [Sec. 4, RA 8249 as amended Pambansa Blg. 129, as amended. [Sec. 4, RA
by RA 10660] 8249 as amended by RA 10660]
The Sandiganbayan shall have exclusive original Offenses committed in relation to public office
jurisdiction over petitions for the issuance of the 1. Accused is any one of the Public Officers and
writs of mandamus, prohibition, certiorari, Employees in Subsection (a) of Section 4 of RA
habeas corpus, injunctions, and other ancillary 8249 or with Salary Grade 27 and above;
writs and processes in aid of its appellate 2. Accused commits any other offense/felony, than
jurisdiction and over petitions of similar nature, those specified in Subsection (a), whether
including quo warranto, arising or that may arise simple or complexed with other crimes;
in cases filed or which may be filed under 3. The offender commits such other offense/felony
Executive Order Nos. 1, 2, 14 and 14-A, issued in in relation to his office.
1986: Provided, That the jurisdiction over these
petitions shall not be exclusive of the Supreme “In relation to his office” - WIC
Court. [Sec. 4, RA 8249 as amended by 1. It cannot exist Without the office, or
RA 10660] 2. If the office is a Constituent element of the crime
as defined in the statute, or
REGIONAL TRIAL COURT: 3. Must be Intimately connected with the office of
the offender
EXCLUSIVE ORIGINAL JURISDICTION
1) The Regional Trial Court shall have
exclusive original jurisdiction where the
information: (a) does not allege any damage to
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Appellate jurisdiction review on certiorari raising pure questions of law in

Cases decided by the RTC filed against lower level accordance with Rule 45 of the Rules of Court.
public officials or those classified as Grade 26 and (Icdang v. Sandiganbayan, G.R. 185960, 2012)
lower, involving:
1. Violations of RA 3019; The Sandiganbayan has the authority to order the
2. RA 1379; preventive suspension of an incumbent Senator
3. Direct/indirect bribery and Corruption of Public charged with violation of the provisions of RA 3019 or
the Anti-Graft and Corrupt Practices Act. (Santiago
officials
vs. Sandiganbayan, G.R. 128055, 2001)
It is the Sandiganbayan which has jurisdiction over
appeals from criminal cases where the accused is a
government employee. Pursuant to RA 8249, the ————- end of topic ————-
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 as herein provided. (Filomena v. People,
G.R. 188630, 2011)
While it is the Ombudsman who has the full discretion

to determine whether or not a criminal case should
be filed in the Sandiganbayan, once the case has
been filed with said court, it is the Sandiganbayan,
and no longer the Ombudsman, which has full control
of the case so much so that the Information may not
be dismissed without the approval of said court. In
this case, the Sandiganbayan ordered the Special
Prosecutor to conduct a reinvestigation and
subsequently granted his motion to withdraw the
informations, after finding no probable cause against
the latter on reinvestigation. The Sandiganbayan
thus gave its approval to the withdrawal of the
informations and ordered the dismissal of the
cases. Since no appeal was taken by the Special
Prosecutor from the order of dismissal within the
reglementary period, the same had become final and
executory. (City Government of Tuguegarao v. Ting,
G.R. 192435-36, 2011)
In all cases elevated to the Sandiganbayan and from

the Sandiganbayan to the Supreme Court, the Office
of the Ombudsman, through its Special Prosecutor,
shall represent the People, except in cases filed
pursuant to Executive Order Nos. 1, 2, 14 and 14-A.
A private complainant in a criminal case before the
Sandiganbayan is allowed to appeal only the civil
aspect of the criminal case after its dismissal by said
court. (City Government of Tuguegarao v. Ting, G.R.
192435-36, Sept.14, 2011)
The special civil action of certiorari is not the proper

remedy to challenge a judgment conviction rendered
by the Sandiganbayan. Petitioner should have filed a
petition for review on certiorari under Rule 45.
Pursuant to Section 7 of Presidential Decree No.
1606, as amended by Republic Act No. 8249,
decisions and final orders of the Sandiganbayan shall
be appealable to the Supreme Court by petition for
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X. ADMINISTRATIVE LAW A. GENERAL PRINCIPLES
Administrative Law
TOPIC OUTLINE UNDER THE SYLLABUS: 1) Dean Roscoe Pound: It is the branch of modern
law under which the executive department of the
A. GENERAL PRINCIPLES government, acting in a quasi-legislative or quasi-
judicial capacity, interferes with the conduct of the
B. POWERS OF ADMINISTRATIVE AGENCIES individual for the purposes of promoting the well-
1. Quasi-Legislative Power being of the community, as under laws regulating
public interest, professions, trades and callings, rates
a. Kinds Of Administrative and prices, laws for the protection of public health
Rules And Regulations and safety, and the promotion of public convenience.
b. Requisites For Validity (Carlo Cruz, Philippine Administrative Law 1, 2016)
2. Quasi-Judicial Power
a. Administrative Due Process 2) Professor Goodnow: That part of public law
which fixes the organization of the government and
b. Administrative Appeal And Review determines the competence of the authorities who
c. Administrative Res Judicata execute the law and indicates to the individual
3. Fact-Finding, Investigative, Licensing, remedies for the violation of rights. (Carlo Cruz,
And Rate-Fixing Law Powers Philippine Administrative Law 2, 2016)
3) Justice Frankfurter: That branch of the law which

C. DOCTRINES OF PRIMARY JURISDICTION
deals with the field of legal control exercised by law-
AND EXHAUSTION OF ADMINISTRATIVE administering agencies other than courts, and the
REMEDIES field of control exercised by courts over such
agencies. (Carlo Cruz, Philippine Administrative Law
2, 2016)
Administration: Internal or External.

INTERNAL EXTERNAL
ADMINISTRATION ADMINISTRATION
Covers those rules Defines the relations of

defining the relations of the public office with the
public functionaries inter public in general.
se and embraces the
whole range of the law of
public officers, i.e.
qualifications, powers,
rights, duties, and
liabilities.
(Carlo Cruz, Philippine Administrative Law 8, 2016)
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Administration of Government v. Administration specifically granted to them by their enabling

of Justice statutes and those as may be necessarily implied
in the exercise thereof or incidental to the
ADMINISTRATION OF ADMINISTRATION OF
attainment of their purposes or objectives.
GOVERNMENT JUSTICE
2. Broad Powers within Jurisdiction. However,
Administrative officers Work done consists in the powers conferred on them must be
commensurate with the duties to be performed
must determine what is the decision of
and the purposes to be lawfully effected. In
the law in order to controversies between various instances, the powers of particular
determine whether they individuals and administrative bodies have been held broad and
are competent to act and government officers, as plenary within their fields, and in such case, it is
if it is wise to act. to the applicability in only where such power and authority have been
the cases in question; manifestly abused that a court may interfere.
all that judicial officers 3. Powers Limited by Constitution, Law, and
Regulations. A government agency must
have to do is determine
respect the presumption of constitutionality and
what law is applicable legality to which statutes and administrative
to the facts brought regulations are entitled until such statute or
before them. (De Leon, regulation is repealed or amended, or until set
Administrative Law: aside in an appropriate case by a competent
Text and Cases 19, court, and ultimately by the Supreme Court. It is
2016) not authorized to substitute its own judgment for
any applicable law or administrative regulation
ADMINISTRATION GOVERNMENT with the wisdom or propriety of which it does not
agree, at least not before such law or regulation
Refers to the aggregate Institution or aggregate is set aside by the authorized agency of the
of persons in whose of institutions by which government. (De Leon, Administrative Law: Text
hands the reins of the an independent society and Cases 66, 2016)
government are makes and carries out
While it is a fundamental rule that an administrative
entrusted by the people those rules of action agency has only such powers as are expressly
for the time being. (US v. which are necessary to granted to it by law, it is likewise a settled rule that
Dorr) enable men to live in a an administrative agency has also such powers
civilized state, or which as are necessarily implied in the exercise of its
are imposed upon the express powers. (LLDA v. CA, GR No. 110120,
people forming that 1994)
society by those who
The Laguna Lake Development Authority also has
possess the power or power to impose fines in the exercise of its function
authority of prescribing as a regulatory and quasi-judicial body with respect
them. Government is to pollution cases in the Laguna Lake region. (Public
the aggregate of Hearing Committee of the Laguna Lake Development
authorities which rule a Authority v. SM Prime Holding, G.R. 170599, 2010).
society. (US v. Dorr,
Discretionary vs. Ministerial
GR No. 1051, 1903)
1. Discretionary - The power or right conferred
upon them by law to act officially under certain
B. POWERS OF ADMINISTRATIVE circumstances, according to the dictates of their
own judgment and conscience, and not
AGENCIES controlled by the judgment or conscience of
others.
Nature of Powers
2. Ministerial - Nothing is left to discretion; a
1. Special and Limited Jurisdiction. In general, simple, definite duty arising under conditions
the jurisdiction of administrative officers and
admitted or proved to exist, and imposed by law;
agencies is special and limited. They possess a a duty performed in response to what has been
limited jurisdiction, or purely constitutional or imposed by law under conditions specified by
statutory powers, and they possess only such law not being dependent upon the officer’s
powers and authority as have been specifically
judgment or discretion.
conferred upon them by the Constitution or
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DETERMINATIVE POWERS that administrative agencies have no legislative

power and are precluded from legislating in the strict
To better enable the administrative body to exercise sense.' What may be granted to an administrative
its executive functions, it is also vested with agency is rule-making power to implement the law it
Determinative powers classified generally by is entrusted to enforce. It necessarily includes the
Professor Freund as follows: power to amend, revise, alter, or repeal its rules and
regulations. It is a standard provision in
Enabling – Permits the doing of an act, without which administrative rules that prior issuances that are
it would be unlawful (e.g. issuing of licenses and inconsistent therewith are declared repeated or
permits). modified. (De Leon, Administrative Law: Text and
Cases 90, 2016)
Directing – Orders the doing or performance of
particular acts to ensure compliance with the law and
are often exercised for corrective purposes. (e.g. Authority delegated by Congress to the
installation of safety devises in common carriers). administrative body to adopt rules and regulations
intended to carry out the provisions of a law, and
Dispensing – Relaxes the general operation of law implement legislative policy. This is a form of
or exempts the performance from a general duty (e.g. delegated legislation. Valid regulations have the
exemption from taxes by certain industries). force and effect of law.
Summary – Uses force upon persons or things

without prior judicial warrant (e.g. padlocking by
Mayor of a business for lack of permit; confiscation of LEGISLATIVE QUASI-LEGISLATIVE
items prohibited per se).
Involves the discretion to Only involves the
Examining – Inspects records and premises; determine what the law discretion to determine
investigates persons, entities, and activities coming shall be how the law shall be
under its jurisdiction (e.g. DOLE visitorial power; enforced
Ombudsman powers).
Cannot be delegated Can be delegated
(Carlo Cruz, Philippine Administrative Law 52-55,
2016)
NOTE: According to Professor Cruz, determinative NON-DELEGABILITY PRINCIPLE. The rule is that
powers are part of the exercise of quasi-judicial what has been delegated cannot be delegated, or as
authority. It is submitted, however, that these expressed in the Latin maxim: potestas delegate non
determinative powers can also be exercised as part delegare potest. This rule is based upon the ethical
of the quasi-legislative authority and are very much principle that such delegated power constitutes not
part of the executive and regulatory functions of only a right but a duty to be performed by the
administrative bodies whenever allowed by their delegate by the instrumentality of his own judgment
charters. acting immediately upon the matter of legislation and
not through the intervening mind of another. This rule
1. QUASI-LEGISLATIVE (RULE- however admits of recognized exceptions such as
the grant of rule-making power to administrative
MAKING) POWER
agencies. They have been granted by Congress with
the authority to issue rules to regulate the
DEFINITION. The authority delegated by the law- implementation of a law entrusted to them. Delegated
making body to the administrative body to adopt rules rule-making has become a practical necessity in
and regulations intended to carry out the provisions modern governance due to the increasing complexity
of a law and implement legislative policy. (Carlo and variety of public functions. [Dagan v. Philippine
Cruz, Philippine Administrative Law 36, 2016) Racing Commission, GR No. 175220, 2009]
Administrative agencies are endowed with powers Notably, the principle of non-delegability should not
legislative in nature or quasi-legislative (i.e., to make be confused as a restriction to delegate rule-making
rules and regulations), and, in practical effect, with authority to implementing agencies for the limited
the power to make law. However, the essential purpose of either filling up the details of the law for its
legislative functions may not be delegated to enforcement (supplementary rule-making) or
administrative agencies and in this sense, it is said ascertaining facts to bring the law into actual
operation (contingent rule-making).
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TESTS OF DELEGATION. Two tests determine the efficiency. (Cervantes v. Auditor General,
validity of delegation of legislative power: (1) the GR No. L-4043, 1952)
completeness test and (2) the sufficient standard 4) K to 12 Law implementation is complete in
test. A law is complete when it sets forth therein conditions and parameters through the
the policy to be executed, carried out or
legislative policy on the power delegated to
implemented by the delegate. It lays down a
sufficient standard when it provides adequate the DepEd, CHED, and TESDA. (Council of
guidelines or limitations in the law to map out the Teachers v. Secretary of Education, GR No.
boundaries of the delegate's authority and 216930, 2018)
prevent the delegation from running riot. To be
sufficient, the standard must specify the limits of the EXAMPLES OF INVALID/UNDUE DELEGATION
delegate's authority, announce the legislative policy 1) 2013 PDAF article – Post enactment identification
and identify the conditions under which it is to be of by the legislators. (Belgica v. Ochoa, GR No.
implemented. (Abakada Guro v. Purisima, GR No. 208566, 2013)
166715, 2008)
2) Section 8, PD 910 (Malampaya Fund) - The
NOTES: phrase "and for such other purposes as may be
1) If the law passes the completeness test (e.g. K to hereafter directed by the President" under Section 8
12 Law), there is no need to comply with the sufficient of PD 910 constitutes an undue delegation of
standard test, it would constitute as a valid legislative power. (Belgica v. Ochoa, GR No. 208566,
delegation. 2013)
2) If the law is not complete, but passes the sufficient
standard test, it would constitute as a valid 3) Section 12 of PD 1869, as amended by PD 1993,
delegation. indicates that the Presidential Social Fund may be
3) If the law fails the sufficient standard test, then it used "to [first,] finance the priority infrastructure
would constitute as an undue delegation and development projects” which gives a carte blanche
hence, unconstitutional. authority to use the fund for any infrastructure project
that the President may deem as a priority. (Belgica
Exceptions (To the Rule Requiring Standards; v. Ochoa, GR No. 208566, 2013)
When Not Required): (SPIRPE)
1. Handling of State property or funds 4) EO 626 s.1980 that authorized the distribution of
2. When the law does not involve Personal or confiscated carabao to charitable institutions that the
property rights Chairman of the National Meal Inspection
3. Matters of Internal administration Commission “may see fit;” (Ynot v. IAC, GR No.
4. Power of the board to make Recommendation 74457, 1987)
5. Matters involving Privileges (like use of property,
engaging in profession) 5) Act No. 2868 authorized Governor-General to
6. Regulation or Exercise of police power to protect issue “in his discretion” a proclamation fixing price of
general welfare, morals and public policy palay and making the violation a crime. (US v. Ang
Tang Ho, GR No. L-17122, 1922)
NOTE: Still subject to reasonableness standard:

DELEGATED RULE-MAKING. The conceptual
1. Bear reasonable relation to the purpose sought treatment and limitations of delegated rule-making
to be accomplished were explained in the case of People v. Maceren as
2. Supported by good reasons follows: “The grant of the rule-making power to
3. Free from constitutional infirmities or charge of administrative agencies is a relaxation of the
arbitrariness principle of separation of powers and is an
exception to the nondelegation of legislative
EXAMPLES OF VALID DELEGATION powers. Administrative regulations or "subordinate
1) Issuance prohibiting selling of shares without legislation" calculated to promote the public interest
prior license for public interest. (People v. are necessary because of "the growing complexity of
Rosenthal, GR No. 46076, 1939) modern life, the multiplication of the subjects of
2) Prohibition of animal drawn carriage to use governmental regulations, and the increased
the roads during certain times for public difficulty of administering the law." xxx xxx xxx
convenience and welfare. [Nevertheless, it must be emphasized that] [t]he
3) Authorizing President to make reforms and rule-making power must be confined to details
for regulating the mode or proceeding to carry
changes in GOCCs for economy and
into effect the law as it has been enacted. The
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power cannot be extended to amending or enlarge, limit or nullify the terms of the law.
expanding the statutory requirements or to 6. Must be promulgated in accordance with the
embrace matters not covered by the statute. Prescribed procedure.
Rules that subvert the statute cannot be sanctioned.
(Belgica v. Ochoa, GR No. 208566, 2013) NOTES:
1) According to Justice Carpio in his Separate
Rule means any agency statement of general
Concurring Opinion in Abakada Guro v. Purisima
applicability that (1) implements or (2) interprets a
cited in Genuino v. De Lima: The inherent power of
law, (3) fixes and describes the procedures in, or
the Executive to adopt rules and regulations to
practice requirements of, an agency, including its
execute or implement the law is different from the
regulations. The term includes memoranda or
delegated legislative power to prescribe rules. The
statements concerning the (4) internal administration
inherent power of the Executive to adopt rules to
or management of an agency not affecting the rights
execute the law does not require any legislative
of, or procedure available to, the public. [Book VII,
standards for its exercise while the delegated
Chapter 1, Sec. 2 (2), Administrative Code of 1987]
legislative power requires sufficient legislative
standards for its exercise. xxx xxx xxx Whether the
Rule-making means an agency process for the
rule-making power by the Executive is a delegated
formulation, amendment, or repeal of a rule. [Book
legislative power or an inherent Executive power
VII, Chapter 1, Sec. 2 (4), Administrative Code of
depends on the nature of the rule-making power
1987]
involved. If the rule-making power is inherently a
legislative power, such as the power to fix tariff rates,
Limitations on the Rule-Making Power the rule-making power of the Executive is a
A public administrative body may make only such delegated legislative power. In such event, the
rules and regulations as are within the limits of the delegated power can be exercised only if sufficient
powers granted to it or what is found in the legislative standards are prescribed in the law delegating the
enactment itself; otherwise, they become void. power. If the rules are issued by the President in
1. Must not be inconsistent with the provisions implementation or execution of self-executory
of the Constitution or a statute, particularly constitutional powers vested in the President, the
the statute it is administering or which rule-making power of the President is not a
created it, or which are in derogation of, or delegated legislative power. x x x. The rule is that
defeat, the purpose of a statute. the President can execute the law without any
2. It may not, by its rules and regulations, delegation of power from the legislature.
amend, alter, modify, supplant, enlarge or Otherwise, the President becomes a mere figure-
expand, restrict or limit the provisions or head and not the sole Executive of the
coverage of the statute as this power Government. (Genuino v. De Lima, G.R. Nos.
belongs to the legislature. 197930, 199034 & 199046, April 17, 2018)
3. There is no dispute that in case of
discrepancy between the basic law and a 2) However, the questioned circular in Genuino v. De
rule or regulation issued to implement said Lima does not come under the inherent power of the
law, the basic law prevails because said rule executive department to adopt rules and regulations
or regulation cannot go beyond the terms as clearly the issuance of HDO and WLO is not
and provisions of the basic law. the DOJ's business. As such, it is a compulsory
4. A rule or regulation should be uniform in requirement that there be an existing law,
operation, reasonable, and not unfair or complete and sufficient in itself, conferring the
discriminatory. expressed authority to the concerned agency to
(De Leon, Administrative Law: Text and Cases 96, promulgate rules. On its own, the DOJ cannot
2016) make rules, its authority being confined to execution
of laws. (Genuino v. De Lima, G.R. Nos. 197930,
Rule-Making Making Principles: (CURLAP) 199034 & 199046, April 17, 2018)
1. It must be Consistent with the law and the
constitution.
2. It must be Uniform in operation, reasonable
and not unfair or discriminatory.
3. It must have a Reasonable relationship to the
purpose of the law.
4. It must be within the Limits of the powers
granted to administrative agencies.
5. May not Amend, alter, modify, supplant,
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a. Kinds of Administrative Rules existence of conditions defined in the statute

and Regulations under which its provisions shall become
operative comes under the head of rule-making
An administrative regulation may be classified as foll since it usually involves judgment, if not
ows (Republic v. Drugmaker's Laboratories, Inc., discretion.
G.R. No. 190837, 2014):
The true distinction, therefore, is between the
1) Legislative rules are in the nature of delegation of power to make the law which
subordinate legislation and designed to necessarily involves a discretion as to what it shall be
implement a primary legislation by providing the and conferring an authority of or discretion as to its
details thereof. They usually implement existing execution, to be exercised under and in pursuance of
law, imposing general, extra-statutory obligations the law. The first cannot be done, to the latter, no
pursuant to authority properly delegated by valid objection can be made. (De Leon,
Congress and effect a change in existing law or Administrative Law: Text and Cases 108, 2016)
policy which affects individual rights and obligations.
Kinds of Administrative Rules
2) Interpretative rules are intended to interpret,
clarify or explain existing statutory regulations 1. Non-Legislative Rule
under which the administrative body operates. a. No force of law
Their purpose or objective is merely to construe the
b. No need for notice, comment and
statute being administered and purport to do no more
publication
than interpret the statute. Simply, they try to say what
c. Exception: When rule affects third
the statute means and refer to no single person or
persons (Tañada v. Tuvera)
party in particular but concern all those belonging to
d. Examples: (SIPI)
the same class which may be covered by the said
rules. i. Supplementary - Those which supply
details, also known as detailed
When an administrative rule is merely interpretative legislation.
in nature, its applicability needs nothing further than ii. Interpretative - Those that do no more
its bare issuance for it gives no real consequence than to interpret a statute. These are
more than what the law itself has already prescribed. given weight and respect but are not
When, upon the other hand, the administrative rule conclusive to the courts.
goes beyond merely providing for the means that can
facilitate or render least cumbersome the NOTE: Recall that administrative
implementation of the law but substantially adds to or agencies are possessed of
increases the burden of those governed, it behooves specialized knowledge
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 iii. Procedural - Those which describe the
and effect of law. (CIR v. Court of Appeals, G.R. No. method by which the agency will carry
119761, 1996) out its appointed functions
iv. Internal - Those issued by a superior
3) Contingent rules are those issued administrative or executive officer to
by an administrative authority based on the his subordinates for the proper and
existence of certain facts or things upon which efficient administration of law.
the enforcement of the law depends.
2. Legislative/Substantive Rule
Congress may provide that a law shall take effect
a. With force of law
upon the happening of future specified contingencies
b. Needs notice, comment, and publication
leaving to some other person or body the power to
(Chap 2. Book VII, Administrative Code
determine when the specified contingency has
and Art. 2, Civil Code)
arisen.
1. It may delegate a power not legislative which it
c. Examples: (PCS)
may itself rightfully exercise. The power to i. Penal - Those that carry out penal or
ascertain facts is such power which may be criminal sanctions for violation of the
delegated. same.
2. The finding by an administrative authority of the ii. Contingent - Those which determine
when a statute will go into effect.
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Power to ascertain the happening of determined at an appropriate hearing or

such facts may be delegated to consultation (i.e. contained in the law itself);
administrative agencies
iii. Supplementary - Those which only ii) Rule requires determination of past events or
supply details, also known as detailed facts (through a hearing or proceeding);
legislation.
iii) Regulation is settlement of a controversy
between specific parties (hence, considered as
b. Requisites for Validity adjudication) (Philcomsat v. Alcuaz, GR No.
84818, 1989);
To be valid, an administrative issuance must comply
with the following requisites (Executive Secretary v. iv) Rate-fixing in the exercise of quasi-judicial
Southwing Heavy Industries, Inc., G.R. Nos. 164171, authority (Philippine Consumers Foundation, Inc.
164172 & 168741, 2006 citing Carlo Cruz, Philippine v. Secretary of Education, Culture and Sports,
Administrative Law): G.R. No. 78385, 1987)
1) Its promulgation must be authorized by the b) Publication

legislature. GENERAL RULES: Publication required in the
following:
There is a delegation made by Congress subject to i) Administrative rules and regulations must also
the Completeness Test and the Sufficent Standard be published if their purpose is to enforce or
Test.. implement existing law pursuant also to a valid
delegation. (Tañada v. Tuvera, GR No. L-63915,
2) It must be promulgated in accordance with the 1986)
prescribed procedure.
a) Notice and Hearing ii) If the administrative rule substantially adds or

GENERAL RULE: Prior notice and hearing not increases the burden of those governed,
required in the following (Provincial Bus Operators v. publication is required. (Manila Public School
DOLE, GR No. 78385, 2018, J. Leonen): Teachers v. Garcia, GR No. 192708, 2017)
i) Interpretative Rule - no real consequence more
than what the law itself prescribes (Cawad v.
iii) Every rule establishing an offense or defining
Abad, GR No. 207145, 2015);
an act which, pursuant to law, is punishable as a
crime or subject to a penalty shall in all cases be
ii) Administrative regulation or issuance is of
published in full text. [Sec. 6(2), Chapter 2, Book
general application (i.e. applies to all; not just to a
VII, Administrative Code of 1987]
selected class) (Philippine Consumers
Foundation, Inc. v. Secretary of Education,
Culture and Sports, G.R. No. 78385, 1987); Special Requisites of Penal Rules: - (PFPO)
1. The law which authorizes the promulgation of
iii) Internal in nature (Board of Trustees v. rules and regulations must itself Provide for the
Velasco, GR No. 170463, 2011) imposition of a penalty for their violation;
2. The law must Fix or define such penalty;
iv) Rule is procedural (Rules of Procedure; since 3. The violation for which the rules and regulations
it’s also of general application); impose a Penalty must be punishable under the
law itself; and
v) Rule is merely a legal opinion (hence, advisory 4. The rules and regulations must be published in
and no adjudication; e.g. BIR or SEC opinions); the Official Gazette or Newspaper of General
Circulation and archived at the UP Law Center.
vi) Substantive rule where class affected is at
large and questions to be resolved require use of EXCEPTIONS: Publication not required in the
discretion by the rule-making body. (Corona v. following:
United Harbor Pilots, GR No. 111953, 1997)
i) Interpretative rule/circular/regulations, which
EXCEPTIONS: Prior notice & hearing required if: add no real consequence more than what the law
i) Legislature itself requires it and mandates that itself prescribes (Cawad v. Abad, GR No. 207145,
the regulation shall be based on certain facts as 2015; Tañada v. Tuvera, GR No. L-63915, 1986)
PAGE 287 of 490

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[Secs. 3-4, Chapter 2, Book VII, Administrative Code

ii) Those merely internal in nature, that is, of 1987]
regulating only the personnel of the administrative
agency and not the public, need not be published. According to the Administrative Code, 3 copies of
(Board of Trustees v. Velasco, GR No. 170463, every rule should be filed in the Office of the National
2011; Tañada v. Tuvera, GR No. L-63915, 1986 Administrative Register (ONAR) of the UP Law
Center. Failure to comply with this makes the
iii) Letters of instructions issued by administrative administrative issuance ineffective & may not be
superiors concerning the rules or guidelines to be enforced. (GMA v. MTRCB, G.R. 148579, 2007) This
followed by their subordinates in the performance registration requirement is part of publication.
of their duties. (Tañada v. Tuvera, GR No. L-
63915, 1986)
Not all rules and regulations adopted by every
Interpretative regulations and those merely internal in government agency are to be filed with the UP Law
nature, that is, regulating only the personnel of the Center. Only those of general or of permanent
administrative agency and not the public, need not be character are to be filed. Internal rules which are
published. Neither is publication required of the so- meant to regulate the personnel of the GSIS are not
called letters of instructions issued by administrative subject to filing with the UP Law Center. (Board of
superiors concerning the rules on guidelines to be Trustees v. Velasco, G.R. 17046, 2011).
followed by their subordinates in the performance of
their duties. (VFP v. Reyes, G.R. No. 155027, 2006)
NOTE: Whenever publication is required, it is the
Summary Rules on the Publication and Notice condition sine qua non that will make the regulation
and Hearing Requirements of Administrative effective. Thus, filing alone without publication is not
Rules and Regulations the operative act that will make the administrative
PUBLIC NOTICE rule effective. [Republic v. Express
KIND Telecommunications, GR No. 147096, 2002]
ATION AND
GRANT
(Code: SIC PIP) REQUIR COMME
3) It must be within the scope of the authority
EMENT NT
given by the legislature (must not be ultra vires)
Legislative Express Yes Yes/No
(Supplementary or This simply means that the resulting IRRs must not
/ Subordinate) Implied be ultra vires as to be issued beyond the limits of the
authority conferred. It is basic that an administrative
Interpretative Express No No agency cannot amend an act of Congress for
or administrative IRRs are solely intended to carry out,
Implied not to supplant or to modify, the law. The
administrative agency issuing the IRRs may not
enlarge, alter, or restrict the provisions of the law it
Contingent Express Yes Yes administers and enforces, and cannot engraft
additional non-contradictory requirements not
Procedural Express Yes No contemplated by the Legislature. (Lokin, Jr. v.
or Commission on Elections, G.R. Nos. 179431-32 &
Implied 180443, 2010)
The DOH’s power under the Milk Code to control

Internal Express No No
information regarding breast milk vis-a-vis breast milk
or
substitutes is not absolute, as the power to control
Implied
does not encompass the power to absolutely prohibit
the advertising, marketing, and promotion of breast
Penal Express Yes Yes milk substitutes. Neither the Milk Code nor the
Revised Administrative Code grants the DOH the
authority to fix or impose administrative fines. Without
c) Filing with the UP Law Center-Office of the any express grant of power to fix or impose such
Administrative Registrar fines, the DOH cannot provide for those fines in the
Every agency shall file with the University of the RIRR. The DOH exceeded its authority by providing
Philippines Law Center three (3) certified copies of for such fines or sanctions in the RIRR.
every rule adopted by it. Each rule shall become (Pharmaceuticals and Health Care Association of the
effective fifteen (15) days from the date of filing. Philippines v. Duque, G.R. 173034, 2007)
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(3) Agencies set up to function in situations wherein

4) It must be reasonable. the government is performing some business
service for the public, like the Bureau of Posts, the
The police power legislation must be firmly grounded
Postal Savings Bank, Metropolitan Waterworks &
on public interest and welfare, and a reasonable Sewerage Authority, Philippine National Railways,
relation must exist between purposes and means.
the Civil Aeronautics Administration.
And if distinction and classification ha[ve] been
made, there must be a reasonable basis for said
distinction. (PBOAP v. DOLE citing Ichong v.
the government is seeking to regulate business
Hernandez)
affected with public interest, like the Fiber
Inspections Board, the Philippine Patent Office,
2. QUASI-JUDICIAL POWER Office of the Insurance Commissioner.

Powers and functions which involve the decision or the government is seeking under the police
determination by administrative agencies of the power to regulate private business and
rights, duties, and obligations of specific individuals individuals, like the Securities & Exchange
and persons, as contrasted with powers (i.e., rule- Commission, Board of Food Inspectors, the Board of
making) of administrative agencies which, while they Review for Moving Pictures, and the Professional
may involve decisions or determinations in the Regulation Commission.
broadest sense, involve persons generally rather
than specially, and usually operate only (6) Agencies set up to function in situations wherein
prospectively. (De Leon, Administrative Law: Text the government is seeking to adjust individual
and Cases 172, 2016) controversies because of some strong social
policy involved, such as the National Labor
DEFINITION. The Quasi-Judicial Power has been Relations Commission, the Court of Agrarian
defined as the power of the administrative authorities Relations, the Regional Offices of the Ministry of
to make determinations of facts in the performance Labor, the Social Security Commission, Bureau of
of their official duties and to apply the law as they Labor Standards, Women and Minors Bureau.
construe it to the facts so found. The exercise of this
power is only incidental to their main function, which
is the enforcement of the law. (Carlo Cruz, Philippine QUASI-JUDICIAL & QUASI-LEGISLATIVE
Administrative Law 49, 2016) POWERS DISTINGUISHED
Quasi-Legislative v. Quasi-Judicial:
QUASI-JUDICIAL BODY. A quasi-judicial body has
QUASI- QUASI-
been defined as "an organ of government other than
LEGISLATIVE JUDICIAL
a court and other than a legislature, which affects the
rights of private parties through either adjudication or Grant Express or Implied Express
rule making." The most common types of such (SIC PIP)
bodies have been listed as follows [Presidential Anti- Parties All / Sectors Particular
Dollar Salting Task Force v. Court of Appeals, G.R. involved
No. 83578, March 16, 1989 citing GONZALES, Adversarial No Yes
ADMINISTRATIVE LAW, A TEXT 13-15 (1979)]: Controversy None Exists
Notice and Nor Required Required
(1) Agencies created to function in situations Hearing (unless requires it;
wherein the government is offering some there is a radical
gratuity, grant, or special privilege, like the defunct change)
Philippine Veterans Board, Board on Pensions for Primary J./ Not applicable Applicable
Veterans, and NARRA, and Philippine Veterans Exhaustion (Judicial Review at
Administration. of A.R. first instance)
Time Future Past/Present
(2) Agencies set up to function in situations wherein Publication Depends on type of Not Required
the government is seeking to carry on certain rule (SIC PIP)
government functions, like the Bureau of Res Not Applicable Applicable
Immigration, the Bureau of Internal Revenue, the Judicata
Board of Special Inquiry and Board of
Commissioners, the Civil Service Commission, the The Presidential Electoral Tribunal (PET) does NOT
Central Bank of the Philippines. exercise quasi-judicial functions. When the Supreme
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Court, as the PET, resolves a presidential or vice- and stature, and logically, beyond the control of the
presidential election contest, it performs what is latter. [Presidential Anti-Dollar Salting Task Force v.
essentially a judicial power. (Macalintal v. Court of Appeals, G.R. No. 83578, 1989]
Presidential Electoral Tribunal, G.R. 191618, 2010).
Courts may not interfere with administrative and
The classification of positions in career service is a discretionary functions of administrative agencies. It
quasi- legislative, not a quasi-judicial, issuance. This should be emphasized here, as again stressed by the
distinction determines whether prior notice and Court in the recent case of Republic, et al. vs. De los
hearing are necessary. It was an internal matter Angeles, et al., G.R. No. L-30240, March 25, 1988,
which did not need prior publication. It had been that "it is well-recognized principle that purely
issued as an incident of the administrative body’s administrative and discretionary functions may not be
power to issue guidelines for government officials to interfered with by the courts. In general, courts have
follow in performing their duties. (Abella v. CSC, G.R. no supervising power over the proceedings and
152574, 2004). actions of the administrative departments of
government. This is generally true with respect to
The fact that the Toll Regulatory Board is exercising acts involving the exercise of judgment or discretion,
its administrative or executive functions such as the and findings of fact. There should be no thought of
granting of franchises or awarding of contracts and at disregarding the traditional line separating judicial
the same time exercising its quasi-legislative and/or and administrative competence, the former being
quasi-judicial functions (e.g., rate-fixing), does not entrusted with the determination of legal questions
support a finding of a violation of due process or the and the latter being limited as a result of its expertise
Constitution. (Francisco, Jr., et al. vs. Toll Regulatory to the ascertainment of the decisive
Board, G.R. 166910 / 169917 / 173630 / 183599, facts." [Presidential Commission on Good
2010). Government v. Peña, G.R. No. 77663, [April 12,
1988], 243 PHIL 93-135]
It is well settled that findings of fact of quasi-judicial
agencies, such as the COA, are generally accorded The doctrine of judicial stability or non-interference in
respect and even finality by this Court, if supported the regular orders or judgments of a co-equal court is
by substantial evidence, in recognition of their an elementary principle in the administration of
expertise on the specific matters under their justice: no court can interfere by injunction with the
jurisdiction. (Reyna v. Commission on Audit, G.R. judgments or orders of another court of concurrent
167219, 2011). jurisdiction having the power to grant the relief sought
by the injunction. The rationale for the rule is founded
The doctrine of separate personality of a corporation on the concept of jurisdiction: a court that acquires
finds no application in a government agency. Also, jurisdiction over the case and renders judgment
the law states that expenditures of government funds therein has jurisdiction over its judgment, to the
or uses of government property in violation of law or exclusion of all other coordinate courts, for its
regulations shall be a personal liability of the official execution and over all its incidents, and to control, in
or employee found to be directly responsible furtherance of justice, the conduct of ministerial
therefore. (Verzosa, Jr. v. Carague, G.R. 157838, officers acting in connection with this judgment.
2011). [Barroso v. Omelio, G.R. No. 194767 , 2015]
Doctrine of Non-Interference. Enforcement of decisions

Another basic principle is the doctrine of non- It must be in accordance with the manner prescribed
interference which should be regarded as highly by the statute. If there is no provision, resort to the
important in judicial stability and in the administration courts is necessary for enforcement.
of justice whereby the judgment of a court of
competent jurisdiction may not be opened, modified
or vacated by any court or tribunal of concurrent When fully authorized by law, administrative
jurisdiction.([Freeman, Inc. v. Securities and agencies (e.g. Civil Aeronautics Board) can impose
Exchange Commission, G.R. No. 110265, [July 7, fines in the nature of civil penalty for violations of its
1994], 304 PHIL 139-148 citing Mercado v. Ubay, GR rules and regulations. Thus, in CAB v. PAL: There
No. L-35830, 24 July 1990) exists but an insignificant doubt in Our mind that the
C.A.B. is fully authorized by law (Republic Act 776)
As a rule, where legislation provides for an appeal to impose fines in the nature of civil penalty for
from decisions of certain administrative bodies to the violations of its rules and regulations. To deprive the
Court of Appeals, it means that such bodies are co- C.A.B. of that power would amount to an absurd
equal with the Regional Trial Courts, in terms of rank interpretation of the pertinent legal provision because
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the CAB is given full power on its own initiative to specialized or limited jurisdiction, which is
determine whether to "impose, remit, mitigate, dependent entirely upon the validity and the
increase or compromise" "fines and civil penalties", a terms of the statutes reposing power in
power which is expressly given to the Civil them.
Aeronautics Administrator whose orders or decision b. An administrative agency cannot enlarge its
may be reviewed, revised, reversed, modified or own jurisdiction nor can jurisdiction be
affirmed by the CAB. Besides, to deprive the C.A.B. conferred upon an agency by parties before
of its power to impose civil penalties would it.
negate its effective general supervision and c. When a particular statute authorizes an
control over air carriers if they can just disregard administrative agency to act in a particular
with impunity the rules and regulations designed situation, it necessarily confers upon such
to insure public safety and convenience in air agency authority to determine whether the
transportation. If every time the C.A.B. would like situation is such as to authorize the agency
to impose a civil penalty on an erring airline for to act; an administrative agency’s
violation of its rules and regulations it would determination as to its jurisdiction is not
have to resort to courts of justice in protracted conclusive to the courts.
litigations then it could not serve its purpose of d. Expiration of a statute may be held not to
exercising a competent, efficient and effective deprive an administrative agency of
supervision and control over air carriers in their jurisdiction to enforce the statute as to
vital role of rendering public service by affording liabilities incurred while the statute was in
safe and convenient air transit. (Civil Aeronautics force, where a general saving statute
Board v. Philippine Air Lines, Inc., G.R. No. L-40245, continues such liabilities.
April 30, 1975) e. Administrative agencies are creatures of the
NOTE: Administrative agencies that have been, by law and they have no general powers but
authority of law, granted the power to render only such as conferred by law; where the law
decisions, issue orders, or impose fines would have confines in an administrative officer the
the corresponding power to enforce the same as well, power to determine particular questions or
such as the Energy Regulatory Commission (ERC), matters upon facts presented, the
National Telecommunications Commission (NTC), jurisdiction of such office shall prevail over
and Civil Aeronautics Board. courts.
f. In order for the Court to acquire jurisdiction
Characteristics of Quasi-Judicial Proceedings – over an administrative case, the complaint
(PJAC) must be filed during the incumbency of the
1. Adversarial in nature; every proceeding is respondent. Once jurisdiction is acquired, it
adversary in substance if it may result in an is not lost by reason of respondent’s
order in favor of one person against another. cessation from office. (Office of the Court
2. Such proceedings partake of the nature of Administrator v. Andaya, A.M. RTJ-09-2181,
Judicial proceedings if it involves taking and 2013).
evaluation of evidence, determination of facts
based upon evidence presented and rendering 2. Due Process — Doctrine of primary jurisdiction.
an order or decision supported by the facts a. If the determination requires the expertise,
proved. specialized skills and knowledge of the
3. Particular proceedings before an proper administrative bodies because
administrative agency have been held Civil technical matters or intricate questions of
rather than criminal in nature. facts are involved, then relief must first be
4. The proceeding for forfeiture while obtained in an administrative proceeding
administrative in character thus possesses a before remedy will be supplied by the courts.
criminal or penal aspect. (Cabal v. Kapunan, b. Failure to comply with this doctrine renders
G.R. L-19052, 1962). the action open to a motion to suspend
pending referral of the issues to the
Requisites of Quasi-Judicial Proceedings: (JD) administrative agency.
1. Jurisdiction (defined by law/charter) - power
and authority given by law to hear and decide a
case; consists of TWO elements—jurisdiction
over subject-matter and over the person. Without
jurisdiction, acts are void and open to collateral
attack.
a. Administrative agencies are tribunals of
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a. Administrative Due Process evidence. (American Tobacco v. Director of

(HIP DESK) Patents, G.R. No. 26803, 1975)
5. When an administrative agency acts as a
1. The right to a Hearing, which includes the right collegiate body, its power and duties cannot be
to present one’s case and submit evidence in exercised by the members individually. (GMCR
support thereof. However, a “trial-type” v. Bell Telecommunications, G.R. No. 126496,
proceeding is not required. The essence is the 1997)
opportunity to be heard. 6. The essence of due process in administrative
2. The tribunal or body or any of its judges must act proceedings is the opportunity to explain one’s
on its or his own Independent consideration of side or seek a reconsideration of the action or
the law and facts of the controversy, and not ruling complained of. (Antonio v. Villa, G.R.
simply accept the views of a subordinate in 114694, 2005)
arriving at a decision. 7. There is no denial of due process just because
3. The decision must be based on the evidence no cross-examination took place. What is
Presented at the hearing or at least contained in important is that she was given the opportunity to
the record and disclosed to the parties affected. do so. (Vertudes v. Buenaflor, G.R. 153166,
4. The Decision must have something to support 2005)
itself. 8. In administrative proceedings, the filing of
5. The tribunal must consider the Evidence charges and giving reasonable opportunity for
presented. the person charged to answer the accusation
6. Evidence supporting the conclusion must be against him constitute the minimum
Substantial. requirements of due process. (Cayago v. Lina,
7. The board or body should, in all controversial G.R. 149539, 2005)
questions, render its decision in such a manner 9. Some proceedings are instituted by simple ex
that the parties to the proceeding can Know the parte applications. Others are instituted by filing
various issues involved and the reasons for the of a charge or complaint by an aggrieved person.
decision rendered. (Ang Tibay v. CIR, G.R. L- Under other statutes, particular administrative
46496, 1940) agencies may institute proceedings on their own
initiative, motion, or complaint.
Doctrines: 10. Due Process requirements are usually in the
1. For as long as the parties were given fair and statute, but if none is provided, the Constitutional
reasonable opportunity to be heard and to submit guarantee of due process of law must be upheld.
evidence in support of their arguments before (Notice, to enable a party to be heard and to
judgment was rendered, the demands of due present evidence, is not a mere technicality or a
process are sufficiently met. (Casimiro v. Tandog trivial matter in any judicial or quasi-judicial
G.R. 146137, 2005) proceedings. The service of summons is a very
2. Procedural due process is the constitutional vital and indispensable ingredient of Due
standard demanding that notice and an Process). When an agency fails to afford
opportunity to be heard be given before previous notice, it may be cured by subsequently
judgment is rendered. As long as a party is given giving the party an opportunity to be heard.
the opportunity to defend his interests in due Motion for reconsideration is a means to cure the
course, he would have no reason to complain; defect of notice.
the essence of due process is in the opportunity 11. Non-filing of any administrative charge against
to be heard. A formal or trial-type hearing is not the accused preparatory to his dismissal, and
always necessary. (Imperial v. GSIS, G.R. therefore the dismissal effected without any
191224, 2011) administrative complaint, violated the right of the
3. A decision is void for lack of due process if, as a accused to substantive and procedural due
result, a party is deprived of the opportunity to be process. He is entitled to reinstatement and to
heard. A void decision may be assailed or payment of the salaries, allowances, and other
impugned at any time either directly or benefits withheld from him by reason of his
collaterally by means of a separate action, or by discharge from the service. (Calinisan v.
resisting such decision in any action or Roaquin, G.R. 159588, 2010)
proceeding where it is invoked. (Uy vs. Court of 12. The subsequent desistance by complainant
Appeals, G.R. 109557, 2000) does not free the respondent from liability, as the
4. The rule requiring an administrative officer to purpose of an administrative proceeding is to
exercise his own judgment and discretion does protect the public service based on the time-
not preclude him from utilizing the aid of his honored principle that a public officer is a public
subordinates in the hearing and reception of trust. (Encinas v. Agustin Jr., G.R. 187317, 2013)
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13. The Revised Rules on Administrative Cases in the offer of evidence to prove that a person’s kidneys
Civil Service themselves provide that were in their “proper anatomical locations” at the
administrative investigations shall be conducted time she was operated and that the BOM shall
without strict recourse to the technical rules of determine the probative value thereof, if the
procedure and evidence applicable to judicial original documentary evidence cannot be
proceedings. (Adalin v. Taninas, G.R. L-198682, produced. The rules of evidence are merely the
2013) means for ascertaining the truth respecting a
14. The dismissal of the criminal complaint does not matter of fact. Rules of evidence are not strictly
affect the administrative case arising from the applied in proceedings before administrative
same incident which gave rise to said criminal bodies such as the BOM. (Atienza v. Board of
case. (Gabriel v. Ramos, A.M. P-06-2256, Medicine, G.R. 177407, 2011)
2013)
15. The essence of due process in administrative WAIVER OF RIGHT TO NOTICE
proceedings is the opportunity to explain one's - A failure to comply with the requirements may
side or seek a reconsideration of the action or result in failure to acquire jurisdiction.
ruling complained of. As long as the parties are - Generally, the right to notice in an administrative
given the opportunity to be heard before proceeding may be waived.
judgment is rendered, the demands of due - If a general appearance is made, jurisdiction
process are sufficiently met. What is offensive to over the person is conferred even though there
due process is the denial of the opportunity to be was no proper notice or process.
heard. Nothing is irregular in considering the - Personal notice is not required where it is
investigation terminated and submitting the case impossible to give such notice.
for resolution based on available evidence upon
failure of the respondent to file his counter- Exceptions to Requirement of Notice and
affidavit or answer despite giving him ample Hearing: (UTOS CLAPP)
opportunity to do so. Moreover, Section 14, 1. Urgency of immediate action
Article VIII of the 19872 Constitution need not 2. Tentativeness of the administrative action
apply to decisions rendered in administrative 3. Right was previously Offered but not claimed
proceedings. Said section applies only to 4. Summary abatement of a nuisance per se
decisions rendered in judicial proceedings. It 5. Cancellation of a passport of a person sought
would be error to hold or even imply that for criminal prosecution
decisions of executive departments or 6. Summary proceedings of Levy upon properties
of a delinquent taxpayer
administrative agencies are obliged to meet the
requirements under Section 14, Article VIII. 7. Replacement of a temporary or Acting
appointee
(Flores v. Montemayor, G.R. 170146, 2011)
8. Preventive suspension of a public servant
16. A respondent in an administrative case is not
facing administrative charges
entitled to be informed of the preliminary findings
9. Padlocking of filthy restaurants/ theaters
and recommendations; he is entitled only to a
showing obscene movies
reasonable opportunity to be heard, and to the
administrative decision based on substantial
evidence. (Velasquez v. CA, G.R. No. 150732,
2004)
17. There is no denial of due process if any
irregularity in the premature issuance of a
decision has been remedied through an Order
giving petitioners the right to participate in the
hearing of the MR. The opportunity granted by,
technically, allowing petitioners to finally be able
to file their comment in the case, resolves the
procedural irregularity previously inflicted upon
petitioners. (NASECORE v. ERC, G.R. 190795,
2011)
18. The Board of Medicine can properly admit formal
2
Section 14. No decision shall be rendered by any court without No petition for review or motion for reconsideration of a
expressing therein clearly and distinctly the facts and the law decision of the court shall be refused due course or denied
on which it is based. without stating the legal basis therefor.
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Investigation v. Hearing: procedural process. (Subido Pagente Certeza

INVESTIGATION HEARING Mendoza and Binay Law Offices v. CA, G.R. No.
216914, 2017)
By government officials, There are parties and
which may be held in issues of law and of Authority to hear can be delegated.
private are informal fact to be tried and at This subdelegation of power has been justified by
proceedings to obtain the conclusion of the "sound principles of organization" which demand that
Information to govern hearing, action is "those at the top be able to concentrate their attention
future actions, have no taken which may upon the larger and more important questions of
parties, and are not affect the parties’ policy and practice, and their time be freed, so far as
proceedings in which rights and parties are possible, from the consideration of the smaller and
action is taken against entitled to be present far less important matters of detail." Thus, it is well-
anyone. in person and by settled that while the power to decide resides solely
counsel, participate in in the administrative agency vested by law, this does
the hearing, and not preclude a delegation of the power to hold a
entitled to be hearing on the basis of which the decision of the
furnished a record of administrative agency will be made. (American
the proceedings. Tobacco v. Director of Patents, GR No. 26803, 1975)
The (Securities and Exchange) Commission

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

Controversies among Government Offices and to proceedings purely administrative in nature.
Corporations Therefore, when the administrative proceedings
All disputes of government agencies and take on an adversary character, the doctrine of
corporations are settled administratively in the res judicata certainly applies. As this Court held in
manner provided by the Administrative Code. (EO Fortich v. Corona: “The rule of res judicata which
292, Book IV, Chap. 14) forbids the reopening of a matter once judicially
determined by competent authority applies as
Submission for Decision for Questions of Law v. well to the judicial and quasi-judicial acts of
Questions of Fact and Law public, executive or administrative officers and
QUESTIONS OF QUESTIONS OF FACT boards acting within their jurisdiction as to the
LAW AND LAW judgments of courts having general judicial
powers.” (Derla v. Vda. de Hipolito, G.R. No.
Submitted to Secretary 1. Solicitor-General - if 157717, 2011)
of Justice as Attorney- the dispute, claim or
General. His ruling controversy involves Example: The principle of res judicata is applicable
shall be binding on all only departments, in labor relations proceedings which are “non-litigious
the parties concerned. bureaus, offices, and and summary in nature without regard to legal
other agencies of the technicalities obtaining in courts of law.” (Rules and
National Government Regulations Implementing the Labor Code, Sec. 5,
as well as the GOCCs. Rule XIII, Book V).
2. Secretary of Justice, in
all other cases not Not Applicable
mentioned above. a. When the question of citizenship is resolved by
a court or an administrative body as a material
The determination of factual issues may be made by issue in the controversy after a full-blown
arbitration panel composed of representatives from hearing. (Zita Ngo Burca v. Republic, G.R.
each party, presided over by Secretary of Justice. 122226, 1998; United Pepsi Cola v. Laguesma,
G.R. L-24252, 1973)
General Rule: the decision of Solicitor-General and b. When WCC Referee awards the employee less
Secretary of Justice is binding and final. than what the law provides (BF Goodrich v.
WCC, G.R. L-42319, 1978)
Exception: When the claim involves 1 million pesos, c. In the exercise of administrative powers, such as
in which case, the dispute is appealed to the Office when the Philippine Commission Against Graft
of the President. and Corruption conducts an investigation over a
presidential appointee that is administrative in
c. Administrative Res Judicata nature, which is different from the investigation
conducted by the Ombudsman to determine
criminal liability. (Montemayor v. Bundalian,
Decisions and orders of administrative agencies G.R. No. 149335, 2003)
have upon their finality, the force and effect of a final d. If former judgment is based on a prohibited or
judgment within the purview of the doctrine of res null and void contract. Therefore, there is no
judicata. The extent of whether an administrative valid judgment which can be predicated on res
decision operates as res judicata also depends on judicata. (BF Goodrich v. WCC, G.R. No. 38569,
the interpretation of the enabling statute. 1988)
The application of the doctrine of res judicata is

dependent upon the type of determination and The essential requisites for the existence of res
proceedings. It is applicable in administrative judicata are: (1) the former judgment must be final;
actions that have been characterized as (2) it must have been rendered by a court having
“adjudicatory,” “judicial,” or “quasi- judicial.” On jurisdiction of the subject matter and the parties;
the other hand, it is inapplicable in administrative (3) it must be a judgment on the merits; and (4) there
determinations which are of “administrative,” must be, between the first and second actions: (a)
“executive,” “legislative,” or “ministerial” nature. identity of parties (b) identity of subject matter
and (c) identity of cause of action (Ipekdjian v. CTA
While it is true that this Court has declared that the citing Navarro vs. Director of Lands, L-18814, July
doctrine of res judicata applies only to judicial or 31, 1962; Aring vs. Original, L-18464, Dec. 29, 1962).
quasi-judicial proceedings, and not to the exercise of
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Principle of res judicata in the mode of The right to counsel under Section 12 of the Bill of
"conclusiveness of judgment" Rights is meant to protect a suspect during custodial
The principle of res judicata in the mode of investigation. While investigations conducted by an
"conclusiveness of judgment" applies when the administrative body may at times be akin to a criminal
NLRC ruling was affirmed by the Court of Appeals. It proceeding, the rule under existing laws is that a
was a judicial affirmation through a decision duly party in an administrative inquiry may or may not be
promulgated and rendered final and executory when assisted by counsel, irrespective of the nature of the
no appeal was undertaken within the reglementary charges and of petitioner’s capacity to represent
period. The jurisdiction of the NLRC, which is a quasi- herself, and no duty rests on such body to furnish the
judicial body, was undisputed. Neither can the person being investigated with counsel. As such, the
jurisdiction of the Court of Appeals over the NLRC admissions made by petitioner during the
decision be the subject of a dispute. The NLRC case investigation may be used as evidence to justify her
was clearly decided on its merits; likewise on the dismissal. (Carbonel v. CSC, G.R. 187689, 2010)
merits was the affirmation of the NLRC by the Court
of Appeals. With respect to the fourth element of 3. FACT-FINDING, INVESTIGATIVE,
identity of parties, we hold that there is substantial LICENSING, AND RATE-FIXING LAW
compliance. The parties in SSC and NLRC cases are POWERS
not strictly identical. Jurisprudence however does not
dictate absolute identity but only substantial identity. INVESTIGATORY POWERS
There is substantial identity of parties when there is
a community of interest between a party in the first Investigatory or inquisitorial powers include the
case and a party in the second case, even if the latter power of an administrative body to inspect the
was not impleaded in the first case. (SSC v. Rizal records and premises, and investigate the activities
Poultry and Livestock Association, G.R. 167050, of persons or entities coming under its jurisdiction,' or
2011) to secure, or to require the disclosure of information
by means of accounts, records, reports, statements,
Inherent v. Implied v. Expressed: testimony of witnesses, production of documents, or
INHERENT IMPLIED EXPRESSED otherwise.2 They are conferred on practically all
administrative agencies.
In fact, the investigatory powers of administrative
Requires 1. Fact-finding 1. Issue a agencies, or their power and facilities to investigate,
disclosure of 2. Visitorial subpoen initiate action, and control the range of investigation,
books, etc. powers a is one of the distinctive functions which sets them
3. Ocular 2. Cite a apart from the court. (De Leon, Administrative Law:
inspection person in Text and Cases 75, 2016)
4. Clearance contempt
5. Investigative 3. Search It has been essayed that the lifeblood of the
Anomalies and administrative process is the flow of fact, the
(CSC) Seizure gathering, the organization and the analysis of
4. Adjudicate evidence. Investigations are useful for all
5. Impose administrative functions, not only for rule making,
coercive adjudication, and licensing, but also for prosecuting,
measures for supervising and directing, for determining general
policy, for recommending, legislation, and for
The rule is that findings of fact of administrative purposes no more specific than illuminating obscure
bodies, if based on substantial evidence, are areas to find out what if anything should be done. An
controlling on the reviewing authority. (Reyna v. administrative agency may be authorized to make
COA, G.R. 167219, 2011) investigations, not only in proceedings of a legislative
or judicial nature, but also in proceedings whose sole
The SEC Hearing Officer had the optimum purpose is to obtain information upon which future
opportunity to review the pieces of evidence action of a legislative or judicial nature may be taken
presented before him and to observe the demeanor and may require the attendance of witnesses in
of the witnesses. Administrative decisions on matters proceedings of a purely investigatory nature. It may
within his jurisdiction are entitled to respect and can conduct general inquiries into evils calling for
only be set aside on proof of grave abuse of correction, and to report findings to appropriate
discretion, fraud, or error of law. (Queensland-Tokyo bodies and make recommendations for actions.
Commodities, Inc. v. George, G.R. 172727, 2010) (Evangelista v. Jarencio, GR No. L-29274, 1975)
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Investigate vs. Adjudicate arbitrary or unreasonable infringement of property

The legal meaning of "investigate" is essentially the rights is void, because it is repugnant to the
same: "(t)o follow up step by step by patient inquiry constitutional guaranties of due process and equal
or observation. To trace or track; to search into; to protection of the laws. (Philippine Communications
examine and inquire into with care and accuracy; to Satellite Corp. v. Alcuaz, G.R. No. 84818, 1989)
find out by careful inquisition; examination; the taking
of evidence; a legal inquiry;" "to inquire; to make an PRESCRIBING RATES IS EITHER LEGISLATIVE
investigation," "investigation" being in turn described OR ADJUDICATIVE. The function of prescribing
as "(a)n administrative function, the exercise of which rates by an administrative agency may be either a
ordinarily does not require a hearing. 2 Am J2d Adm legislative or an adjudicative function. If it were a
L Sec. 257; . . . an inquiry, judicial or otherwise, for legislative function, the grant of prior notice and
the discovery and collection of facts concerning a hearing to the affected parties is not a
certain matter or matters." (Cariño v. Commission on requirement of due process. As regards rates
Human Rights, G.R. No. 96681, 1991). prescribed by an administrative agency in the
exercise of its quasi-judicial function, prior notice
In the legal sense, "adjudicate" means: "To settle in and hearing are essential to the validity of such
the exercise of judicial authority. To determine finally. rates. When the rules and/or rates laid down by an
Synonymous with adjudge in its strictest sense;" and administrative agency are meant to apply to all
"adjudge" means: "To pass on judicially, to decide, enterprises of a given kind throughout the country,
settle or decree, or to sentence or condemn. . . . they may partake of a legislative character. Where
Implies a judicial determination of a fact, and the the rules and the rates imposed apply exclusively to
entry of a judgment." (Cariño v. Commission on a particular party, based upon a finding of fact, then
Human Rights, G.R. No. 96681, 1991). its function is quasi-judicial in character. (Philippine
Consumers Foundation, Inc. v. Secretary of
Thus, in Cariño v. Commission on Human Rights, the Education, Culture and Sports, G.R. No. 78385,
CHR cannot try and resolve on the merits 1987)
(adjudicate) as it only has the power to investigate
under the 1987 Constitution. PROVISIONAL RATES. An administrative agency
may be empowered to approve provisionally, when
RATE-FIXING POWER demanded by urgent public need, rates of public
utilities without a hearing. The reason is easily
POLICE POWER. The regulation of rates to be discerned from the fact that provisional rates are by
charged by public utilities is founded upon the police their nature temporary and subject to adjustment in
powers of the State and statutes prescribing rules for conformity with the definitive rates approved after
the control and regulation of public utilities are a valid final hearing. [Padua v. Ranada, G.R. Nos. 141949
exercise thereof. (Republic v. MERALCO, GR No. & 151108, 2002].
141314, 2002)
SUBSEQUENT RATES. Subsequent toll rate
NOTE: Rate-fixing power does not necessarily adjustments are mandated by law to undergo both
include the right to impose fines unless expressly the requirements of public hearing and publication.
provided by its charter. (RCPI v. NTC, GR No. 93237, [Francisco, Jr. v. Toll Regulatory Board, G.R. Nos.
1992; PAL v. CAB, GR No. 119528, 1997) 166910, 169917, 173630 & 183599, 2010]
NOT THE POWER TO DESTROY. The rule is that REASONABLE AND JUST RATE. In the fixing of
the power of the State to regulate the conduct and rates, the only standard which the legislature is
business of public utilities is limited by the required to prescribe for the guidance of the
consideration that it is not the owner of the property administrative authority is that the rate be reasonable
of the utility, or clothed with the general power of and just. (Republic v. MERALCO, GR No. 141314,
management incident to ownership, since the private 2002)
right of ownership to such property remains and is not
to be destroyed by the regulatory power. The power AGAINST ARBITRARY AND EXCESSIVE RATES.
to regulate is not the power to destroy useful and In regulating rates charged by public utilities, the
harmless enterprises, but is the power to protect, State protects the public against arbitrary and
foster, promote, preserve, and control with due excessive rates while maintaining the efficiency and
regard for the interest, first and foremost, of the quality of services rendered. However, the power to
public, then of the utility and of its patrons. Any regulate rates does not give the State the right to
regulation, therefore, which operates as an effective prescribe rates which are so low as to deprive the
confiscation of private property or constitutes an public utility of a reasonable return on
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investment. Thus, the rates prescribed by the State public utility. Income tax paid by a public utility is
must be one that yields a fair return on the public inconsistent with the nature of operating
utility upon the value of the property performing the expenses. In general, operating expenses are those
service and one that is reasonable to the public for which are reasonably incurred in connection with
the services rendered. The fixing of just and business operations to yield revenue or income. They
reasonable rates involves a balancing of the investor are items of expenses which contribute or are
and the consumer interests. (Republic v. MERALCO, attributable to the production of income or revenue.
GR No. 141314, 2002) As correctly put by the ERB, operating expenses
"should be a requisite of or necessary in the
SUBJECT TO JUDICIAL REVIEW. While the power operation of a utility, recurring, and that it
to fix rates is (generally) a legislative function, redounds to the service or benefit of customers.”
whether exercised by the legislature itself or (Republic v. MERALCO, GR No. 141314, 2002)
delegated through an administrative agency, a
determination of whether the rates so fixed are BASED ON PROPERTIES ACTUALLY USED OR
reasonable and just is a purely judicial question and ARE USEFUL TO THE OPERATIONS OF THE
is subject to the review of the courts. (Republic v. PUBLIC UTILITY. “Net average investment method”
MERALCO, GR No. 141314, 2002) (i.e. return only on the actual use of the property)
treatment is consistent with the settled rule in rate
FINDINGS AND CONCLUSIONS ON THE RATE regulation that the determination of the rate base
ARE RESPECTED. The findings and conclusions of of a public utility entitled to a return must be
the administrative body (e.g. ERB) on the rate that based on properties and equipment actually
can be charged by MERALCO to the public should being used or are useful to the operations of the
be respected. The function of the court, in exercising public utility. (Republic v. MERALCO, GR No.
its power of judicial review, is to determine whether 141314, 2002)
under the facts and circumstances, the final order
entered by the administrative agency is unlawful or Licensing v. Rate Fixing:
unreasonable. Thus, to the extent that the
LICENSING RATE FIXING
administrative agency has not been arbitrary or
capricious in the exercise of its power, the time-  Quasi-legislative - If the
honored principle is that courts should not interfere. Licensing is a rules and rates are meant to
The principle of separation of powers dictates that quasi-judicial apply to all enterprises of a
courts should hesitate to review the acts of function given kind throughout the
administrative officers except in clear cases of grave country, prior notice and
abuse of discretion. [Republic v. MERALCO, GR No. hearing is not required.
141314, 2002] (General Application)
ONLY OPERATING EXPENSES ARE INCLUDED  Quasi-judicial - If the rules
IN THE DETERMINATION OF JUST AND and rates imposed apply
REASONABLE RATE. The principle behind the exclusively to a particular
inclusion of operating expenses in the determination party, based upon a finding
of a just and reasonable rate is to allow the public of fact, prior notice and
utility to recoup the reasonable amount of expenses hearing is required.
it has incurred in connection with the services it (Particular Application)
provides. It does not give the public utility the
license to indiscriminately charge any and all A license may not be withdrawn, except for a
types of expenses incurred without regard to the violation of pertinent laws, rules and regulation, or
nature thereof, i.e., whether or not the expense is when public health and safety requires. An existing
attributable to the production of services by the license shall not expire if the licensee makes a timely
public utility. To charge consumers for expenses application for the renewal.
incurred by a public utility which are not related to the
service or benefit derived by the customers from the C. DOCTRINES OF PRIMARY
public utility is unjustified and inequitable. That’s why JURISDICTION AND EXHAUSTION OF
in Republic v. MERALCO, the SC ruled that income ADMINISTRATIVE REMEDIES
tax imposed on public utilities should not be included
in the computation of operating expenses for DOCTRINE OF PRIMARY JURISDICTION
purposes of fixing the rates. Thuss the ERB correctly
ruled that income tax should not be included in If the case is such that its determination requires the
the computation of operating expenses of a expertise, specialized skills and knowledge of the
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proper administrative bodies because technical an administrative agency, especially where the
matters or intricate questions of facts are involved, question demands the exercise of sound
then relief must first be obtained in an administrative administrative discretion requiring the special
proceeding before a remedy will be supplied by the knowledge, experience and services of the
courts even though the matter is within the proper administrative agency to determine technical and
jurisdiction of a court. This is the doctrine of primary intricate matters of fact.
jurisdiction.
Relief must first be obtained in an administrative
It applies "where a claim is originally cognizable in proceeding before a remedy will be supplied by the
the courts, and comes into play whenever court, even if the matter is within the jurisdiction of a
enforcement of the claim requires the resolution of court. (Republic v. Martinez, G.R. No. 158253, 2007)
issues which, under a regulatory scheme, have been
placed within the special competence of an Exceptions to the Doctrine of Primary
administrative body; in such case the judicial process Jurisdiction
is suspended pending referral of such issues to the There are established exceptions to the doctrine of
administrative body for its view" (United States v. primary jurisdiction, such as:
Western Pacific Railroad Co., 352 U.S. 59, emphasis
supplied). (Industrial Enterprises, Inc. v. Court of (a) where there is estoppel on the part of the party
Appeals, G.R. No. 88550, [April 18, 1990], 263 PHIL invoking the doctrine;
352-360)
(b) where the challenged administrative act is
Courts will respect the sense-making a.k.a. primary patently illegal, amounting to lack of jurisdiction;
jurisdiction of administrative agencies. Under the
"sense-making and expeditious doctrine of primary (c) where there is unreasonable delay or official
jurisdiction . . . the courts cannot or will not determine inaction that will irretrievably prejudice the
a controversy involving a question which is within the complainant;
jurisdiction of an administrative tribunal, where the
question demands the exercise of sound (d) where the amount involved is relatively small so
administrative discretion requiring the special as to make the rule impractical and oppressive;
knowledge, experience, and services of the
administrative tribunal to determine technical and (e) where the question involved is purely legal and
intricate matters of fact, and a uniformity of ruling is will ultimately have to be decided by the courts of
essential to comply with the purposes of the justice;
regulatory statute administered. [Presidential
Commission on Good Government v. Peña, G.R. No. (f) where judicial intervention is urgent;
77663, [April 12, 1988], 243 PHIL 93-135]
(g) when its application may cause great and
Courts must allow specialized competence of irreparable damage;
administrative agencies through Primary Jurisdiction
and Exhaustion of Administrative Remedies. The (h) where the controverted acts violate due process;
Court recently had occasion to stress once more, in
G.R. No. 82218, Reyes vs. Caneba, March 17, 1988, (i) when the issue of non-exhaustion of
that "(T)he thrust of the related doctrines of primary administrative remedies has been rendered moot;
administrative jurisdiction and exhaustion of
administrative remedies is that courts must allow (j) when there is no other plain, speedy and adequate
administrative agencies to carry out their functions remedy;
and discharge their responsibilities within the
specialized areas of their respective competence. (k) when strong public interest is involved; and,
Acts of an administrative agency must not casually
be overturned by a court, and a court should as a rule (l) in quo warranto proceedings. (Aklan v. Jody King
not substitute its judgment for that of the Construction & Development Corp, G.R. No.
administrative agency acting within the perimeters of 197592, 2013)
its own competence." [Presidential Commission on
Good Government v. Peña, G.R. No. 77663, [April The Doctrine of Primary Jurisdiction does not
12, 1988], 243 PHIL 93-135] apply in a case seeking to enjoin the Senate
Committee from conducting further hearings
Courts cannot, and will not, resolve a controversy against Senator Villar on the alleged double
involving a question which is within the jurisdiction of insertion of P200 million for the C-5 Road
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Extension Project in the 2008 General Company X nor did it invoke the doctrine of primary
Appropriations Act. The issues presented here do jurisdiction of the COA over the money claim. In fact,
not require the expertise, specialized skills and it even actively participated in the proceedings.
knowledge of respondent for their resolution. On the Moreover, after the RTC decision became final and
contrary, the issues here are purely legal questions executory, Puerto Princesa did not even avail of the
which are within the competence and jurisdiction of remedies under the Rules of Court to assail the
the Court, and not an administrative agency or the RTC’s jurisdiction such as an annulment of judgment
Senate to resolve. (Pimentel v. Senate, G.R. No. under Rule 47. Hence, Puerto Princesa is already
187714, 2011) barred by laches from invoking the primary
jurisdiction of the COA. (Star Special Corporate
The Supreme Court may defer to the competence Management Inc. v. COA, G.R. No. 225366, J.
and expertise of the SEC if there are supervening Leonen, September 1, 2020)
events which could have substantially changed the
factual backdrop of the case while it was pending DOCTRINE OF EXHAUSTION OF
before the Court. (Nestle v. Uniwide, G.R. 174674, ADMINISTRATIVE REMEDIES
2010).
General Rule: An administrative decision must first
However, complaints for criminal violations of the be appealed to the administrative superiors up to the
Securities Regulation Code must be filed with the highest level before it may be elevated to a court of
SEC, not DOJ or the courts, because it is considered justice for review. It is a condition precedent that
a specialized dispute. (Baviera v. Paglinawan, G.R. must be complied with. (Sps. Sadang v. CA, G.R.
168380, 2007). No. 140138, 2006)
It bears stressing that the remedies of mandamus Non-observance of the doctrine of exhaustion of
and prohibition may be availed of only when there is administrative remedies would result in lack of
no appeal or any other plain, speedy and adequate cause of action, and consequently, the dismissal
remedy in the ordinary course of law. Moreover, of the case. (Ejera v. Merto, 725 Phil. 180, 2014).
being extraordinary remedies, resort may be had only Exhaustion of administrative remedies is a
in cases of extreme necessity where the ordinary prerequisite for judicial review. It is a condition
forms of procedure are powerless to afford relief. precedent which must be complied with.
Thus, instead of immediately filing a petition with
the CA, petitioners should have first brought the Applicability of the Doctrine3
matter to the CSC which has primary jurisdiction
over the case. (Cabungcal v. Lorenzo, G.R. 160367, EXERCISE OF QUASI- EXERCISE OF RULE-
2009) JUDICIAL FUNCTION MAKING POWER
In case the subject of However, if the rule or
The court may raise the issue of primary controversy is the regulation was issued
jurisdiction motu proprio and its invocation validity or pursuant to the
cannot be waived by the failure of the parties to constitutionality of a administrative agency’s
argue it, as the doctrine exists for the proper rule or regulation quasi-legislative (or rule-
distribution of power between judicial and issued by the making) function, a party
administrative bodies and not for the administrative agency need not exhaust
convenience of the parties. In such a case, the in the performance of administrative remedies.
court may (1) suspend the judicial process pending its quasi-judicial
referral of such issues to the administrative body for function (or The determination of
its view, or (2) if the parties would not be unfairly administrative whether a specific rule or
disadvantaged, dismiss the case w/o prejudice. adjudicatory power), set of rules issued by an
(Euro-Med Laboratories Phil. v. Province of the assailing party administrative agency
Batangas, G.R. 148106, 2006) must exhaust contravenes the law or
administrative the constitution is within
The doctrine of primary administrative remedies before the jurisdiction of the
jurisdiction is not an ironclad rule. An exception going to court. (Smart regular courts. (Id.)
to this rule is where there is already estoppel on Communications v.
the part of the party invoking the doctrine. In this NTC, G.R. No.
case, the Puerto Princesa LGU neither objected to 151908, 2003)
the RTC’s jurisdiction over the money claim filed by
3
Note: This rule also applies to the doctrine of primary
administrative jurisdiction.
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RATIONALE: A case where the issue raised is a purely legal

1. To enable the administrative superiors to correct question, well within the competence and the
the errors committed by their subordinates; jurisdiction of the court and not the administrative
2. Courts should refrain from disturbing the agency, would clearly constitute an exception.
findings of administrative bodies in deference to Resolving questions of law, which involve the
the doctrine of separation of powers; interpretation and application of laws, constitutes
3. Courts should not be saddled with the review of essentially an exercise of judicial power that is
administrative cases; exclusively allocated to the Supreme Court and such
4. Judicial review of administrative cases is usually lower courts the Legislature may establish. (Ongsuco
done through special civil actions which are v. Malones, G.R. 182065, 2009)
available only if there is no other plain, speedy
and adequate remedy. The special civil actions against administrative
5. Availment of administrative remedy entails officers should not be entertained if there are
lesser expenses and provides for a speedier superior administrative officers who could grant
disposition of controversies relief. (Dimson v. Local Water Utilities
Administration, G.R. 168656, 2010)
EXCEPTIONS: (DARNN JP LICD DRIED LPS
Quo) The validity and the enforceability of the “Contract of
1. If it should appear that an irreparable Damage Agreement” entered into by the parties are questions
will be suffered by a party unless resort to the purely of law and clearly beyond the expertise of the
court is immediately made. Commission on Audit or the DPWH. (Vigilar v.
2. When the respondent is the Alter ego of the Aquino, G.R. 180388, 2011)
President
3. When no administrative Review is provided as a The rule on exhaustion of administrative remedies
condition precedent for court action may be discarded when to require exhaustion of
4. Where insistence on its observance would result administrative remedies would be unreasonable,
in the Nullification of the claim asserted such as in cases when the Comelec En Banc already
5. When there was No decision rendered approved the award of the bid to MPC, without the
6. When there are special circumstances BAC informing the bidders, thus depriving the
demanding immediate Judicial intervention bidders of their opportunity to avail of administrative
remedies. (Information Technology Foundation of
7. When the administrative remedy is Permissive
the Philippines v. COMELEC (citing Paat v. CA),
or concurrent
G.R. No. 159139, 2004).
8. When the question raised is essentially and
purely Legal
9. When strong public Interest is involved
10. Where the issue raised is the Constitutionality
of the statute, rule or regulation
11. Where it is a civil action for Damages
12. Where the officer acted in utter disregard of Due
process
13. When there is no other plain, speedy, adequate
Remedy
14. When act complained of is patently Illegal
15. When the administrative body or the person
invoking the doctrine is in Estoppel
16. When there is long-continued and unreasonable
Delay
17. When the subject of controversy is private Land
18. When the controversy involves Possessory
action involving public lands
19. When the claim involved is Small so that to
require exhaustion would be oppressive and
unreasonable
20. In Quo warranto proceedings
21. When to require exhaustion of administrative
remedies would be unreasonable
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Doctrine of Primary Jurisdiction v. Doctrine of WHEN THERE IS NO SPECIAL LAW, APPEAL TO

Exhaustion of Administrative Remedies OP.
DOCTRINE OF Decisions of the various agencies of government
DOCTRINE OF
EXHAUSTION OF have been appealed to the OP, consistent with the
PRIMARY
ADMINISTRATIVE President's power of control over all the executive
JURISDICTION
REMEDIES departments, bureaus, and offices. The doctrine of
Though both concepts In contrast, exhaustion exhaustion of administrative remedies empowers the
aim to maximize the of administrative OP to review any determination or disposition of a
special technical remedies requires department head. The doctrine allows, indeed
knowledge of parties to exhaust all requires, an administrative decision to first be
administrative agencies, the remedies in the appealed to the administrative superiors up to the
the doctrine of primary administrative highest level before it may be elevated to a court of
administrative machinery before justice for review.
jurisdiction requires resorting to judicial
courts to not resolve or remedies. The In Phillips Seafood (Philippines) Corporation v. Board
determine a controversy doctrine of exhaustion of Investments, we recognized that under the Office
involving a question presupposes that the of the President’s Administrative Order No. 18, a
which is within the court and the decision or order issued by a department or
jurisdiction of an administrative agency agency need not be appealed to the OP when
administrative tribunal. have concurrent there is a special law that provides for a different
The issue is jurisdiction to take mode of appeal. R.A. No. 9295 does not provide for
jurisdictional and the cognizance of a an appeal procedure; thus, the assailed decision and
court, when confronted matter. However, in resolution from the MARINA should have been
with a case under the deference to the appealed with the OP. (Peñafrancia v. 168 Shipping,
jurisdiction of an special and technical GR No. 188952, 2016)
administrative agency, expertise of the
has no option but to administrative agency, WHEN THERE IS A SPECIAL LAW, GO TO
dismiss it. (Provincial courts must yield to COURT.
Bus Operators the administrative 1) Did not resort to court as per special law. In
Association of the agency by suspending the instant case, the enabling law of respondent BOI,
Philippines v. DOLE, the proceedings. As E.O. No. 226, explicitly allows for immediate judicial
G.R. No. 202275, 2018) such, parties must relief from the decision of respondent BOI involving
exhaust all the petitioner's application for an Income Tax Holiday
remedies within the (ITH). E.O. No. 226 is a law of special nature and
administrative should prevail over A.O. No. 18. (NOTE: Otherwise,
machinery before filed out of time that will result to dismissal.) (Phillips
resort to courts is Seafood (Philippines) Corp. v. Board of Investments,
allowed. (Id.) G.R. No. 175787, 2009)
EFFECT OF FAILURE TO OBSERVE 2) Resorted to court as per special law. In this

EXHAUSTION OF ADMINISTRATIVE REMEDIES. case, a special law, RA 7394, likewise expressly
However, failure to observe the doctrine of provided for immediate judicial relief from decisions
exhaustion of administrative remedies does not of the DTI Secretary by filing a petition
affect the court's jurisdiction. Thus, the doctrine may for certiorari with the "proper court." Hence, private
be waived as in Soto v. Jareno: Failure to observe respondent should have elevated the case directly to
the doctrine of exhaustion of administrative remedies the CA through a petition for certiorari. In filing a
does not affect the jurisdiction of the court. We have petition for certiorari before the CA raising the issue
repeatedly stressed this in a long line of decisions. of the OP's lack of jurisdiction, complainant Moran,
The only effect of non-compliance with this rule is Jr. thus availed of the proper remedy. (Moran v. OP,
that it will deprive the complainant of a cause of G.R. No. 192957, 2014)
action, which is a ground for a motion to dismiss. If
not invoked at the proper time, this ground is deemed Modes of Judicial Review of Administrative
waived and the court can then take cognizance of Agencies Exercising Quasi-Judicial Power
the case and try it. [Republic v. Felix, G.R. No.
203371, [June 30, 2020] citing Republic v. Gallo, GR 1) Rule 43, Rules of Court
No. 207074, 2018, J. LEONEN]
a) Scope. This Rule shall apply to appeals from
judgments or final orders of the Court of Tax Appeals
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and from awards, judgments, final orders or enumerated in Rule 43 as subject of a petition for
resolutions of or authorized by any quasi-judicial review to the CA is of no consequence. In Cayao-
agency in the exercise of its quasi-judicial functions. Lasam v. Ramolete, the Court disagreed with the
Among these agencies are the Civil Service opinion of the CA that the enumeration of the
Commission, Central Board of Assessment Appeals, agencies mentioned in Section 1 of Rule 43 was
Securities and Exchange Commission, Office of the exclusive. Thus: Indeed, the PRC is not expressly
President, Land Registration Authority, Social mentioned as one of the agencies which are
Security Commission, Civil Aeronautics Board, expressly enumerated under Section 1, Rule 43 of
Bureau of Patents, Trademarks and Technology the Rules of Court. However, its absence from the
Transfer, National Electrification Administration, enumeration does not, by this fact alone, imply its
Energy Regulatory Board, National exclusion from the coverage of said Rule. The Rule
Telecommunications Commission, Department of expressly provides that it should be applied to
Agrarian Reform under Republic Act No. 6657, appeals from awards, judgments, final orders or
Government Service Insurance System, Employees resolutions of any quasi-judicial agency in the
Compensation Commission, Agricultural Invention exercise of its quasi-judicial functions. The phrase
Board, Insurance Commission, Philippine Atomic "among these agencies" confirms that the
Energy Commission, Board of Investments, enumeration made in the Rule is not exclusive to the
Construction Industry Arbitration Commission, and agencies therein listed. [Alliance for the Family
voluntary arbitrators authorized by law. [Sec. 1, Rule Foundation, Philippines, Inc. v. Garin, G.R. Nos.
43, Rules of Court] 217872 & 221866, August 24, 2016]
b) Cases Not Covered. This Rule shall not apply to 2) Rule 65, Rules of Court
judgments or final orders issued under the Labor
Code of the Philippines. [Sec. 2, Rule 43, Rules of When any tribunal, board or officer exercising judicial
Court] or quasi-judicial functions has acted without or in
excess its or his jurisdiction, or with grave abuse
c) Where to Appeal. An appeal under this Rule may of discretion amounting to lack or excess of
be taken to the Court of Appeals within the period and jurisdiction, and there is no appeal, or any plain,
in the manner herein provided, whether the appeal speedy, and adequate remedy in the ordinary
involves questions of fact, of law, or mixed course of law, a person aggrieved thereby may file
questions of fact and law. [Sec. 3, Rule 43, Rules a verified petition in the proper court, alleging the
of Court] facts with certainty and praying that judgment be
rendered annulling or modifying the proceedings of
d) Period of Appeal. The appeal shall be taken such tribunal, board or officer, and granting such
within fifteen (15) days from notice of the award, incidental reliefs as law and justice may require. [Sec.
judgment, final order or resolution, or from the date 1, Rule 65, Rules of Court]
of its last publication, if publication is required by law
for its effectivity, or of the denial of petitioner's motion Special Notes on COMELEC, COA, and CSC
for new trial or reconsideration duly filed in
accordance with the governing law of the court or 1) COMELEC and COA – Rule 64 via Rule 65
agency a quo. Only one (1) motion for A judgment or final order or resolution of the
reconsideration shall be allowed. Upon proper motion Commission on Elections and the Commission on
and the payment of the full amount of the docket fee Audit may be brought by the aggrieved party to the
before the expiration of the reglementary period, the Supreme Court on certiorari under Rule 65, except
Court of Appeals may grant an additional period of as hereinafter provided. [Sec. 1, Rule 64, Rules of
fifteen (15) days only within which to file the petition Court citing Bar Matter No. 803, 17 February 1998]
for review. No further extension shall be granted
except for the most compelling reason and in no case 2) CSC – via Rule 43; part of enumerated quasi-
to exceed fifteen (15) days. [Sec. 4, Rule 43, Rules judicial bodies.
of Court]
BUT: Why is COMELEC and COA under Rule 64
NOTE: Enumeration of quasi-judicial under Rule via Rule 65 while CSC is under Rule 43?
43 is not exclusive; hence, appeal from the
decisions of quasi-judicial bodies like the 3) ART. IX-A, Sec. 7, 1987 CONSTITUTION
Professional Regulatory Commission and the Unless otherwise provided by this Constitution or by
Food and Drug Administration, even if not in the law, any decision, order, or ruling of each
list, can be appealed to the CA via Rule 43. The Commission may be brought to the Supreme Court
fact that the FDA is not among the agencies
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on certiorari by the aggrieved party within thirty days

from receipt of a copy thereof.
4) RA 7902 (Expanding the CA Jurisdiction) is the

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

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

1) Quasi-Judicial Agency to CA – Rule 65 (quasi-
judicial power + with grave abuse of discretion +
WITH plain, adequate, speedy remedy, which is
through CA)
2) Quasi-Judicial Agency to SC – Rule 65 (quasi-
judicial power + with grave abuse of discretion +
WITHOUT plain, adequate, speedy remedy;
hence, direct resort to SC.)
3) COMELEC and COA to SC – Rule 64 via Rule
65 (Petition for Certiorari)
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XI. ELECTION LAW A. SUFFRAGE
1. QUALIFICATION AND
TOPIC OUTLINE UNDER THE SYLLABUS DISQUALIFICATION OF VOTERS
A. SUFFRAGE Constitutional Rules:
1. Qualification and disqualification of voters 1) Qualifications and Requirements. Suffrage
2. Registration and deactivation may be exercised by all citizens of the
3. Inclusion and exclusion proceedings Philippines not otherwise disqualified by law,
4. Local and overseas absentee voting who are at least eighteen years of age, and who
5. Detainee voting shall have resided in the Philippines for at least
one year and in the place wherein they propose
B. CANDIDACY to vote for at least six months immediately
1. Qualifications and disqualifications of preceding the election. (Phil Const., art. V, § 1)
candidates 2) Prohibited Requirements. No literacy,
2. Filing of certificates of candidacy property, or other substantive requirement shall
a. Effect of filing be imposed on the exercise of suffrage. (Phil
b. Substitution and withdrawal of Const., art. V, § 1)
candidates 3) Ballot Secrecy. The Congress shall provide a
c. Nuisance candidates system for securing the secrecy and sanctity of
d. Duties of the COMELEC the ballot as well as a system for absentee voting
by qualified Filipinos abroad. (Phil Const., art. V,
C. CAMPAIGN § 2)
1. Premature campaigning 4) Disabled And Illiterates. The Congress shall
2. Prohibited contribution also design a procedure for the disabled and the
3. Lawful and prohibited election propaganda illiterates to vote without the assistance of other
4. Limitations on expenses persons. Until then, they shall be allowed to vote
5. Statement of contributions and expenses under existing laws and such rules as the
Commission on Elections may promulgate to
D. REMEDIES AND JURISDICTION protect the secrecy of the ballot. (Phil Const., art.
1. Petition not to give due course or cancel a V, § 2)
certificate of candidacy
2. Petition for disqualification Any person, who, on the day of registration may not
3. Failure of election versus Annulment of have reached the required age or period of residence
Election Results but, who, on the day of the election shall possess
4. Pre-proclamation controversy such qualifications, may register as a voter. (Sec. 9,
5. Election protest RA 8189)
6. Quo Warranto
Qualifications (CD R2 18):
1. Citizen of the Philippines
2. Not Disqualified by law
3. Resident of the Philippines for at least 1 YEAR
4. Resident of the place wherein he proposes to
vote for at least 6 months immediately
preceding the election
5. At least 18 years old
NOTE: No literacy, property, or other substantive

requirement can be imposed on the exercise of
suffrage. (Phil Const., art. V, § 1)
Grounds for Disqualification to Register as Voter:

a. 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:
Provided, however, That any person disqualified
to vote under this paragraph shall automatically
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reacquire the right to vote upon expiration of five To be appointed to public office — swear an oath
(5) years after service of sentence; of allegiance to the Philippines and renounce foreign
b. Any person who has been adjudged by final citizenship.
judgment by a competent court or tribunal of
having committed any crime involving disloyalty (Citizenship Retention and Re-acquisition Act of
to the duly constituted government such as 2003, § 3)
rebellion, sedition, violation of the firearms laws
or any crime against national security, unless Residence — One’s domicile or legal residence. It is
restored to his full civil and political rights in where a party actually or constructively has his
accordance with law: Provided, That he shall permanent home, or where he, no matter where he
automatically reacquire the right to vote upon may be found, eventually intends to return and
expiration of five (5) years after service of remain. (Romualdez-Marcos v. Commission on
sentence; and Elections, G.R. No. 119976)
c. Insane or incompetent persons declared as such
by competent authority unless subsequently Residency Requirements:
declared by proper authority that such person is Domicile — This is in reference to the 1-year
no longer insane or incompetent. (Sec. 11, RA residency requirement in the Philippines.
8189)
Elements: (VARP)
NOTE: These qualifications are continuing 1. Physical presence in the country
requirements. Congress may not add qualifications 2. Intention to Remain
but can provide for procedural requirements and 3. Intention to Abandon the old domicile
disqualifications. However, the disqualifications must 4. It must be Voluntary, must concur.
not amount to qualifications.
NOTE: All elements must concur.
Thus, the exercise of the right of suffrage, as in the
enjoyment of all other rights, is subject to existing Temporary Residence — This is in reference to the
substantive and procedural requirements embodied 6-month residency requirement in the place where
in our Constitution, statute books and other one wants to vote. In this case, residence can either
repositories of law. As to the procedural limitation, the mean domicile or temporary residence.
right of a citizen to vote is necessarily conditioned
upon certain procedural requirements he must To successfully effect a transfer of domicile, one
undergo: among others, the process of registration. must demonstrate:
(Akbayan Youth v. COMELEC, G.R. No. 147066, a. An actual removal or change of domicile;
2001) b. A bona fide intention of abandoning the former
place of residence and establishing a new one;
Dual Citizenship Law — Former natural-born and
Filipino citizens who acquired foreign citizenship c. Acts which correspond with that purpose.
through naturalization are deemed not to have lost
their Philippine citizenship under conditions provided There must be animus manendi coupled with
in this act. (Citizenship Retention and Re-acquisition animus non revertendi. (Asistio v. Canlas, G.R. No.
Act of 2003, § 2) 191124, Apr. 27, 2010)
Derivative Citizenship — The unmarried child, 2. REGISTRATIONS AND

whether legitimate, illegitimate, or adopted, under 18
DEACTIVATION
years of age, of those who re-acquire Philippine
citizenship under the Dual Citizenship Law shall be
Registration
deemed citizens of the Philippines. (Citizenship
It does not confer the right to vote; it is just a condition
Retention and Re-acquisition Act of 2003, § 4)
precedent to the exercise of the right.
Requirement for Naturalized Citizens:
It is the act of accomplishing and filing of a sworn
To vote — swear an oath of allegiance.
application for the registration by a qualified voter
before the election officer of the city or municipality
To be elected to public office — renounce foreign
wherein he resides and including the same in the
citizenship.
book of registered voters upon approval by the
Election Registration Board (ERB). (R.A. No. 8189, §
3.)
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System of Continuing Registration of Voters Validation

The personal filing of application of registration of It is the process of taking the biometrics of registered
voters shall be conducted daily in the office of the voters whose biometrics have not yet been captured.
Election Officer during regular office hours. No It shall be conducted by the City or Municipal Election
registration shall, however, be conducted during the Officer. (R.A. No. 10367, § 2)
period starting one hundred twenty (120) days before
a regular election and ninety (90) days before a Registration of Illiterates/Persons With
special election. (Sec. 8, RA 8189) Disabilities
Illiterate or PWD voters may register with the
NOTE: Registration can be done by voters daily assistance of the Election Officer or any member of
anytime during office hours EXCEPT 120 days an accredited citizen’s arms; application for
before a regular election and 90 days before a registration may be prepared by any relative within
special election. the fourth (4th) civil degree of consanguinity or affinity
or by the Election Officer or any member of an
List of Voters accredited citizen’s arms using the data supplied by
It refers to an enumeration of names of registered the applicant. (R.A. No. 8189, § 14)
voters in a precinct duly certified by the Election
Registration Board for use in the election. (R.A. No Disqualifications to Register as Voter
8189) The same are grounds for disqualifications for
suffrage:
No Bio-No Boto Policy 1. Sentence by final judgment to imprisonment of at
Biometrics – refers to a quantitative analysis that least 1 year
provides a positive identification of an individual such 2. Conviction by final judgment of any of the
as voice, photograph, fingerprint, signature, iris, following crimes:
and/or such other identifiable features. (R.A. No. a. crime involving disloyalty to the government
10367s, § 2(b)) (i.e. rebellion, sedition)
b. firearms law
The biometrics registration requirement is not a c. crimes against national security
"qualification" to the exercise of the right of 3. Insanity or incompetence declared by competent
suffrage, but a mere aspect of the registration court. (OEC, § 118)
procedure, of which the State has the right to
reasonably regulate. Unless it is shown that a When is registration not allowed:
registration requirement rises to the level of a literacy, 1. 120 days before regular election
property or other substantive requirement as 2. 90 days before special election.
contemplated by the Framers of the Constitution— (R.A. No. 8189, §8)
that is, one which propagates a socio-economic
standard which is bereft of any rational basis to a NOTE: Each precinct shall have no more than 200
person's ability to intelligently cast his vote and to voters and shall comprise contiguous and compact
further the public good—the same cannot be struck territories except when precincts are clustered.
down as unconstitutional. (Kabataan Party-list vs.
COMELEC, G.R. No. 221318, Dec. 16, 2015) NOTE: No Election Officer shall hold office in a
particular city/municipality for more than 4 years.
The public has been sufficiently apprised of the COMELEC has the authority to effect transfer.
implementation of RA 10367, and its penalty of
deactivation in case of failure to comply. Thus, there Can COMELEC change the registration period by
was no violation of procedural due process. resolution?
(Kabataan Partylist vs. COMELEC, G.R. No. 221318) No. Both R.A. No. 6646, Section 29 and R.A. No.
8436, Section 28 grant the COMELEC the power to
However, the power of COMELEC to restrict a fix other periods and dates for pre-election activities
citizen's right of suffrage should not be arbitrarily only if the same cannot be reasonably held within the
exercised. (Timbol vs. COMELEC, G.R. No. 206004, period provided by law. This grant of power, however,
Feb. 24, 2015) is for the purpose of enabling the people to exercise
the right of suffrage – the common underlying policy
Who shall submit for biometrics registration? of RA 8189, RA 6646 and RA 8436. Thus, the Court
1. New Voters — COMELEC shall implement a found no ground to hold that the mandate of
mandatory biometrics registration system continuing voter registration cannot be
2. Registered voters whose biometrics have not reasonably held within the period provided by RA
been captured. (R.A. No. 10367) 8189, Sec. 8 – daily during office hours, except
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during the period starting 120 days before the vote automatically upon expiration of five (5)
May 10, 2010 regular elections. There is thus no years after service of sentence;
occasion for the COMELEC to exercise its power
to fix other dates or deadlines therefor. (Palatino (c) Any person declared by competent authority to
v. COMELEC, G.R. No. 189868, 2009) be insane or incompetent unless such
disqualification has been subsequently removed
Book of voters by a declaration of a proper authority that such
Classified as permanent whereby each precinct shall person is no longer insane or incompetent;
have a permanent list of all registered voters residing
within the territorial jurisdiction of that precinct. (R.A. (d) Any person who did not vote in the two (2)
No. 8189, §3) successive preceding regular elections as
shown by their voting records. For this purpose,
Alteration of Book Of Voters: (DECANT) regular elections do not include the Sangguniang
1. Deactivation/Reactivation Kabataan (SK) elections;
2. Exclusion/Inclusion
3. Cancellation of registration in case of death (e) Any person whose registration has been ordered
4. Annulment of book of voters excluded by the Court; and
5. New voters
6. Transfer of residence (f) Any person who has lost his Filipino citizenship;
(R.A. 8189, §27)
Grounds for Deactivation of Voter Registration
(g) Voters who fail to submit for [Biometrics]
Deactivation — It is the removal of the registration validation on or before the last day of filing of
records of certain persons from the corresponding application for registration shall be deactivated
precinct book of voters and placing the same in the pursuant to the Biometrics Registration Act (R.A.
inactive file, properly marked “deactivated” and dated 10367, §7).
in indelible ink, after entering the cause of
deactivation. (R.A. No. 8189, §27) Grounds for Deactivation: (IDI-L2EB)
1. Convicted by final judgment to suffer
The board shall deactivate the registration and Imprisonment of not less than 1 year;
remove the registration records of the following 2. Disloyalty;
persons from the corresponding precinct book of 3. Insanity;
voters and place the same, properly marked and 4. Loss of citizenship;
dated in indelible ink, in the inactive file after entering 5. Failed to vote for 2 successive preceding regular
the cause or causes of deactivation: elections;
6. Registration was ordered Excluded by the court;
(a) Any person who has been sentenced by final and
judgment to suffer imprisonment for not less than 7. Failure to submit Biometrics validation
one (1) year, such disability not having been
removed by plenary pardon or amnesty: Reactivation of Voter Registration (STERN):
Provided, however, That any person disqualified 1. Voter whose registration has been deactivated
to vote under this paragraph shall automatically may file with the Election Officer a Sworn
reacquire the right to vote upon expiration of five application for reactivation of his registration in
(5) years after service of sentence as certified by the form of an affidavit stating that the grounds
the clerks of courts of the Municipal/Municipal for the deactivation no longer exist;
Circuit/Metropolitan/Regional Trial Courts and 2. Any Time but not later than 120 days before a
the Sandiganbayan; regular election and 90 days before a special
election;
(b) Any person who has been adjudged by final 3. Election officer shall submit said application to
judgment by a competent court or tribunal of the ERB for appropriate action;
having caused/committed any crime involving 4. In case the application is approved, the Election
disloyalty to the duly constituted government officer shall Retrieve the registration record from
such as rebellion, sedition, violation of the anti- the inactive file and include the same in the
subversion and firearms laws, or any crime corresponding precinct book of voters;
against national security, unless restored to his 5. Local heads or representatives of political parties
full civil and political rights in accordance with shall be properly Notified on approved
law; Provided, That he shall regain his right to applications. (R.A. No. 8189)
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NOTE: Reactivation procedure here also applies to  Contains data that are Statistically
those deactivated for non-validation under RA 10367. improbable (R.A. No. 8189, §39)
Rules on Transfer of Voter Registration 3. INCLUSION AND EXCLUSION

1. Any registered voter who has transferred PROCEEDINGS
residence to another city or municipality may
apply with the Election Officer of his new Jurisdiction Over All Cases of Inclusion and
residence for the transfer of his registration Exclusion of Voters
records. 1. The Municipal and Metropolitan Trial Courts shall
2. The application for transfer of registration shall have original and exclusive jurisdiction over all
be subject to the requirements of notice and cases of inclusion and exclusion of voters in their
hearing and the approval of the Election respective cities or municipalities.
Registration Board, in accordance with this Act. 2. Decisions of the Municipal or Metropolitan Trial
3. Upon approval of the application for transfer, and Courts may be appealed by the aggrieved party
after notice of such approval to the Election to the Regional Trial Court within five (5) days
Officer of the former residence of the voter, said from receipt of notice thereof. Otherwise, said
Election Officer shall transmit by registered mail decision shall become final and executory.
the voter’s registration record to the Election 3. The regional trial court shall decide the appeal
Officer of the voter’s new residence. [Sec. 12, RA within ten (10) days from the time it is received,
8189] and the decision shall immediately become final
4. Any person who temporarily resides in another and executory. No motion for reconsideration
city, municipality or country solely by reason of shall be entertained. (R.A. 8189, §33)
his occupation, profession, employment in
private or public service, educational activities,
Inclusion and exclusion cases
work in the military or naval reservations within
the Philippines, service in the Armed Forces of
INCLUSION CASES EXCLUSION CASES
the Philippines, the National Police Forces, or
confinement or detention in government
May be filed any time, May be filed any time,
institutions in accordance with law, shall not be
except 105 days before except 100 days before
deemed to have lost his original residence. [Sec.
regular elections or 75 regular elections or 65
9, RA 8189]
days before special days before special
elections elections
Post-Approval Remedies: (IAE)
Grounds: Grounds:
a. Petition for Inclusion,
1. Application for Not qualified or
b. Annulment of Book of Voters, and
registration has been possessing
c. Petition for Exclusion disapproved by the disqualification
(OEC, §139, 142, 145)
board Flying voters
2. Name has been Ghost voters
Annulment of book of voters — A voter, election
stricken out
officer, or duly registered political party may file a
Requires a sworn
verified petition for the annulment of a book of voters
petition
with the COMELEC. Last day for filing is within 90
days before an election.
(OEC, §145) 4. LOCAL AND OVERSEAS ABSENTEE
VOTING
Grounds for Annulment of Book of Voters (S2N-
F3I2B): Overseas Voter refers to a citizen of the Philippines
1. Not prepared in accordance with law who is qualified to register and vote under this Act,
2. Prepared through: not otherwise disqualified by law, who is abroad on
 Fraud the day of elections. (R.A. 9189, §3(j) (as amended
 Forgery by RA 10590))
 Force
Overseas Voting refers to the process by which
 Intimidation qualified citizens of the Philippines abroad exercise
 Impersonation their right to vote. (R.A. 9189, §3(k) (as amended by
 Bribery RA 10590))
 Similar irregularity
Qualifications
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All citizens of the Philippines abroad, who are not Act vs. Effect
otherwise disqualified by law, at least eighteen (18)
years of age on the day of elections, may vote for ACT EFFECT
President, Vice-President, Senators and Party-List
Representatives, as well as in all national referenda Failure to undertake Removal of name from
and plebiscites. (R.A. 9189, §4 (as amended by RA affidavit the list and permanent
10590)) disqualification
Failure to undertake Imprisonment of not less
Disqualifications affidavit yet voted than 1 year
The following shall be disqualified from registering Failure to resume Removal of name from list
and voting under this Act: residency
Failure to resume Imprisonment of not less
(a) Those who have lost their Filipino citizenship in residency yet voted than 1 year
accordance with Philippine laws;
POLLING PLACE: WHERE TO VOTE
(b) Those who have expressly renounced their
Philippine citizenship and who have pledged GENERAL RULE: Voter must vote at the polling
allegiance to a foreign country, except those who place where registered.
have reacquired or retained their Philippine
citizenship under Republic Act No. 9225, otherwise EXCEPTIONS:
known as the ‘Citizenship Retention and 1. Board of Election Inspectors. Members of the
Reacquisition Act of 2003’; board of election inspectors and their substitutes
may vote in the polling place where they are
(c) Those who have committed and are convicted in assigned on election day: Provided, That they
a final judgment by a Philippine court or tribunal of an are registered voters within the province, city or
offense punishable by imprisonment of not less than municipality where they are assigned: and
one (1) year, such disability not having been removed Provided, finally, That their voting in the polling
by plenary pardon or amnesty: Provided, places where they are not registered voters be
however, That any person disqualified to vote under noted in the minutes of the board of election
this subsection shall automatically acquire the right inspectors. (OEC, §169)
to vote upon the expiration of five (5) years after
service of sentence; and 2. Government Employees and Officials. Any
person who by reason of public functions and
(d) Any citizen of the Philippines abroad previously duties, is not in his/her place of registration on
declared insane or incompetent by competent election day, may vote in the city/municipality
authority in the Philippines or abroad, as verified by where he/she is assigned on election day:
the Philippine embassies, consulates or foreign Provided, That he/she is a duly registered voter.
service establishments concerned, unless such (EO 157 s.1987, §1)
competent authority subsequently certifies that such
person is no longer insane or incompetent. (R.A. 3. Members of the Media. The Commission on
9189, §5 (as amended by RA 10590)) Elections shall extend the right to vote under the
local absentee voting system provided under
NOTE: Under RA 10590, an overseas voter is no existing laws and executive orders to members
longer required to execute an affidavit of intent to of media, media practitioners, including the
resume actual physical permanent residence in the technical and support staff, who are duly
Philippines that was previously required by RA 9189. 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. (RA 10380, §2)
4. Overseas Voter. All citizens of the Philippines

abroad, who are not otherwise disqualified by
law, at least eighteen (18) years of age on the
day of elections, may vote for President, Vice-
President, Senators and Party-List
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Representatives, as well as in all national Thereafter, voting by mail in any country shall be
referenda and plebiscites. (R.A. 9189, §4 (as allowed only upon review and approval of the Joint
amended by R.A. 10590, §3)) Congressional Oversight Committee. (Sec. 17.1, RA
9189)
5. Detainee Voter. Detainee voting (either through
the special polling place inside jails or escorted
voting) may be availed of by any registered 2. The overseas absentee voter shall send his/her
detainee whose registration record is not accomplished ballot to the corresponding embassy,
transferred / deactivated / cancelled / deleted. consular or foreign service establishment that has
jurisdiction over the country where he/she
temporarily resides. He/she shall be entitled to cast
Vote in Absentia his/her ballot at any time upon his/her receipt thereof,
Every qualified Filipino citizen abroad previously provided that the same is received before the close
registered as a voter may file with an embassy, of voting on the day of elections. The overseas
consulate or other foreign service establishment an absentee voter shall be instructed that his/her ballot
application to vote in absentia. (Sec. 11.1, R.A. No. shall not be counted if not transmitted in the special
9189, §11.1) envelope furnished him/her. (Sec. 17.2, RA 9189)
3. Only mailed ballots received by the Philippine
The application may be filed personally or by mail embassy, consulate and other foreign service
(R.A. No. 9189, §11.2) establishments before the close of voting on the day
of elections shall be counted in accordance with
The application shall be transmitted to COMELEC Section 18 hereof. All envelopes containing the
(R.A. No. 9189, §11.1) ballots received by the embassies, consulates and
A. COMELEC shall act on the application not later other foreign service establishments after the
than 150 days before election day. prescribed period shall not be opened, and shall be
B. In case of disapproval of the application, the cancelled and disposed of appropriately, with a
voter or his authorized representative may file a corresponding report thereon submitted to the
motion for reconsideration personally or by Commission not later than thirty (30) days from the
registered mail within 10 days from receipt of day of elections. (Sec. 17.3, RA 9189)
notice.
C. The decision of COMELEC is final. (R.A. No.
9189, §12) 5. DETAINEE VOTING
Is Voting by Mail allowed? Detainee

A detainee is any person:
Yes, but only for qualified overseas absentee voters 1. Confined in jail,
or voting in absentia. a. formally charged for any crime/s and
b. awaiting/undergoing trial; or
1.For the May, 2004 elections, the Commission shall 2. Serving a sentence of imprisonment for less than
authorize voting by mail in not more than three (3) one (1) year; or
countries, subject to the approval of the 3. Whose conviction of a crime involving disloyalty
Congressional Oversight Committee. Voting by mail to the duly constituted government such as
may be allowed in countries that satisfy the following rebellion, sedition, violation of the firearms laws
conditions: or any crime against national security or for any
other crime is on appeal (Sec. 2(a), COMELEC
a) Where the mailing system is fairly well-
Resolution No. 9371 s.2012, §2(a))
developed and secure to prevent occasion for
fraud;
Escorted Voting
b) Where there exists a technically established This is a voting mechanism for:
identification system that would preclude multiple or 1. Detainee voters who are residents/ registered
proxy voting; and, voters of municipalities/cities other than the
c) Where the system of reception and custody of town/city of incarceration; and/or for
mailed ballots in the embassies, consulates and 2. Detainee voters in jail facilities where no
other foreign service establishments concerned are special polling places are established.
adequate and well-secured. (COMELEC Resolution No. 9371 s.2012,
§2(a))
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NOTE: The pertinent provisions of COMELEC The Automated Election System involves voting,
Resolution No. 9149, promulgated on February 22, counting, consolidating, canvassing, and
2011 and other Resolutions as far as the registration transmission but not proclamation. (R.A. No. 9369)
period, qualifications and disqualifications of
applicants for registration, the procedures for filing, Electronic Transmission v. Electronic Returns
processing and hearing of applications, and notices
ELECTRONIC ELECTRONIC
and publication requirements are adopted.
TRANMISSION RETURNS
(COMELEC Resolution No. 9371)
Conveying data in A document in
Reckoning Period of Age and Residence electronic form from one electronic and printed
Detainees. Those who shall be eighteen years of location to another form directly produced
age on the day of election and/or are committed by counting or voting
inside the detention centers for at least six (6) months machine, showing the:
immediately preceding the election day may be  Date of election
registered as a voter. (COMELEC Resolution No.  The province,
9371) municipality and
the precinct in
Detainees who are already registered voters may which it is held
apply for transfer of registration records as warranted  Votes in figures
by the circumstances. for each
candidate in a
Detainee Voting for National Positions Only precinct where
In the case of Aguinaldo v. New Bilibid Prison, G.R. AES is utilized
No. 221201, April 19, 2016, the Supreme Court
issued a Temporary Restraining Order enjoining the Paper-Based Election System v. Direct Record
COMELEC from enforcing COMELEC Resolution Election System
No. 9371 on the local level. This means that
DIRECT RECORD
detainee voters may only vote for the national PAPER-BASED
ELECTRONIC
positions. ELECTION SYSTEM
ELECTION SYSTEM
A type of automated A type of automated
Pursuant to this, the COMELEC issued COMELEC
election system that uses election system that
Resolution No. 10112, amending Resolution No.
paper ballots, records uses electronic ballots
10057. This provides that:
and counts votes, records votes by means
tabulates, of a ballot display
The Board of Election Inspector (BEI) shall
consolidates/canvasses provided with
instruct the DV, in clear terms, that pursuant to
and transmits mechanical or electro-
the TRO, he or she can only vote for national
electronically the results optical components that
candidates namely, candidates for Pres., VP,
of the vote count can be activated by the
Senators and Party-lists.
voter, processes data
by means of a computer
All ballots that contain votes for local positions shall
program, records voting
be separated and transmitted to COMELEC Manila
data and ballot images,
in a sealed envelope. The votes appearing in said
and transmits voting
ballots for national positions, if any, shall be counted.
results electronically
A Special Board of Election Inspectors for counting
The Commission on Elections may use either a
shall be established for the purpose.
paper-based or a direct recording electronic election
system as it may deem appropriate and practical for
Election Automation Law
(R.A. No. 8436 as amended by R.A. No. 9369) the process of voting, counting of votes and
canvassing/consolidation and transmittal of results of
THE AUTOMATED ELECTION SYSTEM (AES) electoral exercises. (R.A. No. 9369, §6)
A system using appropriate technology which has
been demonstrated in the voting, counting, Source Code
Human readable instruction that defines what the
consolidating, canvassing, and transmission of
election results, and other electoral processes. (R.A. computer equipment will do. (R.A. No. 9369, §2)
No. 9369, §2)
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Random Manual Audit Senators and Representatives (District and Party -

Where the AES is used, there shall be a random List) while statutes set the qualifications of local
manual audit in one precinct per congressional officials:
district randomly chosen by the Commission in each 1. Residence — to be understood as domicile that
province and city. (R.A. No. 9369, §24) is, the place where a party actually or
constructively has his permanent home, where
Any difference between the automated and manual he/ she, no matter where he/she may be found
count will result in the determination of root cause at any given time, eventually intends to return
and initiate a manual count for those precincts and remain (Japson v. COMELEC, G.R. No.
affected by the computer or procedural error. (R.A. 180088)
No. 9369, §29) 2. Registered Voter
3. Citizenship
The COMELEC may conduct automated election  For national elective positions, the
even if there is no pilot testing. (Information candidate must be a natural - born
Technology Foundation of the Philippines v. citizen. For local elective positions, the
COMELEC, G.R. No. 159139) candidate may be naturalized citizen.
The Voter Verification Paper Audit Trail (VVPAT)  Natural - born citizens of the Philippines
functionality is in the form of a printed receipt and a who have lost their Philippine citizenship by
touch screen reflecting the votes in the vote-counting reason of their naturalization as citizens of
machine. (Bagumbayan-VNP Movement, Inc. v. a foreign country can seek elective office
COMELEC, G.R. No. 222731) provided they acquire Philippine citizenship
by taking the oath of allegiance to the
The VVPAT ensures that the candidates selected by Republic prescribed under the Citizenship
the voter in his or her ballot are the candidates voted Retention and Re - acquisition Act of 2003,
upon and recorded by the vote-counting machine. and make a personal and sworn
(Bagumbayan-VNP Movement, Inc. v. COMELEC, renunciation of any and all foreign
G.R. No. 222731) citizenship before any public officer
authorized to administer an oath.
The voter himself or herself verifies the accuracy of
the vote. In instances of Random Manual Audit and Use of Foreign Passport: The use of a
election protests, the VVPAT becomes the best foreign passport amounts to repudiation or
source of raw data for votes. (Bagumbayan-VNP recantation of the oath of renunciation.
Movement, Inc. v. COMELEC, G.R. No. 222731) Matters dealing with qualifications for public
elective office must be strictly complied with.
COMELEC Supervision and Control over the A candidate cannot simply be allowed to
Conduct of Automated Elections correct the deficiency in his qualification by
The power and duty of the COMELEC to administer submitting another oath of renunciation.
election laws and to have control and supervision (Arnado v. COMELEC, G.R. No. 210164)
over the automated elections is not incompatible with
the decision to subcontract services that may be • Dual Citizens: Dual citizens are disqualified
better performed by those who are well-equipped to from running for any elective local position.
handle complex technological matters with respect to They cannot successfully run and assume
the implementation of the AES. The subcontractor office because their ineligibility is inherent in
cannot act independently of the COMELEC. (Roque them, existing prior to the filing of their
v. COMELEC, GR No. 188456) certificates of candidacy. Their certificates of
candidacy are void ab initio, and votes cast
B. CANDIDACY for them will be disregarded. Consequently,
whoever garners the next highest number of
1. QUALIFICATIONS AND votes among the eligible candidates is the
DISQUALIFICATIONS OF person legally entitled to the position (Arlene
CANDIDATES Llena Empaynado v . COMELEC, G.R. No.
216607)
Qualifications
IN GENERAL: The 1987 Philippine Constitution • Foundlings: As a matter of law, foundlings
prescribes the qualifications (i.e., age, citizenship, are as a class, natural-born citizens (Poe-
residency, voter registration and literacy) for the Llamanzares v. COMELEC, G.R. No.
following positions: President, Vice-President, 221697) When the names of the parents of a
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foundling cannot be discovered despite a than one year immediately preceding the day of the
diligent search, but sufficient evidence is election.
presented to sustain a reasonable inference
that satisfies the quantum of proof required to 3) PARTY-LIST (Sec. 9, RA 7941)
conclude that at least one or both of his or her Qualification of Party-List Nominees. – No person
parents is Filipino, then this should be shall be nominated as party-list representative unless
sufficient to establish that he or she is a he is a natural born citizen of the Philippines, a
natural-born citizen. (David v. Senate registered voter, a resident of the Philippines for
Electoral Tribunal, G.R. No. 221538) a period of not less than one (1) year immediately
preceding the day of the election, able to read
Under Republic Act 11767, or the Foundling and write, bona fide member of the party or
Recognition and Protection Act, an organization which he seeks to represent for at
abandoned child found in the Philippines or least ninety (90) days preceding the day of the
in Philippine embassies, consulates and election, and is at least twenty-five (25) years of
territories abroad are presumed natural-born age on the day of the election.
citizens of the Philippines and therefore, are
accorded the same rights as Filipino citizens In case of a nominee of the youth sector, he must
from the moment of their birth. at least be twenty-five (25) but not more than
thirty (30) years of age on the day of the election.
NOTE: Congress may not add to the qualifications for Any youth sectoral representative who attains the
elective officials provided in the Constitution. age of thirty during his term shall be allowed to
However, they may do so for elective officials not continue until the expiration of his term."
provided in the Constitution. (Pimentel, Jr. v.
COMELEC, G.R. No. 161658) 4) LOCAL ELECTIVE OFFICALS
(a) An elective local official must be a citizen of
SPECIFICALLY: the Philippines; a registered voter in the
1) PRESIDENT & VICE PRESIDENT(Secs. 2 & 3, barangay, municipality, city, or province or, in the
Art. VII, 1987 Constitution) case of a member of the sangguniang
panlalawigan, sangguniang panlungsod, or
No person may be elected President unless he is a sangguniang bayan, the district where he intends
natural-born citizen of the Philippines, a registered to be elected; a resident therein for at least one (1)
voter, able to read and write, at least forty years of year immediately preceding the day of the election;
age on the day of the election, and a resident of the and able to read and write Filipino or any other local
Philippines for at least ten years immediately language or dialect.
preceding such election.
(b) Candidates for the position of governor, vice-
There shall be a Vice-President who shall have the governor, or member of the sangguniang
same qualifications and term of office and be elected panlalawigan, or mayor, vice-mayor or member of the
with and in the same manner as the President. He sangguniang panlungsod of highly urbanized cities
may be removed from office in the same manner as must be at least twenty-three (23) years of age on
the President. election day.
2) SENATOR AND HOR MEMBER (Secs. 3 & 6, (c) Candidates for the position of mayor or vice-
Art. VI, 1987 Constitution) mayor of independent component cities, component
cities, or municipalities must be at least twenty-one
No person shall be a Senator unless he is a natural- (21) years of age on election day.
born citizen of the Philippines, and, on the day of the
election, is at least thirty-five years of age, able to (d) Candidates for the position of member of the
read and write, a registered voter, and a resident of sangguniang panlungsod or sangguniang bayan
the Philippines for not less than two years must be at least eighteen (18) years of age on
immediately preceding the day of the election. election day.
No person shall be a Member of the House of (e) Candidates for the position of punong barangay
Representatives unless he is a natural-born citizen of or member of the sangguniang barangay must be at
the Philippines and, on the day of the election, is at least eighteen (18) years of age on election day.
least twenty-five years of age, able to read and write,
and, except the party-list representatives, a (f) Candidates for the sangguniang kabataan must be
registered voter in the district in which he shall be at least eighteen (18) years of age but not more than
elected, and a resident thereof for a period of not less
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twenty-four (24) years of age on election day (as Any person sentenced by final
amended by Sec. 10, RA 10742). [Sec. 39, LGC] judgment for any of the
following offenses:
Disqualifications  Insurrection, or
Basis Disqualification rebellion
Constitution 1. Three - term limit for  Offense for which he
local elective officials (PHIL was sentenced to
CONST., art. X, §8) penalty of more than
18 months
term limit rule is not a  Crime involving moral
ground for a petition for turpitude (OEC, §12.)
disqualification, A permanent resident to or
however, it is an immigrant to foreign country
ineligibility which is a unless he waives such status.
proper ground for a (OEC, §68)
petition to deny due Those sentenced by final
course to or to cancel a judgment for an offense
Certificate of Candidacy involving moral turpitude or an
under Section 78 of the offense punishable by
OEC. (Albania v. imprisonment for at least one
COMELEC, G.R. No. year, within 2 years after
226792) service of sentence.
 Two conditions must Those removed from office as a

concur for the application
result of an administrative case.
of the disqualification of a
candidate based on
violation of the three - term Those convicted by final
limit rule, which are: (1) judgment for violating his oath
that the official concerned of allegiance to the Republic.
has been elected for three
consecutive terms in the Those with dual citizenship.
same local government
post, and (2) that he has Fugitives from justice in
fully served three criminal or non-political cases.
consecutive terms.
(Albania v. COMELEC,
G.R. No. 226792) Permanent residents in foreign
country or those who have the
 When it was only upon the right to reside abroad and
favorable decision on his continue to avail of it (Caasi v.
petition for correction of Court of Appeals, G.R. No.
manifest error that a 88831)
candidate was proclaimed
as the duly-elected official, The insane or feeble - minded
he is deemed not to have (Local Government Code, §40)
served office for the full
term of three years to
which he was supposedly Disqualifications
entitled, since he only 1. Local Government Code (RA 7160)
assumed the post and The following persons are disqualified from running
served the unexpired term for any elective local position:
of his opponent. (Albania (a) Those sentenced by final judgment for an
v. COMELEC, G.R. No. offense involving moral turpitude or for an
226792) offense punishable by one (1) year or more
Omnibus Any person declared by of imprisonment, within two (2) years after
Election Code competent authority insane or serving sentence
incompetent (b) Those removed from office as a result of an
administrative case;
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(c) Those convicted by final judgment for be disqualified from continuing as a candidate, or if
violating the oath of allegiance to the he has been elected, from holding the office. Any
Republic; person who is a permanent resident of or an
(d) Those with dual citizenship; immigrant to a foreign country shall not be qualified
(e) Fugitives from justice in criminal or non- to run for any elective office under this Code, unless
political cases here or abroad; said person has waived his status as permanent
(f) Permanent residents in a foreign country or resident or immigrant of a foreign country in
those who have acquired the right to reside accordance with the residence requirement provided
abroad and continue to avail of the same for in the election laws.
right after the effectivity of this Code; and
(g) The insane or feeble-minded. [Sec. 40, c) Sec. 69. Nuisance candidates. - The
LGC] 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
2) Omnibus Election Code is shown that said certificate has been filed to put the
election process in mockery or disrepute or to cause
a) Sec. 12. Disqualifications. - Any person who has confusion among the voters by the similarity of the
been declared by competent authority insane or names of the registered candidates or by other
incompetent, or has been sentenced by final circumstances or acts which clearly demonstrate that
judgment for subversion, insurrection, rebellion or for the candidate has no bona fide intention to run for the
any offense for which he has been sentenced to a office for which the certificate of candidacy has been
penalty of more than eighteen months or for a crime filed and thus prevent a faithful determination of the
involving moral turpitude, shall be disqualified to be a true will of the electorate. NOTE: Not considered
candidate and to hold any office, unless he has been as a candidate at all because of the COC
given plenary pardon or granted amnesty. cancellation.
This disqualifications to be a candidate herein d) Sec. 78. Petition to deny due course to or
provided shall be deemed removed upon the cancel a certificate of candidacy. - A verified
declaration by competent authority that said insanity petition seeking to deny due course or to cancel a
or incompetence had been removed or after the certificate of candidacy may be filed by the person
expiration of a period of five years from his service of exclusively on the ground that any material
sentence, unless within the same period he again representation contained therein as required
becomes disqualified. under Section 74 (i.e. on eligibility and
qualifications) hereof is false. The petition may be
b) Sec. 68. Disqualifications. — Any candidate who, filed at any time not later than twenty-five days from
in an action or protest in which he is a party is the time of the filing of the certificate of candidacy and
declared by final decision of a competent court guilty shall be decided, after due notice and hearing, not
of, or found by the Commission of having (a) given later than fifteen days before the election. NOTE:
money or other material consideration to influence, Not considered as a candidate at all because of
induce or corrupt the voters or public officials the COC cancellation.
performing electoral functions; (b) committed acts of
terrorism to enhance his candidacy; (c) spent in his e) Disqualification in Special Elections
election campaign an amount in excess of that
allowed by this Code (e.g. Ejercito v. COMELEC); In addition to the disqualifications mentioned in
(d) solicited, received or made any contribution Sections 12 and 68 of the Omnibus Election Code
prohibited under Sections 89 (i.e. transportation, and Section 40 of Republic Act No. 7160, otherwise
food, drinks), 95 (prohibited contributions), 96 known as the Local Government Code, whenever the
(foreign sources), 97 (prohibited fund raising) and evidence of guilt is strong, the following persons
104 (prohibited donations); or (e) violated any of are disqualified to run in a special election called
Sections 80 (outside campaign period BUT not to fill the vacancy in an elective office, to wit:
anymore because of RA 9369 and Penera), 83
(destroying lawful election propaganda), 85 1. Any elective official who has resigned from his
(prohibited election propaganda subject to RA office by accepting an appointive office or for
9006), 86 (mass media subject to RA 9006) and whatever reason which he previously occupied but
261, paragraphs d (coercion of subordinates), e has caused to become vacant due to his resignation;
(terrorism, etc.), k (unlawful electioneering), v and
(public funds), and cc, sub-paragraph 6 (unlawful
electioneering – candidacy and campaign), shall
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2. Any person who, directly or indirectly, coerces, Effect of Filing COC

bribes, threatens, harasses, intimidates or actually Any person who files his certificate of candidacy
causes, inflicts or produces any violence, injury, within this period shall only be considered as a
punishment, torture, damage, loss or disadvantage to candidate at the start of the campaign period for
any person or persons aspiring to become a which he filed his certificate of candidacy:
candidate or that of the immediate member of his Provided, That, unlawful acts or omissions
family, his honor or property that is meant to eliminate applicable to a candidate shall take effect only
all other potential candidate. upon the start of the aforesaid campaign period:
Provided, finally, That any person holding a public
NOTE: Per Sec. 5, RA 8295, this also constitutes as appointive office or position, including active
an election offense that shall be prosecuted and members of the armed forces, and officers and
penalized under Sec. 264 of the OEC.) [Sec. 4, RA employees in government-owned or -controlled
8295] corporations, shall be considered ipso facto
resigned from his/her office and must vacate the
2. FILING OF CERTIFICATES OF same at the start of the day of the filing of his/her
CANDIDACY certificate of candidacy. (R.A. 9369, §13, (amending
R.A. 8436, §11)
Certificate of Candidacy
A statement of a person seeking to run for a public On Public APPOINTIVE Officials. Any person
office certifying that he announces his candidacy for holding a public appointive office or position,
the office, the name of the political party to which he including active members of the armed forces, and
belongs if he belongs to any, and his post office officers and employees in government-owned or -
address for all election purposes being stated. controlled corporations are considered ipso facto
(Sinaca v. Mula, G.R. No. 135691) resigned from his/her office and must vacate the
same at the start of the day of the filing of his/her
No person shall be elected into public office unless certificate of candidacy. Said appointed officials
he files his COC within the prescribed period. (OEC, would have unfair advantage over their rivals
§68) because they might use their office resources for
their campaign. (Quinto v. COMELEC, G.R. No.
The COC shall be filed by the candidate personally 189698)
or by his duly authorized representative. No COC
shall be accepted if filed by mail telegram or On Public ELECTIVE Officials. Elective officials
facsimile. continue to hold office, whether they run for the same
or different position. (Fariñas v. Executive Secretary,
Upon filing, an individual becomes a candidate. Thus, GR No. 147387)
he is already covered by rules, restrictions and
processes involving candidates. Unlawful Acts as Candidates Take Effect Only
Upon Start of the Campaign Period. It is a basic
The receiving officers shall have the ministerial duty principle of law that any act is lawful unless expressly
to receive and acknowledge receipt of the COC. declared unlawful by law. This is especially true to
expression or speech, which Congress cannot outlaw
There is no law or case law stating that a COC will be except on very narrow grounds involving clear,
cancelled even if it failed to specify the position present and imminent danger to the State. The mere
sought if the information omitted is supplied in the fact that the law does not declare an act unlawful ipso
certificate of nomination and amended COC. Only facto means that the act is lawful. Thus, there is no
those enumerated in Section 74 of the Omnibus need for Congress to declare in Section 15 of RA
Election Code such as material misrepresentation 8436, as amended by RA 9369, that political partisan
can be a ground for cancellation. (Engle v. activities before the start of the campaign period are
Commission on Elections, G.R. No. 215995) lawful. It is sufficient for Congress to state that "any
unlawful act or omission applicable to a candidate
Prohibition against multiple candidacies shall take effect only upon the start of the campaign
No person shall be eligible for more than one office. period." The only inescapable and logical result is
If he files more than 1 position, he shall not be eligible that the same acts, if done before the start of the
for all unless he cancels all and retains one. (OEC, campaign period, are lawful. In layman’s language,
§73) this means that a candidate is liable for an election
offense only for acts done during the campaign
period, not before. The law is clear as daylight — any
a. Effect of Filing
election offense that may be committed by a
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candidate under any election law cannot be b. Substitution and Withdrawal of

committed before the start of the campaign period. Candidates
(Peñera vs. COMELEC, G.R. No. 181613)
Substitution of candidates Grounds for
Who is a candidate? Substitution: (DWD)
A “candidate” refers to any person aspiring for or 1. Death
seeking an elective public office, who has filed a 2. Withdrawal
certificate of candidacy by himself (herself) or 3. Disqualification (OEC, §77)
through an accredited political party, aggroupment,
or coalition of parties. (OEC, §79(a)) Substitution and COC Cancellation
1. Talaga v. COMELEC (2012). COMELEC
A candidate is “any person who files his certificate of cancelled COC because of 3-term limit.–
candidacy within this period shall only be considered substitution NOT allowed. Considering that a
as a candidate at the start of the campaign period for cancelled CoC does not give rise to a valid
which he filed his certificate of candidacy.” Thus, candidacy, there can be no valid substitution of the
under the law, a person only becomes a candidate candidate under Sec. 77 of the OEC. It should be
when he/ she has filed a certificate of candidacy and clear, too, that a candidate who does not file a valid
when the campaign period has commenced. One is CoC may not be validly substituted, because a
not a candidate, despite having filed a certificate person without a valid CoC is not considered a
of candidacy, before the start of the campaign candidate in much the same way as any person
period. The law added, “unlawful acts or who has not filed a CoC is not at all a candidate.
omissions applicable to a candidate shall take
effect only upon the start of the aforesaid 2. Tagolino v. HRET (2013). Cancellation of COC
campaign period.” (R.A. No. 9369, §15) for Ineligibility – No substitution. It carries with it
the denial of due course to and/or cancellation of
[Richard Gomez’s] CoC pursuant to Section 78
If the certificate of candidacy is void ab initio, the
(hence, Lucy Torres not allowed to substitute)
candidate is not considered a candidate from the very because of ineligibility due to lack of residency.
beginning even if his certificate of candidacy was
cancelled after the elections. (H. Sohria Pasagi 3. Cerafica v. COMELEC (2014). Valid withdrawal
Diambrang v. COMELEC, G.R. No. 201809) even if ineligible because of lack of age –
substitution allowed. REMEMBER: a) Ministerial
Independent Candidates: Receipt of COC. In Cipriano v. Comelec, we ruled
1. Not a member of a registered political party that the Comelec has no discretion to give or
2. Member of an unregistered political party not to give due course to COCs (COMELEC
3. Member of a registered political party but not cannot cancel on its own). We emphasized that the
officially nominated as candidate by said party duty of the Comelec to give due course to COCs
4. Nominated by a person who is not the duly filed in due form is ministerial in character, and that
authorized representative of a registered political while the Comelec may look into patent defects in
party the COCs, it may not go into matters not appearing
on their face. The question of eligibility or
5. Nominated by a registered political party but ineligibility of a candidate is thus beyond the usual
such was not submitted to the COMELEC or and proper cognizance of the Comelec. B) Valid
where such nomination was submitted after the Withdrawal if Within Allowed Period and No
last day of filing of the certificate of candidacy Cancellation. If the death, withdrawal or
6. Nominated by a party that nominated in excess disqualification should occur between the day
of the number of persons to be voted for an before the election and mid-day of election day,
election position said certificate may be filed with any board of
7. Accepted nominations from more than one election inspectors in the political subdivision
registered political party where he is candidate or, in case of candidates
to be voted for by the entire electorate of the
country, with the Commission. Under the
express provision of Sec. 77 of B. P. Blg. 881, not
just any person, but only "an official candidate
of a registered or accredited political party"
may be substituted. In the case at bar, Kimberly
was an official nominee of the Liberal Party; thus,
she can be validly substituted. xxx xxx First,
there was a valid withdrawal of Kimberly’s COC
after the last day for the filing of COCs; second,
Olivia belongs to and is certified to by the same
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political party to which Kimberly belongs; and third, party in interest to the election protest. (Poe v.
Olivia filed her COC not later than mid-day of Arroyo, PET Case No. 002, 2005)
election day. In Luna v. Comelec, where the 7. The filing of the withdrawal shall not affect the
candidate, who was also under age, withdrew civil, criminal or administrative liabilities the
his COC before election day and was substituted candidate may have already
substituted by a qualified candidate, we incurred.
declared that such substitution was valid.
8. A candidate who is disqualified under Section 68
of the Omnibus Election Code can be validly
Substitution is not allowed when the original
substituted pursuant to Section 77 because he
candidate was disqualified based on:
remains a candidate until disqualified; but a
 Ground of material misrepresentation (Fermin v.
person whose certificate of candidacy has been
COMELEC G.R. No. 179695)
denied due course to and/or cancelled under
 When the certificate was cancelled because he Section 78 cannot be substituted because he is
was running for the fourth consecutive term not considered a candidate. (Tagolino v. HRET,
(Miranda v. Abaya, G.R. No. 136351) G.R. No. 202202)
 Failure to meet one-year residency requirement
(Tagolino v. HRET, G.R. No. 202202) Withdrawal of Candidates
Nothing in Section 73 of B.P. No. 881 mandates that
NOTE: In the case of Tagolino v. HRET (G.R. No. the affidavit of withdrawal must be filed with the same
202202), the COMELEC first ruled that substitution is office where the certificate of candidacy to be
allowed because it held that a candidate’s failure to withdrawn was filed. Thus, it can be filed directly with
meet the qualifications is a ground for the main office of the COMELEC, the office of the
disqualification. This was adopted by the HRET. regional election director concerned, the office of the
However, the Supreme Court ruled that it is actually provincial election supervisor of the province to which
a cancellation of the certificate of candidacy. Thus, the municipality involved belongs, or the office of the
no substitution is allowed. municipal election officer of the said municipality (Go
v. COMELEC, G.R. No. 147741)
General Rule: No substitution is allowed for an
independent candidate. Only candidates who are c. Nuisance Candidates
members of and are nominated by a party can be
substituted.
Factors to Consider: (CROP5-PIPES-IQ)
1. Capability to wage nationwide campaign
Exception: A candidate for a barangay elective
2. Running under a slate
office notwithstanding the policy that barangay
elections are nonpartisan can be substituted by
3. Organization and machinery
his/her spouse. (Rulloda v. COMELEC, G.R. No. 4. Performance in previous elections
154198) 5. Platform of government
6. Political party affiliation and support
Rules on Substitution: 7. Popularity
1. Any candidate may withdraw his candidacy any 8. Properties
time before election day. 9. Political exposure
2. A person without a valid certificate of candidacy 10. Intention to run for office
cannot be considered a candidate and therefore 11. Profession
cannot be substituted. 12. Educational attainment
3. Substitute candidate may file his certificate of 13. Similarity in name causes confusion
candidacy no later than mid-day of election day. 14. Income
4. No person who has withdrawn his candidacy for 15. Qualifications and disqualifications
a position shall be eligible as a substitute
candidate for any other position. COMELEC cannot motu proprio deny due course to
5. The substitute candidate must be qualified to or cancel an alleged nuisance candidate’s certificate
hold office and must be a member of and of candidacy without providing the candidate his
nominated by the same political party. opportunity to be heard. (Timbol vs. COMELEC, G.R.
6. A public office is personal to the public officer No. 206004)
and not a property transmissible to the heirs
upon death. The Court has allowed substitution Pamatong v. COMELEC (2014). COMELEC must
and intervention but only by a real party in DETERMINE through factual determination and NOT
interest. The Protestant’s widow is not a real JUST DECLARE a nuisance candidate. It deserves
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not a cursory treatment but a hearing which program of government; and accredit citizens’ arms
conforms to the requirements of due process. of the Commission on Elections. Religious
Dela Cruz v. COMELEC (2012). Votes cast for a denominations and sects shall not be registered.
nuisance candidate declared as such by final Those which seek to achieve their goals through
judgment before the elections should not be violence or unlawful means, or refuse to uphold and
considered as stray votes, but should be counted in adhere to this Constitution, or which are supported by
favor of legitimate and bona fide candidate with the any foreign government shall likewise be refused
same surname. registration.
NOTE: A petition to cancel or deny a COC under Financial contributions from foreign governments
Section 69 of the OEC (for Nuisance Candidates) and their agencies to political parties, organizations,
should be distinguished from a petition to disqualify coalitions, or candidates related to elections
under Section 68 (DQ for election offenses). Hence, constitute interference in national affairs, and, when
the legal effect of such cancellation of a COC of a accepted, shall be an additional ground for the
nuisance candidate cannot be equated with a cancellation of their registration with the Commission,
candidate disqualified on grounds provided in the in addition to other penalties that may be prescribed
OEC and Local Government Code. by law.
d. Duties of the COMELEC 6. File, upon a verified complaint, or on its own

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

1) COMELEC DIVISION – shall have exclusive controversies). (PHIL. CONST. art. IX-C, §2 (2))
jurisdiction in pre-proclamation controversies
arising from national, regional or local elections. COMELEC EN BANC CASES
(OEC, §242; COMELEC Resolution No. 8804 1) MR of a decision rendered by a COMELEC
s.2010, § 2, Rule 3) Division. (PHIL. CONST. art. IX-C, §3)
A pre-proclamation controversy refers to any 2) Petition for correction of manifest errors from
question pertaining to or affecting the erroneous copying of figures from the Election Return
proceedings of the board of canvassers which to the Statement of Votes by precinct. (Jaramilla v.
may be raised by any candidate or by any registered COMELEC, GR No. 155717
political party or coalition of political parties before the NOTE: Considered as an ADMINISTRATIVE
board or directly with the Commission (division function; hence, en banc.
only, not en banc), or any matter raised under
Sections 233, 234, 235, and 236 (election returns are 3) Cases involving violation of election laws. (Baytan
delayed, lost, destroyed, falsified, tampered or have v. COMELEC, GR No. 153945)
material defects or discrepancies) in relation to the
preparation, transmission, receipt, custody and 4) Where COMELEC exercises administrative and
appreciation of the election returns. does not exercise adjudicatory/quasi-judicial powers.
(Baytan v. COMELEC, GR No. 153945)
NOTE: All pre-proclamation cases can only be heard
by the COMELEC Division, not en banc; otherwise, NOTE: The COMELEC’s administrative powers are
null and void. (Soller v. COMELEC, GR No. 139853, found in Section 2 (1), (3), (4), (5), (6), (7), (8), and
citing Sarmiento v. COMELEC) (9) of Article IX-C. Thus, the only quasi-judicial
function of the COMELEC is Section 2(2) over all
2) COMELEC DIVISION – shall have exclusive contests relating to the elections, returns, and
original jurisdiction over all election protests qualifications of all elective regional, provincial,
involving elective regional (the autonomous and city officials, and appellate jurisdiction over
regions), provincial, and city officials (NOTE: all contests involving elective municipal officials
Municipal officials not included here; jurisdiction is decided by trial courts of general jurisdiction, or
with Regional Trial Courts). (COMELEC Resolution involving elective barangay officials decided by
No. 8804 s.2010, §1, Rule 6) trial courts of limited jurisdiction.
3) COMELEC EN BANC - Enforcement of laws and Legal Consequence of Failure to Obtain Majority
rules in relation to the conduct of elections. Four (4) Votes in an MR to COMELEC
(Zaldivar v. Estenzo, GR No. L-26065) 1) In Mendoza v. COMELEC, GR No. 191084, 2010,
the SC ruled that failure to obtain the necessary
4) COMELEC EN BANC - shall have the exclusive majority vote of four (4) in an MR to the COMELEC
power to conduct preliminary investigation of all en banc would lead to the dismissal of the election
election offenses punishable under the election protest filed with the COMELEC division subject of
laws and to prosecute the same, except as may the MR.
otherwise be provided by law. (COMELEC Rules of
Procedure, §1, Rule 34) 2) However, the SC reversed the Mendoza Doctrine
in Legaspi v. COMELEC, GR No. 216572, 19 April
COMELEC DIVISION CASES 2016 as follows:
1) Petitions for Certiorari from the decisions, orders,
resolution of the RTC and MTC in election protests. “The Mendoza doctrine, as reiterated in the
(Soller v. COMELEC, GR No. 139853) September 1, 2015 Decision, deviated from the 1987
Constitution. Not only does it circumvent the four-
2) Cases appealed from RTC and MTC. (Abad v. vote requirement under Sec. 7, Art. IX-A of
COMELEC, GR No. 128877) the Constitution, it likewise diminishes the
adjudicatory powers of the COMELEC Divisions
3) Petitions to cancel certificate of candidacy. under Sec. 3, Article IX-C.
(Bautista v. COMELEC, GR No. 154796)
Under Sec. 3, Article IX-C of the 1987
4) All contests relating to the elections, returns, and Constitution, the COMELEC Divisions are granted
qualifications of all elective regional, provincial, and adjudicatory powers to decide election cases,
provided that the COMELEC en banc shall resolve
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motions for reconsideration of the division But for the SC to take cognizance of the case, it
rulings. Further, under Sec. 7, Article IX-A of must be a decision by the COMELEC en banc and
the Constitution, four (4) votes are necessary for not an interlocutory order by a COMELEC
the COMELEC en banc to decide a case. division (Cagas v. COMELEC, GR No. 194139)
Naturally, the party moving for reconsideration,
as the party seeking affirmative relief, carries the COMELEC Supervision and Control over the
burden of proving that the division committed Conduct of Automated Elections
reversible error. The movant then shoulders the The power and duty of the COMELEC to administer
obligation of convincing four (4) Commissioners election laws and to have control and supervision
to grant his or her plea. over the automated elections is not incompatible with
the decision to subcontract services that may be
This voting threshold, however, is easily rendered better performed by those who are well-equipped to
illusory by the application of the Mendoza ruling, handle complex technological matters with respect to
which virtually allows the grant of a motion for the implementation of the AES. The subcontractor
reconsideration even though the movant fails to cannot act independently of the COMELEC. (Roque
secure four votes in his or her favor, in blatant v. COMELEC, GR No. 188456)
violation of Sec. 7, Art. IX-A of the Constitution.”
(Legaspi v. Commission on Elections, G.R. No. Ministerial duty of COMELEC to receive
216572 (Resolution)) Certificate of Candidacy
It is the ministerial duty of COMELEC and its officers
Intra-Political Party Disputes to receive a certificate of candidacy. (Omnibus
COMELEC may intervene in disputes internal to a Election Code, § 76.)
political party only when necessary to the discharge
of its constitutional functions [Atienza v. COMELEC, While the COMELEC may look into patent defects in
GR No. 188920, 16 February 2010], such as the the Certificate of Candidacy, it may not go into
ascertainment of the identity of the political party and matters not appearing on their face. The question of
its legitimate officers (LDP v. COMELEC, GR No. eligibility or ineligibility of a candidate is thus beyond
161265) the usual and proper cognizance of the COMELEC
(Cerafica v. COMELEC, G.R. No. 205136)
Cases Involving the Right of Suffrage
The jurisdiction to decide controversies on inclusion Duty of COMELEC to decide cases on
or exclusion of voters belongs to the MTC and MeTC cancellation or denial of Certificate of Candidacy
(OEC, §138, Art. XII) What to file: Petition to deny or cancel certificates of
candidacy
Jurisdiction Over Election Contests Involving Who can file: Any Party
Municipal and Barangay Elective Officials How: Petition to deny due course or Cancel
COMELEC exercises appellate jurisdiction (not certificate of candidacy under oath
original jurisdiction) over all contests involving When: Any time not later than 25 days from filing of
elective municipal officials decided by trial courts of certificate of candidacy
general jurisdiction or involving elective barangay Where: COMELEC must decide the case not later
officials decided by trial courts of limited jurisdiction. than 15 days before election (period is not mandatory
(PHIL. CONST. art. IX-C, §2 (2)) however)
Judicial Review of COMELEC Decisions Exclusive Ground: material misrepresentation

Unless otherwise provided by this Constitution or by (FMD)
law, any decision, order, or ruling of each 1. Must be False.
Commission [including COMELEC] may be brought 2. Must be Material (goes into the qualifications).
to the Supreme Court on certiorari by the aggrieved 3. Must be Deliberate and there is an intention to
party within thirty days from receipt of a copy thereof. defraud the electorate.
(PHIL. CONST. art. IX, §7)
The COMELEC must determine whether or not the
Thus, a judgment or final order or resolution of the candidate deliberately attempted to mislead,
Commission on Elections and the Commission on misinform or hide a fact about his or her residency
Audit may be brought by the aggrieved party to the that would otherwise render him or her ineligible for
Supreme Court on certiorari under Rule 65, except the position sought. The COMELEC gravely abused
as hereinafter provided. (Rules of Court, §2, Rule 64) its discretion in this case when, in considering the
residency issue, it based its decision solely on very
personal and subjective assessment standards, such
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as the nature or design and furnishings of the thereof of the candidate. (Poe-Llamanzares v.
dwelling place in relation to the stature of the COMELEC, G.R. No. 221697)
candidate. (Mitra v. COMELEC, G.R. No. 191938,
Jul. 19, 2010) A CoC may be cancelled on the ground that the
“candidate” misrepresented his eligibility in his CoC
Misrepresentation of nickname is not a material because he knew that he had been convicted by final
misrepresentation because the use of nickname judgment for libel, a crime involving moral turpitude
is not a qualification of public office. Nickname regardless of the fact that he was merely the
does not affect eligibility; hence, not a material publisher of the libelous articles, and that his penalty
representation. To be material, such must refer to was merely a fine. (Ty-Delgado v. HRET, G.R. No.
an eligibility or qualification for the elective office 219603)
the candidate seeks to hold. Here, respondent’s
nickname is not a qualification for a public office If the certificate of candidacy is void ab initio, the
which affects his eligibility. The proper recourse is to candidate is not considered a candidate from the very
file an election protest and pray that votes be beginning even if his certificate of candidacy was
declared as stray votes (Villafuerte v. COMELEC, cancelled after the elections. (H. Sohria Pasagi
G.R. No. 206698) Diambrang vs. COMELEC, G.R. No. 201809)
Material representation contemplated by Section The summary nature of proceedings under Section
78 refers to qualifications for elective office, such 78 only allows it to rule on patent material
as the requisite residency, age, citizenship or any misrepresentations of facts, not to make conclusions
other legal qualification necessary to run for a of law that are even contrary to jurisprudence. (Dano
local elective office as provided for in the Local vs. COMELEC, G.R. No. 210200)
Government Code. Furthermore, aside from the
requirement of materiality, the misrepresentation False Material Misrepresentation:
must consist of a deliberate attempt to mislead, When Applicable
misinform, or hide a fact, which would otherwise  When a candidate uses the name of her long-
render a candidate ineligible (Caballero v. time live-in partner or states a false profession.
COMELEC, G.R. No. 209835)  When the candidate is actually qualified even if
the entries in the CoC as filled up by the
Failure to comply with RA 9225 requirements candidate will show that he is not.
despite statement in COC is material  When the candidate, supported by a
representation. Aside from the bare allegation that preponderance of evidence, believed that he
she is a natural-born citizen, however, petitioner was qualified since there was no intention to
submitted no proof to support such contention. deceive the electorate as to one’s qualifications
Neither did she submit any proof as to the for public office.
inapplicability of R.A. No. 9225 to her. xxx xxx Such
being the case, the COMELEC did not err when it Effects of Disqualification
inquired into the compliance by petitioner of Sections Any candidate who has been declared by final
3 and 5 of RA 9225 to determine if she reacquired judgment to be disqualified shall not be voted for.
her status as a natural-born Filipino citizen. It simply
applied the constitutional provision and nothing more. One who is disqualified under Section 68 is still
(Reyes v. COMELEC) technically considered to have been a candidate,
albeit proscribed to continue as such only because of
If a candidate cannot be disqualified without a prior supervening infractions which do not, however, deny
finding that she or he is suffering from a his or her statutory eligibility (Tagolino v. HRET, G.R.
disqualification “provided by law or the Constitution,” No. 202202)
neither can the certificate of candidacy be cancelled
or denied due course on grounds of false When a person who is not qualified is voted for and
misrepresentation regarding his or her qualification, eventually garners the highest number of votes, even
without a prior authoritative finding that he or she is the will of the electorate expressed through the ballot
not qualified. (Poe-Llamanzares v. COMELEC, G.R. cannot cure the defect in the qualifications of the
No. 221697) candidate. To rule otherwise is to trample upon and
rent asunder the very law that sets forth the
The COMELEC cannot, in the same cancellation qualifications and disqualifications of candidates.
case based on the ground of false material When there are participants who turn out to be
representation, decide the qualification or lack ineligible, their victory is voided and the laurel is
awarded to the next in rank who does not possess
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any of the disqualifications nor lacks any of the Exception to non-proclamation of candidate with
qualifications set in the rules to be eligible as 2nd highest number of votes:
candidates. Knowledge by the electorate of a 1. The one who obtained the highest number of
candidate’s disqualification is not necessary before a votes is disqualified; and
qualified candidate who placed second to a 2. The electorate is fully aware in fact and in law of
disqualified one can be proclaimed as the winner a candidate’s disqualification so as to bring such
(Maquiling v. Commission on Elections, G.R. No. awareness within the realm of notoriety but
195649) would nonetheless cast their votes in favor of the
ineligible candidate (Grego v. COMELEC, G.R.
A person whose COC was cancelled due to No. 125955)
ineligibility for failure to prove Filipino citizenship and
the one-year residence requirement could not have Distinction between Disqualification and
been a valid candidate, and could not have been Cancellation of COC:
validly proclaimed. Thus, she could not have validly a. A petition for cancellation of a certificate of
assumed her position. (Velasco v. Belmonte, G.R. candidacy is not based on lack of qualification
No. 211140) but on false representation, which may relate to
lack of qualification, such as residence. A petition
The purpose of a disqualification proceeding is to for disqualification refers to commission of
prevent the candidate from running or, if elected, prohibited acts and possession of permanent
from serving, or to prosecute him for violation of the resident status in a foreign country.
election laws. A petition to disqualify a candidate may b. A candidate whose certificate of candidacy was
be filed pursuant to Section 68 of the Omnibus cancelled is not treated as a candidate. A
Election Code. Offenses that are punished in laws candidate who is disqualified cannot continue as
other than in the Omnibus Election Code cannot be a candidate.
a ground for a Section 68 petition. (Ejercito v. c. A candidate whose certificate of candidacy was
COMELEC, G.R. No. 212398) cancelled could be substituted. A candidate who
is disqualified cannot be substituted.
Effect of Re-Election on Administrative Liability d. A petition to deny due course or to cancel a
Abandonment of the Condonation Doctrine. The certificate of candidacy must be filed within 25
concept of public office is a public trust and the days from the time of filing of the COC, as
corollary requirement of accountability to the people provided under Section 78 of the OEC (Albania
at all times, as mandated under the 1987 v. COMELEC, G.R. No. 226792)
Constitution, is plainly inconsistent with the idea that e. A petition for disqualification of a nuisance
an elective local official’s administrative liability for a candidate should be filed within 5 days from the
misconduct committed during a prior term can be last day for filing certificate of candidacy (Fermin
wiped off by the fact that he was elected to a second v. COMELEC, G.R. No. 179695)
term of office, or even another elective post. Election
is not a mode of condoning an administrative offense, Rules on Lone Candidate in a Special Election
and there is simply no constitutional or statutory basis 1) PROCLAMATION OF LONE CANDIDATE. Upon
in our jurisdiction to support the notion that an official the expiration of the deadline for the filing of the
elected for a different term is fully absolved of any certificates of candidacy in a special election called
administrative liability arising from an offense done to fill a vacancy in an elective position other than for
during a prior term. (Carpio-Morales v. Binay, G.R. President and Vice President, when there is only one
No. 217126-27) (1) qualified candidate for such position, the lone
candidate shall be proclaimed elected to the position
NOTE: Abandonment of the Condonation Doctrine by proper proclaiming body of the Commission on
was applied 12 April 2016 onwards when Capio- Elections without holding the special election upon
Morales v. CA, Binay became final and executory. certification by the Commission on Elections that he
(Crebello v. Ombudsman, G.R. No. 232325, 2019) is the only candidate for the office and is thereby
deemed elected. (R.A. 8295, §2)
The COMELEC may suspend the proclamation of a
candidate who gets the majority votes, if he has been 2) ASSUMPTION OF OFFICE. In the absence of any
disqualified before the election but the decision has lawful ground to deny due course or cancel the
not yet become final. He will not be proclaimed certificate of candidacy in order to prevent such
except where the judgment of disqualification is proclamation, as provided for under Sections 69 and
finally reversed. 78 of Batas Pambansa Bilang 881 also known as the
Omnibus Election Code of the Philippines, the
candidate referred to in the preceding paragraph
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shall assume office not earlier than the scheduled NOTE: This is the legal basis that requires dual
election day. Certificates of candidacy filed in citizens to renounce their foreign citizenship through
violation hereof shall not be given due course. For an affidavit of renunciation if they are seeking elective
this purpose, the Commission shall decide petitions office. Presently, this is now an eligibility declaration
for disqualifications not later than election day; requirement in COCs that can be a ground for false
otherwise, such petitions shall be deemed dismissed. material representation if the person fails to renounce
(R.A. 8295, §3) at the time of COC filing.
3) DISQUALIFICATIONS. In addition to the (3) Those appointed to any public office shall
disqualifications mentioned in Sections 12 and 68 of subscribe and swear to an oath of allegiance to the
the Omnibus Election Code and Section 40 of Republic of the Philippines and its duly constituted
Republic Act No. 7160, otherwise known as the Local authorities prior to their assumption of office:
Government Code, whenever the evidence of guilt is Provided, That they renounce their oath of allegiance
strong, the following persons are disqualified to run to the country where they took that oath;
in a special election called to fill the vacancy in an
elective office, to wit: (4) Those intending to practice their profession in the
a) Any elective official who has resigned from his Philippines shall apply with the proper authority for a
office by accepting an appointive office or for license or permit to engage in such practice; and
whatever reason which he previously occupied but
has caused to become vacant due to his resignation; (5) That right to vote or be elected or appointed to
and any public office in the Philippines cannot be
b) Any person who, directly or indirectly, coerces, exercised by, or extended to, those who:
bribes, threatens, harasses, intimidates or actually
causes, inflicts or produces any violence, injury, (a) are candidates for or are occupying any public
punishment, torture, damage, loss or disadvantage to office in the country of which they are naturalized
any person or persons aspiring to become a citizens; and/or
candidate or that of the immediate member of his
family, his honor or property that is meant to eliminate (b) are in active service as commissioned or non-
all other potential candidate. (NOTE: Per Sec. 5, RA commissioned officers in the armed forces of the
8295, this also constitutes as an election offense that country which they are naturalized citizens. (R.A.
shall be prosecuted and penalized under OEC, 9225, §5)
§264.) (Sec. 4, R.A. 8295, §4)
C. CAMPAIGN
Rules on Retention and Reacquisition of
Philippine Citizenship and Running for Public 1. PREMATURE CAMPAIGNING
Elective Office (R.A. 9225)
Those who retain or re-acquire Philippine citizenship Premature Campaign
under this Act shall enjoy full civil and political rights It shall be unlawful for any person, whether or not a
and be subject to all attendant liabilities and voter or candidate, or for any party, or association of
responsibilities under existing laws of the Philippines persons, to engage in an election campaign or
and the following conditions: partisan political activity except during the campaign
period: Provided, That political parties may hold
(1) Those intending to exercise their right of suffrage political conventions or meetings to nominate their
must meet the requirements under Section 1, Article official candidates within thirty days before the
V of the Constitution, Republic Act No. 9189, commencement of the campaign period and forty-five
otherwise known as "The Overseas Absentee Voting days for Presidential and Vice-Presidential election.
Act of 2003" and other existing laws; (OEC, §80)
(2) Those seeking elective public office in the General Rule: No person may engage in an election
Philippines shall meet the qualification for campaign or partisan political activity before the
holding such public office as required by the campaign period.
Constitution and existing laws and, at the time of
the filing of the certificate of candidacy, make a Exception: Political parties may hold political
personal and sworn renunciation of any and all conventions or meetings to nominate their official
foreign citizenship before any public officer candidates within 30 days before campaign period
authorized to administer an oath;
and 45 days for Presidential and Vice-Presidential
election.
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Only after said person officially becomes a candidate, allocations or similar privileges or concessions
at the beginning of the campaign period, can said by the government or any of its divisions,
acts be given effect as premature campaigning under subdivisions or instrumentalities, including
Section 80 of the Omnibus Election Code. Only after government-owned or controlled corporations;
said person officially becomes a candidate, at the (e) Natural and juridical persons who, within one
start of the campaign period, can his/her year prior to the date of the election, have
disqualification be sought for acts constituting been granted loans or other accommodations
premature campaigning. (Rosalinda Penera v. in excess of P100,000 by the government or
COMELEC, GR No. 205728)
any of its divisions, subdivisions or
NOTE: The deadline for the filing of certificate of
instrumentalities including government-owned
candidacy/petition for registration/manifestation to or controlled corporations;
participate in the election shall not be later than one (f) Educational institutions which have received
hundred twenty (120) days before the elections (R.A. grants of public funds amounting to no less
8436, §11) than P100,000.00;
(g) Officials or employees in the Civil Service, or
2. PROHIBITED CONTRIBUTIONS members of the Armed Forces of the
Philippines; and
Electoral Contributions (h) Foreigners and foreign corporations.
The term "contribution" includes a gift, donation,
subscription, loan, advance or deposit of money or It shall be unlawful for any person to solicit or
anything of value, or a contract, promise or receive any contribution from any of the persons
agreement to contribute, whether or not legally or entities enumerated herein. (OEC, §95)
enforceable, made for the purpose of influencing
the results of the elections but shall not include NOTE: Under the old Corporation Code, domestic
services rendered without compensation by and foreign corporations are prohibited from
individuals volunteering a portion or all of their time making electoral contributions. Under the
in behalf of a candidate or political party. It shall Revised Corporation Code, only foreign
also include the use of facilities voluntarily donated corporations are prohibited. Thus, domestic
by other persons, the money value of which can corporations can now make reasonable
be assessed based on the rates prevailing in the contributions. (R.A. 11232, §35 in relation to
area. (OEC, §94(a)) §95)
Prohibited Contributions (POV of DONOR) Summary of Prohibited Contributions: (UF2

No contribution for purposes of partisan political PLAC2E)
activity shall be made directly or indirectly by any 1. Public Utilities or those exploiting natural
of the following: resources of the nation
(a) Public or private financial institutions: 2. Public or private Financial institutions, except
Provided, however, That nothing herein shall loans to a candidate or political party
prevent the making of any loan to a candidate 3. Foreigners and foreign corporations
or political party by any such public or private 4. Grantees of franchises, incentives,
financial institutions legally in the business of exemptions, allocations or similar Privileges or
lending money, and that the loan is made in concessions by the government
accordance with laws and regulations and in 5. Persons who, within 1 year prior to the date of
the ordinary course of business; the election, have been granted Loans or
(b) Natural and juridical persons operating a other accommodations in excess of P100,000
public utility or in possession of or exploiting by the government
any natural resources of the nation; 6. Members of the Armed forces of the
(c) Natural and juridical persons who hold Philippines
contracts or sub-contracts to supply the 7. Officials or employees in the Civil service
government or any of its divisions, 8. Persons with Contracts to supply the
subdivisions or instrumentalities, with goods government with goods or services or to
or services or to perform construction or other perform construction or other works
works; 9. Educational institutions which have received
(d) Natural and juridical persons who have been grants of public funds not less than p100,000
granted franchises, incentives, exemptions, by the government
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(COMELEC Resolution No. 9476 s.2012 citing BIR

Prohibited Contributions (Receipt and Revenue Regulation No. 7-2011)
Solicitation)
It shall be unlawful for any person, including a General Rule: It shall be unlawful for any person
political party or public or private entity to solicit or or organization to solicit and/ or accept any gift,
receive, directly or indirectly, any aid or contribution, food, transportation or donation in
contribution of whatever form or nature from any cash or in kind from the commencement of the
foreign national, government or entity for the election period up to and including election day.
purposes of influencing the results of the election.
(OEC, §96) Exception: Normal and customary religious
stipends, tithes or collections.
Prohibited Ways of Raising Electoral
Campaign Funds. It shall be unlawful for any Prohibited Donations
person to hold dances, lotteries, cockfights, It is prohibited for any candidate, his spouse,
games, boxing bouts, bingo, beauty contests, relative within second degree of consanguinity or
entertainments, or cinematographic, theatrical or affinity, a representative to make any contribution
other performances for the purpose of raising for any structure for public use or for use of any
funds for an election campaign or for the support religious or civic organization, except the normal
of any candidate from the commencement of the religious dues and payments for scholarships
election period up to and including election day; or established and school contributions habitually
for any person or organization, whether civic or made before the campaign period. (OEC, §104)
religious, directly or indirectly, to solicit and/or
accept from any candidate for public office, or from 3. LAWFUL AND PROHIBITED
his campaign manager, agent or representative, or ELECTION PROPAGANDA
any person acting in their behalf, any gift, food,
transportation, contribution or donation in cash or Election Propaganda
in kind from the commencement of the election Election propaganda whether on television, cable
period up to and including election day; Provided, television, radio, newspapers or any other medium is
That normal and customary religious stipends, hereby allowed for all registered political parties,
tithes, or collections on Sundays and/or other national, regional, sectoral parties or organizations
designated collection days, are excluded from this participating under the party-list elections and for all
prohibition. (OEC, §96) bona fide candidates seeking national and local
elective positions subject to the limitation on
Prohibited Means of Raising Funds: (C2L- authorized expenses of candidates and political
B3ED) parties, observance of truth in advertising and to
the supervision and regulation by the COMELEC.
1. Cinematographic, theatrical or other
performances
Lawful election propaganda shall include:
2. Cockfights (1) Pamphlets, leaflets, cards, decals, stickers or
3. Lotteries other written or printed materials the size of
4. Boxing bouts which does not exceed 8.5 inches in width and14
5. Bingo inches in length (8.5 in. x 14 in.);
6. Beauty contests (2) Handwritten or printed letters urging voters to
7. Entertainment and games vote for or against any particular political party or
8. Dances (OEC, §97) candidate for public office;
(3) Cloth, paper or cardboard posters whether
Electoral Contribution Not Subject to Gift Tax. framed, or posted, with an area not exceeding
Any contribution in cash or in kind to any candidate two (2) feet by three (3) feet, except that, at the
or political party or coalition of parties for campaign site and on the occasion of a public meeting or
purposes, duly reported to the Commission, shall rally, or in announcing the holding of said
not be subject to the payment of any gift tax. (R.A. meeting or rally, streamers not exceeding three
7166, §13) (3) feet by eight (8) feet in size, shall be allowed:
Provided, That said streamers may be displayed
Unspent Contribution Subject to Income Tax. five (5) days before the date of the meeting or
Any unexpended balance from any contribution to rally and shall be removed within twenty-four (24)
hours after said meeting or rally;
candidate or party shall be subject to income tax.
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(4) Paid advertisements in print or broadcast media: authority to provide for rules beyond what was
Provided, That the advertisements shall follow contemplated by the law it is supposed to implement.
the requirements set forth in Section 4 of this Act (GMA Network, Inc. v. COMELEC, G.R. No. 205357)
(R.A. 9006); (R.A. 9006, §3) and
(5) All other forms of election propaganda not NOTE: As it stands now, the limits of 120 minutes for
prohibited by this Code as the Commission may TV and 180 minutes for radio is PER STATION – not
authorize after due notice to all interested parties aggregate or not per network. Thus, there are
and hearing where all the interested parties were separate airtime limits for the regional tv and radio
given an equal opportunity to be heard: stations of networks.
Provided, That the Commission's authorization
shall be published in two newspapers of general Any newspaper, newsletter, newsweekly, gazette or
circulation throughout the nation for at least twice magazine advertising, posters, pamphlets, comic
within one week after the authorization has been books, circulars, handbills, bumper stickers,
granted. (OEC, §82(d)). streamers, sample list of candidates or any published
or printed political matter and any broadcast of
Summary Rules on Election Propaganda: election propaganda by television or radio for or
 All registered parties and bona fide candidates against a candidate or group of candidates to any
shall have the right to reply to charges published public office shall bear and be identified by the
against them. reasonably legible or audible words "political
 No movie, cinematograph, documentary advertisement paid for," followed by the true and
portraying the life or biography of a candidate correct name and address of the candidate or party
shall be publicly exhibited in a theatre, TV for whose benefit the election propaganda was
station, or any public forum during the campaign printed or aired.
period.
 No movie, cinematograph, documentary If the broadcast is given free of charge by the radio
portrayed by an actor or media personality who or television station, it shall be identified by the words
is himself a candidate shall be publicly exhibited "airtime for this broadcast was provided free of
in a theatre, TV station or any public form during charge by" followed by the true and correct name and
the campaign period. address of the broadcast entity.
 All mass media entities shall furnish the
COMELEC with copies of all contracts for Print, broadcast or outdoor advertisements donated
advertising, promoting, or opposing any political to the candidate or political party shall not be printed,
party or the candidacy of any person for public published, broadcast, or exhibited without the written
office within 5 days after its signing. acceptance by the said candidate or political party.
 Any media personality who is a candidate or is a Such written acceptance shall be attached to the
campaign volunteer for or employed or retained advertising contract and shall be submitted to the
in any capacity by any candidate or political party COMELEC as provided in Subsection 6.3. hereof.
shall be deemed resigned, if so required by their (R.A. 9006, §4)
employer, or shall take a LOA from his work as
such during the campaign period. Public Rallies:
1. The candidate or party must notify election
Rules on Published or Printed and Broadcast registrar that they intend to organize and hold
Election Propaganda (Paid Advertisements) within the city/municipality
1. PRINT 2. Submit to election registrar a statement of
 ¼ page in broadsheet, 3x a week expenses in connection therewith. (OEC, §88)
 ½ page in tabloid, 3x a week
2. RADIO (per STATION)
 180 mins. for National candidates
 90 mins. for Local candidates
3. TV (per STATION)
 120 mins. for National candidates
 60 mins. for Local candidates
The Fair Election Act does not justify a conclusion

that the maximum allowable airtime should be based
on the totality of possible broadcast in all television or
35 radio stations, and the COMELEC has no
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COMELEC Space and Airtime free of charge, while said space shall be allocated to
Pursuant to Sections 90 and 92 of the Omnibus the COMELEC upon payment of just compensation.
Election Code (Batas Pambansa Bldg. 881), the The COMELEC time and space shall be utilized
COMELEC shall procure the print space upon exclusively by the COMELEC for public information
payment of just compensation from at least three (3) dissemination on election-related concerns. (R.A.
national newspapers of general circulation wherein 9006, §8)
candidates for national office can announce their
candidacies. Such space shall be allocated free of Thus:
charge equally and impartially among all the 1. SPACE (PUBLISHED OR PRINTED)
candidates for national office on three (3) different a. 3 National newspapers - National
calendar days: the first day within the first week of the candidates
campaign period; the second day within the fifth week b. 1 National newspaper - Local candidates
of the campaign period; and the third day within the 2. AIRTIME (BROADCAST)
tenth week of the campaign period. a. 3 National TV and Radio Networks -
National candidates
The COMELEC shall also procure free airtime b. 1 Major Broadcasting station - Local
from at least three (3) national television candidates
networks and three(3) national radio networks,
which shall also be allocated free of charge There shall be equal allocation for all candidates for
equally and impartially among all candidates for 3 calendar days.
national office. Such free time shall be allocated on
three (3) different calendar days; the first day within COMELEC does not have the authority to
the first week of the campaign period; the second day regulate the enjoyment of the preferred right to
within the fifth week of the campaign period; and the freedom of expression exercised by a non-
third day within the tenth weeks of the campaign candidate. Regulation of speech in the context of
period. electoral campaigns made by persons who are not
candidates or who do not speak as members of a
The COMELEC may require national television political party which are, taken as a whole, principally
and radio networks to sponsor at least three (3) advocacies of a social issue that the public must
national debates among presidential candidates consider during elections is unconstitutional. Such
and at least one (1) national debate among vice regulation is inconsistent with the guarantee of
presidential candidates. The debates among according the fullest possible range of opinions
presidential candidates shall be scheduled on three coming from the electorate including those that can
(3) different calendar days; the first debate shall be catalyze candid, uninhibited, and robust debate in the
scheduled within the first and second week of the criteria for the choice of a candidate. (Diocese of
campaign period; the second debate within the fifth Bacolod v. COMELEC, G.R. No. 205728)
and sixth week of the campaign period; and the third
debate shall be scheduled within the tenth and However, regulation of election paraphernalia will still
eleventh week of the campaign period. be constitutionally valid if it reaches into speech of
persons who are not candidates or who do not speak
The sponsoring television or radio network may sell as members of a political party if they are not
air-time for commercials and advertisements to candidates, only if what is regulated is declarative
interested advertisers and sponsors. The COMELEC speech that, taken as a whole, has for its principal
shall promulgate rules and regulations for the holding object the endorsement of a candidate only. The
of such debates. (R.A. 9006, §7) regulation (a) should be provided by law, (b)
reasonable, (c) narrowly tailored to meet the
The COMELEC shall procure shall in at least one (1) objective of enhancing the opportunity of all
newspaper of general circulation and air time in at candidates to be heard and considering the primacy
least one (1) major broadcasting station or entity in of the guarantee of free expression, and (d)
every province or city: Provided, however, That in the demonstrably the least restrictive means to achieve
absence of said newspaper, publication shall be that object. The regulation must only be with respect
done in any other magazine or periodical in said to the time, place, and manner of the rendition of the
province or city, which shall be known as "COMELEC message. In no situation may the speech be
Space": Provided, further, That in the absence of prohibited or censored on the basis of its content. For
said broadcasting station or entity, broadcasting shall this purpose, it will not matter whether the speech is
be done in any radio or television station in said made with or on private property. (Diocese of
province or city, which shall be known as "COMELEC Bacolod v. COMELEC, G.R. No. 205728, obiter
Time". Said time shall be allocated to the COMELEC dictum)
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candidates or publicly discussed issues during

Posting of Campaign Materials the campaign period. (R.A. 9006, §5.1)
The COMELEC may authorize political parties and
party-list groups to erect common poster areas for The prohibition (on election surveys) may be for a
their candidates in not more than ten (1) public places limited time, but the curtailment of the right of
such as plazas, markets, barangay centers and the expression is direct, absolute, and substantial. It
like, wherein candidates can post, display or exhibit constitutes a total suppression of a category of
election propaganda: Provided, That the size of the speech and is not made less so because it is only for
poster areas shall not exceed twelve (12) by sixteen a period of fifteen (15) days immediately before a
(16) feet or its equivalent. national election and seven (7) days immediately
before a local election. Sec. 5.4 (of RA 9006)
Independent candidates with no political parties may (which sought to prohibit publication of election
likewise be authorized to erect common poster areas surveys 15 days before a national election and 7
in not more than ten (10) public places, the size of days before a local election) is invalid because (1)
which shall not exceed four (4) by six (6) feet or its it imposes a prior restraint on the freedom of
equivalent. expression, (2) it is a direct and total suppression
of a category of expression even though such
Candidates may post any lawful propaganda material suppression is only for a limited period, and (3)
in private places with the consent of the owner the governmental interest sought to be promoted
thereof, and in public places or property which shall can be achieved by means other than
be allocated equitably and impartially among the suppression of freedom of expression. (SWS v.
candidates. (R.A. 9006, §9) COMELEC, GR No. 147571)
Right to Reply The names of those who commission or pay for

All registered parties and bona fide candidates shall election surveys, including subscribers of survey
be have the right to reply to charges published firms, must be disclosed pursuant to Section 5.2(a)
against them. The reply shall be given publicity by of the Fair Election Act. This requirement is a valid
the newspaper, television and/or radio station which regulation in the exercise of police power and effects
first printed or aired the charges with the same the constitutional policy of “guaranteeing equal
prominence or in the same page or section or in access to opportunities for public service.”, and
the same time slot as the first statement. [Sec. 10, neither curtails petitioners’ free speech rights nor
RA 9006] violates the constitutional proscription against the
impairment of contracts. (Social Weather Stations,
Prescribed Rates for Political Propaganda Inc. et al v. COMELEC, G.R. No. 208062)
During the election period, media outlets shall give
registered political parties and bona fide candidates When published, the tendency of election surveys to
a discount of fifty percent (50%) for television, forty shape voter preferences comes into play. In this
percent (40%) for radio and ten percent (10%) for respect, published election surveys partake of the
print, from the average of the published rates nature of election propaganda. It is then declarative
charged in the last three calendar years prior to the speech in the context of an electoral campaign
election. properly subject to regulation. (Social Weather
Stations, Inc. et al v. COMELEC, G.R. No. 208062)
Nothing in this provision prohibits a media outlet from
giving higher discounts: Provided, That the discount While Resolution No. 9674 does regulate expression
it gives one candidate shall be the same discount it (i.e., petitioners’ publication of election surveys), it
gives to other candidates for the same position. does not go so far as to suppress desired expression.
There is neither prohibition nor censorship
In no case shall rates charged to registered political specifically aimed at election surveys. The freedom
parties and bona fide candidates be higher than to publish election surveys remains. All Resolution
rates charged to non-political advertisers. (R.A. 9006, No. 9674 does is articulate a regulation as regards
§10 (as amended by R.A. 11207)) the manner of publication, that is, that the disclosure
of those who commissioned and/or paid for, including
Election Surveys those subscribed to, published election surveys must
Election surveys refer to the measurement of be made. (Social Weather Stations, Inc. et al v.
opinions and perceptions of the voters as COMELEC, G.R. No. 208062)
regards a candidate's popularity, qualifications, Exit Polls
platforms or a matter of public discussion in relation Exit polls may only be taken subject to the following
to the election, including voters' preference for requirements:
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(a) Pollsters shall not conduct their surveys within Any provision of law to the contrary notwithstanding
fifty (50) meters from the polling place, whether any contribution in cash or in kind to any candidate or
said survey is taken in a home, dwelling place political party or coalition of parties for campaign
and other places; purposes, duly reported to the Commission shall not
(b) Pollsters shall wear distinctive clothing; be subject to the payment of any gift tax. (R.A. 7166,
(c) Pollsters shall inform the voters that they may §13 (amending Secs. 100-101, OEC))
refuse to answer; and
(d) The result of the exit polls may be announced 3rd Party Donations Included in the Allowable
after the closing of the polls on election day, and Expenditure Limit
must clearly identify the total number of In tracing the legislative history of Sections 100, 101,
respondents, and the places where they were and 103 of the OEC, it can be said, therefore, that the
taken. Said announcement shall state that the intent of our lawmakers has been consistent through
same is unofficial and does not represent a the years: to regulate not just the election expenses
trend. (R.A. 9006, §5.5) of the candidate but also of his or her
contributor/supporter/donor as well as by including in
The holding of exit polls and the dissemination of the aggregate limit of the former’s election expenses
their results through mass media constitute an those incurred by the latter. The phrase "those
essential part of the freedoms of speech and of the incurred or caused to be incurred by the candidate”
press. Hence, the COMELEC cannot ban them totally is sufficiently adequate to cover those expenses
in the guise of promoting clean, honest, orderly and which are contributed or donated in the candidate’s
credible elections. Quite the contrary, exit polls — behalf. By virtue of the legal requirement that a
properly conducted and publicized — can be vital contribution or donation should bear the written
tools in eliminating the evils of election-fixing and conformity of the candidate, a
fraud. Narrowly tailored countermeasures may be contributor/supporter/donor certainly qualifies as
prescribed by the Comelec so as to minimize or "any person authorized by such candidate or
suppress the incidental problems in the conduct of treasurer." Ubi lex non distinguit, nec nos distinguere
exit polls, without transgressing in any manner the debemus. (Where the law does not distinguish,
fundamental rights of our people. (ABS-CBN v. neither should We.) There should be no distinction in
COMELEC, GR No. 133486) the application of a law where none is indicated.
(Ejercito v. COMELEC, GR No. 212398)
4. LIMITATIONS ON EXPENSES
Summary of Rules on Authorized Expenses
Authorized Expenses Multiplied by the total number of registered voters:
The agreement amount that a candidate or registered 1. P10 - President and Vice President
political party may spend for election campaign shall 2. P3 - Other candidates (with political party OR
be as follows: with political support)
3. P5 - Independent candidates (without
(a) For candidates. - Ten pesos (P10.00) for political party AND without political
President and Vice-President; and for other support)
candidates Three Pesos (P3.00) for every voter 4. P5 - Political parties
currently registered in the constituency where he filed
his certificate of candidacy: Provided, That a Lawful Expenditures
candidate without any political party and without No candidate or treasurer of a party shall, directly or
support from any political party may be allowed to indirectly, make any expenditure except for the
spend Five Pesos (P5.00) for every such voter; and following purposes:
(a) For traveling expenses of the candidates and
NOTE: The law is clear — the candidate must both campaign personnel in the course of the
be without a political party and without support from campaign and for personal expenses incident
any political party for the P5.00 cap to apply. In the thereto;
absence of one, the exception does not apply (hence, (b) For compensation of campaigners, clerks,
the P3.00 cap will apply). (Salvador v. COMELEC, stenographers, messengers, and other persons
GR No. 204357) actually employed in the campaign;
(c) For telegraph and telephone tolls, internet
(b) For political parties. - Five pesos (P5.00) for access, postages, freight and express delivery
every voter currently registered in the constituency or charges;
constituencies where it has official candidates. (d) For stationery, printing and distribution of printed
materials relative to the candidacy;
(e) For employment of watchers at the polls;
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(f) For rent, maintenance and furnishing of to cover those expenses which are contributed or
campaign headquarters, office or place of donated in the candidate’s behalf. By virtue of the
meetings; legal requirement that a contribution or donation
(g) For political meetings and rallies and the use of should bear the written conformity of the candidate, a
sound systems, lights and decorations during contributor/ supporter/ donor certainly qualifies as
said meetings and rallies; any person authorized by such candidate or
(h) For newspaper, radio, television and other treasurer. (Ejercito v. COMELEC, G.R. No. 212398)
advertisements for purposes of promoting the
candidacy, including website or internet ad 5. STATEMENT OF CONTRIBUTIONS
placements, subject to existing rules and AND EXPENSES
regulations on the broadcast advertising.
(i) For employment of counsel; Reporting of Contributions and Expenditures
(j) For copying and classifying lists of voters,
investigating and challenging the right to vote of Statement of Contributions and Expenditures
persons registered in the lists; and (SOCE)
(k) For printing sample ballots in such color, size Not later than thirty (30) days after the day of election,
and maximum number as may be authorized by every candidate shall file in triplicate with the offices
the Commission. of the Commission where he filed his certificate of
candidacy except for national positions which should
The expenditures for items (i – i.e. employment of be filed with the Campaign Finance Unit, a full, true
counsel), (j – i.e. copying and classifying lists of and itemized statement of all contributions and
voters), and (k – i.e. printing sample ballots), shall expenditures in connection with the elections. (Also
not be taken into account in determining whether R.A. 7166, §14)
the expenditure limit has been breached by the
candidate or party in the conduct of campaign Within the same period, the treasurer of every
activities. (OEC, §102) party that participated in the elections shall file
with the Campaign Finance Unit of the COMELEC
Failure to comply with this Section constitutes an the party's statement of election contributions
election offense under Section 102 in relation to and expenditures. If the statement is sent by mail, it
Section 262 of the Omnibus Election Code. shall be by registered mail, and the date on which it
(COMELEC Resolution No. 9476 s.2012, §3 Rule 4, was registered with the post office may be
citing OEC, §102) considered as the filing date thereof if confirmed on
the same date by telegram or radiogram addressed
Summary of Rules on Lawful Expenditures to the office or official with whom the statement
1. Traveling expenses should be filed, which telegram or radiogram shall
2. Compensation of campaigners, clerks, indicate the registry receipt number of such
stenographers, messengers and other persons registered mail.
actually employed in the campaign
3. Telegraph and telephone tolls, postage, freight The Regional Election Director of the National Capital
and express delivery charges Region, Provincial Election Supervisors and Election
4. Stationary, printing and distribution of printed Officers concerned shall, not later than fifteen (15)
matters relative to candidacy days after the last day for the filing of the Statements
5. Employment of watchers at the polls of Contributions and Expenditures, send to the
6. Rent, maintenance and furnishing of campaign Campaign Finance Unit, Commission on Elections,
HQ, office, or place of meetings Manila, duplicate copies of all statements filed with
7. Political meetings and rallies them. (COMELEC Resolution No. 9476 s.2012 , §2
8. Advertisements Rule 8, citing OEC, §108)
9. Employment of counsel
10. Printing sample ballots Consequences for the Non-Filing of SOCE
11. Copying and classifying list of voters, No person elected to any public offices shall enter
investigating and challenging the right to vote of upon the duties of his office until he has filed the
persons registered in the lists statement of contributions and expenditures herein
required.
NOTE: The expenses for (9), (10), (11) are not
charged against the allowable expenditure limits. The same prohibition shall apply if the political party
which nominated the winning candidate fails to file
The phrase “those incurred or caused to be the statement required herein within the period
incurred by the candidate” is sufficiently adequate prescribed by this Act.
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D. REMEDIES AND JURISDICTION

Except candidates for elective barangay office,
failure to file the statements or reports in 1. PETITION NOT TO GIVE DUE
connection with electoral contributions and
COURSE OR CANCEL A
expenditures are required herein shall constitute
an administrative offense for which the offenders CERTIFICATE OF CANDIDACY
shall be liable to pay an administrative fine
ranging from One thousand pesos (P1,000.00) to 1) For False Material Representation. A verified
Thirty thousand pesos (P30,000.00), in the petition seeking to deny due course or to cancel a
discretion of the Commission. certificate of candidacy may be filed by the person
exclusively on the ground that any material
The fine shall be paid within thirty (30) days from representation contained therein as required
receipt of notice of such failure; otherwise, it shall be under Section 74 hereof is false. The petition may
enforceable by a writ of execution issued by the be filed at any time not later than twenty-five days
Commission against the properties of the offender. from the time of the filing of the certificate of
candidacy and shall be decided, after due notice and
It shall be the duty of every city or municipal election hearing, not later than fifteen days before the
registrar to advise in writing, by personal delivery or election. (OEC, §78)
registered mail, within five (5) days from the date of
election all candidates residing in his jurisdiction to A petition to deny due course to or cancel a CoC can
comply with their obligation to file their statements of only be grounded on a statement of a material
contributions and expenditures. (Resolution No. representation in the said certificate that is false.
9476 s.2012, §1, Rule 8) (Talaga v. COMELEC, GR No. 196804)
For the commission of a second or subsequent The person whose certificate is cancelled or denied
offense under this section, the administrative fine due course under Sec. 78 is not treated as a
shall be from Two thousand pesos (P2,000.00) to candidate at all, as if he/she never filed a CoC.
Sixty thousand pesos (P60,000.00), in the (Talaga v. COMELEC, GR No. 196804)
discretion of the Commission. In addition, the
offender shall be subject to perpetual It is underscored, however, that a Section 78 petition
disqualification to hold public office. (R.A. 7166, should not be interchanged or confused with a
§14) Section 68 petition. The remedies under the two
sections are different, for they are based on different
Moreover, that Congress has deemed fit to impose grounds, and can result in different eventualities. A
the penalty of perpetual disqualification on person who is disqualified under Section 68 is
candidates who repeatedly failed to file their SOCEs prohibited to continue as a candidate, but a
cannot be the subject of judicial inquiry. Congress person whose CoC is cancelled or denied due
has the absolute discretion to penalize by law with course under Section 78 is not considered as a
perpetual disqualification from holding public office in candidate at all because his status is that of a
addition to administrative fines the seekers of public person who has not filed a CoC. Miranda v.
office who fail more than once to file their SOCEs. Abaya has clarified that a candidate who is
Such penalty is intended to underscore the need to disqualified under Section 68 can be validly
file the SOCE as another means of ensuring the substituted pursuant to Section 77 because he
sanctity of the electoral process. (Maturan v. remains a candidate until disqualified; but a
COMELEC, GR No. 227155) person whose CoC has been denied due course
or cancelled under Section 78 cannot be
substituted because he is not considered a
candidate. (Talaga v. COMELEC, GR No. 196804)
Denial or cancellation of Certificate of Candidacy

proceedings involves the issue of whether there is a
false representation of a material fact. The false
representation must necessarily pertain not to a mere
innocuous mistake but to a material fact or those that
refers to a candidate’s qualification for elective office.
(Panlaqui v. COMELEC, G.R. No. 188671)
2) For Being a Nuisance. The Commission may

motu proprio or upon a verified petition of an
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interested party, refuse to give due course to or 2. Removed from office as a result of an
cancel a certificate of candidacy if it is shown that Administrative case.
said certificate has been filed to put the election 3. Convicted by final judgment for violating the Oath
process in mockery or disrepute or to cause of allegiance to the Republic.
confusion among the voters by the similarity of 4. Fugitives from justice in criminal or non-political
the names of the registered candidates or by cases here or abroad.
other circumstances or acts which clearly 5. Dual allegiance.
demonstrate that the candidate has no bona fide 6. Permanent residents in a foreign country or
intention to run for the office for which the those who have acquired the right to reside
certificate of candidacy has been filed and thus abroad and continue to avail of the same right.
prevent a faithful determination of the true will of the
electorate. (OEC, §69) A candidate is ineligible if he is disqualified to be
elected to office, and he is disqualified if he lacks any
THUS: COMELEC may motu proprio or upon verified of the qualifications for elective office. Even if the
petition of any interested party refuse to give due COMELEC made no finding that the petitioner had
course or cancel a COC when: deliberately attempted to mislead or to misinform as
1. The COC has been filed to put the election to warrant the cancellation of his CoC, the
process in mockery or disrepute COMELEC could still declare him disqualified for not
2. Causes confusion among the voters by the meeting the requisite eligibility under the Local
similarity of the names of the registered Government Code. (Agustin v. COMELEC, G.R. No.
candidates 207105)
3. Other circumstances which clearly
demonstrate that the candidate has no bona 2) Omnibus Election Code
fide intention to run for the office.
a) Sec. 12. Disqualifications. - Any person who has
2. PETITION FOR DISQUALIFICATION been declared by competent authority insane or
incompetent, or has been sentenced by final
Disqualification Petitions judgment for subversion, insurrection, rebellion or for
NOTE: Reproducing here for easy reference the any offense for which he has been sentenced to a
section on Disqualifications discussed previously. penalty of more than eighteen months or for a crime
involving moral turpitude, shall be disqualified to be a
1) Local Government Code (RA 7160) candidate and to hold any office, unless he has been
The following persons are disqualified from running given plenary pardon or granted amnesty.
for any elective local position
(a) Those sentenced by final judgment for an This disqualifications to be a candidate herein
offense involving moral turpitude or for an offense provided shall be deemed removed upon the
punishable by one (1) year or more of declaration by competent authority that said insanity
imprisonment, within two (2) years after serving or incompetence had been removed or after the
sentence expiration of a period of five years from his service of
(b) Those removed from office as a result of an sentence, unless within the same period he again
administrative case; becomes disqualified.
(c) Those convicted by final judgment for violating
the oath of allegiance to the Republic; b) Sec. 68. Disqualifications. — Any candidate who,
(d) Those with dual citizenship; in an action or protest in which he is a party is
(e) Fugitives from justice in criminal or non- declared by final decision of a competent court guilty
political cases here or abroad; of, or found by the Commission of having (a) given
(f) Permanent residents in a foreign country or money or other material consideration to influence,
those who have acquired the right to reside induce or corrupt the voters or public officials
abroad and continue to avail of the same right performing electoral functions; (b) committed acts of
after the effectivity of this Code; and terrorism to enhance his candidacy; (c) spent in his
(g) The insane or feeble-minded. [Sec. 40, LGC] election campaign an amount in excess of that
allowed by this Code (e.g. Ejercito v. COMELEC);
Disqualifications under the LGC: (MAO-PDF) (d) solicited, received or made any contribution
1. Sentenced by final judgment for an offense prohibited under Sections 89 (i.e. transportation,
involving Moral turpitude or for an offense food, drinks), 95 (prohibited contributions), 96
punishable by 1 year or more of imprisonment (foreign sources), 97 (prohibited fund raising) and
within 2 years after serving sentence. 104 (prohibited donations); or (e) violated any of
Sections 80 (outside campaign period BUT not
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anymore because of RA 9369 and Penera), 83 Aspects of Disqualification Cases

(destroying lawful election propaganda), 85
(prohibited election propaganda subject to RA Electoral Aspect
9006), 86 (mass media subject to RA 9006) and Primary issue in the electoral aspect is whether or not
261, paragraphs d (coercion of subordinates), e the offender should be disqualified from being a
(terrorism, etc.), k (unlawful electioneering), v candidate or from holding office. Neither a prior
(public funds), and cc, sub-paragraph 6 (unlawful conviction nor even a determination of probable
electioneering – candidacy and campaign), shall cause is then a requirement before a Petition for
be disqualified from continuing as a candidate, or if Disqualification can be lodged. (Francisco v.
he has been elected, from holding the office. Any COMELEC).
person who is a permanent resident of or an
immigrant to a foreign country shall not be qualified ”The electoral aspect of a disqualification case
to run for any elective office under this Code, unless determines whether the offender should be
said person has waived his status as permanent disqualified from being a candidate or from holding
resident or immigrant of a foreign country in office. Proceedings are summary in character and
accordance with the residence requirement provided require only clear preponderance of evidence. An
for in the election laws. erring candidate may be disqualified even
without prior determination of probable cause in
Grounds for Disqualification: (LF2-SEND2) a preliminary investigation. The electoral aspect
1. Lacking qualifications. may proceed independently of the criminal
2. Filing a CoC for more than 1 office aspect, and vice-versa.” (Francisco v. COMELEC
3. False and material representation in the CoC. citing Lanot v. COMELEC).
4. Disqualifications under the LGC.
5. Nuisance candidate. Criminal Aspect
6. Election offenses enumerated under Section 68 Whether or not there is probable cause to charge
of the Omnibus Election Code a candidate for an election offense:
7. Declared insane or incompetent by competent The prosecutor is the COMELEC, through its Law
authority. Department, which determines whether or not
8. Sentenced by final judgment for subversion, probable cause exists.
insurrection, rebellion or an offense which he has
been sentenced to a penalty of more than 18 If there is probable cause:
months, or a crime involving moral turpitude, The COMELEC’s Law Department files the criminal
unless given plenary pardon/ amnesty. information before the proper court.
The use of a foreign passport amounts to repudiation Proceedings before the proper court demand a full
or recantation of the oath of renunciation. Matters blown hearing and require proof beyond reasonable
dealing with qualifications for public elective office doubt to convict.
must be strictly complied with. A candidate cannot
simply be allowed to correct the deficiency in his A criminal conviction shall result in the
qualification by submitting another oath of disqualification of the offender, which may even
renunciation. (Arnado v. COMELEC, G.R. No. include disqualification from holding a future public
210164) office.
The petitioner's continued exercise of his rights as a

citizen of the USA through using his USA passport
after the renunciation of his USA citizenship reverted
him to his earlier status as a dual citizen. Such
reversion disqualified him from being elected to
public office. (Agustin v. COMELEC, G.R. No.
207105)
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Petition for Disqualification vs. Petition to Deny evidence of his guilt is strong.” Section 6 of the
Due Course/Cancel CoC Electoral Reforms Law of 1987 covers two situations.
PETITION TO DENY The first is when the disqualification becomes final
PETITION FOR
DUE COURSE/ before the elections, which is the situation covered in
DISQUALIFICATION
CANCEL CoC (SEC. the first sentence of Section 6. The second is when
(SEC. 68)
78) the disqualification becomes final after the elections,
Premised on Section 12 Grounded on a which is the situation covered in the second sentence
or 68 of the Omnibus statement of a material of Section 6. (Talaga v. COMELEC, GR No. 196804)
Election Code, or representation in the
Section 40 of the Local said certificate that is NOTE: Thus, in Talaga v. COMELEC, IT DEPENDS
Government Code false. on when the disqualification became final:
A person who is The person whose
disqualified under certificate is cancelled 1) If NOT FINAL BEFORE election = hence, still a
Section 68 is merely or denied due course candidate = second-placer is not the winner
prohibited to continue as under Section 78 is not (Doctrine of Rejection of Second-Placer);
a candidate. treated as a candidate succession rules will apply;
at all, as if he/she never 2) If FINAL BEFORE election = hence, not a
filed a CoC. candidate = second-placer wins because he/she
Thus, a candidate who is A person whose CoC gets next highest votes among the qualified
disqualified under has been denied due candidates.
Section 68 can validly be course or cancelled 3) However, the SC in Maquiling v. COMELEC
substituted under under Section 78 (2013) declared the second-placer as winner
Section 77 of the OEC cannot be substituted even if the disqualified candidate continued to be
because he/she remains because he/she is a candidate (no final disqualification) and was
a candidate until never considered a even proclaimed as the winner, to wit: the votes
disqualified. candidate. (Tagolino v. cast in favor of the ineligible candidate are not
HRET, G.R. No. considered at all in determining the winner of an
NOTE: However, if the 202202, Mar. 19, 2013.) election. Even when the votes for the ineligible
candidate is disqualified NOTE: If the CoC of the candidate are disregarded, the will of the
after assumption of candidate was denied electorate is still respected, and even more so.
office, he shall vacate the or cancelled in due The votes cast in favor of an ineligible candidate
position and succession course after he has do not constitute the sole and total expression of
under LGC shall apply as assumed office, he the sovereign voice. The votes cast in favor of
ruled. shall vacate the position eligible and legitimate candidates form part of
and the second placer that voice and must also be respected. As in any
will be declared as contest, elections are governed by rules that
winner. determine the qualifications and disqualifications
of those who are allowed to participate as
The Declared Winner When Winning Candidate is players. When there are participants who turn
Disqualified or Fails to Qualify out to be ineligible, their victory is voided and the
The law expressly declares that a candidate laurel is awarded to the next in rank who does
disqualified by final judgment before an election not possess any of the disqualifications nor lacks
cannot be voted for, and votes cast for him shall not any of the qualifications set in the rules to be
be counted. This is a mandatory provision of law. eligible as candidates.
Section 6 of Republic Act No. 6646, The Electoral
Reforms Law of 1987, states: Sec. 6. Effect of 4) In Halili v. COMELEC (2019), the SC ruled that
Disqualification Case.— “Any candidate who has in case of vacancies caused by those
been declared by final judgment to be disqualified with void ab initio COCs, the person legally
shall not be voted for, and the votes cast for him shall entitled to the vacant position would be the
not be counted. If for any reason a candidate is not candidate who garnered the next highest
declared by final judgment before an election to be number of votes among those eligible. Citing
disqualified and he is voted for and receives the Jalosjos, Jr. v. Commission on Elections (2012),
winning number of votes in such election, the Court the SC explained: “Decisions of this Court
or Commission shall continue with the trial and holding that the second-placer cannot be
hearing of the action, inquiry, or protest and, upon proclaimed winner if the first-placer is
motion of the complainant or any intervenor, may disqualified or declared ineligible should be
during the pendency thereof order the suspension of limited to situations where the certificate of
the proclamation of such candidate whenever the candidacy of the first-placer was valid at the time
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of filing but subsequently had to be cancelled petition for certiorari under Rule 65 of the Rules of
because of a violation of law that took place, or Court. (Cagas v. COMELEC, G.R. No. 194139)
a legal impediment that took effect, after the filing
of the certificate of candidacy. If the certificate of Removal of Disqualification Plenary Pardon
candidacy is void ab initio, then legally the The phrase in the presidential pardon which
person who filed such void certificate of declares that the person "is hereby restored to
candidacy was never a candidate in the elections his civil and political rights" substantially
at any time. All votes for such non-candidate are complies with the requirement of express
stray votes and should not be counted. Thus, restoration of his right to hold public office, or the
such non-candidate can never be a first-placer in right of suffrage. Articles 36 and 41 of the Revised
the elections. If a certificate of candidacy Penal Code should be construed in a way that will
void ab initio is cancelled on the day, or give full effect to the executive clemency granted by
before the day, of the election, prevailing the President, instead of indulging in an overly strict
jurisprudence holds that all votes for that interpretation that may serve to impair or diminish the
candidate are stray votes. If a certificate of import of the pardon which emanated from the Office
candidacy void ab initio is cancelled one day of the President and duly signed by the Chief
or more after the elections, all votes for such Executive himself/herself. The said codal provisions
candidate should also be stray votes must be construed to harmonize the power of
because the certificate of candidacy is void Congress to define crimes and prescribe the
from the very beginning. This is the more penalties for such crimes and the power of the
equitable and logical approach on the effect of President to grant executive clemency. All that the
the cancellation of a certificate of candidacy that said provisions impart is that the pardon of the
is void ab initio.” principal penalty does not carry with it the remission
of the accessory penalties unless the President
A COMELEC resolution declaring a candidate expressly includes said accessory penalties in the
disqualified for the said position is not yet final if pardon. It still recognizes the Presidential prerogative
a motion for reconsideration has been timely to grant executive clemency and, specifically, to
filed. At that point, he still remains qualified and decide to pardon the principal penalty while excluding
his proclamation thereafter is valid. As a result, its accessory penalties or to pardon both. Thus,
COMELEC's jurisdiction to contest his citizenship Articles 36 and 41 only clarify the effect of the pardon
ends, and the HRET's own jurisdiction begins. so decided upon by the President on the penalties
(Gonzales v. COMELEC, G.R. No. 192856) imposed in accordance with law. (Risos-Vidal v.
COMELEC, G.R. No. 206666)
A party aggrieved by an interlocutory order
issued by a Division of the COMELEC in an A whereas clause in a pardon which states that
election protest may not directly assail the order the person “publicly committed to no longer seek
in this Court through a special civil action for any elective position or office” does not make the
certiorari. The remedy is to seek the review of the pardon conditional. Whereas clauses do not form
interlocutory order during the appeal of the decision part of a statute because, strictly speaking, they
of the Division in due course. The court may have the are not part of the operative language of the
power to review any decision, order or ruling of the statute. The whereas clause is not an integral part of
COMELEC, limits such power to a final decision or the decree of the pardon, and therefore, does not by
resolution of the COMELEC en banc, and does not itself alone operate to make the pardon conditional or
extend to an interlocutory order issued by a Division to make its effectivity contingent upon the fulfillment
of the COMELEC. Otherwise stated, the Court has of the aforementioned commitment nor to limit the
no power to review on certiorari an interlocutory scope of the pardon. (Risos-Vidal v. COMELEC, G.R.
order or even a final resolution issued by a No. 206666)
Division of the COMELEC. Where the Commission
in division committed grave abuse of discretion or Former President Estrada was granted an
acted without or in excess of jurisdiction in issuing absolute pardon that fully restored all his civil
interlocutory orders relative to an action pending and political rights, which naturally includes the
before it and the controversy did not fall under any of right to seek public elective office. The wording of
the instances mentioned in Section 2, Rule 3 of the the pardon extended to him is complete,
COMELEC Rules of Procedure, the remedy of the unambiguous, and unqualified. The fact that the
aggrieved party is not to refer the controversy to the pardon did not specify the specific rights restored
Commission en banc as this is not permissible under does not mean that GMA did not intend to restore his
its present rules but to elevate it to this Court via a right to suffrage. (Risos-Vidal v. COMELEC, G.R. No.
206666)
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Thus: There is a failure to elect when nobody can be

The disqualification from running for public office due declared as a winner because the will of the majority
to libel shall be removed after service of the five-year has been defiled and cannot be ascertained.
sentence, which is counted from the date the fine is
paid. (Ty-Delgado v. HRET, G.R. No. 219603) When Failure of Elections May Be Declared:
(SNR)
To resolve the tie, there shall be drawing of lots. 1. Election was Suspended before the hour fixed by
Whenever it shall appear from the canvass that two law for the closing of the voting
or more candidates have received an equal and 2. Election in any polling place was Not held on the
highest number of votes, or in cases where two or date fixed
more candidates are to be elected for the same 3. Elections Results in a failure to elect (after the
position and two or more candidates received the voting and during the preparation and
same number of votes for the last place in the number transmission of the election returns or in the
to be elected, the board of canvassers, after custody or canvass thereof). (Carlos v. Angeles,
recording this fact in its minutes, shall by resolution, G.R. No. 142907)
upon five days’ notice to all the tied candidates, hold
a special public meeting at which the board of Grounds: (V-F2AT)
canvassers shall proceed to the drawing of lots of the Force majeure
candidates who have tied and shall proclaim as Fraud
elected the candidates who may favored by luck, and Violence
the candidates so proclaimed shall have the right to Terrorism
assume office in the same manner as if he had been Analogous circumstances
elected by plurality of votes. The board of canvassers (Carlos v. Angeles, G.R. No. 142907)
shall forthwith make a certificate stating the name of
the candidate who had been favored by luck and his Annulment of Election Results
proclamation on the basis thereof. Nothing in this In Loong v. COMELEC, SC held that “the COMELEC
section shall be construed as depriving a candidate is duty-bound to investigate allegations of fraud,
of his right to contest the election. (OEC, §240.; terrorism, violence and other analogous causes in
Tugade v. COMELEC, G.R. No. 171063) actions for annulment of election results or for
declaration of failure of elections, as the OEC
3. FAILURE OF ELECTION VERSUS denominates the same. Thus, COMELEC, in the
ANNULMENT OF ELECTION case of actions for annulment of election results or
RESULTS declaration of failure of elections, may conduct a
technical examination of election documents and
Failure of Election compare and analyze voters’ signatures and
COMELEC Can Declare a Failure of Election. If, fingerprints in order to determine whether or not the
on account of force majeure, violence, terrorism, elections had indeed been free, honest and clean
fraud, or other analogous causes the election in (Tan v. COMELEC, G.R. No. 148575-76)
any polling place has not been held on the date fixed,
or had been suspended before the hour fixed by law The fact that a candidate proclaimed has assumed
for the closing of the voting, or after the voting and office does not deprive the COMELEC of its authority
during the preparation and the transmission of the to annul any canvass and illegal proclamation.
election returns or in the custody or canvass thereof, (Ampatuan v. COMELEC, G.R. No. 149803)
such election results in a failure to elect, and in any
of such cases the failure or suspension of election The HRET has laid down the two (2) requisites for the
would affect the result of the election, the annulment of election returns by the Electoral
Commission shall, on the basis of a verified petition Tribunal, based on fraud, irregularities, or terrorism,
by any interested party and after due notice and namely
hearing, call for the holding or continuation of the (a) that more than fifty percent (50%) of the total
election not held, suspended or which resulted in a number of votes in the precincts were involved,
failure to elect on a date reasonably close to the date and
(b) that the votes much be shown to have been
of the election not held, suspended or which resulted
in a failure to elect but not later than thirty days after affected or vitiated by such fraud, irregularities or
the cessation of the cause of such postponement or terrorism.
suspension of the election or failure to elect. (OEC, Noncompliance with these requisites will not
warrant the annulment of votes. Elections should
§6)
never be held void unless they are clearly illegal; it is
the duty of the court to sustain an election authorized
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by law if it has been so conducted as to give a free 4. PRE-PROCLAMATION

and fair expression of the popular will, and the actual CONTROVERSY
result thereof is clearly ascertained. (Arroyo v. HRET
and Syjuco, G.R. No. 118597) Definition of a Pre-Proclamation Controversy
1) A pre-proclamation controversy refers to any
Whether an action is for declaration of failure of question pertaining to or affecting the
elections or for annulment of election results, proceedings of the board of canvassers
based on allegations of fraud, terrorism, violence which may be raised by any candidate or by any
or analogous cause, the OEC denominates them registered political party or coalition of political
similarly. The fact that a verified petition has been parties before the board or directly with the
filed does not mean that a hearing on the case should Commission, or any matter raised under
first be held before the COMELEC can act on it. The Sections 233 (Election Returns are delayed,
petition to declare a failure of election and/or to annul lost, and destroyed), 234 (Material Defects in
election results must show on its face that the the Election Returns), 235 (Election Returns
conditions necessary to declare a failure to elect are appear to be falsified or tampered) and 236
present. In their absence, the petition must be denied (Discrepancies in Election Returns) in relation
outright. To warrant a 63 declaration of failure of to the preparation, transmission, receipt, custody
elections, the commission of fraud must be such that and appreciation of the election returns. (OEC,
it prevented or suspended the holding of an election, §241)
or the preparation and transmission, custody and
canvass of the election returns. These essential facts 2) Under Republic Act No. 7166, providing for
must be established (Banaga, Jr. v. COMELEC, G.R. synchronized national and local elections, pre-
No. 134696) proclamation controversies refer to matters
relating to the preparation, transmission,
COMELEC commits grave abuse of discretion receipt, custody and appearance of election
when, confronted with essentially similar returns and certificates of canvass.
situations, it takes cognizance of a petition to
annul the election results in one municipality yet 3) Any question pertaining to or affecting the
dismisses a petition to annul election results in proceedings of the Board of Canvassers which
other municipalities. The untimeliness of the may be raised by any candidate or registered
petition is an untenable argument for such dismissal political party, or coalition. (Macabago v.
because the law does not provide for a reglementary COMELEC, G.R. No. 152163)
period in filing a petition for annulment of elections as
long as there has been no proclamation yet. (Loong Pre-Proclamation Issues
and Tulawie v. COMELEC, ET. AL., G.R. No. The following shall be proper issues that may be
122137) raised in a pre-proclamation controversy:
1) Illegal composition or proceedings of the
While, however, the COMELEC, is restricted in board of canvassers;
pre-proclamation cases, to an examination of the
election returns on their face and is without Illegal Composition of the Board of
jurisdiction to go beyond or behind them and Canvassers. — There is illegal composition of
investigate election irregularities, the COMELEC the BOC when, among other similar
is duty bound to investigate allegations of fraud, circumstances, any of the members do not
terrorism, violence and other analogous causes possess legal qualifications and appointments.
in actions for annulment of election results or for The information technology capable person
declaration of failure of elections, as the OEC required to assist the BOC by R.A 9369 shall be
denominates the same. The Supreme Court has included as among those whose lack of
emphasized that public policy frowns on attempts to qualifications may be questioned. (COMELEC
"grab-the-proclamation and prolong-the protest." Resolution No. 8804, March 22, 2010, §1)
However, this policy has to be balanced against the
clear and present dangers created by a lengthy Illegal Proceedings of the Board of
period of non-proclamation of winners, a period Canvassers. — There is illegal proceedings of
commonly fraught with tension and danger for the the BOC when the canvassing is a sham or mere
public at large. (Alauya, Jr. v. COMELEC, G.R. No. ceremony, the results of which are pre-
152151-52) 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
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BOC's; d) Improper venue. (COMELEC Certificate of Canvass

Resolution No. 8804, March 22, 2010, §2) A document in electronic and printed form containing
the total votes in figures obtained by each candidate
2) The canvassed election returns are incomplete, in a city / municipality / district / province as the case
contain material defects, appear to be tampered may be. The electronic certificates of canvass shall
with or falsified, or contain discrepancies in the be the official canvass results in the aforementioned
same returns or in other authentic copies thereof jurisdictions. (R.A. 8436, §2(6), (as amended by R.A.
as mentioned in Sections 233 (Election 9369)
Returns are delayed, lost, and
destroyed), 234 (Material Defects in the NOTE: This is the report on the votes per city /
Election Returns), 235 (Election Returns municipality / district / province based on the Election
appear to be falsified or tampered) and 236 Returns that is canvassed or tabulated at the local
(Discrepancies in Election Returns) of this and national level.
Code;
3) The election returns were prepared under Statement of Votes
duress, threats, coercion, or intimidation, or they A document containing the votes obtained by
are obviously manufactured or not authentic; and candidates in each precinct in a city/municipality.
4) When substitute or fraudulent returns in (R.A. 8436, §2(5), (as amended by R.A. 9369))
controverted polling places were canvassed, the
results of which materially affected the standing NOTE: This is another report generated at the
of the aggrieved candidate or candidates. (OEC, canvassing stage containing the votes breakdown
§243) per precinct for national (e.g. party-list) and local (e.g.
mayor) races. It supports the Certificate of Canvass
COMELEC Action that serves as the basis for proclamation.
COMELEC may motu proprio or upon written petition,
and after due notice and hearing, order the partial or Although not specifically included in OEC, §243 the
total suspension of the proclamation of any SC in Ramirez v. COMELEC, GR No. 122013, 26
candidate-elect or annul partially or totally any March 1997 recognized that petition for the correction
proclamation, if one has been made. (OEC, §242) of entries in a Statement of Votes is a pre-
proclamation controversy and can be filed directly
All pre-proclamation controversies shall be heard with the COMELEC en banc, to wit: "By now it is
summarily by the Commission after due notice and settled that election cases which include pre-
hearing, and its decisions shall be executory after the proclamation controversies must first be heard and
lapse of five days from receipt by the losing party of decided by a division of the Commission — and a
the decision of the Commission, unless restrained by petition for correction of manifest error in the
the Supreme Court. (OEC, §246) Statement of Votes, like SPC No. 95-198 is a pre-
proclamation controversy — in none of the cases
Election Return cited to support this proposition was the issue the
A document in electronic and printed form directly correction of a manifest error in the Statement of
produced by the counting or voting machine, showing Votes under 231 of the Omnibus Election Code (B.P.
the date of the election, the province, municipality Blg. 881) or §15 of R.A. No. 7166. On the other hand,
and the precinct in which it is held and the votes in Rule 27, §5 of the 1993 Rules of the COMELEC
figures for each candidate in a precinct in areas expressly provides that pre-proclamation
where AES is utilized. (R.A. 8436, § 2(4), (as controversies involving, inter alia, manifest errors in
amended by R.A. 9369)) the tabulation or tallying of the results may be filed
directly with the COMELEC en banc.”
NOTE: This is the report on the votes PER
PRECINCT that is transmitted to the board of Grounds for Pre-Proclamation Controversies:
canvassers for tabulation. 1. Illegal composition or proceedings of the board
of canvassers
a. Filed with the BOC or with COMELEC
b. Within 3 days from a ruling (if based on
illegal proceedings), or as soon as the
Board begins to act.
2. Irregularities in relation to the preparation,
transmission, receipt, custody, and
appreciation of election returns and certificates
of canvass:
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a. ERs are delayed, lost or destroyed Grounds For Material Defects:

b. Material defects in the ERs 1. Omission of name of candidates
c. ERs appear to be tampered with or 2. Omission of votes for candidates
falsified
d. Discrepancies in the ERs Material Defect v. Falsified/Tampered
3. Canvassed returns are incomplete, contain ERs HAVE BEEN
MATERIAL DEFECT
material defects FALSIFIED/
IN THE ERs
a. ERs are delayed, lost, destroyed TAMPERED
i. In this case, the Board can use any of BOC needs authority BOC needs no prior
the authentic copies from COMELEC to get permission from the
ii. Or terminate canvass if the missing copies of the other ERs COMELEC to get
returns will not affect the results copies of the other ERs
anyway
b. Missing requisites Jurisdiction:
i. Board calls for members of the BEI to 1) Contested composition or proceedings of the
complete or correct the return. DO board - May be initiated in the Board of canvassers
NOT EXCLUDE, if correctable or COMELEC.
c. ERs are tampered, falsified, altered after 2) Contested ERs - Should be brought in the 1st
these left the hands of BEI, not authentic, instance before the board of canvassers only.
prepared under duress, force, intimidation,
etc. General Rule: When the Electoral Tribunal obtains
i. Resort to other ERs jurisdiction, it precludes the COMELEC from
ii. If all are tampered, can have ballot exercising powers over pre-proclamation
boxes reopened and counted controversies.
d. Discrepancies in other authentic copies of
the returns or discrepancies in the votes of Exceptions: (PAPI-Q)
any candidate in words/figures – and these 1. BOC was Improperly constituted
would affect results of the election 2. Proclamation was null and void
i. Order opening of ballot boxes for 3. Quo warranto is not the proper remedy
recount 4. What was filed was a Petition to annul a
4. ERs prepared under duress, threats, coercion, proclamation, and not quo warranto or election
intimidation, obviously manufactured protest.
a. “Obviously manufactured” - According to 5. Election contest expressly made without
the Court, when it follows the doctrine of prejudice to PPC or it was made Ad cautelam
statistical improbabilities or “Statistically (cautionary).
improbable data”.
5. Substitute or fraudulent returns in controverted In exercising its powers and jurisdiction, as defined
polling places are canvassed, and the results by its mandate to protect the integrity of elections, the
materially affect the standing of candidates. COMELEC “must not be straight-jacketed by
(OEC, §243) procedural rules in resolving election disputes.”
(Violago v. COMELEC, G.R. No. 194143)
NOTE: Grounds for pre-proclamation controversies
are exclusive. Two Objection Rule - Submit oral objection and
written objection simultaneously to BOC chairperson
General Rule: COMELEC cannot go behind the face before ERs have been canvassed. There is
of an election return. It is beyond the jurisdiction of substantial compliance even if the oral objection is
COMELEC to go beyond the face of the returns or filed first, then the written objection with evidence is
investigate election irregularities. submitted within 24 hours.
Exception: When there is prima facie showing that However, in Marabur vs. COMELEC, the Court held
the ER is not genuine (e.g., as when several entries that there is substantial compliance if despite the
have been omitted). (Lee vs. COMELEC, G.R. No. absence of a written objection, an offer of evidence is
157004) made within the 24-hour period. (Marabur vs.
COMELEC, G.R. No. 169513)
Summary Nature:
 Pre-proclamation controversies shall be heard
summarily by the COMELEC.
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 Its decision shall be executory after 5 days from votes. This process of examination is the revision of
receipt by the losing party of the decision, unless the ballots pursuant to Section 6, Rule 20 of the 1993
restrained by the SC. (OEC, §246) COMELEC Rules of Procedure. The protests
involved herein assailed the authenticity of the
General Rule: Pre-proclamation cases are deemed election returns and the veracity of the counting of the
terminated: ballots. In that regard, the ballots themselves are the
1. At the beginning of the term of the office involved best evidence. The only means to overcome the
and the rulings of the BOC concerned deemed presumption of legitimacy of the election returns is to
affirmed. examine and determine first whether the ballot boxes
2. This is without prejudice to the filing of a regular have been substantially preserved in the manner
election protest by the aggrieved party. mandated by law. Hence, the necessity to issue the
(Sarmiento v. COMELEC, G.R. No. 105628) order of revision.
Exceptions: Proceedings may continue if: NOTE: The COMELEC did not commit grave abuse
1. COMELEC determines that the petition is of discretion when it ordered the revision of 44 ballots
meritorious and issues an order for the with the Senate Electoral Tribunal without first
proceedings to continue. resolving whether 16 of those 44 ballots should be
2. The SC issues an order for the proceedings to included in the revision. (Tolentino v. COMELEC,
continue in a petition for certiorari. G.R. No. 187958)
(Sarmiento v. COMELEC, G.R. No. 105628)
Statistically Improbable Data
Where a proclamation is null and void, the 1. Uniformity of tally in favor of candidates
proclamation is no proclamation at all and the belonging to 1 party.
proclaimed candidate’s assumption of office cannot 2. Systematic blanking out of candidates belonging
deprive the COMELEC of the power to declare such to another party.
nullity and annul the proclamation. (Federico v.
COMELEC, G.R. No. 199612) Pre-Proclamation Controversies for National
Elective Offices
But the remedy of filing a pre-proclamation case is As a general rule, there are no pre-proclamation
still available after proclamation if the proclamation issues for national elective offices, BUT there are
should have been suspended because of contested now recognized exceptions under RA 9369
election returns. (Jainal vs. COMELEC, G.R. No. amending RA 7166 as applied and ruled by the
174551) Supreme Court in Pimentel III v. COMELEC (GR No.
178413, 13 March 2008), to wit:
Grounds for Recount:
1. Material defects in the ERs (OEC, §234) “Indeed, this Court recognizes that by virtue of the
2. ERs are tampered or falsified (OEC, §235) amendments introduced by Republic Act No. 9369 to
3. Discrepancies in the ERs (OEC, §236) Sections 15 and 30 of Republic Act No. 7166, pre-
proclamation cases involving the authenticity and
When Recount is Possible: due execution of certificates of canvass are now
1. COMELEC order BEI to conduct recount allowed in elections for President, Vice-President,
2. Integrity and identity of ballot box is not violated and Senators. The intention of Congress to treat a
3. BEI ascertains that integrity of ballots in box case falling under Section 30 of Republic Act No.
preserved 7166, as amended by Republic Act No. 9369, as a
4. BEI recounts and complete/correct returns pre-proclamation case is apparent in the fourth
paragraph of the said provision which adopts and
NOTE: While these provisions are still in the applies to such a case the same procedure provided
under Sections 17, 18, 19 and 20 of Republic Act No.
Omnibus Election Code, they are deemed to have
been superseded already by the Automated Election 7166 on pre-proclamation controversies. In sum, in
elections for President, Vice-President, Senators
Law since any recount is no longer possible with the
and Members of the House of Representatives,
electronic transmission, counting, and consolidation
the general rule still is that pre-proclamation
of votes. The better answer is to file this as an
cases on matters relating to the preparation,
Election Protest before the proper court or body. (ET
transmission, receipt, custody and appreciation
Kaw)
of election returns or certificates of canvass are
still prohibited. As with other general rules, there
In regular election contests, the general averment of
are recognized exceptions to the prohibition,
fraud or irregularities in the counting of votes justifies
namely: (1) correction of manifest errors; (2)
the examination of the ballots and recounting of
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questions affecting the composition or COMELEC Partial Proclamation

proceedings of the board of canvassers; and (3) Notwithstanding the pendency of any pre-
determination of the authenticity and due proclamation controversy, the Commission may,
execution of certificates of canvass as provided in motu proprio or upon the filing of a verified
Section 30 of Republic Act No. 7166, as amended by petition and after due notice and hearing, order
Republic Act No. 9369.” the proclamation of other winning candidates
whose election will not be affected by the
“Manifest Errors” — Matters regarding the outcome of the controversy. (OEC, §247)
preparation, transmission, receipt, custody, and
appreciation election returns shall be brought, in the 5. ELECTION PROTEST
first instance, before the boards of canvassers, not
the COMELEC. (Fernandez vs. COMELEC, G.R. No. Election Contests
171821) Election Contests refer to Election Protests or
Petitions for Quo Warranto. [Sec. 3(c), AM. No. 07-4-
Thus, to summarize: 15-SC]
General Rule: Pre-proclamation cases are NOT
allowed in elections for the President, Vice President, Kinds Of Election Contests:
Senator and members of the House of 1. Election Protest
Representatives. 2. Quo Warranto
Exceptions: Withdrawal of nomination and substitution by another
1. Manifest Errors in the ERs or COCs may be nominee is neither an election protest nor an action
corrected motu proprio or upon written complaint for quo warranto. Petitioner correctly brought before
of any interested person. the Supreme Court this special civil action for
2. Questions affecting the composition or certiorari under Section 7 of Article IX-A of the 1987
proceedings of the board of canvassers may be Constitution, notwithstanding the proclamation of,
initiated in the board or directly with the and assumption of office by, the substitute nominee.
Commission in accordance with §19. (R.A. No. (Lokin, Jr. v. COMELEC G.R. No. 179431-
7166) 32/180443)
Manifest Errors: Election Protests

1. Mistake in adding 1. For provincial, regional, and city elective
2. Mistake in copying of figures from ER or officials. A petition contesting the elections or
Statement of Votes returns of an elective regional, provincial, or city
3. ERs from non-existent precinct canvassed official shall be filed with the Commission by any
4. Copy of ER tabulated more than twice candidate who was voted for in the same office
5. 2 or more copies of ER and COC in 1 precinct and who received the second of third highest
counted separately number of votes or, in a multi-slot position, was
among the next four candidates following the last
The grounds for manifest errors are inclusive. The ranked winner duly proclaimed, as reflected in
allowable margin of error is 60%. It suspends the the official results of the election contained in the
running of the period within which to file an election Statement of Votes. The party filing the protest
protest or quo warranto proceeding. shall be designated as the protestant; the
adverse party shall be known as the protestee.
Notwithstanding the pendency of any pre- (COMELEC Resolution N0. 8804, §1, Rule 6)
proclamation controversy, the Commission may
summarily order the proclamation of other winning 2. For municipal elective officials.
candidates whose election will not be affected by the Election protest refers to an election contest
outcome of the controversy. involving the election and returns of
municipal elective officials, grounded on
An aggrieved party may file a petition for certiorari fraud or irregularities committed in the
with the COMELEC whenever a judge hearing an conduct of the elections, i.e., in the casting
election case has acted without or in excess of his and the counting of the ballots, in the
jurisdiction or with grave abuse of discretion and consolidation of votes and in the canvassing
there is no appeal, nor any plain, speedy, and of returns, not otherwise classified as a pre-
adequate remedy in the ordinary course of law. proclamation controversy cognizable by the
(Bulilis v. Nuez, G.R. No. 195953) COMELEC. The issue is who obtained the
plurality of valid votes cast. (2010 Rules of
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Procedure in Election Contests Before the 2. SENATE ELECTORAL TRIBUNAL (SET) and
Courts Involving Elective Municipal Officials, HOUSE OF REPRESENTATIVES
A.M. No. 10-4-1-SC, April 27, 2010, §3 (u), Rule ELECTORAL TRIBUNAL (HRET)
1) For Senators and Members of the HoR. The
Senate and the House of Representatives shall
A petition contesting the election or returns for an each have an Electoral Tribunal which shall be
elective municipal office shall be filed with the the sole judge of all contests relating to the
proper Regional Trial Court by an candidate who election, returns, and qualifications of their
was voted for the same office and who received respective Members. Each Electoral Tribunal
the second or third-highest number of votes or, shall be composed of nine Members, three of
in a multi-slot position, was among the next four whom shall be Justices of the Supreme Court to
candidates following the last-ranked winner duly be designated by the Chief Justice, and the
proclaimed, as reflected in the official results of remaining six shall be Members of the Senate or
the election contained in the Statement of Votes the House of Representatives, as the case may
by Precinct. The party filing the protest shall be be, who shall be chosen on the basis of
designated as the protestant; the adverse party proportional representation from the political
shall be known as the protestee. (2010 Rules of parties and the parties or organizations
Procedure in Election Contests Before the registered under the party-list system
Courts Involving Elective Municipal Officials, represented therein. The senior Justice in the
A.M. No. 10-4-1-SC, April 27, 2010, §4, Rule 1) Electoral Tribunal shall be its Chairman. (PHIL.
CONSTI. §17, art. VI)
3. For barangay elective officials. Election
Protest refers to an election contest relating to 3. COMMISSION ON ELECTIONS (COMELEC)
the election and returns of elective officials, ORIGINAL EXCLUSIVE: For Provincial and
grounded on frauds or irregularities in the City Elective Officials; APPELLATE: For
conduct of the elections, the casting and Municipal and Barangay Elective Officials.
counting of the ballots and the preparation and COMELEC shall exercise exclusive original
canvassing of returns. The issue is who obtained jurisdiction over all contests relating to the
the plurality of valid votes cast. (AM. No. 07-4- elections, returns, and qualifications of all
15-SC §3(d)) elective regional, provincial, and city officials,
and appellate jurisdiction over all contests
NOTE: The failure or omission of protestant to raise involving elective municipal officials decided by
the question of identical handwriting or of impugning trial courts of general jurisdiction, or involving
the validity of the ballots on that ground, resulting in elective barangay officials decided by trial courts
the invalidation of 466 ballots for petitioner, does not of limited jurisdiction. Decisions, final orders, or
preclude respondent COMELEC from rejecting them rulings of the Commission on election contests
on that ground. Unlike an ordinary suit, an election involving elective municipal and barangay offices
protest is of utmost public concern. The rights of the shall be final, executory, and not appealable.
contending parties in the position aspired for must (PHIL. CONST. §2(2), art. IX-C; OEC, §249)
yield to the far greater interest of the citizens in the
sanctity of the electoral process. This being the case, COMELEC Jurisdiction Over Election
the choice of the people to represent them may not Contests:
be bargained away by the sheer negligence of a 1. Original Jurisdiction over contests relating to
party, nor defeated by technical rules of procedure. elections, returns, and qualifications of all
Thus, COMELEC cannot just close its eyes to the elective:
illegality of the ballots brought before it, where the a. Regional
ground for the invalidation was omitted by the b. Provincial
protestant. (Arao v. COMELEC, GR No. 103877) c. City officials
2. Appellate Jurisdiction over contests
Jurisdiction Over Election Contests involving:
1. PRESIDENTIAL ELECTORAL TRIBUNAL a. Elective Municipal officials decided by
For President, Vice President. The Supreme trial courts of general jurisdiction
Court, sitting en banc, shall be the sole judge of b. Elective Barangay officials decided by
all contests relating to the election, returns, and trial courts of limited jurisdiction
qualifications of the President or Vice- President, c. COMELEC may issue extraordinary
and may promulgate its rules for the purpose. writs of certiorari, prohibition and
(PHIL. CONSTI. §4, art. VII) mandamus
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4. REGIONAL TRIAL COURTS (RTC) a. election fraud/terrorism, and

For Municipal Elective Officials. RTC shall b. irregularities or illegal acts before, during, or
have exclusive original jurisdiction over all after casting and counting of votes
election contests involving elective municipal (Espaldon v. COMELEC, G.R. No. L-78987)
officials. (AM. No. 07-4-15-SC, §1, Rule 2)
Additional Requirements:
5. METROPOLITAN TRIAL COURTS 1. Payment of docket fee
(MeTC)/MUNICIPAL TRIAL COURTS (MTC). 2. Certificate of Non-Forum Shopping
For Barangay Elective Officials (Including SK
as held in Fernandez v. COMELEC, GR No. NOTE: Failure to pay is ground to dismiss the case.
176296, 30 June 2008). MeTC/MTC shall have (Banaga Jr. v. Commission on Elections, G.R. No.
exclusive original jurisdiction over all election 134696, Jul. 31, 2000)
contests involving elective barangay officials.
(AM. No. 07-4-15-SC, §2, Rule 2) House of Representatives Electoral Tribunal
Jurisdiction Over Election Contests
A petition for mandamus will lie against the Speaker The House of Representatives has the jurisdiction to
of the House and the House Secretary General for question the qualification of the nominees of party-list
not performing their ministerial duties to administer organizations. Although party list organizations are
the oath of the second placer and enter his name in voted for in the elections, still it is not the
the Roll of Members of the House of organizations which sit and become members of the
Representatives, when the winner’s COC had been House of Representatives but their nominees.
cancelled due to ineligibility. (Velasco v. Belmonte, Subsequently, Section 17, Article VI of the
G.R. 211140) Constitution provides that the HRET shall be the sole
judge of all contests relating, among others, to the
Pre-proclamation Controversy v. Election qualifications of the members of the House. Thus,
Contest since party list nominees are considered as “elected
PRE- members” of the House, the HRET has jurisdiction to
PROCLAMATION ELECTION CONTEST hear and pass upon their qualifications. (Abayon v.
CONTROVERSY HRET, G.R. No. 189466)
Before proclamation of After proclamation of
candidate candidate General Rule: Ballots are the best and most
Jurisdiction of Jurisdiction of conclusive evidence in an election contest where the
COMELEC is COMELEC is quasi- correctness of the number of votes of each candidate
administrative or quasi- judicial is involved. (Delos Reyes v. COMELEC, G.R. No.
judicial 170070)
 Only real parties in interest can file and pursue Exception: Election returns are the best evidence
election protests (e.g. candidate of the same when the ballots are lost, destroyed, tampered or
position). fake.
 Even if it was the 2nd placer who filed the
election protest, the 3rd placer may still Execution Pending Appeal:
possibly win. NOTE: The case of presidential 1. Public interest is involved or will of the
protest cases, only two persons, the 2nd and electorate
3rd placers, may contest the election. (Poe vs. 2. Length of time that the election contest has
Macapagal-Arroyo, PET Case No. 003) been pending
3. Shortness of the remaining portion of the term
NOTE: Special rule for PET: Only the 2nd or 3rd of the contested office. (Pecson v. COMELEC,
placer may file the protest G.R. No. 182865)
Requisites for an Election Protest
1. Filed by candidate who has filed a COC and has NOTE: A combination of 2 or more will suffice to allow
been voted upon for the same office. execution pending appeal, but shortness of the
2. Filed within 10 days from proclamation of results remaining period alone is not a ground for execution
a. Period to file EP is suspended during pending appeal. (Laubati v. Commission on
pendency of PPC Elections, G.R. No. 128473)
b. A counter-protest must also comply with the
reglementary period General Rule: The COMELEC cannot proclaim as
(OEC, §254) winner the candidate who obtains the 2nd highest
3. On grounds of: number of votes in case the winning candidate is
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ineligible or disqualified. When a winner is declared modalities is the requirement of specificity.

ineligible, the candidate who finished 2nd cannot Particularity on one's allegations, grounds, and
assume the position. (Quizon v. COMELEC, G.R. No. bases cuts across all mechanisms for challenging
177927) election outcomes and must be present in all actions,
regardless of the mode.
Exception:
1. The one who obtained the highest number of The Court stressed in Corvera v.Savillo that a protest
votes is disqualified, and lacking in detail as to the "acts or omissions
2. The electorate is fully aware in fact and in law of complained of showing the electoral frauds,
a candidate’s disqualification so as to bring such anomalies, or irregularities" should be struck down
awareness within the realm of notoriety but would for being insufficient in form and substance. Bare
nonetheless cast their votes in favor of the claims of "glitches," strange voting patterns, and
ineligible candidate. (Pundaodaya v. COMELEC, discrepancies in the audit, without more, were found
G.R. No. 179313) to be hollow accusations by a losing candidate
unable to come to terms with defeat. In so ruling, the
A candidate who was elected but was later Court affirmed the need for strict compliance with the
disqualified for failing to meet the residency specificity requirement.
requirement was never a valid candidate from the Corvera follows a line of jurisprudence affirming that
very beginning, and was merely a de facto officer. general and sweeping allegations of election fraud
The eligible candidate who garnered the highest and irregularities warrant a protest's dismissal: Peña
number of votes must assume the office. The rule on v. House of Representatives Electoral Tribunal,
succession in the Local Government Code does not Aguillo v. Commission on Elections, and Lloren v.
apply. (Jalosjos v. COMELEC, G.R. No. 193314; Ty- Commission on Elections.
Delgado v. HRET, G.R. No. 219603)
2) In election protests before this Tribunal (i.e.
Abandonment — A protestant who runs for another PET), the mandatory ceiling in designating pilot
office is deemed to have abandoned his protest. This provinces is three. Failure to show substantial
is especially true in a case where the protestant recovery of votes in these pilot provinces entails the
pending the election protest, ran, won, assumed the protest's dismissal. To stress, this Tribunal's Rules
post and discharged the duties as such. (Idulza v. directs the forthwith dismissal of an election protest
COMELEC, G.R. No. 160130) if, upon examining the ballots and proof in the three
provinces exemplifying the alleged fraud or
Mere filing and allegations of a pre-proclamation irregularity, this "Tribunal is convinced that . . . the
controversy will not suffice. The grounds that protestant or counter-protestant will most probably
must support a pre-proclamation controversy are fail to make out [their] case, without further
limited by the Omnibus Election Code (under consideration of the other provinces mentioned in the
Sec. 243). The enumeration is restrictive and protest." This is clear and is not susceptible to any
exclusive. Thus, in the absence of any clear showing other interpretation.
or proof that the election returns canvassed are
incomplete or contain material defects; appear to 3) PET applied the requisites in Abayon. Per
have been tampered with, falsified or prepared under Abayon, the threshold of evidence to prove
duress; and/or contain discrepancies in the votes annulment of elections consists of a showing that:
credited to any candidate, which would affect the a) The illegality of the ballots must affect more
result of the election, a petition cannot be properly than fifty percent (50%) of the votes cast on the
considered as a pre-proclamation controversy. If the specific precinct or precincts sought to be
petition does not qualify as a pre-proclamation annulled, or in case of the entire municipality,
controversy, it could not have suspended the ten-day more than fifty percent (50%) of its total precincts
statutory period for the filing of an election protest. and the votes cast therein;
(Abayon v. COMELEC) b) It is impossible to distinguish with reasonable
certainty between the lawful and unlawful ballots;
Disposition of Election Protests and
1) Allegations in election protests must be c) There must be clear, convincing, and strong
specific. The results of an election may be evidence showing that the protestee is the one
challenged through different legal vehicles: first, responsible for the unlawful acts complained of.
failure of election cases; second, pre-proclamation To reiterate, "the power to annul an election
petitions; and third, election contests. These have should be exercised with the greatest care as it
substantive and procedural differences, with varying involves the free and fair expression of the
remedies, but what remains consistent across all popular will. It is only in extreme cases of fraud
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and under circumstances which demonstrate to

the fullest degree a fundamental and wanton Exception: When the one who got the highest
disregard of the law that elections are annulled, votes has been disqualified and the electorate is
and then only when it becomes impossible to take fully aware of this fact – but they still voted for him.
any other step."
Execution pending appeal is allowed but must be
What this Tribunal faces today is not an extreme case for urgent reasons.
of fraud that deserves further consideration.
Protestant failed to make out his case. There is no
Allowable Reasons for Execution Pending
substantial recovery of votes in the pilot provinces
Appeal:
that he himself had designated. To entertain the third
cause of action is to risk frustrating the valid exercise 1. Public interest involved
of the nation’s democratic will and subject it to the 2. Shortness of remaining term
endless whims of a defeated candidate. (Marcos v. 3. Length of time that the contest is pending
Robredo, PET Case No. 005)
Petition to Deny Due Course/ Cancel CoC (Before
6. QUO WARRANTO Elections) v. Quo Warranto (After Election
Results)
PETITION TO DENY PETITION FOR QUO
Quo Warranto
DUE COURSE/ WARRANTO
Quo Warranto under the Omnibus Election Code CANCEL CoC (AFTER
refers to an election contest relating to the (BEFORE ELECTIONS) PROCLAMATION)
qualifications of an elective official on the ground
of ineligibility or disloyalty to the Republic of 1. The qualifications for 1. May be brought on
the Philippines. The issue is whether respondent elective office are the basis of two
possesses all the qualifications and none of the misrepresented in the grounds
disqualifications prescribed by law. (AM. No. 07-4- certificate of a. ineligibility or
15-SC, §3(e)) candidacy b. disloyalty to the
Republic of the
2. The proceedings
Philippines
NOTE: This is different from Quo Warranto under must be initiated
2. must be initiated
Rule 66: “Section 1. Action by Government against before the elections.
within ten days
individuals. — An action for the usurpation of a after the
public office, position or franchise may be proclamation of the
commenced by a verified petition brought in the election results.
name of the Republic of the Philippines against: 3. A candidate is
(a) A person who usurps, intrudes into, or ineligible if he is
unlawfully holds or exercises a public office, disqualified to be
position or franchise; elected to office,
(b) A public officer who does or suffers an act and he is
which, by the provision of law, constitutes a ground disqualified if he
for the forfeiture of his office; or lacks any of the
(c) An association which acts as a corporation qualifications for
within the Philippines without being legally elective office.
incorporated or without lawful authority so to act.”
Requisites of Quo Warranto (VID 10):

1. Filed by any registered Voter in the
constituency; Grounds:
a. Ineligibility
b. Disloyalty to the Republic of the Philippines
(i.e. having a green card)
2. Within 10 days from proclamation of results
(OEC, §253)
General Rule: When proclaimed officer was

disqualified by quo warranto, 2nd placer cannot be
proclaimed winner.
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Quo Warranto v. Election Protest
QUO WARRANTO ELECTION PROTEST
Strictly speaking, it is not It is a contest between

a contest. It is a the
proceeding to unseat an winning candidate and
ineligible person from the
office. defeated candidate
Any voter Only by a candidate
who has duly filed a
COC to the same office
and has been voted for
GROUNDS: GROUNDS:
Disloyalty Election fraud
Ineligibility Irregularities in the
casting and counting of
votes or in the
preparation of the ER
The respondent may be The protestee may be
unseated, but the unseated and the
petitioner may or may not protestant may be
be installed into the office installed into the office
vacated. vacated.
-- end of topic –
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XII. LOCAL GOVERNMENTS b. Power of Taxation is not Inherent in

LGUs
c. Fundamental Principles of Local
TOPIC OUTLINE UNDER THE SYLLABUS Taxation
d. Other Limitations on Taxing Powers of
A. PRINCIPLES OF LOCAL AUTONOMY LGUs
1. Constitutional Rules and Principles 5. Closure and Opening of Roads
2. Declaration of Policies 6. Legislative Power
3. Three Facets of Local Autonomy a. Requisites for Valid Ordinance
a. Fiscal Autonomy b. Local Initiative and Referendum
b. Administrative Autonomy 7. Corporate Powers
c. Political Autonomy 8. Ultra Vires Acts/Contracts
4. Decentralization 9. Liability of Local Government Units
a. Power vs. Administration a. Suability of LGUs
b. 4 Categories of Decentralization b. Governmental Functions vs.
c. President’s Power of General Proprietary Functions
supervision c. Liability on Contracts
d. Power of Congress over LGUs d. Liability for Torts
e. Rules on Enforcing Money Claims vs.
B. AUTONOMOUS REGIONS AND THEIR LGU
RELATION TO THE NATIONAL f. Summary Rules on Liability for
GOVERNMENT Damages
1. 1987 Constitution 10. Settlement of Boundary Disputes
2. RA 11054: ORGANIC LAW FOR THE a. Procedure After Failure of Amicable
BANGSAMORO AUTONOMOUS REGION Settlement
IN MUSLIM MINDANAO 11. Vacancies and Succession
a. General Welfare Clause a. Grounds for Permanent Vacancy
b. President’s Power to Suspend b. Filling of Vacancy
c. Bangsamoro Participation in National c. Permanent Vacancies
Government 12. Recall
d. Annual Block Grant a. Who May Exercise
b. How Recall is Initiated
C. LOCAL GOVERNMENT UNITS c. Recall Process/Procedure
1. Powers of Local Government Units, in d. Conduct of Recall Election
general 13. Term Limits
a. Sources of the powers of LGUs a. Constitutional Rule
b. Four Categories of Powers Exercised b. Not an Interruption to the Full Term
by LGUs c. An Interruption to the Full Term
2. Police power (General Welfare Clause)
a. Two Branches of the General Welfare D. LOCAL TAXATION
Clause 1. Fundamental Principles of Local and Real
b. Requisites for Valid Exercise of Police Property Taxation
Power 2. Common Limitations on Taxing Power of the
c. Barangay Police Power LGU
3. Power of Eminent Domain (Expropriation) 3. Requirements for a Valid Tax Ordinance
a. Nature of the Power of LGU Eminent 4. Procedure for Approval and Effectivity of
Domain Tax Ordinances
b. Requisites of Eminent Domain 5. Exemptions from Real Property Taxes
c. Jurisdiction
d. Due Process Requirements
e. Judicial Review
f. Just Compensation
g. Requisites for the Immediate
Possession by LGU
h. Returning the Property
4. Power of Taxation (Power to Generate and
Apply Resources)
a. Constitutional Rules
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A. PRINCIPLES OF LOCAL AUTONOMY

The State shall provide for a more responsive and
1. CONSTITUTIONAL RULES AND accountable local government structure instituted
PRINCIPLES through a system of decentralization whereby local
government units shall be given more powers,
a) The State shall ensure the autonomy of local authority, responsibilities, and resources.
governments. (Section 25, Article II, 1987
Constitution) The State shall ensure the accountability of local
government units through the institution of effective
b) The territorial and political subdivisions shall enjoy mechanisms of recall, initiative and referendum.
local autonomy. (Section 2, Article X, 1987
Constitution) All national agencies and offices are required to
conduct periodic consultations with the appropriate
Section 2, Art. X of the Constitution provides that LGUs, NGOs, people’s organizations and other
LGUS “shall enjoy local autonomy.” This is concerned sectors of the community before any
decentralization of administration and not project or program is implemented in their respective
decentralization of power. (Limbona v. Conte jurisdictions. (Sec.2, 1991 LGC)
Mangelin, G.R. No. 80391, 1989)
a. Unitary Form of Government
c) The Congress shall enact a local government code
which shall provide for a more responsive and Ours is still a unitary form of government, not a
accountable local government structure instituted federal state. Being so, any form of autonomy
through a system of decentralization. (Section 3, granted to local governments will necessarily be
Article X, 1987 Constitution) limited and confined within the extent allowed by
the central authority. Besides, the principle of local
d) The President of the Philippines shall exercise autonomy under the 1987 Constitution simply means
general supervision over local governments. “decentralization.” (Lina, Jr. v. Paño, G.R. No.
(Section 4, Article X, 1987 Constitution) 129093, August 30, 2001, 416 PHIL 438-451 citing
Basco v. PAGCOR, G.R. No. 91649, 1991)
e) Each local government unit shall have the power
to create its own sources of revenues and to levy Thus, the principle of local autonomy under the
taxes, fees, and charges subject to such guidelines Constitution simply means ‘decentralization’. It does
and limitations as the Congress may provide, not make the local government sovereign within a
consistent with the basic policy of local autonomy. State or an imperium in imperio. (Basco v. PAGCOR,
Such taxes, fees, and charges shall accrue G.R. No. 91649, May 14, 1991)
exclusively to the local governments. (Section 5,
Article X, 1987 Constitution) 3. THREE FACETS OF LOCAL AUTONOMY
f) Local government units shall have a just share, as Local autonomy means a more responsive and
determined by law, in the national taxes which shall accountable local government structure
be automatically released to them. (Section 6, Article instituted through a system of decentralization.
X, 1987 Constitution) (Villafuerte, Jr. v. Robredo, G.R. No. 195390,
(December 10, 2014), 749 PHIL 841-870 citing
g) Local governments shall be entitled to an equitable Ganzon v. Court of Appeals, G.R. No. 93252, August
share in the proceeds of the utilization and 5, 1991)
development of the national wealth within their
respective areas, in the manner provided by law, Thus:
including sharing the same with the inhabitants by
way of direct benefits. (Section 7, Article X, 1987 a. Fiscal Autonomy
Constitution)
Fiscal autonomy means that local governments
2. DECLARATION OF POLICIES have the power to create their own sources of
revenue in addition to their equitable share in the
The territorial and political subdivisions of the State national taxes released by the National
shall enjoy genuine and meaningful local autonomy Government, as well as the power to allocate
to enable them to attain their fullest development as their resources in accordance with their own
self-reliant communities and make them more priorities. Such autonomy is as indispensable to the
effective partners in the attainment of national goals. viability of the policy of decentralization as the other.
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(Mandanas v. Ochoa, Jr., G.R. Nos. 199802 & Doctrines:

208488, July 3, 2018 citing Pimentel v. Aguirre, G.R. 1) Self-Reliant Communities.
No. 132988, July 19, 2000) It extends to the The commitment of the Constitution to the policy
preparation of their budgets, and local officials in turn of local autonomy which is intended to provide the
have to work within the constraints thereof. needed impetus and encouragement to the
(Villafuerte, Jr. v. Robredo, G.R. No. 195390, development of our local political subdivisions as
December 10, 2014 citing Pimentel v. Aguirre, G.R. "self-reliant communities." In the words of Jefferson,
No. 132988, July 19, 2000) "Municipal corporations are the small republics from
which the great one derives its strength." (Philippine
b. Administrative Autonomy Gamefowl Commission v. Intermediate Appellate
Court, G.R. Nos. 72969-70, December 17, 1986)
The constitutional guarantee of local autonomy
in the Constitution Art. X, Sec. 2 refers to the 2) Interdependence with the National
administrative autonomy of local government Government.
units or, cast in more technical language, the Autonomy is not meant to end the relation of
decentralization of government authority. It does partnership and interdependence between the
not make local governments sovereign within the central administration and LGUs, or otherwise, to
State. Administrative autonomy may involve usher in a regime of federalism. (Ganzon vs. Court of
devolution of powers, but subject to limitations like Appeals, G.R. No. 93252, August 5, 1991)
following national policies or standards, and those
provided by the Local Government Code, as the 3) National Government intervention consistent
structuring of local governments and the allocation of with national goals.
powers, responsibilities, and resources among the Local autonomy does not rule out any manner of
different local government units and local officials national government intervention by way of
have been placed by the Constitution in the hands of supervision, in order to ensure that local programs,
Congress under Section 3, Article X of the fiscal and otherwise, are consistent with national
Constitution. (League of Provinces of the Philippines goals. (Villafuerte, Jr. v. Robredo, G.R. No. 195390,
vs. DENR, G.R. No. 175368, April 11, 2013) December 10, 2014 citing Pimentel v. Aguirre, G.R.
No. 132988, July 19, 2000)
c. Political Autonomy
4) No undue interference by the National
In Cordillera Broad Coalition v. Commission on Government.
Audit, the Court, with the same composition, ruled The objective of "self-reliant communities” through
without any dissent that the creation of local autonomy could be blunted by undue
autonomous regions contemplates the grant interference by the national government in purely
of political autonomy — an autonomy which is local affairs which are best resolved by the officials
greater than the administrative autonomy and inhabitants of such political units. (Belgica v.
granted to local government units. It held that "the Ochoa, G.R. No. 208566, 19 November 2013 citing
constitutional guarantee of local autonomy in Philippine Gamefowl Commission v. IAC, G.R. No.
the Constitution (Art. X, Sec. 2) refers to 72969-70, December 17, 1986)
administrative autonomy of local government units
or, cast in more technical language, the NOTE: Thus, the 2013 PDAF Article as well as all
decentralization of government authority. . . . On the other similar forms of Congressional Pork Barrel is
other hand, the creation of autonomous regions in deemed unconstitutional insofar as individual
Muslim Mindanao and the Cordilleras, which is legislators (as national officials) are authorized to
peculiar to the 1987 Constitution, contemplates the intervene (by overriding or duplicating local
grant of political autonomy and not just programs, policies, and resolutions) in
administrative autonomy to these purely local matters and thereby subvert
regions." (Disomangcop v. Datumanong, G.R. No. genuine local autonomy. (Belgica, et..al., v. Ochoa,
149848, November 25, 2004, 486 PHIL 398-451 et. al., G.R. No. 208566, November 19, 2013)
citing Cordillera Broad Coalition v. COA, G.R. No.
79956, January 29, 1990) 5) Power to Streamline and Organize.
Local autonomy also grants local governments
the power to streamline and reorganize. This
power is inferred from Section 76 of the Local
Government Code on organizational structure and
staffing pattern, and Section 16 otherwise known as
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the general welfare clause. (City of General Santos 4. DECENTRALIZATION

vs. COA, G.R. No. 199439, April 22, 2014)
a. Power vs. Administration
NOTE: There shall be a continuing mechanism to
enhance local autonomy not only by legislative The constitutional mandate to ensure local autonomy
enabling acts but also by administrative and refers to decentralization. In its broad or general
organizational reforms. (Section 3(h), 1991 LGC) sense, decentralization has two forms in the
Philippine setting, namely: the decentralization of
6) Statutory Right of LGUs. power and the decentralization of administration.
Executive agencies like the DBM cannot disregard
statutory right of LGUs to nominate local officials for Decentralization of Power vs.
appointment. (San Juan vs. Civil Service Decentralization of Administration
Commission, G.R. No. 92299, 1991) DECENTRALIZATION DECENTRALIZATION
OF POWER OF
7) National Priority Programs. ADMINISTRATION
Under Sec. 17 of the LGC is that, unless an LGU DEFINITION
is particularly designated as the implementing
The decentralization of On the other hand, the
agency, it has no power over a program for which power involves the decentralization of
funding has been provided by the national
abdication of political administration occurs
government under the annual general
power in favor of the when the central
appropriations act, even if the program involves
autonomous LGUs as government delegates
the delivery of basic services within the
to grant them the administrative powers
jurisdiction of the LGU. A complete relinquishment
freedom to chart their to the LGUs as the
of central government powers on the matter of
own destinies and to means of broadening
providing basic facilities and services cannot be
shape their futures with the base of
implied as the Local Government Code itself weighs
minimum intervention governmental powers
against it. xxx Local autonomy is not absolute. The
from the central and of making the
national government still has the say when it comes
government. This LGUs more responsive
to national priority programs which the local
amounts to self- and accountable in the
government is called upon to implement. (Imbong v.
immolation because process, and thereby
Ochoa, G.R. No. 204819, 2014)
the autonomous LGUs ensure their fullest
thereby become development as self-
NOTE: Applies also to the BARMM.
accountable not to the reliant communities
central authorities but and more effective
8) Favoring Local Autonomy.
to their constituencies. partners in the pursuit
Where a law is capable of two interpretations, one in
of the goals of national
favor of centralized power and the other beneficial to
development and
local autonomy, the scales must be weighed in favor
social progress. This
of autonomy. (San Juan vs. Civil Service
form of
Commission, G.R. No. 92299, 1991)
decentralization further
relieves the central
9) Liberal Construction.
government of the
Consistent with the declared policy to provide local burden of managing
government units genuine and meaningful local
local affairs so that it
autonomy, contiguity and minimum land area
can concentrate on
requirements for prospective local government units
national
should be liberally construed in order to achieve the
concerns. (Mandanas
desired results (Navarro vs. Ermita, G.R. No.
v. Ochoa, Jr., G.R.
180050, 2011). Nos. 199802 &
208488, July 3, 2018)
10) Residual Power.
A local government unit may exercise its residual
Decentralization through 2 LGU Groups:
power to tax when there is neither a grant nor a
1) The decentralization of power has been given to
prohibition by statute. (Alta Vista Golf and Country
the regional units (namely, the Autonomous Region
Club vs. City of Cebu, G.R. No. 180235, 2016)
for Muslim Mindanao (ARMM) and the
constitutionally-mandated Cordillera Autonomous
Region (CAR).
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The regional autonomy of the ARMM and the CAR Congress could create provinces and cities. This was
aims to permit determinate groups with common because the creation of provinces and cities
traditions and shared social-cultural characteristics to necessarily entailed the creation of legislative
freely develop their ways of life and heritage, to districts, a power that only Congress could exercise
exercise their rights, and to be in charge of their own pursuant to Section 5, Article VI of the 1987
affairs through the establishment of a special Constitution and Section 3 of the Ordinance
governance regime for certain member communities appended to the Constitution; as such, the ARMM
who choose their own authorities from within would be thereby usurping the power of Congress to
themselves, and exercise the jurisdictional authority create legislative districts and national
legally accorded to them to decide their internal offices. (Mandanas v. Ochoa, Jr., G.R. Nos. 199802
community affairs. & 208488, July 3, 2018)
It is to be underscored, however, that the 2) The other group of LGUs (i.e., provinces, cities,
decentralization of power in favor of the regional units municipalities and barangays) enjoy the
is not unlimited but involves only the powers decentralization of administration.
enumerated by Section 20, Article X of the 1987
Constitution and by the acts of Congress. For, with The provinces, cities, municipalities and barangays
various powers being devolved to the regional units, are given decentralized administration to make
the grant and exercise of such powers should always governance at the local levels more directly
be consistent with and limited by the 1987 responsive and effective. In turn, the economic,
Constitution and the national laws. In other words, political and social developments of the smaller
the powers are guardedly, not absolutely, abdicated political units are expected to propel social and
by the National Government. economic growth and development. (Mandanas v.
Ochoa, Jr., G.R. Nos. 199802 & 208488, July 3,
NOTE: Sec. 20, Art. X of the 1987 Constitution 2018)
provides: Within its territorial jurisdiction and subject
to the provisions of this Constitution and national b. 4 Categories of Decentralization
laws, the organic act of autonomous regions shall
provide for legislative powers over: As a system of transferring authority and power from
(1) Administrative organization; the National Government to the LGUs,
(2) Creation of sources of revenues; decentralization in the Philippines may be
(3) Ancestral domain and natural resources; categorized into four, namely:
(4) Personal, family, and property relations;
(5) Regional urban and rural planning development; 1) Political Decentralization or Devolution.
(6) Economic, social, and tourism development; Political decentralization or devolution occurs when
(7) Educational policies; there is a transfer of powers, responsibilities, and
(8) Preservation and development of the cultural resources from the central government to the LGUs
heritage; and for the performance of certain functions. It is a more
(9) Such other matters as may be authorized by law liberal form of decentralization because there is an
for the promotion of the general welfare of the people actual transfer of powers and responsibilities. It aims
of the region. to grant greater autonomy to the LGUs in cognizance
of their right to self-government, to make them self-
Illustrative of the limitation is what transpired in Sema reliant, and to improve their administrative and
v. Commission on Elections, where the Court struck technical capabilities.
down Section 19, Article VI of Republic Act No.
9054 (An Act to Strengthen and Expand the Organic NOTE: Do not confuse with Decentralization of
Act for the Autonomous Region in Muslim Mindanao, Power.
Amending for the Purpose Republic Act No. 6734,
entitled "An Act Providing for the Autonomous As used in the Local Government Code, the term
Region in Muslim Mindanao," as Amended) insofar "devolution" refers to the act by which the national
as the provision granted to the ARMM the power to government confers power and authority upon the
create provinces and cities, and consequently various local government units to perform
declared as void Muslim Mindanao Autonomy Act specific functions and responsibilities. (Sec.
No. 201 creating the Province of Shariff Kabunsuan 17(e), 1991 LGC)
for being contrary to Section 5, Article VI and Section
20, Article X of the 1987 Constitution, as well as The devolution contemplated in the Local
Section 3 of the Ordinance appended to the 1987 Government Code shall include the transfer to
Constitution. The Court clarified therein that only local government units of the records,
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equipment, and other assets and personnel of the power to allocate their resources in accordance
national agencies and offices corresponding to with their own priorities. It thus extends to the
the devolved powers, functions, and preparation of their budgets, so that the local officials
responsibilities. (Sec. 17(i), 1991 LGC) have to work within the constraints of their budgets.
Decentralization of Power vs. Devolution 4) Policy or Decision-making Decentralization.

(Political Decentralization) Lastly, policy or decision-making decentralization
DECENTRALIZATION DEVOLUTION exists if at least one sub-national tier of
OF POWER (POLITICAL government has exclusive authority to make
DECENTRALIZATION) decisions on at least one policy issue (ex.
DEFINITION Regional Development Councils). (Mandanas v.
The decentralization When there is a Ochoa, Jr., G.R. Nos. 199802 & 208488, July 3,
of power involves the transfer of powers, 2018)
abdication of political responsibilities, and
power in favor of the resources from the c. President’s Power of General
autonomous LGUs as central government to Supervision
to grant them the the LGUs for the
freedom to chart their performance of To safeguard the state policy on local autonomy,
own destinies and to certain functions. the Constitution confines the power of the President
shape their futures with THUS: over LGUs to mere supervision. "The President
minimum intervention exercises 'general supervision' over them, but only to
from the central 1) Transfer is 'ensure that local affairs are administered according
government. SPECIFIC to certain to law.' He has no control over their acts in the sense
functions, powers, that he can substitute their judgments with his
NOTE: Not absolute; responsibilities, and own." Thus, Section 4, Article X of the Constitution,
subject to Constitution. resources. (e.g. a states: “Section 4. The President of the Philippines
public hospital devolved shall exercise general supervision over local
THUS: from NG to LGU); governments. Provinces with respect to component
cities and municipalities, and cities and municipalities
1) Abdication of political 2) Applied to all LGUs with respect to component barangays, shall ensure
power. except regional that the acts of their component units are within the
autonomies (since they scope of their prescribed powers and functions.”
2) Limited to have political power (Villafuerte, Jr. v. Robredo, G.R. No. 195390, 2014
autonomous regions already through citing Limbona v. Mangelin, G.R. No. 80391, 1989)
(i.e. BARMM); Decentralization of
Power that includes Power of General Supervision vs.
devolution). Power of Control
GENERAL CONTROL
2) Administrative Decentralization or SUPERVISION
Deconcentration. DEFINITION
Administrative decentralization or deconcentration The President's power of The President shall
involves the transfer of functions or the delegation general supervision exercise general
of authority and responsibility from the national means the power of a supervision over the
office to the regional and local offices. Consistent superior officer to see to Bangsamoro
with this concept, the LGC has created the Local it that subordinates Government to ensure
School Boards, the Local Health Boards and the perform their functions that laws are faithfully
Local Development Councils, and has transferred according to law. executed. (Sec. 1, Art.
some of the authority from the agencies of the VI, RA 11054)
National Government, like the Department of
Education and the Department of Health, to such This is distinguished
bodies to better cope up with the needs of particular from the President's
localities. power of control
which is the power to
3) Fiscal Decentralization. alter or modify or set
Fiscal decentralization means that the LGUs have aside what a
the power to create their own sources of revenue subordinate officer
in addition to their just share in the national taxes had done in the
released by the National Government. It includes performance of his
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duties and to d. Power of Congress over LGUs

substitute the
judgment of the Congress exercises power over local government
President over that of units through its constitutional power of
the subordinate legislation, but not in the form of administrative
officer. The power of supervision or control. Congress retains “control” of
control gives the the LGUs although in a significantly reduced degree
President the power to now than under previous Constitutions. The power
revise or reverse the to create still includes the power to destroy. The
acts or decisions of a power to grant still includes the power to
subordinate officer withhold or recall. The National Legislature is still
involving the exercise of the principal of the LGUs, which cannot defy its will,
discretion. (Villafuerte, or modify or violate its laws. (Magtajas vs. Pryce
Jr. v. Robredo, G.R. No. Properties and Philippine Amusements and Gaming
195390, 2014 citing Corporation, G.R. No. 111097, 1994)
Province of Negros
Occidental v. Thus, under the 1987 Constitution, Congress has the
Commissioners, power of the following LGU matters and affairs:
Commission on Audit,
G.R. No. 182574, 2010) 1) Allocate among the different local government
units their powers, responsibilities, and
Doctrines: resources, and provide for the qualifications,
1) Power to Investigate and Discipline. election, appointment and removal, term,
LGUs are still under the supervision of the salaries, powers and functions and duties of local
President and maybe held accountable for officials, and all other matters relating to the
malfeasance or violations of existing laws. organization and operation of the local units,
“Supervision is not incompatible with discipline. (Section 3, Article X, 1987 Constitution)
And the power to discipline and ensure that the laws
be faithfully executed must be construed to authorize 2) Prescribe guidelines and limitations on
the President to order an investigation of the act or sources of local government revenues and local
conduct of local officials when in his opinion the good power to levy taxes, fees, and charges provided
of the public service so requires.” Clearly then, the these are consistent with the basic policy of local
President’s power of supervision is not antithetical to autonomy. (Section 5, Article X, 1987 Constitution)
investigation and imposition of sanctions. (Villafuerte, Each local government unit shall have the power to
Jr. v. Robredo, G.R. No. 195390, 2014 citing Hon. create its own sources of revenues and to levy taxes,
Joson v. Exec. Sec. Torres, G.R. No. 131255, 1998) fees, and charges subject to such guidelines and
limitations as the Congress may provide, consistent
2) Power to Review. with the basic policy of local autonomy. Such taxes,
Supervision involves the power to review of executive fees, and charges shall accrue exclusively to the
orders and ordinances, i.e., declare them ultra vires local governments.
or illegal. (Sections 30, 56 and 57, 1991 LGC).
3) Determine the just share in the national taxes
NOTE: This is still consistent with the purpose of of local governments. (Section 6, Article X, 1987
supervision, i.e. making sure that LGU actions are in Constitution) Local government units shall have a just
accordance with law. share, as determined by law, in the national taxes
which shall be automatically released to them.
3) Non-interference.
The President has only the power of supervision over 4) Provide the manner by which local
LGUs. He cannot interfere with the local governments receive their equitable share in the
governments as long as they act within the scope proceeds of the utilization and development of
of their authority. (Pimentel v. Aguirre, G.R. No. the national wealth within their respective areas.
132988, 2000) (Section 7, Article X, 1987 Constitution) Local
governments shall be entitled to an equitable share
in the proceeds of the utilization and development of
the national wealth within their respective areas, in
the manner provided by law, including sharing the
same with the inhabitants by way of direct benefits.
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5) Set the term limits of barangay officials. of Palawan, G.R. Nos. 170867 & 185941, December
(Section 8, Article X, 1987 Constitution) Under R.A. 4, 2018)
No. 9164, the current term of office of elective
barangay officials is three years. The term of office of However, the Court further clarified that it is
elective local officials, except barangay officials, inaccurate to declare that a local government
which shall be determined by law, shall be three unit's territory, and by extension, its territorial
years and no such official shall serve for more than jurisdiction, can only be over land that is
three consecutive terms. Voluntary renunciation of contiguous. When the territory consists of one (1) or
the office for any length of time shall not be more islands, territorial jurisdiction can also be
considered as an interruption in the continuity of his exercised over all waters found inland, or in any area
service for the full term for which he was elected. that is part of its seabed, subsoil, or continental
margin, "in the manner provided by law(.)" (Republic
6) Prescribe the manner by which sectoral v. Provincial Government of Palawan, G.R. Nos.
representatives shall be installed in local 170867 & 185941 (Resolution), January 21, 2020)
legislative bodies (Section 9, Article X, 1987
Constitution). Legislative bodies of local Unfortunately for the Province of Palawan, it was still
governments shall have sectoral representation as not entitled to the equitable share. The Court
may be prescribed by law. resolved that none of the parties have presented
maps or statutes that conclusively prove that the
7) Define the criteria for the creation, division, Camago-Malampaya reservoirs are within the
merger, abolition and substantial alteration of Province of Palawan. Thus, the Court was
boundaries of local governments. (Section 10, constrained to uphold the ruling that the area
Article X, 1987 Constitution) remains under the territorial jurisdiction of
the Republic, unless otherwise provided by law.
8) Establish special metropolitan political (Republic v. Provincial Government of Palawan, G.R.
subdivisions. (Section 11, Article X, 1987 Nos. 170867 & 185941 (Resolution), January 21,
Constitution) The Congress may, by law, create 2020)
special metropolitan political subdivisions, subject to
a plebiscite as set forth in Section 10 hereof. The 2) The Court reaffirmed the established general rule
component cities and municipalities shall retain their that "regardless of the source or classification of
basic autonomy and shall be entitled to their own land in the possession of a
local executives and legislative assemblies. The municipality, excepting those acquired with its
jurisdiction of the metropolitan authority that will own funds in its private or corporate capacity,
hereby be created shall be limited to basic services such property is held in trust for the State for the
requiring coordination. benefit of its inhabitants, whether it be for
governmental or proprietary purposes. It holds
9) Pass the organic act of the autonomous such lands subject to the paramount power of the
regions. (Section 18, Article X, 1987 Constitution) legislature to dispose of the same, for after all it owes
its creation to it as an agent for the performance of a
10) Provide for exemption to devolution such as part of its public work, the municipality being but a
nationally-funded projects, facilities, programs and subdivision or instrumentality thereof for purposes of
services since the power of Congress to legislate on local administration. (Sangguniang Panlalawigan of
all matters of common interest is plenary. (Imbong v. Bataan v. Garcia, Jr., G.R. No. 174964, October 5,
Ochoa, G.R. No. 204819, April 8, 2014) 2016)
Congress Control over LGU Properties 3) Article 424 of the Civil Code lays down the basic
LGUs are still very much subject to the laws passed principles that properties of the public dominion
by Congress, including the public properties within devoted to public use and made available to the
their territorial jurisdiction save for those which were public in general are outside the commerce of men
acquired in their private or corporate capacity. (persons) and cannot be disposed of or leased by the
LGU to private persons. (Macasiano vs. Diokno, G.R.
Thus: no. 97764, August 10, 1992)
1) The territorial jurisdiction of LGUs are limited to the 4) Pursuant to the Regalian doctrine, any land that
land area and physical metes and bounds as defined has never been acquired through purchase, grant
in their charters and does not extend to the or any other mode of acquisition remains part of
continental shelf for purposes of determining the the public domain and is owned by the State. LGUs
equitable share. (Republic v. Provincial Government cannot appropriate to themselves public lands
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without prior grant from the government (Rural Bank sovereignty as well as territorial integrity of the
of Anda vs. Roman Catholic Archbishop of Lingayen- Republic of the Philippines. (Sec. 15, Art. X, 1987
Dagupan, G.R. No. 155051, May 21, 2007) Constitution)
5) A lot comprising the public plaza is property of In Province of North Cotabato v. GRP, the
public dominion; hence, not susceptible to private Bangsamoro Juridical Entity (BJE) was struck down
ownership by the church or by the municipality. as being unconstitutional for being outside the
(Roman Catholic Bishop of Kalibo, Aklan vs. framework of the Constitution, which contemplates
Municipality of Buruanga, Aklan, G.R. No. 149145, only of one Philippine State. No province, city, or
March 31, 2006) municipality, not even the ARMM, is recognized
under our laws as having
6) A city can validly reconvey a portion of its street an "associative" relationship with the national
that has been closed or withdrawn from public government. Indeed, the concept implies powers
use where Congress has specifically delegated to that go beyond anything ever granted by the
such political subdivision, through its charter, Constitution to any local or regional government. It
the authority to regulate its streets. Such property also implies the recognition of the associated
withdrawn from public servitude to be used or entity as a state. The Constitution, however, does
conveyed for any purpose for which other property not contemplate any state in this jurisdiction
belonging to the city may be lawfully used or other than the Philippine State, much less does it
conveyed. (Figuracion vs. Libi, G.R. No. 155688, provide for a transitory status that aims to
November 28, 2007) prepare any part of Philippine territory for
independence. (Province of North Cotabato v.
7) The conversion of the public plaza into a Government of the Republic of the Philippines Peace
commercial center is beyond the municipality’s Panel on Ancestral Domain, G.R. Nos. 183591,
jurisdiction considering the property’s nature as one 183752, 183893, 183951 & 183962, October 14,
for public use and thereby, forming part of the public 2008)
dominion. Accordingly, it cannot be the object of
appropriation either by the State or by private c. General Supervision
persons. Nor can it be the subject of lease or any
other contractual undertaking. (Land Bank of the The President shall exercise general supervision
Philippines v. Cacayuran, G.R. No. 191667, April 17, over autonomous regions to ensure that laws are
2013; In an Amended Decision dated April 22, 2015, faithfully executed. (Section 16, Article X, 1987
the Second Division set aside the decision and Constitution)
remanded the case)
d. National Government
B. AUTONOMOUS REGIONS AND THEIR
RELATION TO THE NATIONAL All powers, functions, and responsibilities not
GOVERNMENT granted by this Constitution or by law to the
autonomous regions shall be vested in the
1. 1987 CONSTITUTION National Government. (Sec. 17, Art. X, 1987
Constitution)
a. The Autonomous Regions
e. Organic Act
The autonomous regions provided by the
Constitution are: The Congress shall enact an organic act for each
a. Autonomous regions in Muslim Mindanao autonomous region with the assistance and
b. Autonomous regions in the Cordilleras. participation of the regional consultative
(Section 15, Article X, 1987 Constitution) commission composed of representatives
appointed by the President from a list of
b. Composition nominees from multisectoral bodies. The organic
act shall define the basic structure of government
for the region consisting of the executive
Autonomous regions consist of provinces, cities,
department and legislative assembly, both of
municipalities, and geographical areas sharing
which shall be elective and representative of the
common and distinctive historical and cultural
constituent political units. The organic acts shall
heritage, economic and social structures, and
likewise provide for special courts with personal,
other relevant characteristics within the
family, and property law jurisdiction consistent
framework of this Constitution and the national
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with the provisions of this Constitution and national Ancestral Domain, G.R. Nos. 183591, 183752,
laws. (Sec. 18, Art. X, 1987 Constitution) 183893, 183951 & 183962, October 14, 2008)
f. Effectivity h. Peace and Order
The creation of the autonomous region shall be The preservation of peace and order within the
effective when approved by majority of the votes regions shall be the responsibility of the local
cast by the constituent units in a plebiscite called police agencies which shall be organized,
for the purpose, provided that only provinces, maintained, supervised, and utilized in accordance
cities, and geographic areas voting favorably in with applicable laws. (Sec. 21, Art. X, 1987
such plebiscite shall be included in the Constitution)
autonomous region. (Sec. 18, Art. X, 1987
Constitution) i. Defense and Security
g. Legislative Powers of the Autonomous The defense and security of the regions shall be the
Regions responsibility of the National Government. (Sec.
21, Art. X, 1987 Constitution)
Within its territorial jurisdiction and subject to the
provisions of this Constitution and national laws, the j. Requirements for the Creation of an
organic act of autonomous regions shall provide Autonomous Region
for legislative powers over:
(1) Administrative organization; 1. Either Muslim Mindanao or Cordilleras.
(2) Creation of sources of revenues; 2. By an Organic Act from Congress (by law).
(3) Ancestral domain and natural resources; 3. With the assistance and participation of the
(4) Personal, family, and property relations; regional consultative commission composed of
(5) Regional urban and rural planning development; representatives appointed by the President from a list
(6) Economic, social, and tourism development; of nominees from multisectoral bodies.
(7) Educational policies; 4. The organic act shall define the basic structure
(8) Preservation and development of the cultural of government for the region consisting of the
heritage; and executive department and legislative assembly,
(9) Such other matters as may be authorized by law both of which shall be elective and representative
for the promotion of the general welfare of the people of the constituent political units.
of the region. (Sec. 20, Art. X, 1987 Constitution) 5. The organic acts shall likewise provide for
special courts with personal, family, and property
Thus, the autonomous regions do not have law jurisdiction consistent with the provisions of this
treaty-making powers since it’s not among the Constitution and national laws.
enumeration under Sec. 20, Art. X. Again on the 6. The creation of the autonomous region shall be
premise that the BJE may be regarded as an effective when approved by majority of the votes
autonomous region, the MOA-AD would require an cast by the constituent units in a plebiscite called
amendment that would expand the above-quoted for the purpose, provided that only provinces,
provision. The mere passage of new legislation cities, and geographic areas voting favorably in
pursuant to sub-paragraph No. 9 of said such plebiscite shall be included in the
constitutional provision would not suffice, since any autonomous region. (Sec. 18, Art. X, 1987
new law that might vest in the BJE the powers found Constitution)
in the MOA-AD must, itself, comply with other
provisions of the Constitution. It would not do, for
Doctrines:
instance, to merely pass legislation vesting the
1) Cordillera Administrative Region is
BJE with treaty-making power in order to
Constitutional.
accommodate paragraph 4 of the strand on
A reading of E.O. No. 220 will easily reveal that what
RESOURCES which states: "The BJE is free to enter
it actually envisions is the consolidation and
into any economic cooperation and trade relations
coordination of the delivery of services of line
with foreign countries: provided, however, that such
departments and agencies of the National
relationships and understandings do not include
Government in the areas covered by the
aggression against the Government of the Republic
administrative region as a step preparatory to the
of the Philippines . . . ." Under our constitutional
grant of autonomy to the Cordilleras. It does not
system, it is only the President who has that
create the autonomous region contemplated in the
power. (Province of North Cotabato v. Government
Constitution. It merely provides for transitory
of the Republic of the Philippines Peace Panel on
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measures in anticipation of the enactment of an requirements are not present in this case. (Ordillo v.
organic act and the creation of an autonomous Commission on Elections, G.R. No. 93054,
region. (Cordillera Broad Coalition v. Commission on December 4, 1990)
Audit, G.R. No. 79956, 82217, January 29, 1990)
2. RA 11054: ORGANIC LAW FOR THE
2) Majority Vote in Each Constituent Units. BANGSAMORO AUTONOMOUS REGION
Comparing Article XVIII, Section 27 of the IN MUSLIM MINDANAO
Constitution with the provision on the creation of the
autonomous region under Art. X, Sec. 18. par. 2, it
NOTE: As per the Bar Syllabus, included are the
will readily be seen that the creation of the
salient points that highlight the intergovernmental
autonomous region made to depend, not on the total
relations between the National Government and
majority vote in the plebiscite, but on the will of the
BARMM.
majority in each of the constituent units and the
proviso underscores this. For if the intention of the
framers of the Constitution was to get the majority of a. Purpose
the totality of the votes cast, they could have simply
adopted the same phraseology as that used for the The purpose of this Organic Law is to establish a
ratification of the Constitution, i.e. "the creation of the political entity, provide for its basic structure of
autonomous region shall be effective when approved government in recognition of the justness and
by a majority of the votes cast in a plebiscite called legitimacy of the cause of the Bangsamoro people
for the purpose." It is thus clear that what is required and the aspirations of Muslim Filipinos and all
by the Constitution is a simple majority of votes indigenous cultural communities in the
approving the Organic Act in individual constituent Bangsamoro Autonomous Region in Muslim
units and not a double majority of the votes in all Mindanao to secure their identity and posterity,
constituent units put together, as well as in the allowing for meaningful self-governance within the
individual constituent units. (Abbas v. Commission on framework of the Constitution and the national
Elections, G.R. Nos. 89651 & 89965, November 10, sovereignty as well as territorial integrity of the
1989) Republic of the Philippines. (Sec. 3, Art. I, RA 11054)
3) The sole province of Ifugao cannot validly b. Bangsamoro People

constitute the Cordillera Autonomous Region.
It is explicit in Article X, Section 15 of the 1987 Those who, at the advent of the Spanish
Constitution that: "Section 15. There shall be colonization, were considered natives or original
created autonomous regions in Muslim Mindanao inhabitants of Mindanao and the Sulu
and in the Cordillera consisting of provinces, archipelago and its adjacent islands, whether of
cities, municipalities and geographical mixed or of full blood, shall have the right to identify
areas sharing common and distinctive historical and themselves, their spouses and descendants, as
cultural heritage, economic and social structures, and Bangsamoro. (Sec. 1, Art. II, RA 11054)
other relevant characteristics within the framework of
this Constitution and the national sovereignty as c. Territorial Jurisdiction
well as territorial integrity of the Republic of the
Philippines." The keywords — provinces, cities, Territorial jurisdiction is the land mass as well as the
municipalities and geographical areas connote waters over which the Bangsamoro Autonomous
that "region" is to be made up of more than one Region has jurisdiction, which shall always be an
constituent unit. The term "region" used in its integral, indivisible, and inseparable part of the
ordinary sense means two or more provinces. national territory of the Republic of the Philippines as
This is supported by the fact that the thirteen defined by the Constitution and existing laws. (Sec.
(13) regions into which the Philippines is divided for 1, Art. III, RA 11054)
administrative purposes are groupings of contiguous
provinces. (Integrated Reorganization Plan (1972),
which was made as part of the law of the land by P.D.
No. 1; P.D. No. 742) Ifugao is a province by itself.
To become part of a region, it must join other
provinces, cities, municipalities, and
geographical areas. It joins other units because of
their common and distinctive historical and cultural
heritage, economic and social structures and other
relevant characteristics. The Constitutional
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d. Territorial Integrity and Allegiance NOTE: The President’s power to discipline via
suspension is consistent with the power of general
The Bangsamoro Autonomous Region is an integral, supervision as it’s intended to ensure faithful
indivisible, and inseparable part of the territory of compliance with the Constitution and laws (including
the Republic of the Philippines. The Bangsamoro the BARMM Organic Act). Dismissal is not included
people shall uphold the Constitution as the in the power.
fundamental law of the land and unequivocally
owe allegiance and fidelity to the Republic of the i. Intergovernmental Relations Body
Philippines. (Sec. 1, Art. IV, RA 11054)
There is hereby created a National Government-
e. International Treaties and Agreements Bangsamoro Government Intergovernmental
Relations Body, hereinafter referred to
The Bangsamoro Government shall respect and as "Intergovernmental Relations Body," to
adhere to all international treaties and coordinate and resolve issues on
agreements binding upon the National intergovernmental relations through regular
Government. (Sec. 8, Art. IV, RA 11054) consultation and continuing negotiation in a non-
adversarial manner.
f. Powers of the National Government
The Intergovernmental Relations Body shall
exhaust all means to resolve issues brought before
All powers, functions, and responsibilities not granted it. Unresolved issues shall be elevated to the
by the Constitution or by national law to the President, through the Chief Minister.
Bangsamoro Government shall be vested in the
National Government. (Sec. 1, Art. V, RA 11054) The National Government and the Bangsamoro
Government shall each appoint representatives to
NOTE: Same as Sec. 17, Art. X, 1987 Constitution. the Intergovernmental Relations Body. The
Intergovernmental Relations Body shall be
g. General Welfare Clause supportive by a joint secretariat. (Sec. 2, Art. VI, RA
11054)
The Bangsamoro Government shall exercise the
powers expressly granted, those necessarily implied j. Philippine Congress - Bangsamoro
therefrom, as well as powers necessary, appropriate, Parliament Forum
or incidental for its efficient and effective governance
and those which are essential to the promotion of There shall be created a Philippine Congress-
general welfare. Within its territorial jurisdiction, the Bangsamoro Parliament Forum for purposes of
Bangsamoro Government shall ensure and support, cooperation and coordination of legislative initiatives.
among other things, the preservation and enrichment (Sec. 3, Art. VI, RA 11054)
of culture, promote health and safety, enhance the
right of the people to a balanced ecology, encourage
and support the development of appropriate and self-
k. Intergovernmental Boards & Joint Body
reliant scientific and technological capabilities,
improve public morals, enhance economic prosperity 1. Intergovernmental Fiscal Policy Board
and social justice, promote full employment among It shall address revenue imbalances and
its residents, maintain peace and order, and preserve fluctuations in regional financial needs and
the comfort and convenience of its inhabitants. (Sec. revenue-raising capacity of the Bangsamoro
3, Art. V, RA 11054) Government. (Sec. 4, Art. VI, RA 11054)
h. General Supervision 2. Intergovernmental Infrastructure

Development Board
It shall be responsible for coordinating and
The President shall exercise general supervision
synchronizing national and Bangsamoro
over the Bangsamoro Government to ensure that
infrastructure development plans. (Sec. 6, Art. VI,
laws are faithfully executed. The President may
RA 11054)
suspend the Chief Minister for a period not
exceeding six (6) months for willful violation of
the Constitution, national laws, or this Organic NOTE: The National Government shall fund and
Law. (Sec. 1, Art. VI, RA 11054) implement the construction and maintenance of
national roads, bridges, water supply and
services, and flood control and irrigation
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systems and for the maintenance of existing enjoyed by local government units under Republic
airports, seaports, and wharves in the Act No. 7160, otherwise known as the "Local
Bangsamoro Autonomous Region: Provided, That Government Code of 1991," as amended, and other
with regard to water supply and services, flood existing laws shall not be diminished.
control, and irrigation systems that connect to or from
facilities outside the Bangsamoro Autonomous The Parliament may create, divide, merge, abolish,
Region, there shall be cooperation and coordination or substantially alter boundaries of municipalities or
between the Bangsamoro Government and the barangays in accordance with a law enacted by the
appropriate national or local government bodies. All Parliament. The municipalities or barangays created,
national roads and bridges in the Bangsamoro divided, merged, or whose boundaries are
Autonomous Region shall be included in the National substantially altered, shall be entitled to their
Road Network Information System. Nationally- appropriate share in the national taxes or Internal
funded infrastructure projects shall be implemented Revenue Allotment: Provided, That the criteria laid
by the National Government. down in Republic Act No. 7160, as amended, and
other national laws shall be satisfied: Provided,
The Bangsamoro Government shall submit
further, That it shall be approved by a majority of the
proposals to the appropriate national government votes cast in a plebiscite in the political units directly
agency for the inclusion of the cost of such
affected.
maintenance in the latter's budget that shall be
submitted to the Congress of the Philippines for
When such acts require the creation of a
inclusion in the General Appropriations Act.
legislative district, the Bangsamoro Government
Funding for national roads, bridges, and
shall cooperate and coordinate with the National
irrigation systems shall be regularly released to the
Government through the Philippine Congress-
relevant departments of the National Government.
Bangsamoro Parliament Forum to prioritize the
(Sec. 37, Art. XIII, RA 11054) deliberations on the creation of a legislative
district.
3. Intergovernmental Energy Board
It shall resolve all matters specified in Section 36, Nothing in this Organic Law shall be construed to
Article XIII of this Organic Law (i.e. power allow the Bangsamoro Government to create
generation including investments, distribution legislative districts. (Sec. 10, Art. VI, RA 11054)
utilities, Agus Hydropower Complext) and other
energy issues. (Sec. 7, Art. VI, RA 11054) m. Bangsamoro Participation in National
Government
4. Bangsamoro Sustainable Development
Board As far as practicable, the Bangsamoro Government
It shall ensure the integration and harmonization shall be represented in the departments, offices,
of economic, social, and environmental commissions, agencies and bureaus of the National
considerations as vital dimensions of Government that implement and enforce policies,
sustainable development policy and practice in programs, and projects of the National Government
the Bangsamoro Autonomous Region. (Sec. 8, Art. in the Bangsamoro Autonomous Region. (Sec. 11,
VI, RA 11054) Art. VI, RA 11054)
5. Joint Body for the Zones of Joint n. National Programs and Projects
Cooperation
It shall be responsible for formulating policies National programs and projects such as
relating to the Zones of Joint Cooperation in the the Pantawid Pamilyang Pilipino Program, Health
Sulu Sea and Moro Gulf. (Sec. 5, Art. VI, RA 11054) Facility Enhancement Program, School Building
Program, retained hospitals of the Department of
l. Bangsamoro Government and its Health, PhilHealth, social pension for senior citizens,
Constituent LGU and the Task Force Bangon Marawi shall continue
to be funded by the National Government,
The authority of the Bangsamoro Government to without prejudice to the power of the
regulate the affairs of its constituent local Bangsamoro Government to provide for
government units shall be guaranteed in supplemental funding for such programs and
accordance with this Organic Law and a projects. (Sec. 13, Art. VI, RA 11054)
Bangsamoro local government code to be
enacted by the Parliament. The privileges already o. Uniform and Equitable Taxation
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The Parliament shall exercise, subject to the (d) Taxes, fees, or charges on agricultural and
provisions of the Constitution, the power to levy aquatic products when sold by marginal farmers or
taxes, fees, and charges, which shall inure solely to fisherfolk;
the benefit of the Bangsamoro Autonomous
Region: Provided, That the principles of uniformity (e) Taxes on business enterprises certified by the
and equity in taxation shall be observed: Provided, Board of Investments or by the Parliament as pioneer
further, That such shall not be unjust, excessive, or non-pioneer for a period of six (6) and four (4)
oppressive, confiscatory, or contrary to public years, respectively, from the date of registration;
policy: Provided, furthermore, That their collection (f) Excise taxes on articles enumerated under
shall not be delegated to any private person. the National Internal Revenue Code of 1997, as
amended, and taxes, fees, or charges on petroleum
The power to impose any tax under this Organic Law products;
shall be exercised by the Parliament, through an
appropriate legislation, which shall not be enacted (g) Percentage or value-added tax on sales, barters,
without any prior public hearing conducted for the or exchanges or similar transactions on goods or
purpose. The Bangsamoro Government shall evolve services except as otherwise provided by national
a progressive, responsive, and culture sensitive law;
system of taxation which shall, among other things,
provide for incentives for the prompt payment of (h) Taxes on the gross receipts of transportation
taxes and penalize tax evasion and delinquency. contractors and persons engaged in the
transportation of passengers or freight by hire and
Nothing in this provision shall preclude any common carriers by air, land, or water except as
future legislation on national taxes nor allow both provided in this Organic Law;
National Government and Bangsamoro
Government to impose similar taxes on the same (i) Taxes on premiums paid by way of reinsurance or
entity. (Sec. 7, Art. XII, RA 11054) retrocession;
p. Limitations on Bangsamoro Taxation (j) Taxes, fees, or other charges on Philippine

products actually exported, except as otherwise
provided by law enacted by the Congress of the
Unless otherwise provided herein, the taxing power
Philippines;
of the Bangsamoro Government shall not extend
to the following:
(k) Taxes, fees, or charges on countryside and
barangay business enterprises and cooperatives
(a) Income tax, except when levied on banks and
duly registered under Republic Act No. 6810,
other financial institutions;
otherwise known as the "Magna Carta for
Countryside and Barangay Business
(b) Customs duties, registration fees of vessels and
Enterprises," and Republic Act No. 6938, otherwise
wharfage on wharves, tonnage dues, and all other
known as the "Cooperative Code of the
kinds of customs fees, charges, and dues except
Philippines," as amended; and
vessels which are registered by their owners with the
Bangsamoro Government and wharfage on wharves
(l) Taxes, fees, or charges of any kind on the National
constructed and maintained by the Bangsamoro
Government, its agencies and instrumentalities, and
Government or its constituent local government
local government units except on government-owned
units;
or controlled corporations or entities that are primarily
organized to do business. (Sec. 9, Art. XII, RA 11054)
(c) Taxes, fees, or charges and other impositions
upon goods carried into or out of, or passing through
the territorial jurisdictions of the provinces, cities,
q. Allowable Bangsamoro Taxation
municipalities, or barangays in the Bangsamoro
Autonomous Region in the guise of charges for However, where all taxable elements are within the
wharfage, tolls for bridges or otherwise, or other Bangsamoro territorial jurisdiction, the Parliament
taxes, fees, or charges in any form whatsoever upon may impose the following taxes to the exclusion
such goods or merchandise, except tolls on bridges of the Bureau of Internal Revenue of the National
or roads constructed and maintained by the Government:
Bangsamoro Government or its constituent
provinces, cities, municipalities, or barangays (1) Capital Gains Tax. — Tax imposed on the gains
concerned; presumed to have been realized by the seller from
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the sale, exchange, or other disposition of real r. Sharing of Taxes Collected by the
properties, classified as capital assets, National Government
including pacto de retro sales and other forms of
conditional sale; National Government taxes, fees, and charges
collected in the Bangsamoro Autonomous Region,
(2) Documentary Stamp Tax. — Tax on documents, other than tariff and customs duties, shall be shared
instruments, loan agreements, and papers as follows:
evidencing the acceptance, assignment, sale, or
transfer of the obligation, right or property incident (a) Twenty-five percent (25%) to the National
thereto; Government: Provided, That for the first ten (10)
years following the effectivity of this Organic Law, this
(3) Donor's Tax. — Tax on a donation or gift that is share shall accrue to the Bangsamoro
imposed on the gratuitous transfer of property Government: Provided, further, That after this first
between two (2) or more persons who are living at ten (10)-year period, upon petition of the
the time of the transfer. It shall apply whether the Bangsamoro Government, the National Government
transfer is in trust or otherwise, whether the gift is may extend the period as it shall deem necessary;
direct or indirect, and whether the property is real or and
personal, tangible or intangible; and
(b) Seventy-five percent (75%) to the Bangsamoro
(4) Estate Tax. — Tax on the right of the deceased Government, inclusive of the shares of the
person to transmit to the lawful heirs and constituent local government units.
beneficiaries of the deceased person at the time of
death and on certain transfers, which are made by The shares in taxes, fees, and charges provided
law as equivalent to testamentary disposition. under this section shall be separate and distinct from
the annual block grant appropriated to the
In case the Parliament does not impose the Bangsamoro Government under Section 15 of this
abovementioned taxes, the Bureau of Internal Article. (Sec. 10, Art. XII, RA 11054)
Revenue of the National Government shall
continue to levy and collect said taxes: Provided,
s. Annual Block Grant
That if the Bangsamoro Government shall impose
them, the tax rates shall be pursuant to the National
Internal Revenue Code of 1997, as The National Government shall provide an annual
amended: Provided, further, That in no case shall the block grant which shall be the share of the
abovementioned taxes be imposed and collected by Bangsamoro Government in the national internal
both the Bureau of Internal Revenue and the revenue tax collections of the Bureau of Internal
Bangsamoro Government. Revenue and collections of the Bureau of Customs.
The amount shall be sufficient for the exercise of the
The Intergovernmental Fiscal Policy Board shall powers and functions of the Bangsamoro
promulgate rules on the determination of taxable Government under this Organic Law and in no case
elements in relation to taxes (1) to (4) above, and shall be less than the last budget received by the
the sharing of revenues from the collection of Autonomous Region in Muslim Mindanao
such taxes where the taxable elements are both immediately before the establishment of the
situated within and outside of the Bangsamoro Bangsamoro Autonomous Region. (Sec. 15, Art. XII,
territorial jurisdiction. Any dispute between the RA 11054)
National Government and the Bangsamoro
Government arising from the imposition of the above
taxes shall be resolved by the Intergovernmental
Fiscal Policy Board. (Sec. 9, Art. XII, RA 11054)
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C. LOCAL GOVERNMENT UNITS purpose is securing the general welfare, comfort and
convenience of the people. Police power is the
1. POWERS OF LOCAL GOVERNMENT power to prescribe regulations to promote the health,
UNITS, IN GENERAL morals, peace, education, good order or safety and
general welfare of the people. It is the most essential,
a. Sources of the powers of LGUs: insistent, and illimitable of powers. In a sense it is the
greatest and most powerful attribute of the
1. Constitution
government. It is elastic and must be responsive to
2. Statute various social conditions. (Sangalang, et al. vs. IAC,
3. Those applicable to all municipal corporations 176 SCRA 719). On it depends the security of social
or to the class to which it belongs order, the life and health of the citizen, the comfort of
4. Special acts of the legislature an existence in a thickly populated community, the
5. Charter enjoyment of private and social life, and the beneficial
use of property, and it has been said to be the very
b. Four Categories of Powers Exercised by foundation on which our social system rests. (16
LGUs: C.J.S., p. 896) However, it is not confined within
1. Powers expressly granted narrow circumstances of precedents resting on past
2. Powers necessarily implied therefrom conditions; it must follow the legal progress of a
3. Powers necessary, appropriate, or incidental democratic way of life. (Sangalang, et al. vs.
for efficient and effective governance LAC, supra). (Binay v. Domingo, G.R. No. 92389,
4. Powers essential to the promotion of the 1991)
general welfare. (Sec. 16, 1991 LGC)
Negatively put, police power is "that inherent and
REMEMBER: Any provision on a power of a local plenary power in the State which enables it to
government unit shall be liberally interpreted in its prohibit all that is hurtful to the comfort, safety,
favor, and in case of doubt, any question thereon and welfare of society." (Ermita-Malate Hotel and
shall be resolved in favor of devolution of powers and Motel Operators Association, Inc. v. City Mayor of
of the lower local government unit. Any fair and Manila, G.R. No. L-24693, 1967)
reasonable doubt as to the existence of the power
shall be interpreted in favor of the local government Police power is inherent in the state but not in
unit concerned. (Sec. 5(a), 1991 LGC) municipal corporations (Balacuit v. CFI of Agusan
del Norte, 163 SCRA 182). Before a municipal
Within their respective territorial jurisdictions, corporation may exercise such power, there must
LGUs shall ensure and support: be a valid delegation of such power by the
(a) Preservation and enrichment of culture legislature which is the repository of the inherent
(b) Promotion of health and safety powers of the State. A valid delegation
(c) Enhancement of the right of the people to a of police power may arise from express delegation,
balanced ecology or be inferred from the mere fact of the creation of the
(d) Development of self-reliant scientific and municipal corporation; and as a general rule,
technological capabilities municipal corporations may exercise police powers
(e) Improvement of public morals within the fair intent and purpose of their creation
(f) Enhancement of economic prosperity and which are reasonably proper to give effect to the
social justice powers expressly granted, and statutes conferring
(g) Promotion of full employment among powers on public corporations have been construed
residents as empowering them to do the things essential to the
(h) Maintenance of peace and order enjoyment of life and desirable for the safety of the
(i) Preservation of the comfort and people. (Binay v. Domingo, G.R. No. 92389, 1991)
convenience of its inhabitants. (Sec. 16, 1991 LGC)
Thus, that valid statutory delegation of police power
2. POLICE POWER (GENERAL WELFARE is now the General Welfare Clause in Sec. 16 of the
CLAUSE) Local Government Code: “Every local government
unit shall exercise the powers expressly granted,
Police Power, Definition those necessarily implied therefrom, as well as
The police power is a governmental function, an powers necessary, appropriate, or incidental for its
inherent attribute of sovereignty, which was born with efficient and effective governance, and those which
civilized government. It is founded largely on the are essential to the promotion of the general welfare.
maxims, “Sic utere tuo et alienum non laedas” and Within their respective territorial jurisdictions, local
“Salus populi est suprema lex.” Its fundamental government units shall ensure and support, among
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other things, the preservation and enrichment of 2) Police Power Proper

culture, promote health and safety, enhance the right Authorizes the municipality to enact ordinances as
of the people to a balanced ecology, encourage and may be proper and necessary for the health and
support the development of appropriate and self- safety, prosperity, morals, peace, good order,
reliant scientific and technological capabilities, comfort and convenience of the municipality and its
improve public morals, enhance economic prosperity inhabitant, and for the protection of their property
and social justice, promote full employment among (Fernando v. St. Scholastica’s College, G.R. No.
their residents, maintain peace and order, and 161107, 2013 citing Rural Bank of Makati v.
preserve the comfort and convenience of their Municipality of Makati, G.R. No. 150763, 2004)
inhabitants.”
Examples of Police Power:
a. Two Branches of the General a) Ordinance regulating operation of massage clinics,
Welfare Clause but not to regulate the practice of massage, to
prevent the commission of immorality and the
1) General legislative power practice of prostitution. (Physical Therapy v.
Authorizes municipal councils to enact ordinances Municipal Board of the City of Manila, G.R. No. L-
and make regulations not repugnant to law and may 10448, 1957)
be necessary to carry into effect and discharge the
powers and duties conferred upon the municipal b) Ordinance requiring registration before entry to
council by law. (Fernando v. St. Scholastica’s motels to safeguard public morals. (Ermita-Malate
College, G.R. No. 161107, 2013 citing Rural Bank of Hotel v. City Mayor of Manila, G.R. No. L-24693,
Makati v. Municipality of Makati, G.R. No. 150763, 1976)
2004)
NOTE: Ordinance also prohibited renting rooms
Examples of General Legislative Power: more than twice every 24 hours, which was
a) The ordinances imposing licenses and requiring previously held to be valid in Ermita-Malate Hotel,
permits for any business establishment, for purposes BUT which has been rendered unconstitutional in
of regulation enacted by the municipal council, fall White Light Corporation v. City of Manila, G.R. No.
within the purview of the first branch of the general 122846, 2009.
welfare clause. Moreover, the ordinance of the
municipality imposing the annual business tax is part c) Ordinance reclassifying land from industrial to
of the power of taxation vested upon local commercial that consequently prohibited the
governments. Hence, the closure of a business operation of an oil depot to safeguard the rights to
establishment for non-payment of local business life, security, and safety of the inhabitants of Manila.
taxes is a valid exercise of police power. (Rural Bank (SJS v. Atienza, GR No. 156052, 2008; SJS v. Lim,
of Makati v. Municipality of Makati, G.R. No. 150763, G.R. No. 187836, 2014)
2004)
d) An ordinance extending burial assistance of P500
b) LGU may properly order the removal and closure to a bereaved family whose gross income does not
(including demolition) of illegally constructed exceed P2,000 a month, has been upheld by the as
establishments for failure to secure the necessary a valid exercise of police power. (Binay v. Domingo,
permits. This is because, in the exercise of police G.R. No. 92389, 1991)
power and the general welfare clause, property rights
of individuals may be subjected to restraints and e) Ordinances regulating waste removal carry a
burdens in order to fulfil the objectives of the strong presumption of validity. Necessarily, LGUs are
government. (Aquino v. Municipality of Malay, G.R. statutorily sanctioned to impose and collect such
No. 211356, 2014) reasonable fees and charges for services rendered.
(Ferrer v. Bautista, G.R. No. 210551, 2015)
c) In ordering the closure of bingo operations, LGU
was exercising their duty to implement laws and A person is the real party-in-interest to assail the
ordinances which include the local government's constitutionality and legality of the ordinances
authority to issue licenses and permits for business because he is a registered co-owner of a residential
operations in the city. This authority is granted to property in the city and that he paid property tax
them as a delegated exercise of the police power of which already included the SHT and the garbage fee.
the State. (City of Bacolod v. Phuture Visions, G.R. He has substantial right to seek a refund of the
No. 190289, 2018) payments he made and to stop future imposition.
While he is a lone petitioner, his cause of action to
declare the validity of the subject ordinances is
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substantial and of paramount interest to similarly be general and consistent with public policy and (6)
situated property owners in the city. (Ferrer v. must not be unreasonable. (SJS v. Atienza, G.R. No.
Bautista, G.R. No. 210551, 2015) 156052, 2008)
f) LGUs can also substantiate its defense of the Tests to Determine Constitutionality of an
power to regulate businesses within its territorial Ordinance
jurisdiction. (City of Iloilo v. Judge Honrado, G.R. No. To successfully invoke the exercise of police power
160399, 2015) as the rationale for the enactment of an ordinance
and to free it from the imputation of constitutional
b. Requisites for Valid Exercise of Police infirmity, two tests have been used by the Court —
Power the rational relationship test and the strict scrutiny
test (and also the intermediate scrutiny test):
As with the State, the local government may be
considered as having properly exercised its police (1) Rational Basis or Relationship Test
power only if the following requisites are met:
Often applied mainly in analysis of equal protection
(1) The interests of the public generally, as challenges. Using the rational basis examination,
distinguished from those of a particular class, require laws or ordinances are upheld if they rationally further
the interference of the State (LAWFUL SUBJECT); a legitimate governmental interest. Under
and intermediate review, governmental interest is
extensively examined and the availability of less
(2) The means employed are reasonably necessary restrictive measures is considered.
for the attainment of the object sought to be
accomplished and not unduly oppressive upon Under the rational relationship test, an ordinance
individuals (LAWFUL METHOD). must pass the following requisites as discussed
in Social Justice Society (SJS) v. Atienza, Jr.: As
Otherwise stated, there must be a concurrence of with the State, local governments may be considered
a lawful subject and lawful method. (Lucena as having properly exercised their police power only
Grand Central Terminal Inc. v. JAC Liner Inc., G.R. if the following requisites are met: (1) the interests of
No. 148339, 2005; also SJS v. Lim, G.R. No. 187836, the public generally, as distinguished from those of a
2014 and Fernando v. St. Scholastica’s College, G.R. particular class, require its exercise and (2) the
No. 161107, 2013) means employed are reasonably necessary for the
accomplishment of the purpose and not unduly
Two-Pronged Test to Consider an Ordinance as oppressive upon individuals. In short, there must be
a Valid Police Power Measure a concurrence of a lawful subject and lawful method.
To be considered as a valid police power measure, (Fernando v. St. Scholastica's College, G.R. No.
an ordinance must pass a two-pronged test: 161107, 2013)
(1) FORMAL (i.e. whether the ordinance is enacted (2) Strict Scrutiny Test
within the corporate powers of the LGU, and whether
it is passed in accordance with the procedure Applying strict scrutiny, the focus is on the presence
prescribed by law); and of compelling, rather than substantial, governmental
interest and on the absence of less restrictive means
(2) SUBSTANTIVE (i.e., involving inherent merit, like for achieving that interest. (Fernando v. St.
the conformity of the ordinance with the limitations Scholastica’s College, G.R. No. 161107, 2013)
under the Constitution and the statutes, as well as
with the requirements of fairness and reason, and its The strict scrutiny test applies when a classification
consistency with public policy). (Mosqueda v. Pilipino either (i) interferes with the exercise of fundamental
Growers, G.R. No. 189185, 2016) rights, including the basic liberties guaranteed under
the Constitution, or (ii) burdens suspect
For an ordinance to be valid, it must not only be within classes. XXX Thus, the government has the burden
the corporate powers of the LGU to enact and be of proving that the classification is: (i) Necessary to
passed according to the procedure prescribed by achieve a compelling State interest, and (ii) The least
law, it must also conform to the following substantive restrictive means to protect such interest or the
requirements: (1) must not contravene the means chosen is narrowly tailored (or narrowly
Constitution or any statute; (2) must not be unfair or drawn) to accomplish the interest. (SPARK v.
oppressive; (3) must not be partial or discriminatory; Quezon City, G.R. No. 225442, 2017 citing Disini v.
(4) must not prohibit but may regulate trade; (5) must Secretary of Justice, G.R. No. 203335, 2014)
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representation of the liga in the sanggunians, to

Thus, in the curfew ordinances imposed by the City ventilate, articulate and crystallize issues affecting
of Manila, Navotas City, and Quezon City on minors, barangay government administration, and to secure
there is compelling state interest in attempting to solutions for them through proper and legal means.
substantiate legitimate concerns on public welfare, (Onon v. Fernandez, G.R. No. 139813, 2001)
especially with respect to minors. As compared to
the Manila and Navotas ordinances, the list of 3. POWER OF EMINENT DOMAIN
exceptions under the Quezon City Ordinance is more (EXPROPRIATION)
narrowly drawn to sufficiently protect the minors’
rights of association, free exercise of religion, travel, Eminent Domain, Definition
to peaceably assemble, and of free expression. The power of eminent domain has been defined as
(SPARK v. Quezon City, G.R. No. 225442, 2017) the right of a government to take and appropriate
private property to public use, whenever the public
(3) Intermediate Scrutiny Test exigency requires it, which can be done only on
condition of providing a reasonable compensation
There is also the intermediate scrutiny test when a therefor. It has also been described as the power of
classification does not involve suspect classes or the State or its instrumentalities to take private
fundamental rights, but requires heightened scrutiny, property for public use and is inseparable from
such as in classifications based on gender and sovereignty and inherent in government. (Masikip v.
legitimacy. (SPARK v. Quezon City, G.R. No. City of Pasig, G.R. No. 136349, January 23, 2006)
225442, 2017)
REMEMBER: Private property shall not be taken for
This test has also been applied to regulations or public use without just compensation. (Sec. 9, Art. III,
restrictions affecting the freedom of speech and 1987 Constitution) Otherwise stated, private property
expression in relation to determining if it is a content- can be taken provided: 1) For public use; 2) With just
neutral regulation. Being a content-neutral compensation.
regulation, the same is measured against the
intermediate test, viz.: (1) the regulation is within the a. Nature of the Power of LGU Eminent
constitutional power of the government; (2) it furthers Domain
an important or substantial governmental interest; (3)
such governmental interest is unrelated to the The power of eminent domain is lodged in the
suppression of the free expression; and (4) the legislative branch of the government. It delegates the
incidental restriction on the alleged freedom of
exercise thereof to local government units, other
expression is no greater than what is essential to the public entities and public utility corporations, subject
furtherance of the governmental interest. (Nicolas-
only to Constitutional limitations. As such, local
Lewis v. Commission on Elections, G.R. No. 223705, governments have no inherent power of eminent
2019)
domain and may exercise it only when expressly
authorized by statute. Section 19 of the Local
c. Barangay Police Power Government Code of 1991 (Republic Act No. 7160)
prescribes the delegation by Congress of the power
1) The punong barangay, as the chief executive of of eminent domain to local government units and lays
the barangay government, shall exercise such down the parameters for its exercise. (Masikip v. City
powers and perform such duties and functions for of Pasig, G.R. No. 136349, January 23, 2006)
efficient, effective and economical governance, the
purpose of which is the general welfare of the Thus, strictly speaking, the power of eminent domain
barangay and its inhabitants pursuant to Section 16 delegated to an LGU is in reality not eminent but
of the LGC. (Sec. 389, 1991 LGC) "inferior" since it must conform to the limits imposed
by the delegation and thus partakes only of a share
2) The Barangay Assembly cannot exercise any in eminent domain. The national legislature is still the
police power. Under Section 398 of the LGC, it can principal of the LGUs and the latter cannot go against
only recommend to the Sangguniang Barangay the the principal's will or modify the same. (Beluso v.
adoption of measures for the welfare of the barangay Municipality of Panay, G.R. No. 153974, August 7,
and decide on the adoption of an initiative. (Sec. 398, 2006)
1991 LGC)
b. Requisites of Eminent Domain: (POJOC)
3) Also, the Liga ng mga Barangay cannot exercise
legislative powers. It is not a local government unit
1. Expropriation should be for a Public use or
and its primary purpose is to determine
purpose or for the welfare of the poor or landless.
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2. Ordinance authorizing the local chief executive e. Judicial Review

to subject a certain property to expropriation
3. Payment of Just compensation Judicial review of the exercise of eminent domain is
4. Valid and definite Offer previously made to limited to the following areas of concern: (a) the
owner which was not accepted. adequacy of the compensation, (b) the necessity of
5. Exercised by the LGU through its Chief the taking, and (c) the public use character of the
executive. (Sec. 19, 1991 LGC) purpose of the taking. (Masikip v. City of Pasig, GR
No. 136349, 2006)
c. Jurisdiction
f. Just Compensation
An expropriation suit falls under the jurisdiction of the 1) The determination of “just compensation” in
RTCs. The subject of an expropriation suit is the eminent domain cases is a judicial function. Hence, a
government’s exercise of eminent domain, a matter statutory provision on a fixed formula in the
that is incapable of pecuniary estimation. (Barangay computation of just compensation in cases of
San Roque v. Heirs of Pastor, G.R. No. 138896, acquisition of easements of right of way is not binding
2000) upon the Court. (National Power Corp. v. Ileto, G.R.
No. 169957, 2012)
d. Due Process Requirements
2) The determination of just compensation is a
The property owner must be afforded a reasonable judicial function and any valuation for just
opportunity to be heard on the issues of public use compensation laid down in the statutes may serve
and just compensation and to present objections to only as a guiding principle. It may not substitute the
and claims on them. court’s own judgment as to what amount should be
awarded and how to arrive at such amount. (Vergara
It is settled that taking of property for a private use or v. Grecia, G.R. 185638, 2016)
without just compensation is a deprivation of property
without due process of law. Moreover, it has to be 3) The amount to be paid for the expropriated
emphasized that taking of private property without property (i.e. just compensation) shall be determined
filing any complaint before a court of law under Rule by the proper court, based on the fair market value at
67 of the Rules of Court or existing laws is patently the time of the taking of the property. (Sec. 19, 1991
felonious, confiscatory, and unconstitutional. LGC)
Judicial notice can be taken of some instances 4) Under the Rules of Court, however, the court may
wherein some government agencies or corporations issue an order of expropriation declaring that the
peremptorily took possession of private properties plaintiff has a lawful right to take the property sought
and usurped the owner's real rights for their to be expropriated, for the public use or purpose
immediate use without first instituting the required described in the complaint, upon the payment of just
court action. Running roughshod over the property compensation to be determined as of the date of the
rights of individuals is a clear and gross breach of the taking of the property or the filing of the complaint,
constitutional guarantee of due process, which whichever came first. (Sec. 4, Rule 67, ROC)
should not be countenanced in a society where the
rule of law holds sway. (Barangay Sindalan v. CA, NOTE: Which should prevail? 1) Sec. 19, LGC is
GR No. 150640, March 22, 2007) substantive law; 2) Sec. 4, Rule 67, ROC is
procedural law. Given that the determination of just
compensation is a judicial function, it is submitted
that the ROC should prevail in view of the rule-
making authority of the Supreme Court under the
Constitution on all matters relating to pleadings,
practice, and procedure.
g. Requisites for the Immediate Possession

by LGU
The LGU may immediately take possession of the

property:
1) Upon the filing of the expropriation proceedings;

and
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Public Use/Public Purpose/Public Character

2) Upon making a deposit with the proper court of at
least fifteen percent (15%) of the fair market value of 1) Use by the Public or Public Employment.
the property based on the current tax declaration of There is no precise meaning of "public use" and the
the property to be expropriated. (Sec. 19, 1991 LGC) term is susceptible of myriad meanings depending on
diverse situations. The limited meaning attached to
Upon compliance with these requirements, the "public use" is "use by the public" or "public
issuance by the RTC of a writ of possession becomes employment," that "a duty must devolve on the
ministerial. (Iloilo City v. Legaspi, G.R. No. 154614, person or corporation holding property appropriated
2004) by right of eminent domain to furnish the public with
the use intended, and that there must be a right on
Genuine Necessity of the Taking the part of the public, or some portion of it, or some
The right to take private property for public purposes public or quasi-public agency on behalf of the public,
necessarily originates from "the necessity" and the to use the property after it is condemned." The more
taking must be limited to such necessity. In City of generally accepted view sees "public use" as "public
Manila v. Chinese Community of Manila, we held that advantage, convenience, or benefit, and that
the very foundation of the right to anything which tends to enlarge the resources,
exercise eminent domain is genuine necessity and increase the industrial energies, and promote the
that necessity must be of a public character. productive power of any considerable number of the
Moreover, the ascertainment of the necessity must inhabitants of a section of the state, or which leads to
precede or accompany and not follow, the taking of the growth of towns and the creation of new
the land. In City of Manila v. Arellano Law College, resources for the employment of capital and labor,
the SC ruled that "necessity within the rule that the (which) contributes to the general welfare and the
particular property to be expropriated must be prosperity of the whole community." In this
necessary, does not mean an absolute but only a jurisdiction, "public use" is defined as "whatever is
reasonable or practical necessity, such as would beneficially employed for the community." (Barangay
combine the greatest benefit to the public with Sindalan v. Court of Appeals, G.R. No. 150640,
the least inconvenience and expense to the 2007)
condemning party and the property owner
consistent with such benefit." (Masikip v. City of 2) Cannot Depend on Numerical Count.
Pasig, G.R. No. 136349, 2006) It is settled that the public nature of the prospective
exercise of expropriation cannot depend on the
Examples of No Genuine Necessity (Hence, "numerical count of those to be served or the
Constitutes as Unlawful Taking): smallness or largeness of the community to be
benefited." The number of people is not
1) Taking of portions of a Chinese cemetery for a determinative of whether or not it constitutes public
public improvement since its already for public use use, provided the use is exercisable in common and
and there are adjoining and adjacent lands offered is not limited to particular individuals. Thus, the first
free of charge. (City of Manila v. Chinese essential requirement for a valid exercise of eminent
Community, G.R. No. L-14355, 1919) domain is for the expropriator to prove that the
expropriation is for a public use. (Barangay Sindalan
2) Taking of a land currently used by Arellano Law v. Court of Appeals, G.R. No. 150640, 2007)
College for homesite purposes since only few
families will benefit, which is insignificant compared 3) Contributes to the General Welfare.
to preparing young men and women for useful Modernly, there has been a shift from the literal to a
citizenship and service to the government and broader interpretation of "public purpose" or "public
community. (City of Manila v. Arellano Law Colleges, use" for which the power of eminent domain may be
G.R. No. L-2929, 1950) exercised. The old concept was that the condemned
property must actually be used by the general public
3) Taking of a private property for sports (e.g. roads, bridges, public plazas, etc.) before the
development and recreational activities of a taking thereof could satisfy the constitutional
neighborhood association since it’s not categorically requirement of "public use." Under the new concept,
for public purpose and there is an alternative facility "public use" means public advantage, convenience
in the area. (Masikip v. City of Pasig, G.R. No. or benefit, which tends to contribute to the general
136349, 2006) welfare and the prosperity of the whole community,
like a resort complex for tourists or housing project.
(Camarines Sur v. CA, G.R. No. 103125, May 17,
1993 citing Heirs of Juancho Ardano v. Reyes, 125
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SCRA 220 (1983); Sumulong v. Guerrero, 154 SCRA

461 (1987)) Section 10 of R.A. 7279 also prefers the acquisition
of private property by "negotiated sale" over the filing
Example: Establishment of a pilot development of an expropriation suit. It provides that such suit may
center that would inure to the direct benefit and be resorted to only when the other modes of
advantage of the people of the Province of acquisitions have been exhausted. Indeed, the Court
Camarines Sur. Once operational, the center would has held that when the property owner rejects the
make available to the community invaluable offer but hints for a better price, the government
information and technology on agriculture, fishery should renegotiate by calling the property owner to a
and the cottage industry. Ultimately, the livelihood of conference. The government must exhaust all
the farmers, fishermen and craftsmen would be reasonable efforts to obtain by agreement the land it
enhanced. (Camarines Sur v. CA, G.R. No. 103125, desires. Its failure to comply will warrant the dismissal
1993) of the complaint. (City of Manila v. Alegar, G.R. No.
187604, 2012)
Rules on Urban Land Reform and Socialized
Housing Failure to prove strict compliance with the
If the expropriation is pursuant to an urban land requirements of Sections 9 and 10 of RA 7279 is a
reform and housing program, LGUs are also fatal infirmity in the LGU’s exercise of the power of
mandated to follow the conditions and standards eminent domain. Hence, its complaint for
prescribed by RA 7279 (Urban Development and expropriation must necessarily fail. (Estate of JBL
Housing Act of 1992), the law governing the Reyes v. City of Manila, G.R. No. 132431, 2004)
expropriation of property for urban land reform and
housing, as follows: 3) Small Property Owners are Exempted. Where
expropriation is resorted to, parcels of land owned by
1) Prioritize Other Lands. Lands for socialized small property owners shall be exempted for
housing shall be acquired in the following order: purposes of this Act. (Sec. 10, RA 7279) “Small-
property owners” are defined by two elements: (a)
(a) Those owned by the Government or any of its They are owners of real property which consists of
subdivisions, instrumentalities, or agencies, including residential lands with an area of not more than 300
government-owned or - controlled corporations and sq. meters in highly urbanized cities, and 800 sq.
their subsidiaries; meters in other urban cities; and (b) They do not own
(b) Alienable lands of the public domain; real property other than the same. (Sec. 3(q), RA
(c) Unregistered or abandoned and idle lands; 7279)
(d) Those within the declared Areas of Priority
Development, Zonal Improvement sites, and Slum h. Returning the Property
Improvement and Resettlement Program sites which
have not yet been acquired; When private land is expropriated for a particular
(e) Bagong Lipunan Improvement sites and Services public use and that purpose is abandoned, there is
or BLISS sites which have not yet been acquired; and no “implied contract” that the properties will be used
(f) Privately-owned lands. only for the public purpose for which they were
acquired. Property is to be returned only when it is
Where on-site development is found more expropriated with the condition that when said
practicable and advantageous to the beneficiaries, purpose is ended or abandoned, the former owner
the priorities mentioned in this section shall not apply reacquires the property so expropriated, and not
(thus, privately-owned lands may be acquired first). when the expropriation decree gives to the entity a
The local government units shall give budgetary fee simple which makes the land the expropriator the
priority to on-site development of government lands. absolute owner of the property. (Air Transportation
(Sec. 9, RA 7279) Office v. Gopuco, G.R. No. 158563, 2005)
2) Prioritize Other Modes of Acquisition. The Role of Supervising LGU

modes of acquiring lands for purposes of this Act The only ground upon which a provincial board may
shall include, among others, community mortgage, declare any municipal resolution, ordinance, or order
land swapping, land assembly or consolidation, land invalid is when such resolution, ordinance, or order is
banking, donation to the Government, joint venture beyond the powers of the LGU. Absolutely no other
agreement, negotiated purchase, and expropriation: ground is recognized by the law. Hence, it cannot
Provided, however, That expropriation shall be declare the (expropriation) ordinance invalid on
resorted to only when other modes of acquisition the ground that the expropriation is unnecessary.
have been exhausted. (Sec. 10, RA 7279) (Moday v. CA, G.R. No. 107916, 1997)
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Procedure for Expropriation: LGU vs. National

DAR Clearance Not Required: Eminent Domain Government
is Superior LGU NATIONAL
While such delegated power may be a limited GOVERNMENT
authority, it is complete within its limits. Moreover, the 1. The filing of a 1. The filing of a
limitations on the exercise of the delegated power complaint for complaint for
must be clearly expressed, either in the law expropriation sufficient expropriation
conferring the power or in other legislations. in form and substance; sufficient in form and
and substance; and
The rules on conversion of agricultural lands (found 2. The deposit of the 2. The making of a
in Section 4 (k) and 5 (1) of Executive Order No. amount equivalent to deposit equivalent to
129 – A, Series of 1987, cannot be the source of the 15% of the fair market the assessed value of
authority of the Department of Agrarian Reform to value of the property to the property subject to
determine the suitability of a parcel of agricultural be expropriated based expropriation.
land for the purpose to which it would be devoted by on its current tax
the expropriating authority. While those rules vest declaration (Iloilo v. See: Rules of Court,
on the Department of Agrarian Reform the Legaspi, G.R. No. Rule 67 and Robern
exclusive authority to approve or disapprove 154614, 2004). Development
conversions of agricultural lands for residential, Corporation v. Quitain,
commercial or industrial uses, such authority is See: Local G.R. No. 135042,
limited to the applications for reclassification Government Code, 1999
submitted by the land owners or tenant Sec. 19
beneficiaries.
4. POWER OF TAXATION (POWER TO
Statutes conferring the power of eminent domain GENERATE AND APPLY RESOURCES)
to political subdivisions cannot be broadened or
constricted by implication (Schulman v. People, 10
a. Constitutional Rules
N.Y. 2d. 249, 176 N.E. 2d. 817, 219 NYS 2d. 241)
To sustain the Court of Appeals would mean that 1) Each local government unit shall have the power
the local government units can no longer to create its own sources of revenues and to levy
expropriate agricultural lands needed for the taxes, fees, and charges subject to such guidelines
construction of roads, bridges, schools, and limitations as the Congress may provide,
hospitals, etc., without first applying for consistent with the basic policy of local autonomy.
conversion of the use of the lands with the Such taxes, fees, and charges shall accrue
Department of Agrarian Reform, because all of exclusively to the local governments. (Sec. 5, Article
these projects would naturally involve a change X, 1987 Constitution)
in the land use. In effect, it would then be the
Department of Agrarian Reform to scrutinize whether 2) Local government units shall have a just share, as
the expropriation is for a public purpose or public use. determined by law, in the national taxes which shall
(Province of Camarines Sur v. Court of Appeals, G.R. be automatically released to them. (Sec. 6, Article X,
No. 103125, May 17, 1993) 1987 Constitution)
NOTE: Being complete within the limitations provided 3) Local governments shall be entitled to an equitable
by law, the delegated power of eminent domain does share in the proceeds of the utilization and
not require prior approval of the National Government development of the national wealth within their
to be a valid LGU exercise. respective areas, in the manner provided by law,
including sharing the same with the inhabitants by
way of direct benefits. (Sec. 7, Article X, 1987
Constitution)
b. Power of Taxation is Not Inherent in

LGUs
The power to tax "is an attribute of sovereignty," and

as such, inheres in the State. Such, however, is not
true for provinces, cities, municipalities and
barangays as they are not the sovereign; rather, they
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are mere "territorial and political subdivisions of the Fiscal Autonomy

Republic of the Philippines." Fiscal autonomy means that local governments have
the power to create their own sources of revenue in
The rule governing the taxing power of provinces, addition to their equitable share in the national taxes
cities, municipalities and barangays is summarized in released by the national government, as well as the
Icard v. City Council of Baguio: It is settled that a power to allocate their resources in accordance with
municipal corporation unlike a sovereign state is their own priorities.
clothed with no inherent power of taxation. The
charter or statute must plainly show an intent to Local fiscal autonomy does not, however, rule out
confer that power or the municipality, cannot assume any manner of national government intervention by
it. And the power when granted is to be construed in way of supervision, in order to ensure that local
strictissimi juris. Any doubt or ambiguity arising out of programs, fiscal and otherwise, are consistent with
the term used in granting that power must be national goals. Significantly, the President, by
resolved against the municipality. constitutional fiat, is the head of the economic and
planning agency of the government, primarily
Inferences, implications, deductions — all these — responsible for formulating and implementing
have no place in the interpretation of the taxing power continuing, coordinated and integrated social and
of a municipal corporation. economic policies, plans and programs for the entire
country. However, under the Constitution, the
Therefore, the power of a province to tax is limited to formulation and the implementation of such policies
the extent that such power is delegated to it either by and programs are subject to "consultations with the
the Constitution or by statute. appropriate public agencies, various private sectors,
and local government units." The President cannot
Per Section 5, Article X of the 1987 Constitution, "the do so unilaterally. (Pimentel v. Aguirre, G.R. No.
power to tax is no longer vested exclusively on 132988, 2015)
Congress; local legislative bodies are now given
direct authority to levy taxes, fees and other Thus, the directive to "identify and implement
charges." Nevertheless, such authority is "subject to measures…that will reduce total expenditures…by at
such guidelines and limitations as the Congress may least 25% of authorized regular appropriation" does
provide.” (Pelizloy Realty v. Benguet, G.R. No. not violate local or fiscal autonomy as it is merely
183137, 2013) advisory in character, and does not constitute a
mandatory or binding order that interferes with local
Nature of LGUs Power to Tax autonomy. The language used, while authoritative,
LGUs have no inherent power to tax except to the does not amount to a command that emanates from
extent that such power might be delegated to them a boss to a subaltern. Rather, the provision is merely
either by the basic law or by the statute. Under the an advisory to prevail upon local executives to
1987 Constitution, where there is neither a grant nor recognize the need for fiscal restraint in a period of
a prohibition by statute, the tax power must be economic difficulty. Indeed, all concerned would do
deemed to exist although Congress may provide well to heed the President's call to unity, solidarity
statutory limitations and guidelines. The basic and teamwork to help alleviate the crisis. It is
rationale for the current rule is to safeguard the understood, however, that no legal sanction may be
viability and self-sufficiency of local government units imposed upon LGUs and their officials who do not
by directly granting them general and broad tax follow such advice. (Pimentel v. Aguirre, G.R. No.
powers. Nevertheless, the fundamental law did not 132988, 2015)
intend the delegation to be absolute and
unconditional; the constitutional objective obviously Tax Ordinance Strictly Construed Against LGU
is to ensure that, while the local government units are In case of doubt, any tax ordinance or revenue
being strengthened and made more autonomous, the measure shall be construed strictly against the
legislature must still see to it that (a) the taxpayer will local government unit enacting it, and liberally in
not be over-burdened or saddled with multiple and favor of the taxpayer. Any tax exemption, incentive
unreasonable impositions; (b) each local government or relief granted by any local government unit
unit will have its fair share of available resources; (c) pursuant to the provisions of this Code shall be
the resources of the national government will not be construed strictly against the person claiming it. (Sec.
unduly disturbed; and (d) local taxation will be fair, 5(b), 1991 LGC)
uniform, and just. (Ferrer v. Bautista, G.R. No.
210551, 2015)
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Scope of Power to Generate and Apply and be subject to the disposition by, the local
Resources government unit levying the tax, fee, charge or
Local government units shall have the power and other imposition unless otherwise specifically
authority to: provided herein; and
5) Each local government unit shall, as far as
1) Establish an organization that shall be responsible practicable, evolve a progressive system
for the efficient and effective implementation of their of taxation. (Sec. 130, 1991 LGC)
development plans, program objectives and
priorities; Sources of LGU Funds
1) Taxes, fees, and charges which accrue exclusively
2) Create their own sources of revenues and to levy for their use and disposition
taxes, fees, and charges which shall accrue 2) Just share in national taxes which shall be
exclusively for their use and disposition and which automatically and directly released to them
shall be retained by them; 3) Equitable share in the proceeds from utilization
and development of national wealth and resources
3) Have a just share in national taxes which shall be within their territorial jurisdiction (Sec. 18, 1991 LGC)
automatically and directly released to them without
need of any further action; Common Limitations to Taxing Power of LGUs
Unless otherwise provided herein, the exercise of
4) Have an equitable share in the proceeds from the the taxing powers of provinces, cities,
utilization and development of the national wealth municipalities, and barangays shall NOT extend
and resources within their respective territorial to the levy of the following:
jurisdictions including sharing the same with the a) Income tax, except when levied on banks and
inhabitants by way of direct benefits; other financial institutions;
b) Documentary stamp tax;
5) Acquire, develop, lease, encumber, alienate, or c) Taxes on estates, inheritance, gifts, legacies and
otherwise dispose of real or personal property held other acquisitions mortis causa, except as
by them in their proprietary capacity and to apply their otherwise provided herein;
resources and assets for productive, developmental, d) Customs duties, registration fees of vessel and
or welfare purposes, in the exercise or furtherance of wharfage on wharves, tonnage dues, and all
their governmental or proprietary powers and other kinds of customs fees, charges and dues
functions and thereby ensure their development into except wharfage on wharves constructed and
self-reliant communities and active participants in the maintained by the local government unit
attainment of national goals. (Sec. 18, 1991 LGC) concerned;
e) Taxes, fees, and charges and other impositions
c. Fundamental Principles of Local upon goods carried into or out of, or passing
Taxation through, the territorial jurisdictions of local
government units in the guise of charges for
The following fundamental principles shall govern the wharfage, tolls for bridges or otherwise, or other
exercise of the taxing and other revenue-raising taxes, fees, or charges in any form whatsoever
powers of local government units: upon such goods or merchandise;
1) Taxation shall be uniform in each local f) Taxes, fees or charges on agricultural and
government unit; aquatic products when sold by marginal farmers
2) Taxes, fees, charges and other impositions shall: or fishermen;
(a) be equitable and based as far as practicable g) Taxes on business enterprises certified to by the
on the taxpayer's ability to pay; Board of Investments as pioneer or non-pioneer
(b) be levied and collected only for public for a period of six (6) and four (4) years,
purposes; respectively from the date of registration;
(c) not be unjust, excessive, oppressive, or h) Excise taxes on articles enumerated under the
confiscatory; national Internal Revenue Code, as amended,
(d) (d) not be contrary to law, public policy, and taxes, fees or charges on petroleum
national economic policy, or in the products;
restraint of trade; i) Percentage or value-added tax (VAT) on sales,
3) The collection of local taxes, fees, charges and barters or exchanges or similar transactions on
other impositions shall in no case be let to any goods or services except as otherwise provided
private person; herein;
4) The revenue collected pursuant to the provisions j) Taxes on the gross receipts of transportation
of this Code shall inure solely to the benefit of, contractors and persons engaged in the
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transportation of passengers or freight by hire 2) In cases where there is no such branch or sales
and common carriers by air, land or water, outlet in the city or municipality where the sale or
except as provided in this Code; transaction is made, the sale shall be duly recorded
k) Taxes on premiums paid by way or reinsurance in the principal office and the taxes due shall accrue
or retrocession; and shall be paid to such city or municipality. (Sec.
l) Taxes, fees or charges for the registration of 150(a), 1991 LGC)
motor vehicles and for the issuance of all kinds
of licenses or permits for the driving thereof, 3) The following sales allocation shall apply to
except tricycles; manufacturers, assemblers, contractors, producers,
m) Taxes, fees, or other charges on Philippine and exporters with factories, project offices, plants,
products actually exported, except as otherwise and plantations in the pursuit of their business:
provided herein; (a) Thirty percent (30%) of all sales recorded in the
n) Taxes, fees, or charges, on Countryside and principal office shall be taxable by the city or
Barangay Business Enterprises and municipality where the principal office is located; and
cooperatives duly registered under R.A. No. (b) Seventy percent (70%) of all sales recorded in the
6810 and R.A. No. 6938 (Cooperative Code, now principal office shall be taxable by the city or
RA 9520) respectively; and municipality where the factory, project office, plant, or
o) Taxes, fees or charges of any kind on the plantation is located. (Sec. 150(b), 1991 LGC)
National Government, its agencies and
instrumentalities, and local government units. 4) In case of a plantation located at a place other than
(Sec. 133, 1991 LGC) the place where the factory is located, said seventy
percent (70%) mentioned above shall be divided as
Requisites of a Tax Ordinance follows:
1. Notice (a) Sixty percent (60%) to the city or municipality
2. Actual conduct of public hearing where the factory is located; and
3. Posting (b) Forty percent (40%) to the city or municipality
4. Publication (if with penal sanctions) where the plantation is located. (Sec. 150(c), 1991
LGC)
Constitutionality or Legality of Tax Ordinances
Any question on the constitutionality or legality of tax 5) In cases where a manufacturer, assembler,
ordinances or revenue measures may be raised on producer, exporter or contractor has two (2) or more
appeal within thirty (30) days from the effectivity factories, project offices, plants, or plantations
thereof to the Secretary of Justice who shall render a located in different localities, the seventy percent
decision within sixty (60) days from the date of receipt (70%) sales allocation mentioned above shall be
of the appeal: Provided, however, That such appeal prorated among the localities where the factories,
shall not have the effect of suspending the effectivity project offices, plants, and plantations are located in
of the ordinance and the accrual and payment of the proportion to their respective volumes of production
tax, fee, or charge levied therein: Provided, finally, during the period for which the tax is due. (Sec.
That within thirty (30) days after receipt of the 150(d), 1991 LGC)
decision or the lapse of the sixty-day period without
the Secretary of Justice acting upon the appeal, the Withdrawal of Local Tax Exemption Privileges
aggrieved party may file appropriate proceedings Unless otherwise provided in the LGC, tax
with a court of competent jurisdiction. (Sec. 189, exemptions or incentives granted to, or enjoyed by all
1991 LGC) persons, whether natural or juridical, including
government-owned or - controlled corporations were
Rules on LGU Business Taxes withdrawn upon the effectivity of the LGC. (Sec. 193,
1) Manufacturers, assemblers, repackers, brewers, 1991 LGC)
distillers, rectifiers and compounders of liquor,
distilled spirits and wines, millers, producers, Privileges Retained
exporters, wholesalers, distributors, dealers, Tax exemption privileges of the following were not
contractors, banks and other financial institutions, withdrawn by the LGC from the following:
and other businesses, maintaining or operating 1. Local water districts;
branch or sales outlet elsewhere shall record the sale 2. Cooperatives duly registered under R.A. No.
in the branch or sales outlet making the sale or 6938; and
transaction, and the tax thereon shall accrue and 3. Non-stock and non-profit hospitals and
shall be paid to the municipality where such branch educational institutions (Sec. 193,
or sales outlet is located. (Sec. 150(a), 1991 LGC) LGC; Sec. 234, 1991 LGC)
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Real Property Taxation shall be liable for the same. Thus, the following have
Annual ad valorem tax on real property may be levied been held by the SC as being exempt from real
by: property tax/local taxation:
(1) Province; or
(2) City; or 1) Philippine Amusement and Gaming Corporation
(3) Municipality within Metropolitan Manila Area (Basco v. PAGCOR, G.R. No. 91649, 1991)
(i.e. Pateros is the only NCR municipality)
(Sec. 232, 1991 LGC) 2) Manila International Airport Authority and Mactan
Cebu International Airport Authority are
Exemptions from Real Property Tax instrumentalities of the government, not a GOCC;
The following are exempted from payment of the real thus, its properties actually, solely and exclusively
property tax: used for public purposes, consisting of the airport
terminal building, airfield, runway, taxiway and the
(a) Real property owned by the Republic of the lots on which they are situated, are not subject to real
Philippines or any of its political subdivisions except property tax and the city is not justified in collecting
when the beneficial use thereof has been granted, for taxes from petitioner over said properties. (MIAA v.
consideration or otherwise, to a taxable person; Court of Appeals, G.R. No. 155650, July 20, 2006;
MIAA v. City of Pasay, G.R. No. 163072, April 2,
(b) Charitable institutions, churches, parsonages or 2009) and Mactan-Cebu International Airport
convents appurtenant thereto, mosques, non-profit Authority (MCIAA v. City of Lapu-Lapu, G.R. No.
or religious cemeteries and all lands, buildings, and 181756, 2015) NOTE: SC used definition of
improvements actually, directly, and exclusively used Instrumentality under the Administrative Code of
for religious, charitable or educational purposes; 1987.
(c) All machineries and equipment that are actually, 3) Light Rail Transit Authority (LRTA v. Quezon City,
directly and exclusively used by local water districts G.R. No. 221626, 2019)
and government owned or controlled corporations
engaged in the supply and distribution of water 4) Philippine Heart Center (Phil. Heart Center v. QC,
and/or generation and transmission of electric power; G.R. No. 225409, 2020)
(d) All real property owned by duly registered NOTE: In the LRTA and Philippine Heart Center
cooperatives as provided for under R.A. No. 6938; Cases, the SC used the GICP/GCE definition under
and RA 10149.
(e) Machinery and equipment used for pollution REMEMBER: Government Instrumentalities with
control and environmental protection. (Sec. 234, Corporate Powers (GICP)/Government Corporate
1991 LGC) Entities (GCE) - refer to instrumentalities or agencies
of the government, which are neither corporations
EXCEPTION TO THE EXEMPTION: Except as nor agencies integrated within the departmental
provided herein, any exemption from payment of framework, but vested by law with special functions
real property tax previously granted to, or or jurisdiction, endowed with some if not all corporate
presently enjoyed by, all persons, whether powers, administering special funds, and enjoying
natural or juridical, including all government- operational autonomy usually through a charter
owned or controlled corporations are hereby including, but not limited to, the following: the Manila
withdrawn upon the effectivity of this Code. (Sec. International Airport Authority (MIAA), the Philippine
234, 1991 LGC) Ports Authority (PPA), the Philippine Deposit
Insurance Corporation (PDIC), the Metropolitan
NOTE: Withdrawal of exemption from RPT does not Waterworks and Sewerage System (MWSS), the
apply to GICPs/GCEs/Instrumentalities of the Laguna Lake Development Authority (LLDA), the
National Government; hence, they are not subject to Philippine Fisheries Development Authority (PFDA),
real property tax as instrumentalities of the National the Bases Conversion and Development Authority
Government or State are exempt from local taxation (BCDA), the Cebu Port Authority (CPA), the Cagayan
under Sec. 133(o) of the LGC. de Oro Port Authority, the San Fernando Port
Authority, the Local Water Utilities Administration
Being instrumentalities of the government, (LWUA) and the Asian Productivity Organization
GICPs/GCEs are not subject to real property tax (APO). (Section 3(n), GOCC Governance Act of
imposed by the LGUs except when beneficial use of 2011, Republic Act No. 10149)
the real property is granted to a taxable entity, which
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d. Other limitations on taxing powers of of mere supervision. (Drilon v. Lim, G.R. No. 112497,
LGUs 1994)
Taxes already imposed by National Government: The evaluation involves an exercise of quasi-judicial
Generally, LGUs cannot impose taxes that are power by the Secretary of Justice. In deciding the
already imposed by the National Government (e.g. same, the Secretary of Justice must ascertain the
income tax, documentary stamps, estate taxes, existence of factual circumstances specifically,
customs duties, excise taxes under the NIRC, VAT) whether the tax ordinance was passed in accordance
(See generally, Sec. 133, 1991 LGC) with the procedure and the limitations set forth by the
LGC. And from there make a conclusion as to the
Persons exempted: LGUs cannot impose taxes, validity and applicability of the same to the taxable
fees, and charges on (a) countryside and barangay persons. Thus, the Court of Appeals is the court
business enterprises; (b) cooperatives duly vested with exclusive original jurisdiction to
registered under the Cooperative Code; and National entertain a petition for certiorari under Rule 65
Government, its agencies and instrumentalities, and questioning the acts of quasi-judicial agencies. (De
local government units. (Sec. 133(n)-(o), LGC) Lima v. City of Manila, G.R. No. 22286, 2018)
• Hence, the MIAA, MCIAA, LRTA, PAGCOR, and
Philippine Heart Center, and other GICPs/GCEs 3) Mayor Cannot Grant Local Tax Exemption. A
being such an instrumentalities of the National municipal mayor who is an executive officer may not
Government, are exempt from local taxation. unilaterally withdraw such an expression of a policy
• However, all other GOCCs (which are neither thru the enactment of a tax." The waiver partakes of
GICPs nor GCEs) are not exempt from local the nature of an exemption. It is an ancient rule that
taxation. (MIAA v. CA, 2006) exemptions from taxation are construed in strictissimi
juris against the taxpayer and liberally in favor of the
Doctrines: taxing authority. (Esso Standard Eastern, Inc. v.
1) Local Taxpayer’s Remedy. The law requires that Acting Commissioner of Customs, 18 SCRA 488
(1966)). Tax exemptions are looked upon with
a dissatisfied taxpayer who questions the validity or
legality of a tax ordinance must file its appeal to the disfavor (Western Minolco Corp. v. Commissioner of
Secretary of Justice within 30 days from effectivity Internal Revenue, 124 SCRA 121 (1983)). Thus, in
thereof. In case the Secretary decides the appeal, a the absence of a clear and express exemption from
period of 30 days is allowed for an aggrieved party to the payment of said fees, the waiver cannot be
go to Court. But if the Secretary does not act after the recognized. As already stated, it is the law-making
lapse of 30 days, a party could already proceed to body, and not an executive like the mayor, who can
seek relief in Court. (Reyes et al v. CA, G.R. No. make an exemption. (Philippine Petroleum Corp. v.
118233, 1999; Sec. 187, 1991 LGC) Municipality of Pililla G.R. No. 90776, 1991)
2) Power of Secretary of Justice to Review Tax Local government units may, through ordinances
Ordinance. Section 187 authorizes the Secretary of duly approved, grant tax exemptions, incentives or
Justice to review only the constitutionality or legality reliefs under such terms and conditions as they may
of the tax ordinance and, if warranted, to revoke it on deem necessary. (Sec. 192, 1991 LGC)
either or both of these grounds. When he alters or
modifies or sets aside a tax ordinance, he is not also 4) Administrative Regulations or Executive
permitted to substitute his own judgment for the Issuances Cannot Limit LGU’s Power of Taxation.
judgment of the local government that enacted the The exercise by local governments of the power to
measure. Secretary Drilon did set aside the Manila tax is ordained by the present Constitution. To allow
Revenue Code, but he did not replace it with his own the continuous effectivity of the prohibition set
version of what the Code should be. He did not administrative regulation (by the DOF) would be
pronounce the ordinance unwise or unreasonable as tantamount to restricting the LGU’s power to tax by
a basis for its annulment. He did not say that in his mere administrative issuances. Under Section 5,
judgment it was a bad law. What he found only was Article X of the 1987 Constitution, only guidelines and
that it was illegal. All he did in reviewing the said limitations that may be established by Congress can
define and limit such power of local
measure was determine if the petitioners were
performing their functions is accordance with law, governments. (Philippine Petroleum Corp. v.
that is, with the prescribed procedure for the Municipality of Pililla G.R. No. 90776, 1991)
enactment of tax ordinances and the grant of powers
5) The BIR has no authority to determine the
to the city government under the Local Government
Code. As we see it, that was an act not of control but applicability of local ordinances. Besides, even
the Bureau itself states that the exemption shall not
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apply if the sand and gravel were to be disposed of 9) Regulatory Fee vs. Cost of Regulation. To pass
commercially. An exemption from the requirements judicial scrutiny, a regulatory fee must not produce
of the provincial government should have a clear revenue in excess of the cost of the regulation
basis, whether in law, ordinance, or even from the because such fee will be construed as an illegal tax
contract itself. (Lepanto Consolidated Mining when the revenue generated by the regulation
Company v. Ambanloc, G.R. 180639, 2010) exceeds the cost of the regulation. (Ferrer v.
Bautista, G.R. No. 210551, 2015)
6) COA Jurisdiction Despite Local Fiscal
Autonomy. The COA is endowed with enough 10) No Levy of Local Taxes on Petroleum
latitude to determine, prevent, and disallow irregular, Products. While local government units are
unnecessary, excessive, extravagant, or authorized to burden all such other class of goods
unconscionable expenditures of government funds. with “taxes, fees and charges,” excepting excise
The Court had therefore previously upheld the taxes, a specific prohibition is imposed barring the
authority of COA to disapprove payments which it levying of any other type of taxes with respect to
finds excessive and disadvantageous to the petroleum products. (Petron Corporation v. Tiangco,
government; to determine the meaning of “public G.R. No. 158881, 2008; Batangas City v. Pilipinas
bidding;” and when there is failure in the bidding, to Shell Petroleum Corp., G.R. No. 187631, 2015)
disallow expenditures which it finds unnecessary
according to its rules even if disallowance will mean 11) Fiscal Flexibility of LGU in Fixing Additional
discontinuance of foreign aid; to disallow a contract Levy. Setting the rate of the additional levy for the
even after it has been executed and goods have special education fund at less than 1% is within the
been delivered. Thus, LGUs, though granted local taxing power of local government units. It is
fiscal autonomy, are still within the audit jurisdiction consistent with the guiding constitutional principle of
of the COA. It is only when the COA has acted local autonomy. The option given to a local
without or in excess of jurisdiction, or with grave government unit extends not only to the matter of
abuse of discretion amounting to lack or excess of whether to collect but also to the rate at which
jurisdiction, that this Court entertains a petition collection is to be made. The limits on the level of
questioning its rulings (Veloso v. COA, G.R. No. additional levy for the special education fund under
193677, 2011) Section 235 of the Local Government Code should
be read as granting fiscal flexibility to local
7) One Year Redemption Period Counted From government units. (Demaala v. COA, G.R. No.
Date of Sale. Forfeiture of tax delinquent properties 199752, 2015)
transpires no later than the purchase made by the
city due to lack of a bidder from the public. This 12) Amusement Taxes. By operation of Sec. 151 of
happens on the date of the sale (auction happened the LGC extending to cities the authority of provinces
earlier in time), and not upon the issuance of the and municipalities to levy certain taxes, fees, and
declaration of forfeiture (annotation on the titles charges, cities may therefore validly levy amusement
happened later in time). (City of Davao v. Intestate taxes on cinemas subject to the parameters set forth
Estate of Amado S. Dalisay, G.R. No. 207791, 2015) under the law. (Film Development Council of the
Philippines v. City of Cebu et al, G.R. No. 204418,
8) Ministerial Duty of the Mayor. The mayor has the 2015)
ministerial duty to ensure that all taxes and other
revenues of the city are collected, and that city funds However, resorts, swimming pools, bath houses, hot
are applied to the payment of expenses and springs and tourist spots are not proper subjects of
settlement of obligations of the city, in accordance amusement taxes as they do not belong to the same
with law or ordinance. On the other hand, under the category or class as theaters, cinemas, concert halls,
LGC, all local taxes, fees, and charges shall be circuses, and boxing stadia. Amusement Places
collected by the provincial, city, municipal, or include theaters, cinemas, concert halls, circuses
barangay treasurer, or their duly-authorized and other places of amusement where one seeks
deputies, while the assessor shall take charge, admission to entertain oneself by seeing or viewing
among others, of ensuring that all laws and policies the show or performances. Accordingly, 'other
governing the appraisal and assessment of real places of amusement' must be interpreted in light of
properties for taxation purposes are properly the typifying characteristic of being venues "where
executed. Thus, a writ of prohibition may be issued one seeks admission to entertain oneself by seeing
against them to desist from further proceeding in the or viewing the show or performances" or being
action or matter specified in the petition. (Ferrer v. venues primarily used to stage spectacles or hold
Bautista, G.R. No. 210551, 2015) public shows, exhibitions, performances, and other
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events meant to be viewed by an audience. (Pelizloy consultation with the presiding officers of both
Realty v. Benguet, G.R, No. 183137, 2013) Houses of Congress and the presidents of the "liga,"
to make the necessary adjustments in the allotment
13) Taxes levied by LGUs shall accrue exclusively to of local government units but in no case shall the
the LGU and to earmark, if not altogether confiscate, allotment be less than thirty percent (30%) of the
the income to be received by the LGU from the collection of national taxes of the third fiscal year
taxpayers in favor of and for transmittal to the Film preceding the current fiscal year. (Sec. 284, par. 2,
Development Council of the Philippines, is repugnant 1991 LGC).
to the power of LGUs to apportion their resources in
line with their priorities. (Film Development Council of Requisites for Exception:
the Philippines v. City of Cebu et al, G.R. No 204418, 1. Unmanageable public sector deficit;
2015) 2. Recommendation of the Secretaries of (a)
Finance, (b) Internal and Local Gov’t, and (c)
14) A certiorari petition questioning an interlocutory Budget and Management; and
order issued in a local tax case falls under the 3. Consultation with (a) heads of both houses of
jurisdiction of the CTA. (CE Casecnan Water and Congress, and (b) presidents of the liga.
Energy Company, Inc. v. The Province of Nueva 4. Allotment shall not be lower than 30% of the
Ecija, G.R. No. 196278, 2015) national taxes collection. (Sec. 284, par. 2, 1991
LGC)
15) The socialized housing tax charged by the city is
a tax which is within its power to impose. Aside from NOTES:
the specific authority vested by Section 43 of the 1) The SC in Mandanas v. Ochoa deleted all the
UDHA, cities are allowed to exercise such other phrase “internal revenue” in the LGC for being
powers and discharge such other functions and unconstitutional when referring to the just share of
responsibilities as are necessary, appropriate, or LGUs, particularly in Secs. 284, 285, 287, and 290.
incidental to efficient and effective provision of the Thus, any mention of "Internal Revenue Allotment" or
basic services and facilities which include, among "IRA" in Republic Act No. 7160 (Local Government
others, programs and projects for low-cost housing Code) and its Implementing Rules and Regulations
and other mass dwellings. The collections made shall be understood as pertaining to the allotment of
accrue to its socialized housing programs and the Local Government Units derived from the national
projects. The tax is not a pure exercise of taxing taxes. (Mandanas v. Ochoa, Jr., G.R. Nos. 199802 &
power or merely to raise revenue; it is levied with a 208488, July 3, 2018)
regulatory purpose. The levy is primarily in the
exercise of the police power for the general welfare 2) The Mandanas ruling will only apply starting
of the entire city. It is greatly imbued with public with the 2022 budget cycle since the 03 July 2018
interest. (Ferrer v. Bautista, G.R. No. 210551, 2015) decision became final and executory on 10 June
2019. Inevitably, the 2019 Budget can no longer
16) Regulation of Activity and Tax. The garbage include the changes brought about by Our July 3,
fee is a charge fixed for the regulation of an activity. 2018 decision. The SC said: “While the amounts and
It is not a tax and cannot violate the rule on double the national taxes during the third fiscal year
taxation. (Ferrer v. Bautista, G.R. No. 210551, 2015) preceding or in 2016 can already be determined as
of this time, it would be too late to include the same
Just Share in the National Taxes (formerly in the 2019 budget since Congress had already
Internal Revenue Allotment (IRA) share of LGUs) approved the 2019 General Appropriations Act
(GAA), and we are already in the last quarter of the
General Rule: The current sharing is 40% local, 60% year. Neither can the same amounts be considered
national. LGUs shall have a 40% share in the national in drawing up the 2020 and 2021 budget because
taxes based on the collection of the third fiscal year their budget cycles have already commenced.
preceding the current fiscal year. (Sec. 284(c), 1991 Notable that for the 2020 budget, Congress is already
LGC) in the process of conducting budget hearings to
finalize the GAA. Adding the amounts based on our
Exception: ruling in the 2020 budget would only disrupt the
That in the event that the national government incurs proceedings and impede the passing of the GAA. It
an unmanageable public sector deficit, the President would also be imprudent for the Court to compel the
of the Philippines is hereby authorized, upon the Executive to start from scratch and jettison all
recommendation of Secretary of Finance, Secretary existing plans and allotments to the detriment of the
of Interior and Local Government and Secretary of 2020 and 2021 GAA.” (Mandanas v. Ochoa, G.R.
Budget and Management, and subject to Nos. 199802 & 208488 (Notice), October 8, 2019)
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VATs, excise taxes, and DSTs collected by

Automatic Release of Just Share the BIR and the BOC, and their deputized
1) Section 6, Article X the 1987 Constitution textually agents;
commands the automatic release of the just share in 2) Tariff and customs duties collected by the
the national taxes, viz.: Section 6. Local government BOC;
units shall have a just share, as determined by law, 3) 50% of the VATs collected in the ARMM,
in the national taxes which shall be automatically and 30% of all other national taxes collected
released to them. in the ARMM; the remaining 50% of the
2) The LGC implements this by providing that the VATs and 70% of the collections of the other
share of each LGU shall be released, without need of national taxes in the ARMM shall be the
any further action, directly to the respective treasurer exclusive share of the ARMM pursuant to
on a quarterly basis within five (5) days after the end Sections 9 and 15 of R.A. No. 9054;
of each quarter, and which shall not be subject to any 4) 60% of the national taxes collected from the
lien or holdback that may be imposed by the national exploitation and development of the national
government for whatever purpose. (Sec. 286(a), wealth; the remaining 40% will exclusively
1991 LGC) accrue to the host LGUs pursuant to Section
290 of the LGC;
Section 6 does not mention of appropriation as a 5) 85% of the excise taxes collected from
condition for the automatic release of the just share locally manufactured Virginia and other
to the LGUs. This is because Congress not only tobacco products; the remaining 15% shall
already determined the just share through the LGC's accrue to the special purpose funds
fixing the percentage of the collections of the NIRTs pursuant created in R.A. No. 7171 and R.A.
to constitute such fair share subject to the power of No. 7227;
the President to adjust the same in order to manage 6) The entire 50% of the national taxes
public sector deficits subject to limitations on the collected under Section 106 (VAT on
adjustments, but also explicitly authorized such just goods/properties), Section 108 (VAT on
share to be "automatically released" to the LGUs in services/lease) and Section 116 (Tax on
the proportions and regularity set under Section VAT exempt persons) of the NIRC in excess
285 of the LGC without need of annual appropriation. of the increase in collections for the
To operationalize the automatic release without need immediately preceding year; and
of appropriation, Section 286 of the LGC clearly 7) 5% of the franchise taxes in favor of the
provides that the automatic release of the just national government paid by franchise
share directly to the provincial, city, municipal or holders in accordance with Section 6 of R.A.
barangay treasurer, as the case may be, shall No. 6631 and Section 8 of R.A. No. 6632.
be "without need of any further action." (Mandanas v. (Mandanas v. Ochoa, Jr., G.R. Nos. 199802
Ochoa, Jr., G.R. Nos. 199802 & 208488, July 3, & 208488, July 3, 2018)
2018)
IRA/National Taxes Allotment
Withholding 10 percent of the LGUs' IRA The share of local government units in the allotment
"pending the assessment and evaluation by the shall be collected in the following manner:
Development Budget Coordinating Committee of (a) Provinces - Twenty-three percent (23%);
the emerging fiscal situation" in the country is (b) Cities - Twenty-three percent (23%);
invalid. Such withholding clearly contravenes (c) Municipalities - Thirty-four percent (34%); and
the Constitution and the law. Although temporary, it (d) Barangays - Twenty percent (20%). (Sec. 285,
is equivalent to a holdbacks which means "something 1991 LGC)
held back or withheld, often temporarily." Hence, the
"temporary" nature of the retention by the national IRA/National Taxes Sharing Formula
government does not matter. Any retention is 1) The share of each province, city, and municipality
prohibited. (Pimentel v. Aguirre, G.R. No. 132988, shall be determined on the basis of the following
2015) formula:
(a) Population - Fifty percent (50%);
The National Taxes Included in Mandanas v. (b) Land Area - Twenty-five percent (25%); and
Ochoa (c) Equal sharing - Twenty-five percent (25%). (Sec.
The national taxes to be included in the base for 285, 1991 LGC)
computing the just share the LGUs shall henceforth
be, but shall not be limited to, the following: 2) The share of each barangay with a population of
1) The NIRTs enumerated in Section 21 of the not less than one hundred (100) inhabitants shall not
NIRC, as amended, to be inclusive of the be less than Eighty thousand (P80,000.00) per
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annum chargeable against the twenty percent (20%) 4) The share in the preceding Section (i.e. Sec. 291)
share of the barangay from the allotment, and the shall be distributed in the following manner:
balance to be allocated on the basis of the following
formula: (a) Where the natural resources are located in the
(1) Population - Sixty percent (60%); and province:
(2) Equal sharing - Forty percent (40%). (Sec. 285, (1) Province - Twenty percent (20%);
1991 LGC) (2) Component City/Municipality - Forty-five
percent (45%); and
20% of National Allotment for Development (3) Barangay - Thirty-five percent (35%)
Projects Provided, however, That where the natural resources
Each local government unit shall appropriate in its are located in two (2) or more provinces, or in two (2)
annual budget no less than twenty percent (20%) of or more component cities or municipalities or in two
its annual (internal revenue/national taxes) allotment (2) or more barangays, their respective shares shall
for development projects. Copies of the development be computed on the basis of:
plans of local government units shall be furnished the (1) Population - Seventy percent (70%); and
Department of Interior and Local Government. (Sec. (2) Land area - Thirty percent (30%)
287, 1991 LGC)
(b) Where the natural resources are located in a
Equitable Share of LGUs in the Utilization and highly urbanized or independent component city:
Development of National Wealth (1) City - Sixty-five percent (65%); and
1) Local government units shall have an equitable (2) Barangay - Thirty-five percent (35%)
share in the proceeds derived from the utilization and Provided, however, That where the natural resources
development of the national wealth within their are located in such two (2) or more cities, the
respective areas, including sharing the same with the allocation of shares shall be based on the formula on
inhabitants by way of direct benefits. (Sec. 289, 1991 population and land area as specified in paragraph
LGC) (a) of this Section (i.e. Sec. 292). (Sec. 292, 1991
LGC)
2) Local government units shall, in addition to the
allotment, have a share of forty percent (40%) of the 5) The share of local government units from the
gross collection derived by the national government utilization and development of national wealth
from the preceding fiscal year from mining taxes, shall be remitted in accordance with Section 286
royalties, forestry and fishery charges, and such of this Code (i.e. automatic release similar to
other taxes, fees, or charges, including related national taxes allotment): Provided, however, That
surcharges, interests, or fines, and from its share in in the case of any government agency or
any co-production, joint venture or production sharing government-owned or controlled corporation
agreement in the utilization and development of the engaged in the utilization and development of the
national wealth within their territorial jurisdiction. national wealth, such share shall be directly remitted
(Sec. 290, 1991 LGC) to the provincial, city, municipal or barangay
treasurer concerned within five (5) days after the end
3) Local government units shall have a share based of each quarter. (Sec. 293, 1991 LGC)
on the preceding fiscal year from the proceeds
derived by any government agency or government- 6) The proceeds from the share of local government
owned or controlled corporation engaged in the units pursuant to this chapter shall be appropriated
utilization and development of the national wealth by their respective sanggunian to finance local
based on the following formula whichever will government and livelihood projects: Provided,
produce a higher share for the local government unit: however, That at least eighty percent (80%) of the
proceeds derived from the development and
(a) One percent (1%) of the gross sales or receipts of utilization of hydrothermal, geothermal, and other
the preceding calendar year; or sources of energy shall be applied solely to lower the
cost of electricity in the local government unit where
(b) Forty percent (40%) of the mining taxes, royalties, such a source of energy is located. (Sec. 294, 1991
forestry and fishery charges and such other taxes, LGC)
fees or charges, including related surcharges,
interests, or fines the government agency or
government owned or controlled corporation would
have paid if it were not otherwise exempt. (Sec. 291,
1991 LGC)
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5. CLOSURE AND OPENING OF ROADS 2) The duration of which shall be specified by the
local chief executive concerned in a written order.
a. Power to Open or Close Roads (Sec. 21(c), 1991 LGC)
1) A local government unit may, pursuant to an 3) That no national or local road, alley, park, or
ordinance, permanently or temporarily close or open square shall be temporarily closed for athletic,
any local road, alley, park, or square falling within its cultural, or civic activities not officially sponsored,
jurisdiction. (Sec. 21(a), 1991 LGC) recognized, or approved by the local government unit
concerned. (Sec. 21(c), 1991 LGC) Thus, temporary
2) In addition, any city, municipality, or barangay closure for athletic, cultural, or civic activities must be
may, by a duly enacted ordinance, temporarily close officially sponsored, recognized, or approved by the
and regulate the use of any local street, road, LGU concerned.
thoroughfare, or any other public place where
shopping malls, Sunday, flea or night markets, or NOTE: Temporary closure must be pursuant to an
shopping areas may be established and where ordinance as per Sec. 21(a) of the LGC.
goods, merchandise, foodstuffs, commodities, or
articles of commerce may be sold and dispensed to Permanent Closure vs. Temporary Closure
the general public. (Sec. 21(d), 1991 LGC) PERMANENT TEMPORARY
CLOSURE CLOSURE
b. Requirements and Conditions for REQUISITES
Permanent Closure 1. Ordinance 1. Should be a National
must be or local road, alley,
approved by park, or square
1) Ordinance Approved by 2/3 of Sanggunian
at least two- 2. Temporarily closure
Members. Such ordinance must be approved by at
thirds (2/3) of during an
least two-thirds (2/3) of all the members of the
all the actual emergency,
sanggunian. (Sec. 21(a), 1991 LGC)
members of or fiesta
the celebrations, public
2) Adequate Substitute. When necessary, an
Sanggunian rallies, agricultural or
adequate substitute for the public facility that is
2. When industrial fairs, or an
subject to closure is provided. (Sec. 21(a), 1991
necessary, undertaking of public
LGC)
an adequate works and
substitute for highways,
3) Provisions for the Maintenance of Public
the public telecommunications,
Safety. No such way or place or any part thereof shall
facility that is and waterworks
be permanently closed without making provisions for
subject to projects.
the maintenance of public safety therein. (Sec. 21(b),
closure is 3. The duration of
1991 LGC)
provided. which shall be
3. Provisions for specified by the local
4) For Other Lawful Use or Conveyance. A
the chief executive
property thus permanently withdrawn from public use
maintenance concerned in a
may be used or conveyed for any purpose for which
of public written order.
other real property belonging to the local government
safety shall
unit concerned may be lawfully used or conveyed:
be made.
Provided, however, That no freedom park shall be
closed permanently without provision for its transfer
or relocation to a new site. (Sec. 21(b), 1991 LGC) National vs. Local (vis-à-vis Road, Alley, Park or
Square)
NATIONAL LOCAL
c. Requirements and Conditions for
APPLIES TO ROAD, ALLEY, PARK OR
Temporary Closure SQUARE
Temporary closure 1. Temporary
1) Any national or local road, alley, park, or square only. 2. Permanent
may be temporarily closed during an actual closure
emergency, or fiesta celebrations, public rallies,
agricultural or industrial fairs, or an undertaking of The passage of an ordinance by an LGU to effect the
public works and highways, telecommunications, and opening of a local road can have no applicability if the
waterworks projects. (Sec. 21(c), 1991 LGC) subdivision road lots sought to be opened to
decongest traffic in the area have already been
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donated to, and the titles thereto already issued in the The presiding officer shall vote only to break a
name of the City Government. Having been already tie.
donated or turned over to the City Government, the
road lots in question have since then taken the nature In the event of the inability of the regular presiding
of public roads which are withdrawn from the officer to preside at a sanggunian session, the
commerce of man and hence, placed beyond the members present and constituting a quorum shall
private rights or claims of the homeowner’s elect from among themselves a temporary presiding
association. Accordingly, homeowner’s association officer. (Sec. 49, 1991 LGC)
was not in the lawful exercise of its predicated rights
when it built obstructing structures closing the road 3) Rules of Procedure: Sangguanian concerned
lots in question to vehicular traffic for the use of the shall adopt its own rules of procedure. (Sec. 50, 1991
general public. Consequently, barangay’s act of LGC)
passing the disputed barangay resolution, the
implementation of which is sought to be restrained by 4) Mandatory Disclosures: Sanggunian members
homeowner’s association, had for its purpose not the are required to do mandatory disclosures that may
opening of a private road but may be considered result in any conflict of interest (financial, business,
merely as a directive or reminder to the Appellant to professional). (Sec. 51, 1991 LGC)
cause the opening of a public road which should
rightfully be open for use to the general public. (New 5) Regular session: Fixed on the first day of
Sun Valley v. Sangguniang Barangay, G.R. 156686, session, 1x a week. (Sec. 52(a), 1991 LGC)
2011)
6) Special Session: When public interest so
6. LEGISLATIVE POWER demands, special sessions may be called by the local
chief executive or by a majority of the members of the
a. Requisites of a Valid Ordinance (CUP sanggunian. (Sec. 52(b), 1991 LGC)
PUG)
7) Quorum: A majority of all the members of the
1. Must not Contravene the Constitution or any
statute sanggunian who have been elected and qualified
2. Must not be Unfair or oppressive shall constitute a quorum to transact official business.
3. Must not be Partial or discriminatory (Sec. 53(a), 1991 LGC) If there is no quorum,
4. Must not Prohibit, but may regulate trade presiding officer may declare a recess until quorum
5. Must not be Unreasonable is constituted or majority of members present may
6. Must be General and consistent with public adjourn from day to day and may compel immediate
policy attendance. (Sec. 53(b), 1991 LGC) If there is still no
quorum despite the enforcement of the immediately
NOTE: To measure if an ordinance is valid, see and preceding subsection, no business shall be
remember the previous discussions on the Two- transacted. (Sec. 53(c), 1991 LGC)
Pronged Test (Mosqueda v. Pilipino Growers) and
the Substantive Requirements (SJS v. Atienza). Approval/Disapproval of Ordinances
1) Every ordinance enacted by the sangguniang
Local Legislative Body panlalawigan, sangguniang panlungsod, or
1) Exercised by the Sanggunian (Panlalawigan, sangguniang bayan shall be presented to the
Panglungson, Bayan, Barangay) (Secs. 476, 458, provincial governor or city or municipal mayor, as the
414, 391, 1991 LGC) case may be.
2) If the local chief executive concerned APPROVES
2) Presiding Officer: the same, he shall affix his signature on each and
every page thereof;
LEGISLATIVE BODY PRESIDING
OFFICER
3) If the local chief executive concerned
Sangguniang
DISAPPROVES the same, he shall VETO it and
Panlalawigan Vice-Governor
return the same with his objections to the
Sangguniang sanggunian, which may proceed to reconsider the
Panglungsod Vice-Mayor
same.
Sangguniang Bayan Vice-Mayor
4) The veto shall be communicated by the local chief
Sangguniang Barangay Punong Barangay executive concerned to the sanggunian within fifteen
(15) days in the case of a province, and ten (10) days
in the case of a city or a municipality; otherwise (i.e.
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if the veto is not communicated to the sanggunian Ordinance vs. Resolution

concerned within the prescribed period), the ORDINANCE RESOLUTION
ordinance shall be deemed approved as if he had
signed it. Has the force and effect Mere opinion
of law
5) The sanggunian concerned may override the veto
of the local chief executive by two-thirds (2/3) vote of Has general application;
all its members, thereby making the ordinance or more or less permanent Temporary in nature
resolution effective for all legal intents and purposes. in character.
6) Ordinances enacted by the sangguniang barangay Third reading is required Third reading not
shall, upon approval by the majority of all its required
members, be signed by the punong barangay. (Sec. Usually used in the Usually used in the
54, LGC) exercise of the LGU’s LGU’s exercise of
governmental functions proprietary functions
NOTE: No such veto for the Punong Barangay since
already a member of the Sangguniang Barangay. Subject to veto Only some may be
subject to veto and
Any attempt to enforce any ordinance or any review
resolution approving the local development plan and
public investment program, after the disapproval Presumptions regarding local legislation (CRV)
thereof, shall be sufficient ground for the 1. Constitutionality
suspension or dismissal of the official or 2. Regularity
employee concerned. (Sec. 58, 1991 LGC) 3. Validity
Grounds and Limitation on the Veto Power of Requirement After Approval of the Ordinance
the Local Chief Executive 1) For Component City and Municipality
1) The local chief executive may veto any ordinance Ordinances
of the sanggunian panlalawigan, sangguniang
panlungsod, or sanggunian bayan on the ground that PROCESS:
it is ultra vires or prejudicial to the public welfare, (a) Within three (3) days after approval, the secretary
stating his reasons therefor in writing. to the sanggunian panlungsod or sangguniang bayan
2) The local chief executive, except the punong shall forward to the sangguniang panlalawigan for
barangay, shall have the power to veto any particular review, copies of approved ordinances and the
item or items of an appropriations ordinance, an resolutions approving the local development plans
ordinance or resolution adopting a local development and public investment programs formulated by the
plan and public investment program, or an ordinance local development councils. (Sec. 56(a, 1991 LGC)
directing the payment of money or creating liability.
In such a case, the veto shall not affect the item or (b) Within thirty (30) days after the receipt of copies
items which are not objected to. of such ordinances and resolutions, the sangguniang
3) The vetoed item or items shall not take effect panlalawigan shall examine the documents or
unless the sanggunian overrides the veto in the transmit them to the provincial attorney, or if there be
manner herein provided; otherwise, the item or items none, to the provincial prosecutor for prompt
in the appropriations ordinance of the previous year examination. The provincial attorney or provincial
corresponding to those vetoed, if any, shall be prosecutor shall, within a period of ten (10) days from
deemed reenacted. receipt of the documents, inform the sangguniang
4) The local chief executive may veto an ordinance panlalawigan in writing of his comments or
or resolution only once. The sanggunian may recommendations, which may be considered by the
override the veto of the local chief executive sangguniang panlalawigan in making its decision.
concerned by two-thirds (2/3) vote of all its members, (Sec. 56(b), 1991 LGC)
thereby making the ordinance effective even without
the approval of the local chief executive concerned. ACTION:
(Sec. 55, 1991 LGC) (c) If the sangguniang panlalawigan finds that such
an ordinance or resolution is beyond the power
conferred upon the sangguniang panlungsod or
sangguniang bayan concerned, it shall declare such
ordinance or resolution invalid in whole or in part. The
sangguniang panlalawigan shall enter its action in the
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minutes and shall advise the corresponding city or Effectivity of Ordinances

municipal authorities of the action it has taken. (Sec.
56(c), 1991 LGC) 1) For Provinces, Component Cities, and
Municipalities
(d) If no action has been taken by the sangguniang
panlalawigan within thirty (30) days after submission Without Penal Sanctions
of such an ordinance or resolution, the same shall be (a) Unless otherwise stated in the ordinance or the
presumed consistent with law and therefore valid. resolution approving the local development plan and
(Sec. 56 (d), 1991 LGC) public investment program, the same shall take effect
after ten (10) days from the date a copy thereof is
2) For Barangay Ordinances - Approved posted in a bulletin board at the entrance of the
ordinances shall be forwarded to the sangguniang provincial capitol or city, municipal, or barangay hall,
concerned for review if consistent with law or city or as the case may be, and in at least two (2) other
municipal ordinances. conspicuous places in the local government unit
concerned. (Sec. 59(a), 1991 LGC)
PROCESS:
(a) Within ten (10) days after its enactment, the (b) The secretary to the sanggunian concerned shall
sangguniang barangay shall furnish copies of all cause the posting of an ordinance or resolution in the
barangay ordinances to the sangguniang bulletin board at the entrance of the provincial capitol
panlungsod or sangguniang bayan concerned for and the city, municipal, or barangay hall in at least
review as to whether the ordinance is consistent with two (2) conspicuous places in the local government
law and city or municipal ordinances. (Sec. 57(a), unit concerned not later than five (5) days after
1991 LGC) approval thereof. The text of the ordinance or
resolution shall be disseminated and posted in
(b) If the sangguniang panlungsod or sangguniang Filipino or English and in the language understood by
bayan, as the case may be, fails to take action on the majority of the people in the local government unit
barangay ordinances within thirty (30) days from concerned, and the secretary to the sanggunian shall
receipt thereof, the same shall be deemed approved. record such fact in a book kept for the purpose,
(Sec. 57(b), 1991 LGC) stating the dates of approval and posting. (Sec.
59(b), 1991 LGC)
ACTION:
(c) If the sangguniang panlungsod or sangguniang 2) With Penal Sanctions
bayan, as the case may be, finds the barangay (a) The gist of all ordinances with penal sanctions
ordinances inconsistent with law or city or municipal shall be published in a newspaper of general
ordinances, the sanggunian concerned shall, within circulation within the province where the local
thirty (30) days from receipt thereof, return the same legislative body concerned belongs. In the absence
with its comments and recommendations to the of any newspaper of general circulation within the
sangguniang barangay concerned for adjustment, province, posting of such ordinances shall be made
amendment, or modification; in which case, the in all municipalities and cities of the province where
effectivity of the barangay ordinance is suspended the sanggunian of origin is situated. (Sec. 59(c), 1991
until such time as the revision called for is effected. LGC)
(Sec. 57(c), 1991 LGC) (b) Ordinances with penal sanctions shall be posted
at prominent places in the provincial capitol, city,
municipal or Barangay hall, as the case may be, for
a minimum period of three (3) consecutive weeks.
Such ordinances shall also be published in a
newspaper of general circulation, where available,
within the territorial jurisdiction of the local
government unit concerned, except in the case of
Barangay ordinances. Unless otherwise provided
therein, said ordinances shall take effect on the day
following its publication, or at the end of the period of
posting, whichever occurs later. (Sec. 511(a), 1991
LGC) NOTE: This should also apply to HUCs and
ICCs.
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2) For Highly Urbanized Cities and Independent same price as adults. (Balacuit v. CFI of Agusan del
Component Cities Norte, G.R. No. L-38429, 1988)
In the case of highly urbanized and independent
component cities, the main features of the ordinance 5) Liga ng Mga Barangay has no legislative
or resolution duly enacted or adopted shall, in powers. The Liga ng mga Barangay cannot exercise
addition to being posted, be published once in a local legislative powers because it is not a local
newspaper of general circulation within the city: government unit and its primary purpose is to
Provided, That in the absence thereof the ordinance determine representation of the liga in the
or resolution shall be published in any newspaper of sanggunians to ventilate, articulate and crystallize
general circulation. (Sec. 59(d), 1991 LGC) NOTE: issues affecting barangay government
This should apply to all ordinances of HUCs and administration, and to secure solutions for them
ICCs, with or without penal sanctions. through proper and legal means. IOnon v.
Fernandez, G.R. No. 139813, 2001)
Doctrines:
1) Notice and hearing not required for b. Local Initiative and Referendum
typographical error. A municipal resolution
correcting an alleged typographical error in a zoning Local Initiative - The legal process whereby the
ordinance does not have to comply with the registered voters of a LGU may directly propose,
requirements of notice and hearing, which are enact, or amend any ordinance. It may be exercised
required for the validity and effectiveness of zoning by all registered voters of the provinces, cities,
ordinances. (The Learning Child, Inc. v. Ayala municipalities, and barangays. (Secs. 120 and 121,
Alabang Village Association, G.R. Nos. 1991 LGC)
134269/134440/144518, 2010)
Initiative on local legislation which refers to a petition
2) An act which is outside of the municipality’s proposing to enact a regional, provincial, city,
jurisdiction is considered as a void ultra vires act, municipal, or barangay law, resolution or ordinance.
while an act attended only by an irregularity but (Sec. 3(a1), RA 6735)
remains within the municipality’s power is considered
as an ultra vires act subject to ratification and/or Thus, a resolution can also be the proper subject of
validation. Case law states that public officials can be a local initiative. (SBMA v. COMELEC, G.R. No.
held personally accountable for acts claimed to have 25416, 1996)
been performed in connection with official duties
where they have acted ultra vires. (Land Bank of the Local Referendum - The legal process whereby the
Philippines v. Cacayuran, G.R. No. 17165, 2013) registered voters of the local government units may
approve, amend or reject any ordinance enacted by
3) Power of Sangguniang Panlalawigan to declare the sanggunian.
an ordinance invalid. An ordinance authorizing the The local referendum shall be held under the control
expropriation of parcels of land for the creation of a and direction of the COMELEC within sixty (60) days
freedom park cannot be struck down for the reason in case of provinces and cities, forty-five (45) days in
that the municipality has an existing freedom park still case of municipalities and thirty (30) days in case of
suitable for the purpose because under Section 56 barangays.
(c) of the LGC, the Sangguniang Panlalawigan can
declare the ordinance invalid only if it is beyond the The COMELEC shall certify and proclaim the results
power of the Sangguniang Bayan. (Moday v. CA, of the said referendum. (Sec. 126, 1991 LGC)
G.R. No. 107916, 1997)
Procedure for Local Initiative
4) Unreasonable ordinance is invalid. An 1. Number of voters who should file petition with
ordinance penalizing any person or entity engaged in Sanggunian concerned:
the business of selling tickets to movies or other a. Provinces and cities - at least 1000
public exhibitions, games or performances which registered voters
would charge children between 7 and 12 years of the b. Municipality - at least 100 registered
full price of tickets instead of only one-half the voters
amount is void because it is unreasonable. It c. Barangay - at least 50 registered voters
deprives sellers of the tickets of their property without 2. Sanggunian concerned has 30 days to act on the
due process. A ticket is a property right and may be petition. If the Sanggunian does not take any
sold for such price as the owner of it can obtain. favorable action, the proponents may invoke the
There is nothing malicious in charging children the power of initiative, giving notice to Sanggunian.
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3. Proponents will have the following number of 7. CORPORATE POWERS

days to collect required number of signatures
a. Provinces and cities - 90 days Corporate Powers: (PSC3)
b. Municipalities - 60 days 1. Have Continuous succession in its corporate
c. Barangays -30 days name
4. Signing of petition 2. Sue and be sued
5. Date for initiative set by COMELEC if required 3. Have and use a Corporate seal
number of signatures has been obtained. (Sec. 4. Acquire and convey real or personal
122, 1991 LGC) 5. Property
6. Enter into Contracts
Limitations on Local Initiative
(a) The power of local initiative shall not be exercised Requisites of valid municipal contracts: (FOLS-
more than once a year. ID “false ID”)
(b) Initiative shall extend only to subjects or matters 1. It must comply with Formal requirements
which are within the legal powers of the sanggunian 2. LGU can exercise such Other powers granted to
to enact. corporations, subject to limitations in the LGC
(c) If at any time before the initiative is held, the and other laws
sanggunian concerned adopts in toto the proposition 3. In case entered into by Local chief executive on
presented and the local chief executive approves the behalf of LGU, prior authorization by Sanggunian
same, the initiative shall be cancelled. However, concerned is needed.
those against such action may, if they so desire, 4. It must comply with Substantive requirements.
apply for initiative in the manner herein provided. 5. LGU has express, implied, or Inherent power to
(Sec. 124, 1991 LGC) enter into a particular contract.
6. It must be entered into by the proper
Effectivity of Proposition Department, board, committee, or agent.
1. If proposition is approved by a majority of the
votes cast, it will take effect 15 days after The doctrine of separate personality of a corporation
certification by the COMELEC as if the finds no application in the Cooperative Development
Sanggunian and the local chief executive had Authority which was created by virtue of RA 6939,
taken affirmative action. since it is not a private entity but a government
2. If it fails to obtain required number of votes, it is agency. (Verzosa v. Carague, G.R. No. 157838,
considered defeated. (Sec. 123, 1991 LGC) 2011).
Limitations on the Sanggunian For local government infrastructure projects,

1. The Sanggunian CANNOT repeal, modify or Regional Trial Courts may issue provisional
amend any proposition or ordinance approved injunctive reliefs against government infrastructure
through system of initiative/referendum within 6 projects only when:
months from the date of approval thereof. 1. there are compelling and substantial
2. The Sanggunian can amend, modify or repeal constitutional violations;
the proposition/ordinance within 3 years 2. there clearly exists a right in esse;
thereafter by a vote of ¾ of all its members. 3. there is a need to prevent grave and irreparable
3. For barangays, the applicable period is 18 injuries;
months. (Sec. 125, 1991 LGC) 4. there is a demonstrable urgency to the issuance
of the injunctive relief; and
Grounds for Null and Void Proposition 5. when there are public interest at stake in
The proper courts can still declare void any restraining or enjoining the project while the
proposition adopted pursuant to an initiative or action is pending that far outweighs
referendum on the following grounds: a. the inconvenience or costs to the party to
1. Violation of the Constitution whom the project is awarded and
2. Want of capacity of the Sanggunian concerned b. the public benefits that will result from the
to enact the measure (Sec. 127, 1991 LGC) completion of the project. The time periods
for the validity of temporary restraining
orders issued by trial courts should be
strictly followed. No preliminary injunction
should issue unless the evidence to support
the injunctive relief is clear and convincing.
(Dynamic Builders and Construction Co.,
Inc. v. Presbitero, G.R. No. 174201, 2015)
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Pursuant to the regalian doctrine, any land that

A municipality is a real party-in-interest and an has never been acquired through purchase, grant
indispensable party that stands to be directly affected or any other mode of acquisition remains part of
by any judicial resolution on the case assailing the the public domain and is owned by the State.
validity of the loan, considering that: (a) the LGUs cannot appropriate to themselves public lands
contracting parties to the loans are the bank and the without prior grant from the government. (Rural Bank
municipality; and (b) the municipality owns the public of Anda v. Roman Catholic Archbishop of Lingayen-
plaza as well as the improvements constructed Dagupan, G.R. No. 155051, 2007)
thereon, and must therefore be impleaded in the
case. (Land Bank v. Cacayuran, G.R. No. 191667, To Enter Into Contracts
2015) Unless otherwise provided in the LGC, no contract
may be entered into by the local chief executive in
Liabilities arising from construction contracts of LGUs behalf of the LGU without prior authorization by the
do not partake of loans or forbearance of money but Sanggunian concerned. A legible copy of such
are in the nature of contracts of service. Hence, the contract shall be posted at a conspicuous place in the
rate of legal interest imposable on the liability to pay provincial capitol or the city, municipal or barangay
for the service is 6% per annum. (WT Construction, hall (Local Government Code, Sec. 22(c)). Without
Inc. v. The Province of Cebu, G.R. No. 208984, 2015) the council authorization/ ratification, the contract is
unenforceable.
To Sue and Be Sued
LGUs have the power to sue and be sued. (Local While the authorization of local chief executive need
Government Code, Sec. 22(a)(2). Because of the not be in the form of an ordinance, the obligation (i.e.
statutory waiver, LGUs are not immune from suit. incurring a loan) which the said local executive is
authorized to enter into must be made pursuant to a
The OSG may not be compelled to represent local law or ordinance. (LBP v. Cacayuran, G.R. No.
government units. The LGC vests exclusive authority 191667, 2013)
upon the LGU’s legal officers to be counsels of local
government units. Even the employment of a special The prior authorization may be in the form of an
legal officer is expressly allowed by the law only upon appropriation ordinance passed for the year which
a strict condition that the action or proceeding which specifically covers the project, cost or contract to be
involves the component city or municipality is entered into by the LGU. (Quisumbing v. Garcia, G.R.
adverse to the provincial government or to another No. 175527, 2008)
component city or municipalit. (OSG v. CA and
Municipal Government of Suguiran, G.R. No. Those beyond the powers of the LGU may be subject
199027, 2014) to veto of the local executive or review of the local
legislative for being ultra vires.
A municipality can be sued for damages arising from
injuries sustained by a pedestrian who was hit by a 8. ULTRA VIRES ACTS/CONTRACTS
glass pane that fell from a dilapidated window frame
of the municipal hall. Under Section 24 of the LGC Generally, an ultra vires act is one committed outside
and Article 2189 of the Civil Code, the municipality is the object for which a corporation is created as
liable for damages arising from injuries to persons by defined by the law of its organization and therefore
reason of negligence of local government units on the beyond the powers conferred upon it by law. There
defective condition of the municipal hall, which is are two (2) types of ultra vires acts.
under their control and supervision.
To Acquire and Sell Property

Properties of the public dominion devoted to public
use and made available to the public in general are
outside the commerce of persons and cannot be
disposed of or leased by the LGU to private persons.
(Macasiano v. Diokno, G.R. No. 97764, 1992)
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2 Types of Ultra Vires Acts: Void Ultra Vires vs.

Irregular Ultra Vires Additionally, as held in City of Caloocan v. Allarde,
VOID IRREGULAR where the suability of the state is conceded and by
ULTRA VIRES ULTRA VIRES which liability is ascertained judicially, the state is at
Those which (a) are Those which (a) are liberty to determine for itself whether to satisfy the
entered into beyond the entered into by the judgment or not. Execution may not issue upon such
express, implied or improper department, judgment, because statutes waiving non-suability do
inherent powers of the board, officer of agent; not authorize the seizure of property to satisfy
local government unit, and (b) do not comply judgments recovered from the action. These statutes
e.g. converting a public with the formal only convey an implication that the legislature will
plaza into a commercial requirements of a recognize such judgment as final and make
center; and (b) do not written contract e.g., provisions for its full satisfaction. Thus, where
comply with the the Statute of Frauds. consent to be sued is given by general or special law,
substantive the implication thereof is limited only to the resultant
requirements of law, verdict on the action before execution of the
e.g., when expenditure judgment. (Municipality of Hagonoy v. Dumdum, G.R.
of public funds is to be No. 168289, 22 March 2010 citing City of Caloocan
made, there must be an v. Allarde, 457 Phil. 543, 553 (2003))
actual appropriation
and certificate of Death or Injury to Persons or Damage to
availability of funds. Property
(LBP v. Cacayuran, G.R. No. 191667, 2013) Local government units and their officials are not
exempt from liability for death or injury to persons or
9. LIABILITY OF LOCAL GOVERNMENT damage to property. (Sec. 24, 1991 LGC)
UNITS
NOTES:
1) It is not yet well-settled if Sec. 24 of the LGC
a. Suability of LGUs
extends to both governmental duties and proprietary
functions.
The general rule spelled out in Section 3, Article XVI
2) 2 schools of thought: a) Sec. 24 of the LGC
of the Constitution is that the state and its political
applies to both governmental and proprietary
subdivisions may not be sued without their consent.
functions; b) Sec. 24 of the LGC applies to
Otherwise put, they are open to suit but only when
proprietary functions only and not to governmental or
they consent to it. Consent is implied when the
sovereign functions or duties.
government enters into a business contract, as it then
3) It is submitted that Sec. 24 of the LGC applies only
descends to the level of the other contracting party;
to proprietary functions and will make the LGU and
or it may be embodied in a general or special law
its officials liable for governmental functions if the
such as that found in Book I, Title I, Chapter 2,
acts are not in good faith, dishonest, malicious,
Section 22 of the Local Government Code of 1991,
whimsical, capricious, or arbitrary, which must be
which vests local government units with certain proven in court.
corporate powers — one of them is the power to sue
and be sued. (Municipality of Hagonoy v. Dumdum,
G.R. No. 168289, 2010)
b. Governmental Functions vs. Proprietary
Functions
Suability vs. Liability
A distinction should first be made between suability Governmental Functions
and liability. Suability depends on the consent of the a) If the injury is caused in the course of the
state to be sued, liability on the applicable law and performance of a governmental function or duty no
the established facts. The circumstance that a recovery, as a rule, can be had from the municipality
state is suable does not necessarily mean that it unless there is an existing statute on the matter.
is liable; on the other hand, it can never be held
liable if it does not first consent to be sued. b) No recovery can be had also from municipal
Liability is not conceded by the mere fact that the officials so long as they performed their duties
state has allowed itself to be sued. When the state honestly and in good faith or that they did not act
does waive its sovereign immunity, it is only giving wantonly and maliciously. (Torio v. Fontanilla, G.R.
the plaintiff the chance to prove, if it can, that the No. L-29993, L-30183, 1978)
defendant is liable. (Municipality of San Fernando v.
Firme, G.R. No. 52179, 8 April 1991 citing United Thus, the municipality cannot be held liable for the
States of America v. Guinto, supra, p. 659-660) torts committed by its regular employee, who was
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then engaged in the discharge of governmental cases where money or other property of a party is
functions. Hence, the death of the passenger — received under such circumstances that the general
tragic and deplorable though it may be imposed on law, independent of an express contract, implies an
the municipality no duty to pay monetary obligation to do justice with respect to the same. Thus,
compensation. (Municipality of San Fernando v. the LGU was made to pay fees of private lawyer, who
Firme, G.R. No. 52179, 1991 citing Palafox v. Ilocos was allowed to continue as counsel that led him to
Norte, G.R. No. L-10659, 1958) believe that his services were still necessary.
(Province of Cebu v. IAC, G.R. No. 72841, 1987)
Proprietary Functions
a) With respect to proprietary functions, the settled ii. Doctrine of Estoppel Not Applicable to Void
rule is that a municipal corporation can be held liable Contracts.
to third persons ex contractu or ex delicto. (Torio v. The doctrine of estoppel cannot be applied as against
Fontanilla, G.R. No. L-29993, L-30183, 1978) a municipal corporation to validate a contract which it
has no power to make, or which it is authorized to
b) The celebration of a town fiesta by a make only under prescribed conditions, within
municipality is not a governmental function. The prescribed limitations, or in a prescribed mode or
legal consequence is that the municipality stands on manner, although the corporation has accepted the
the same footing as an ordinary private corporation benefits thereof and the other party has fully
with the municipal council acting as its board of performed his part of the agreement, or has expanded
directors. It is an elementary principle that a large sums in preparation for performance. A reason
corporation has a personality separate and distinct frequently assigned for this rule is that to apply the
from its officers, directors, or persons composing it doctrine of estoppel against a municipality in such
and the latter are not as a rule co-responsible in an case would be to enable it to do indirectly what it
action for damages for tort or negligence (culpa cannot do directly. Also, where a contract is violative
acquiliana) committed by the corporation's of public policy, the municipality executing it cannot be
employees or agents unless there is a showing of estopped to assert the invalidity on this ground; nor
bad faith or gross or wanton negligence on their (i.e. can it be estopped to assert the invalidity of a contract
the councilors who authorized the town fiesta) part. which has ceded away, controlled, or embarrassed its
(Torio v. Fontanilla, G.R. No. L-29993, L-30183, legislative or government powers. Thus, the
1978) municipality is not estopped from revoking a contract
that was extended without the requirement of public
c) Leasing of a municipal ferry to the highest bidding and hence, void for being contrary to law and
bidder for a specified period of time is not a public policy. (San Diego v. Municipality of Naujan,
governmental but corporate function. Such a G.R. No. L-9920, 1960)
lease, when validly entered into, constitutes a
contract with the lessee which the municipality is iii. Government Justified to Decline Payment for
bound to respect. Thus, municipal council liable for a Supply Contract in Violation of Laws.
damages for revocation of the fishing without a valid The government is justified to decline payment of the
reason. (Mendoza v. De Leon, G.R. No. 9596, 1916) purchase price of illegally cut lumber delivered by a
contractor who won a public bidding for the
Civil liability of public officials for public acts construction of the Navotas Bridge. All contracts,
General Rule: A public officer is not liable for including government contracts, are subject to the
damages which a person may suffer arising from the police power of the State. Being an inherent attribute
just performance of his official duties and within the of sovereignty, such power is deemed incorporated
scope of his assigned tasks. into the laws of the land, which are part of all contracts,
Exception: When the governmental acts are done in thereby qualifying the obligations arising therefrom.
bad faith, being outside the scope of authority, such Thus, it is an implied condition in the subject contract
public officer is liable for damages in his/her personal for the procurement of materials needed in the repair
capacity. (Vinzons-Chatto v. Fortune Tobacco and construction of the Navotas Bridge that petitioner
Corporation, G.R. No. 141309, 2007) as private contractor would comply with pertinent
forestry laws and regulations on the cutting and
c. Liability on Contracts gathering of the lumber she undertook to supply the
provincial government. (Guadines v. Sandiganbayan,
i. Doctrine of Implied Municipal Liability. G.R. No. 164891, 2011)
A municipality may become obligated upon an implied
contract to pay the reasonable value of the benefits iv. Performance of an Unenforceable Contract.
accepted or appropriated by it as to which it has the Since there exists an indication by way of allegation
general power to contract. The doctrine applies to all that there has been performance of the obligation on
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the part of respondent, the case is excluded from the under Article 2189 of the Civil Code, ownership of the
coverage of the rule on dismissals based on roads, streets, bridges, public buildings and other
unenforceability under the statute of frauds, and either public works is not a controlling factor, it being
party may then enforce its claims against the other. sufficient that a province, city or municipality has
Thus, the SC reversed the dismissal of a claim against control or supervision thereof. (City of Manila v.
an LGU for the purchase of motor vehicles Teotico, G.R. No. L-23052, 1968; Municipality of San
notwithstanding that it’s not in writing given that there Juan v. CA, G.R. No. 121920, 2005; Guilatco vs.
has been delivery performance already to the LGU. Dagupan, G.R. No. 61516, 1989)
(Municipality of Hagonoy v. Dumdum, G.R. No.
168289, 2010) iii. Art. 34 of the Civil Code.
When a member of a city or municipal police force
d. Liability for Torts refuses or fails to render aid or protection to any
person in case of danger to life or property, such
i. Art. 2180 in relation to Art. 2176 of the Civil peace officer shall be primarily liable for damages,
Code. and the city or municipality shall be subsidiarily
a) Art. 2176. Whoever by act or omission causes responsible therefor. The civil action herein
damage to another, there being fault or negligence, recognized shall be independent of any criminal
is obliged to pay for the damage done. Such fault or proceedings, and a preponderance of evidence shall
negligence, if there is no pre-existing contractual suffice to support such action.
relation between the parties, is called a quasi-delict
and is governed by the provisions of this Chapter. iv. Art. 2208 of the Civil Code.
In the absence of stipulation, attorney's fees and
b) Art. 2180. xxx (Par. 6) The State is responsible in expenses of litigation, other than judicial costs,
like manner when it acts through a special agent (i.e. cannot be recovered, except:
for official governmental acts); but not when the XXX (2) When the defendant's act or omission has
damage has been caused by the official to whom the compelled the plaintiff to litigate with third persons or
task done properly pertains, in which case what is to incur expenses to protect his interest; XXX
provided in Article 2176 shall be applicable (i.e. when (5) Where the defendant acted in gross and evident
attended by fault or gross negligence). Xxx bad faith in refusing to satisfy the plaintiff's plainly
valid, just and demandable claim.
Thus, LGU could not be liable for the acts of an
ambulance driver under Art. 2180 for not being a Thus, a mayor was held personally liable for
special agent contemplated by law. And a special damages and attorney’s fees for vetoing without
agent, in the sense in which these words are reason the sanggunian resolution appropriating the
employed, is one who receives a definite and fixed unpaid salaries of a vice mayor, who was forced to
order or commission, foreign to the exercise of the litigate in order to claim his lawful salary which was
duties of his office if he is a special offfcial) so that in unduly denied him for 3 years and that the mayor
representation of the state and being bound to act as acted in gross and evident bad faith in refusing to
an agent thereof he executed the trust confided to satisfy the plainly valid, just and demandable claim.
him. This concept does not apply to any executive (Pilar v. Sangguniang Bayan of Dasol, G.R. No.
agent who is an employee of the active 63216, 1984)
administration and who in his own responsibility
performs the functions which are inherent in and However, a mayor cannot be held personally liable if
naturally pertain to his office and which are regulated his actions were done pursuant to an ordinance
by law and the regulations." (Merritt v. Government which, at the time of the collection, was yet to be
of the Philippine Islands, G.R. No. 11154, 1916 citing invalidated. (Demaala v. COA, G.R. No. 199752,
the Supreme Court of Spain, May 18, 1904; 98 Jur. 2015)
Civ., 389, 390)
When a writ was directed at the mayor not in his
ii. Art. 2189 of the Civil Code. personal capacity, but in his capacity as municipal
Provinces, cities and municipalities shall be liable for mayor, it is not irregular whether it was served upon
damages for the death of, or injuries suffered by, any him during his earlier term or in his subsequent one.
person by reason of the defective condition of roads, (Vargas v. Cajucom, G.R. No. 171095, 2015)
streets, bridges, public buildings, and other public
works under their control or supervision. e. Rules on Enforcing Money Claims vs.
LGU
Thus, an LGU is liable for injuries suffered because
of defective roads and manholes. For liability to arise
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GENERAL RULE: Government properties are not (b) Where a municipal corporation owns in its
subject to levy and execution to satisfy a money proprietary capacity, as distinguished from its
judgment. However, the SC laid down the following public or governmental capacity, property not
rules and guidelines: used or used for a public purpose but for quasi-
private purposes, it is the general rule that such
1) It is settled jurisprudence that upon determination property may be seized and sold under
of State liability, the prosecution, enforcement or execution against the corporation.
satisfaction thereof must still be pursued in
accordance with the rules and procedures laid down (c) Property held for public purposes is not
in PD 1445 otherwise known as the Government subject to execution merely because it is
Auditing Code of the Philippines. (Department of temporarily used for private purposes. If the
Agriculture v. NLRC, 227 CRA 693, 701-02 (1993) public use is wholly abandoned, such property
citing Republic v. Villasor, 54 SCRA 84 (1973)) becomes subject to execution. (Star Special
Watchman & Detective Agency, Inc. v. Puerto
2) All money claims against the Government must Princesa City, G.R. No. 181792, 2014 citing Sc
first be filed with the Commission on Audit which Administrative Circular No. 10-00 dated October
must act upon it within sixty days. Rejection of the 25, 2000)
claim will authorize the claimant to elevate the matter
to the Supreme Court on certiorari and, in effect, sue 6) COA has no jurisdiction to reverse and set aside
the State thereby. (PD 1445 Sec. 49-50) (or even modify) a finally adjudicated claim against
an LGU (or the government for that matter) per the
NOTE: COA has PRIMARY JURISDICTION over Doctrine of Immutability of Judgment. (Star
money claims against the State (including LGUs). Special Corporate Security v. COA, G.R. No.
(Star Special Corporate Security v. COA, G.R. No. 225366, 01 September 2020)
225366, September 1, 2020)
f. Summary Rules on Liability for Damages
3) However, notwithstanding the rule that
government properties are not subject to levy and 1) If in the exercise of governmental functions, with
execution unless otherwise provided for by or without negligence - NOT LIABLE
statute (Republic v. Palacio, 23 SCRA 899 (1968);
Commissioner of Public Highways v. San Diego, 2) If in the exercise of corporate or proprietary
supra) or municipal ordinance (Municipality of Makati functions:
v. Court of Appeals, 190 SCRA 206 (1990)), the a) If with authority and within scope of authority,
Court has, in various instances, distinguished or without bad faith, or without negligence – NOT
between government funds and properties for public LIABLE
use and those not held for public use.
b) If no authority or beyond authority, with bad
4) Thus, in Viuda de Tan Toco v. Municipal Council faith, or with gross negligence, with malice –
of Iloilo (49 Phil. 52 (1926)), the Court ruled LIABLE
that "(w)here property of a municipal or other public
corporation is sought to be subjected to execution to
satisfy judgments recovered against such
corporation, the question as to whether such property
is leviable or not is to be determined by the usage
and purposes for which it is held."
5) The following can be culled from Viuda de Tan

Toco v. Municipal Council of Iloilo:
(a) Properties held for public uses — and

generally everything held for governmental
purposes — are not subject to levy and sale
under execution against such corporation. The
same rule applies to funds in the hands of a
public officer and taxes due to a municipal
corporation.
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10. SETTLEMENT OF BOUNDARY over the settlement of a boundary dispute

DISPUTES between a municipality and an independent
component city, thus, the Regional Trial Court
Situation vs. Where to Settle has jurisdiction to adjudicate it. Under Section 19
SITUATION WHERE TO SETTLE (6) of the Judiciary Reorganization Act, the RTC
Boundary disputes The sangguniang has exclusive original jurisdiction in all cases not
involving 2 or more panlungsod or within the exclusive jurisdiction of any court or quasi-
barangays in the same Sangguniang bayan judicial agency. (Municipality of Kananga v. Madrona,
city or municipality. concerned. G.R. No. 141375, 2003)
Boundary disputes The Sangguniang
involving 2 or more panlalawigan 3) The technical description, containing the metes
municipalities within the concerned and bounds of the municipality’s territory as stated in
same province an executive order creating the said municipality, is
Boundary disputes Jointly referred for binding. (Municipality of Jimenez v. Baz, Jr., G.R. No.
involving municipalities settlement to the 105746, December 2, 1996)
or component cities of Sanggunians of the
different provinces province concerned 11. VACANCIES AND SUCCESSION
Boundary disputes Jointly referred for
involving a component settlement to the When Permanent Vacancy Occurs/Arises
city or municipality on respective A permanent vacancy arises when an elective local
the one hand and a Sanggunians of the official fills a higher vacant office, refuses to assume
highly urbanized city on parties office, fails to qualify, dies, is removed from office,
the other, or two (2) or voluntarily resigns, or is otherwise permanently
more highly urbanized incapacitated to discharge the functions of his office.
cities. (Sec. 44, 1991 LGC)
a. Procedure After Failure of a. Grounds for Permanent Vacancy:

Amicable Settlement (F2VR2-DP)
1) In the event the Sanggunian fails to effect an 1. Elective local official Fills a higher vacant
amicable settlement within 60 days from the date the office
dispute was referred thereto, it shall issue a 2. Refuses to assume office
certification to that effect. (Sec. 118, 1991 LGC) 3. Fails to qualify
2) Thereafter, the dispute shall be formally tried by 4. Dies
the Sanggunian concerned which shall decide the 5. Removed from office
issue within 60 days from the date of the certification. 6. Voluntarily resigns
(Sec. 118, 1991 LGC) 7. Permanently incapacitated to discharge the
3) Within the time and manner prescribed by the functions of his office
Rules of Court, any party may elevate the decision of
the sanggunian concerned to the proper Regional b. Filling of Vacancy:
Trial Court having jurisdiction over the area in
dispute. The Regional Trial Court shall decide the 1. Automatic succession
appeal within one (1) year from the filing thereof. 2. Appointment
Pending final resolution of the disputed area prior to
the dispute shall be maintained and continued for all c. Permanent Vacancies
legal purposes. (Sec. 119, 1991 LGC)
Permanent Vacancies in the offices of the
Doctrines: Governor, Vice Governor, Mayor, Vice Mayor
1) According to Section 118 of the Local Government
Code, boundary disputes between and among 1) If a permanent vacancy occurs in the office of the
municipalities should be referred for settlement governor or mayor, the vice-governor or vice-mayor
to the sangguniang panlalawigan and not with concerned shall become the governor or mayor.
the Regional Trial Court. (Municipality of Sta. Fe v.
Municpality of Artao, G.R. No. 140474, 2007) 2) If a permanent vacancy occurs in the offices of the
governor, vice-governor, mayor, or vice-mayor, the
2) However, there is no law providing for the highest ranking sanggunian member or, in case of his
jurisdiction of any court or quasi-judicial body permanent inability, the second highest ranking
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sanggunian member, shall become the governor, the vacancy and shall serve the unexpired term of the
vice-governor, mayor or vice-mayor, as the case may vacant office. In the appointment herein mentioned,
be. a nomination and a certificate of membership of
the appointee from the highest official of the
3) Subsequent vacancies in the said office shall be political party concerned are conditions sine qua
filled automatically by the other sanggunian members non, and any appointment without such nomination
according to their ranking as defined herein. (Sec. and certification shall be null and void ab initio and
44(a), 1991 LGC) shall be a ground for administrative action against the
official responsible therefore.
Permanent Vacancy in the Punong Barangay: If a
permanent vacancy occurs in the office of the punong General Rule: The successor (by appointment)
barangay, the highest ranking sanggunian barangay should come from the same political party as the
member or, in case of his permanent inability, the Sanggunian member whose position has become
second highest ranking sanggunian member, shall vacant.
become the punong barangay. (Sec. 44(b), 1991
LGC) Exception: In case of vacancy in the Sangguniang
barangay.
In Case of Tie Between Highest Ranking
Sanggunian: A tie between or among the highest REMEMBER: The appointee must be a party
ranking sanggunian members shall be resolved by member nominated with a certificate of membership
the drawing of lots. (Sec. 44(c), 1991 LGC) from the highest party official (e.g. party chairman
and not just a provincial chair). (Damasen v.
How Long Successors Will Serve: The successors Tumamao, G.R. No. 173165, 2010)
as defined herein shall serve only the unexpired
terms of their predecessors. (Sec. 44(d), 1991 LGC) NOTE: The "last vacancy" in the Sanggunian refers
to that created by the elevation of the member
Determining Sanggunian Ranking: Ranking in the formerly occupying the next higher in rank which in
sanggunian shall be determined on the basis of the turn also had become vacant by any of the causes
proportion of votes obtained by each winning already enumerated. The term "last vacancy" is thus
candidate to the total number of registered voters in used in Sec. 45 (b) to differentiate it from the other
each district in the immediately preceding local vacancy previously created. The term by no means
election. (Sec. 44, 1991 LGC) refers to the vacancy in the No. 8 position which
occurred with the election of Rolando Lalas to the
Permanent Vacancies in the Sanggunian seventh position in the Sanggunian. Such
(a) Permanent vacancies in the sanggunian where construction will result in absurdity. (Navarro v. CA,
automatic succession (provided in Sec. 44) do not G.R. No. 141307, 2001)
apply shall be filled by appointment in the following
manner: (c) In case or permanent vacancy is caused by a
sanggunian member who does not belong to any
(1) The President, through the Executive Secretary, political party, the local chief executive shall, upon
in the case of the sangguniang panlalawigan and the recommendation of the sanggunian concerned,
sangguniang panlungsod of highly urbanized cities appoint a qualified person to fill the vacancy.
and independent component cities;
(2) The governor, in the case of the sangguniang (d) In case of vacancy in the representation of the
panlungsod of component cities and the youth and the barangay in the sanggunian, said
sangguniang bayan; vacancy shall be filled automatically by the official
(3) The city or municipal mayor, in the case of next in rank of the organization concerned. (Sec. 45,
sangguniang barangay, upon recommendation of the 1991 LGC)
sangguniang barangay concerned.
(b) Except for the sangguniang barangay, only the

nominee of the political party under which the
sanggunian member concerned had been elected
and whose elevation to the position next higher in
rank created the last vacancy in the sanggunian shall
be appointed in the manner hereinabove provided.
The appointee shall come from the same political
party as that of the sanggunian member who caused
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Vacancy and Successor Exception: He cannot exercise the power to appoint,

VACANCY SUCCESSOR suspend or dismiss employees.
Governor, Mayor Vice-Governor, Vice-
Mayor Exception to the Exception: If the period of
temporary incapacity exceeds 30 working days. (Sec.
Governor, Vice- Highest ranking 46, 1991 LGC)
governor, Mayor or Sanggunian member
Vice-mayor Termination of Temporary Incapacity
Highest ranking 1. Upon submission to the appropriate Sanggunian
Sanggunian member Second highest of a written declaration by the local chief that he
(who was supposed to ranking Sanggunian has reported back to office.
fill the vacant position member 2. If the temporary incapacity was due to legal
of governor, etc.) reason, the local chief executive should also
Highest ranking submit necessary documents showing that the
In the office of the Sangguniang legal causes no longer exist. (Sec. 46, 1991
Punong Barangay Barangay member OR LGC)
the 2nd highest
ranking Sanggunian Appointment of Officer-in-Charge
member 1) When the incumbent local chief executive is
traveling within the country but outside his territorial
Temporary Incapacity jurisdiction for a period not exceeding three (3)
When the governor, city or municipal mayor, or consecutive days, he may designate in writing the
punong barangay is temporarily incapacitated to officer-in-charge of the said office. Such authorization
perform his duties for physical or legal reasons such shall specify the powers and functions that the local
as, but not limited to, leave of absence, travel abroad, official concerned shall exercise in the absence of the
and suspension from office, the vice-governor, city or local chief executive except the power to appoint,
municipal vice-mayor, or the highest ranking suspend, or dismiss employees. (Sec. 46(c), 1991
sangguniang barangay member shall automatically LGC)
exercise the powers and perform the duties and 2) Except as provided above, the local chief
functions of the local chief executive concerned, executive shall in no case authorize any local official
except the power to appoint, suspend, or dismiss to assume the powers, duties, and functions of the
employees which can only be exercised if the period office, other than the vice-governor, the city or
of temporary incapacity exceeds thirty (30) working municipal vice-mayor, or the highest ranking
days. sangguniang barangay member, as the case may be.
(Sec. 46(e), 1991 LGC)
Said temporary incapacity shall terminate upon THUS: 1) For Absence not exceeding 3 days –
submission to the appropriate sanggunian of a local chief executive can name ANY official; 2) For
written declaration by the local chief executive Absence exceeding 3 days – the local chief
concerned that he has reported back to office. In executive is limited to designating the vice-governor,
cases where the temporary incapacity is due to legal the city or municipal vice-mayor, or the highest
causes, the local chief executive concerned shall ranking sangguniang barangay member, as the case
also submit necessary documents showing that said may be.
legal causes no longer exist. (Sec. 46(a)(b), 1991
LGC) In the event, however, that the local chief executive
concerned fails or refuses to issue such
Non-exclusive grounds for temporary vacancy authorization, the vice-governor, the city or municipal
1. Leave of absence vice-mayor, or the highest ranking sangguniang
2. Travel abroad barangay member, as the case may be, shall have
3. Suspension from office the right to assume the powers, duties, and functions
of the said office on the fourth (4th) day of absence of
General Rule: If the position of governor, mayor, or the said local chief executive, subject to the
punong barangay becomes temporarily vacant, the limitations provided in subsection (c) hereof. (Sec.
vice- governor, vice-mayor or highest-ranking 46(d), 1991 LGC)
Sanggunian member will automatically exercise
the powers and perform the duties and functions
of the local chief executive concerned.
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Permanent Vacancies in the Sangguniang to be indispensable for the proper administration of

Kabataan public affairs. Not undeservedly, it is frequently
(a) In case a Sangguniang Kabataan chairperson described as a fundamental right of the people in a
refuses to assume office, fails to qualify, voluntarily representative democracy. (Garcia v. COMELEC,
resigns, dies, is permanently incapacitated, is G.R. No. 111511, 5 October 1993)
removed from office, the Sangguniang Kabataan
member who obtained the highest number of votes in a. Who May Exercise
the election immediately preceding shall assume the
office of the chairperson for the unexpired portion of The power of recall for loss of confidence shall be
his or her term. In case said member refuses to exercised by the registered voters of a local
assume the position or fails to qualify, the government unit to which the local elective official
Sangguniang Kabataan member obtaining the next subject to such recall belongs. (Sec. 69, 1991 LGC)
highest number of votes shall assume the position of
the chairperson for the unexpired portion of the term. b. How Recall is Initiated
(b) After the vacancy shall have been filled, the The Recall of any elective provincial, city, municipal
Sangguniang Kabataan chairperson shall, within or barangay official shall be commenced by a petition
thirty (30) days, call for a special Katipunan ng of a registered voter in the local government unit
Kabataan assembly to elect a Sangguniang concerned and supported by the registered voters in
Kabataan member to complete the membership of the local government unit concerned during the
said sanggunian: Provided, That, such special
election in which the local official sought to be
assembly is coordinated with the Office of the Local recalled was elected subject to the following
Government Operations Officer and the COMELEC
percentage requirements:
of the municipality or city where the concerned (1) At least twenty-five percent (25%) in the case of
barangay belongs Such Sangguniang Kabataan
local government units with a voting population of not
member shall hold office for the unexpired portion of more than twenty thousand (20,000);
the term of the vacant seat. For this purpose, any
(2) At least twenty percent (20%) in the case of local
citizen of the Philippines residing in the said government units with a voting population of at least
barangay for at least six (6) months who attains the twenty thousand (20,000) but not more than
age of fifteen (15) years old at the time of the special seventy-five thousand (75,000): Provided, That in no
election and who registers as member of the case shall the required petitioners be less than five
Katipunan ng Kabataan before the Sangguniang thousand (5,000);
Kabataan secretary shall be entitled to vote in the (3) At least fifteen percent (15%) in the case of local
said special election. government units with a voting population of at least
seventy-five thousand (75,000) but not more than
(c) All other vacancies in the office of the three hundred thousand (300,000): Provided,
Sangguniang Kabataan shall be filled in accordance however, That in no case shall the required number
with the immediately preceding provision. of petitioners be less than fifteen thousand (15,000);
and
(d) In case of suspension of the Sangguniang (4) At least ten percent (10%) in the case of local
Kabataan chairperson, the successor, as determined government units with a voting population of over
in subsection (a) of this section, shall assume the three hundred thousand (300,000): Provided,
position during the period of such suspension. (Sec. however, That in no case shall the required
19, RA 10742) petitioners be less than forty-five thousand (45,000).
(Sec. 70(a), LGC as amended by RA 9244)
NOTE: Republic Act No. 10742, otherwise known as
the “Sanggunian Kabataan Reform Act of 2015,” has NOTE: Under RA 9244, there is no more Recall via
repealed and/or modified accordingly Sections 329, the Preparatory Recall Assembly.
423-439 of the RA 7160, LGC.
c. Recall Process/Procedure
12. RECALL
The process of recall shall be effected in accordance
Recall is a mode of removal of a public officer by the
with the following procedure:
people before the end of his term of office. The
people's prerogative to remove a public officer is an
(1) WRITTEN PETITION.
incident of their sovereign power and in the absence
A written petition for recall duly signed by the
of constitutional restraint, the power is implied in all
representatives of the petitioners before the election
governmental operations. Such power has been held
registrar or his representative, shall be filed with the
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Comelec through its office in the local government include the name of the official sought to be recalled.”
unit concerned. (Sec. 70(b), LGC as amended by RA 9244)
(2) CONTENTS OF THE PETITION. The authentication of signatures in a recall petition is

The petition to recall shall contain the following: done during the determination of the names,
(a) The names and addresses of the petitioners signatures and thumbmarks of petitioners, not during
written in legible form and their signatures; the determination of the sufficiency of the form and
(b) The barangay, city or municipality, local legislative substance of the petition. (Sy-Alvarado v. Comelec,
district and the province to which the petitioners G.R. No. 216457, 2015)
belong;
(c) The name of the official sought to be recalled; and d. Conduct of Recall Election
(d) A brief narration of the reasons and justifications
therefor. 1) Upon the filing of a valid petition for recall with the
appropriate local office of the Comelec, the Comelec
(3) COMELEC CERTIFICATION. or its duly authorized representative shall set the date
The Comelec shall, within fifteen (15) days from the of the election or recall, which shall not be later than
filing of the petition, certify to the sufficiency of the thirty (30) days upon the completion of the procedure
required number of signatures. Failure to obtain the outlined in the preceding article, in the case of the
required number of signatures automatically nullifies barangay, city or municipal officials, and forty-five
the petition; (45) days in the case of provincial officials.
2) The officials sought to be recalled shall
(4) NOTICE AND PUBLICATION. automatically be considered as duly registered
If the petition is found to be sufficient in form, the candidate or candidates to the pertinent positions
Comelec or its duly authorized representative shall, and, like other candidates, shall be entitled to be
within three (3) days from the issuance of the voted upon. (Sec. 71, LGC as amended by RA 9244)
certification, provide the official sought to be recalled 3) The elective local official sought to be recalled
a copy of the petition, cause its publication in a shall not be allowed to resign while the recall process
national newspaper of general circulation and a is in progress. (Sec. 73, 1991 LGC)
newspaper of general circulation in the locality, once
a week for three (3) consecutive weeks at the Effectivity of Recall
expense of the petitioners and at the same time post 1) The recall of an elective local official shall be
copies thereof in public and conspicuous places for a effective only upon the election and proclamation of
period of not less than ten (10) days nor more than a successor in the person of the candidate receiving
twenty (20) days, for the purpose of allowing the highest number of votes cast during the election
interested parties to examine and verify the validity of on recall.
the petition and the authenticity of the signatures 2) Should the official sought to be recalled receive the
contained therein. highest number of votes, confidence in him is thereby
affirmed, and he shall continue in office. (Sec. 72,
(5) VERIFICATION AND AUTHENTICATION. 1991 LGC)
The Comelec or its duly authorized representatives
shall, upon issuance of certification, proceed Limitations on Recall
independently with the verification and authentication 1) Any elective local official may be the subject of a
of the signatures of the petitioners and registered recall election only once during his term of office for
voters contained therein. Representatives of the loss of confidence.
petitioners and the official sought to be recalled shall 2) No recall shall take place within one (1) year from
be duly notified and shall have the right to participate the date of the official’s assumption to office or one
therein as mere observers. The filing of any (1) year immediately preceding a regular local
challenge or protest shall be allowed within the period election. (Sec. 74, 1991 LGC)
provided in the immediately preceding paragraph and
shall be ruled upon with finality within fifteen (15) Funding. All expenses incident to recall elections
days from the date of filing of such protest or shall be borne by the COMELEC. For this purpose,
challenge; there shall be included in the annual General
Appropriations Act a contingency fund at the disposal
(6) CANDIDATES. of the COMELEC for the conduct of recall elections.
Upon the lapse of the aforesaid period, the Comelec (Sec. 75, 1991LGC) NOTE: Hence, COMELEC
or its duly authorized representative shall announce cannot suspend recall because of supposed lack of
the acceptance of candidates to the position and funding. (Goh v. Bayron, G.R. No. 212584, 2014)
thereafter prepare the list of candidates which shall
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13. TERM LIMITS same as the old 2nd dist). (Naval v. COMELEC, G.R.
No. 207851, 2014)
a. Constitutional Rule
5) MERGER. Municipalities were merged and
The term of office of elective local officials, converted into a city, but the Punong Barangay from
except barangay officials, which shall be determined the former municipality is the same as that in the city
by law, shall be three years and no such official shall as the new political unit with the same territory and
serve for more than three consecutive terms. inhabitants (hence, same group of voters). (Laceda
Voluntary renunciation of the office for any length of v. Limena, G.R. No. 182867, 2008)
time shall not be considered as an interruption in the
continuity of his service for the full term for which he 6) PREVENTIVE SUSPENSION. Preventive
was elected. (Sec. 8, Art. X, 1987 Constitution; also suspension is not an interruption. Just a temporary
Sec. 43(b), RA 7160) inability; not unseated and continued to hold office;
just temporarily barred to exercise functions.
Term of office: 3 years. (Aldovino v. COMELEC, G.R. No. 184836, 2009)
General Rule: No local elective official shall serve for 7) ELECTION PROTEST BUT SERVED 3 FULL
more than 3 consecutive terms in the same position. TERMS. Election protest, but able to serve 3 full
terms, including the 2nd term (fully served) where the
Exception: The term of barangay officials and proclamation was voided. (Ong v. COMELEC, G.R.
members of the Sanggunian Kabataan shall be for 3 N0. 163295, 2006; Rivera v. COMELEC, G.R. No.
years. (RA 9146) 167591, 2007)
For the 3-term rule to apply, the local official must c. An Interruption to the Full Term (3-Term
have: Limit does not Apply – Hence, Not
1. Fully served the term Barred)
2. Elected through a regular election
1) SUCCESSION. Assumption by succession is by
b. Not an Interruption to the Full Term (3- operation of law. To count as a term, one must have
Term Limit Applies – Hence, Barred): been elected and fully served. Law allows the
severance to effectuate succession. (Borja v.
1) RUNNING, WINNING, AND SERVING A COMELEC, G.R. No. 133495, 1998; Montebon v.
DIFFERENT ELECTIVE POSITION IS COMELEC, G.R. No. 180444, 2008)
VOLUNTARY RENUNCIATION. Punong barangay, a) Vice Mayor to Mayor on 3rd term as Vice Mayor
while serving 3rd term, ran and won as municipal then served 2 more terms as mayor; not barred to run
councilor and served the full term. Considered as for another term as mayor. (Borja v. COMELEC, G.R.
voluntary renunciation. (Bolos v. COMELEC, G.R. No. 133495, 1998)
No. 184082, 2009)
b) Councilor served 3 consecutive terms, but during
2) CIRCUMVENTION. After serving 3 terms as 2nd term succeeded as Vice Mayor; not barred to run
Punong Barangay, got elected as barangay kagawad again as councilor. (Montebon v. COMELEC, G.R.
with sister elected as Punong Barangay, who No. 180444, 2008)
resigned the following day after oath of office to allow
succession. Considered as a conspiracy and hence, 2) RECALL ELECTION. Previously served for 3 full
a circumvention of the 3-term limit. (Aguilar v. Benlot, terms as mayor, then participated in a recall election;
G.R. No. 232806, 2019) not barred. The prohibited election refers to the next
regular election for the same office following the end
3) CONVERSION. Conversion of a municipality to a of the third consecutive term.
city with no break in the service as a local chief Any subsequent election, like a recall election, is no
executive. (Latasa v. COMELEC, GR No. 154829, longer covered by the prohibition for two reasons.
2003; Halili v. COMELEC, G.R. No. 231643, 2019) First, a subsequent election like a recall election is no
longer an immediate reelection after three
4) REAPPORTIONMENT OF DISTRICT. Served for consecutive terms. Second, the intervening period
2 terms (2004, 2007) as Provincial Board Member constitutes an involuntary interruption in the
(BM) in the Cam. Sur 2nd dist. Cam. Sur was continuity of service. (Socrates v. COMELEC, GR
reapportioned by RA9716. In 2010 and 2013 he ran No. 154512, 2002) Previously served for 2 full terms
and won as BM in the 3rd dist (which is essentially the as mayor (1992-1998), ran for a 3rd term (1998-2001)
but lost, then subsequently participated in a recall
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election (2000), which he won served the unexpired 3. Collection of local taxes, fees, charges shall
term; not barred to run again for another term – not not be Let to any private person;
elected for 3 consecutive terms, continuity as mayor 4. The revenue collected shall Inure solely to
was disrupted with the defeat, and was a private the benefit of the local government unit
citizen for 2 years prior to the recall election. levying the tax, fee, charge or other
(Adormeo v. COMELEC, G.R. No. 147927, 2002) imposition unless otherwise specifically
provided herein; and,
3) DISMISSAL AS PENALTY. Dismissals (as 5. Each local government unit shall, as far as
penalties) were involuntary interruptions; not practicable, evolve a Progressive system of
considered to have fully served a 3rd successive taxation. (LGC, Sec. 130)
term of office. (Tallado v. COMELEC, G.R. No.
246679, 2019) Equality and uniformity in local taxation means that
all taxable articles or kinds of property of the same
4) ELECTION PROTEST. class shall be taxed at the same rate within the
a) Unseated during 3rd term as mayor because of an territorial jurisdiction of the taxing authority or local
election protest; not barred as not deemed to have government unit. In fine, uniformity is required only
been elected for that term – merely assumed office within the geographical limits of the taxing authority.
as a presumptive winner. (Lonzanida v. COMELEC, (Punsalan v. City of Manila, G.R. No. L-4817, 1954,
G.R. No. 135150, 1999) J. Reyes)
b) Served as mayor in 2001, 2004, and 2007, but the The grant of the power to tax to chartered cities is
2004 (2nd term) was by virtue of an election protest sufficiently plenary to cover 'everything, excepting
and served only the remainder of the 2nd term; not those which are mentioned' therein, subject only to
barred to run in 2010. (Abundo v. COMELEC, G.R. the limitation that the tax so levied is for public
No. 201716, 2013) purposes, just and uniform'. (In re: Ormoc Sugar Co.,
Inc. v. Municipal Board of Ormoc City, G.R. No.
c) Unseated for running and winning a 4th term 24322, 1967, J. Fernando)
(NOTE: 4th term was invalidated by the SC in Rivera
v. COMELEC), then relinquished office; not barred to b. Real Property Taxation [CUANE]
run in the subsequent election. (Dizon v. COMELEC,
G.R. No. 182088, 2009)
The appraisal, assessment, levy and collection of
real property tax shall be guided by the following
D. LOCAL TAXATION
fundamental principles:
1. CURRENT and fair market value is the
1. FUNDAMENTAL PRINCIPLES OF
basis of appraisal
LOCAL TAXATION AND REAL
2. UNIFORMITY in classification in each local
PROPERTY TAXATION
government unit should be observed
3. ACTUAL USE of the property shall be the
a. Local Taxation [ULIPE]
basis of classification
4. Appraisal, assessment, levy and collection
The following fundamental principles shall govern the
should NOT BE LET to any private person
exercise of the taxing and other revenue-raising
powers of local government units: 5. EQUITABLE appraisal and assessment
1. Taxation shall be Uniform in each local (LGC, Sec. 198)
government unit;
2. Taxes, fees, charges, and other impositions Actual Use
shall [EPuJuL]: It refers to the purpose for which the property is
a. Be Equitable and based as far as principally or predominantly utilized by the person in
practicable on the taxpayer's ability to possession thereof. (LGC, Sec. 199(b))
pay;
b. Be levied and collected only for Public Real property shall be classified, valued and
purposes; assessed on the basis of its actual use regardless of
c. Not be unJust, excessive, oppressive, where located, whoever owns it, and whoever uses
or confiscatory; it. (LGC, Sec. 217)
d. Not be contrary to Law, public policy,
national economic policy, or in the Nature of Real Property Tax [LiLIPAD]
restraint of trade; 1. Direct tax on the ownership or privilege to
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use of real property e. Taxes, fees and charges and other impositions
2. Ad Valorem tax - the assessed value is the upon Goods carried into or out of, or passing
tax base through, the territorial jurisdictions of local
3. Proportionate - the tax is calculated on the government units in the guise of charges for
basis of a certain percentage of the value of wharfage, tolls for bridges or otherwise;
the property assessed f. Taxes, fees or charges on Agricultural and
4. Indivisible single obligation aquatic products when sold by marginal farmers
5. Local Tax - with respect to LGUs, it is levied or fishermen;
thru a delegated power g. Taxes on business enterprises certified to by
6. Lien - It attaches on the property and is the Board of Investments as:
enforceable against it.  pioneer – 6 years from registration or
 non-pioneer – 4 years from
Ad Valorem Tax registration;
It is a levy on real property determined on the basis h. Excise taxes on articles enumerated under the
of a fixed proportion of the value of the property. NIRC, as amended and taxes, fees, and
(LGC, Sec. 199(c)) charges on Petroleum products;
2. COMMON LIMITATIONS ON TAXING The language of Section 133(h) makes plain that the
POWER OF THE LGU prohibition with respect to petroleum products
extends not only to excise taxes thereon, but all
LGUs cannot levy [P3IT MADE IN BGC2]: "taxes, fees and charges." While local government
a. Income tax, except on banks and other financial units are authorized to burden all such other class of
institutions; goods with "taxes, fees and charges", excepting
excise taxes, a specific prohibition is imposed barring
Section 131(e) defines “banks and other financial the levying of any other type of taxes with respect to
institutions,” which excludes holding companies. petroleum products. (Petron Corporation v. Tiangco,
Section 3.A.02(h) of the Revised Makati Revenue 2008, J. Tinga)
Code imposes an LBT on the dividend income of
i. Percentage or VAT on sales, barters or
banks and other financial institutions. Section
exchanges or similar transactions on goods or
3.A.02(p), however, makes holding companies,
services except as otherwise provided;
such as MHI, liable for the same business tax.
Section 3.A.02(p) of the Revised Makati Revenue
A tax that bears a direct relation to the volume of
Code violates the it set by Section 133(a) of the
sales (or when there is a set ratio on the volume of
LGC, which prohibits the imposition of income tax
sales and the amount of tax) may not be imposed
except when levied on banks and other financial
by the local government since these amounts to
institutions. The said provision is therefore an ultra
percentage tax on sales. (Serafica v. Treasurer of
vires exercise of local taxing power that cannot be
Ormoc City, G.R. No. L-24813, 1969, C.J.
given effect without violating the principle that an
Concepcion)
ordinance must conform with and can neither amend
nor repeal a statute. (Michigan Holdings, Inc. v City
Section 140 is an example of an exception. 4 The
Treasurer of Makati, CTA Case No. 1093, 2015)
province may levy an amusement tax to be collected
from the proprietors, lessees, or operators of
b. Documentary stamp tax;
theaters, cinemas, concert halls, circuses, boxing
c. Estate Tax, Inheritance, gifts, legacies and
stadia, and other places of amusement at a rate of
other acquisitions mortis causa, except as
not more than 30% of the gross receipts from
otherwise provided;
admission fees. (LGC, Sec. 140) Provinces are not
d. Customs duties, registration fees of vessel and
barred from levying amusement taxes even if
wharfage on wharves, tonnage dues, and all
amusement taxes are a form of percentage taxes.
other kinds of customs fees, charges and dues,
Section 133 (i) of the LGC prohibits the levy of
except wharfage on wharves constructed and
percentage taxes "except as otherwise provided" by
maintained by the local government unit
the LGC. (Pelizloy Realty Corp. v. Province of
concerned;
4 Ingles, Tax Made Less Taxing: A Reviewer with Codals and Cases, 2021.
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Benguet, G.R. No. 183137, 2013, J. Leonen) a. in the LGC; or

b. under the provisions of the NIRC; or
j. Taxes on the gross receipts of Transportation c. other applicable laws.
contractors and persons engaged in the 2. the taxes, fees, or charges shall not be
transportation of passengers or freight by hire unjust, excessive, oppressive, confiscatory
and common carriers by air, land or water, or contrary to declared national policy
except as provided in the LGC; 3. the ordinance levying such taxes, fees or
charges shall not be enacted without any
Section 133 of the LGC prohibits LGUs from prior public hearing conducted for the
imposing taxes on the gross receipts of purpose. (LGC, Sec. 186)
transportation contractors, persons engaged in the
transportation of passengers or freight by hire, and Authority to Issue Local Tax Ordinance
common carriers by air, land, or water. This is an The power to impose a tax, fee or charge or to
exception to the grant of taxing power given to generate revenue is exercised by the sanggunian of
municipalities and cities per Section 143(h) of the the LGU concerned through an appropriate
LGC. (City of Manila v. Colet, G.R. No. 120051, ordinance. (LGC, Sec. 132)
2014) Sangguniang Panlalawigan – for provinces
Sangguniang Panglungsod – for cities
k. Taxes on Premiums paid by way of reinsurance Sangguniang Bayan – for municipalities
or retrocession; Sangguniang Barangay– for barangays / barrios
l. Taxes, fees or charges for the registration of (LGC, Sec. 48)
Motor vehicles and for the issuance of all kinds
of licenses or permits for the driving thereof, A municipal tax ordinance which prescribes a set
except tricycles; ratio between the amount of the tax and the volume
m. Taxes, fees, or other charges on Philippine of sales of the taxpayer imposes a sales tax and is
products actually Exported, except as null and void for being beyond the power of a
otherwise provided; municipality to enact. (Arabay, Inc. V. CFI of
n. Taxes, fee, or charges, on Countryside and Zamboanga, G.R. No. L-37684, 1975, J. Castro)
Barangay Business Enterprises and
cooperatives duly registered under R.A. 6810 Authority to levy RPT [PC-MM]
and R.A. 6938 (Cooperative Code of the LGUs, through their sanggunian, that may levy RPT
Philippines); and are the following:
o. Taxes, fees or charges of any kind on the
1. Province;
National Government, its agencies and
2. City; and
instrumentalities, and local government units. 3. Municipality within Metro Manila Area
(LGC, Sec. 133) (MMA) (LGC, Sec. 200, 232)
This is not an absolute rule. The real property owned

by the Republic of the Philippines or any of its Note: Municipalities outside MMA cannot levy RPT
political subdivisions is not exempted from RPT but they can impose special levies. 5 (LGC, Sec. 240)
when the beneficial use of the real property has
been granted, for consideration or otherwise, to a LGUs have the power to levy RPT and fix the rates.
taxable person. (LGC, Sec. 234) (LGC, Sec. 232, 233)
3. REQUIREMENTS FOR A VALID TAX Rates of Levy

ORDINANCE The following may levy an annual ad valorem tax on
real property such as land, building, machinery, and
Power To Levy Taxes other improvement not specifically exempted:
1. LGUs may exercise the power to levy taxes, 1. Province – not exceeding 1% of the
fees or charges on any base or subject not assessed value of real property
otherwise specifically enumerated or taxed:
5 Ingles, Tax Made Less Taxing: A Reviewer with Codals and Cases, 2021.
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2. City or a municipality within the MMA – not 59)

exceeding 2% of the assessed value of real
property (LGC, Sec. 233) Procedure of Mandatory Public Hearings
1. Within 10 days from filing of any proposed
Requirements of a Valid Ordinance tax ordinance or revenue measure, the
Formal test: same shall first be published for 3
1. Must be within the corporate powers of the consecutive days in a newspaper of local
LGU to enact; and circulation or shall be posted simultaneously
2. Must be passed according to the procedure in at least 4 conspicuous public places within
prescribed by law. the territorial jurisdiction of the LGU
Substantive test: concerned.
2. In addition to the requirement for publication
1. Must not contravene the Constitution or any
or posting, the sanggunian concerned shall
statute; cause the sending of written notices of the
2. Must not be unfair or oppressive; proposed ordinance, enclosing a copy
3. Must not be partial or discriminatory; thereof, to the interested or affected parties
4. Must not prohibit, but may regulate trade; operating or doing business within the
5. Must be general and consistent with public territorial jurisdiction of the LGU concerned.
policy; and 3. The notice shall specify the date or dates
6. Must not be unreasonable. (City of Batangas and venue of the public hearing. The initial
v. Philippine Shell Petroleum Corporation, public hearing shall be held not earlier than
G.R. No. 195003, 2017, J. Caguioa) 10 days from the sending out of notice, or
the last day of publication, or date of posting
thereof, whichever is later.
4. PROCEDURE FOR APPROVAL 4. At the public hearing, all interested parties
AND EFFECTIVITY OF TAX shall be accorded an opportunity to appear
ORDINANCES and present or express their views,
comments and recommendations, and such
Procedure for Approval and Effectivity of Local public hearing shall continue until all issues
Tax Ordinances have been presented and fully deliberated
1. The procedure applicable to local upon and/or consensus is obtained, whether
government ordinances in general should be for or against the enactment of the proposed
observed. tax ordinance or revenue measure.
2. Public hearings shall be conducted for the 5. The secretary of the sanggunian shall
purpose prior to the enactment. (LGC, Sec. prepare the minutes of such public hearing
187) and shall attach to the minutes the position
papers, memoranda, and other documents
3. Within 10 days after their approval,
submitted by those who participated.
publication in full for 3 consecutive days 6. No tax ordinance or revenue measure shall
in a newspaper of general circulation. In the be enacted or approved in the absence of a
absence of such newspaper in the province, public hearing duly conducted. (IRR of LGC,
city or municipality, the ordinance may be Art. 276; Figuerres v. CA, G.R. No. 119172,
posted in at least 2 conspicuous and publicly March 25, 1999)
accessible places. (LGC, Sec. 188)
4. Copies of all provincial, city, and municipal In case the effectivity of any tax ordinance or revenue
and Barangay tax ordinances and revenue measure falls on any date other than the beginning
measures shall be furnished the respective of the quarter, the same shall be considered as falling
local treasurers for public dissemination. at the beginning of the next ensuing quarter and the
(LGC, Sec. 189) taxes, fees, or charges due shall begin to accrue
therefrom. (IRR of LGC, Art. 276)
General Requirements for an Ordinance
1. Necessity of quorum; (LGC, Sec. 53) Public hearings are required to be conducted prior to
2. Submission for approval by the local chief the enactment of an ordinance imposing real property
executive; (LGC, Sec. 54) taxes. However, petitioner has not presented any
evidence to show that no public hearings were
3. The matter of veto and overriding the same;
conducted prior to the enactment of the ordinances
(LGC, Sec. 55) in question. In accordance with the presumption of
4. The publication and effectivity; (LGC, Sec. validity in favor of an ordinance, their constitutionality
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or legality should be upheld. (Figuerres v. CA, G.R. 3. The aggrieved party may file appropriate
No. 119172, 1999, J. Mendoza) proceedings with a court of competent
jurisdiction (RTC):
Take note, however, that a public hearing is not a. within 30 days after receipt of the
required before the enactment of a local tax decision; or
ordinance levying basic RPT and SEF tax. b. after the lapse of the 60-day period
without the SOJ acting upon it.
GR: No public hearing shall be required before the (LGC, Sec. 187)
enactment of a local tax ordinance levying the basic
real property tax (IRR of LGC, Art. 324) as well as Such appeal shall not have the effect of suspending
the special education fund tax (IRR of LGC, Art. 326) the effectivity of the ordinance and the accrual and
in comparison with local business tax ordinances payment of the tax, fee, or charge levied. (LGC, Sec.
which require public hearing. (LGC, Sec. 187) 187)
EXCEPTION: Public hearing is required for special The law requires that the dissatisfied taxpayer who
levies. (LGC, Sec. 242) questions the validity or legality of a tax ordinance
must file his appeal to the SOJ, within 30 days from
Procedures for Enacting an Ordinance Imposing effectivity thereof. Failure of petitioners to appeal to
a Special Levy
the Secretary of Justice within 30 days as required by
1. Send a written notice to the owners of the
Sec. 187 of R.A. 7160 is fatal to their cause. (Jardine
real property to be affected or the persons
Davies Insurance Brokers Inc. v. Aliposa, G.R. No.
having legal interest therein as to the date
118900, 2003, J. Callejo, Sr.)
and place thereof and afford the latter the
opportunity to express their positions or
While the appeal to the DOJ is mandatory and fatal
objections relative to the proposed
to the taxpayer if not availed of, if the issue is on pure
ordinance.
questions of law, the appeal to the DOJ is not
2. Conduct a public hearing (LGC, Sec. 242)
mandatory and the case can be brought straight to
the RTC. (Alta Vista Golf and Country Club v. Cebu,
The ordinance imposing a Special Levy shall specify
G.R. No. 180235, 2016, J. Leonardo-De Castro)
the following:
1. Describe with reasonable accuracy the
If the 30-day period lapses without any direct action
nature, extent, and location of the public
being filed with the SOJ to question the
works projects or improvements to be
constitutionality or legality of the tax ordinance or
undertaken;
revenue measure, it does not preclude the taxpayer
2. Estimated cost of the projects
from questioning the constitutionality or legality of
3. Metes and bounds by monuments and lines
the tax ordinance or revenue measure in an indirect
4. Number of annual installments for the
or collateral attack as an affirmative defense in a
payment of the special levy which in no
protest under Sec. 195 or as a ground for a claim for
case shall be less than 5 nor more than 10
refund under Sec. 196.
years. (LGC, Sec. 241)
The SOJ can declare an ordinance void for not
It may fix different rates for different parts of the land
having followed the requirements of the law but he
depending on whether such land is more or less
cannot replace it with his own law or he cannot say
benefited by proposed work. A uniform percentage
that is unwise. When the SOJ alters or modifies or
of all lands is not required. (LGC, Sec. 241)
sets aside a tax ordinance, he is not allowed to
substitute his own judgment for the judgment of the
Protest Against a Newly Enacted Ordinance
LGU that enacted the measure since he only
1. Any question on the constitutionality or
exercises supervision and not control. (Drilon v. Lim,
legality of tax ordinances or revenue
G.R. No. 112497, 1994, J. Cruz)
measures may be raised on appeal within 30
days from the effectivity thereof to the
Secretary of Justice. 5. EXEMPTIONS FROM REAL
2. The SOJ shall render a decision within 60 PROPERTY TAXES (Go-WatCh-ECo]
days from the date of receipt of the appeal. (LGC, Sec. 234)
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12. San Fernando Port Authority

1. Owned by the Government or any of its political 13. Local Water Utilities Administration (LWUA)
subdivisions. 14. Asian Productivity Organization (APO)
(MWSS v. The Local Government of
A government instrumentality is exempt from the Quezon City, G.R. No. 194388, November
LGU's levy of real property tax. Properties owned by 7, 2018, J. Leonen)
government instrumentalities (like PEZA) are
exempt from RPT. (City of Lapu-Lapu v. PEZA, G.R. EXCEPTIONS:
No. 184203, November 26, 2014, J. Leonen) a. Properties owned by GOCCs not exercising
essential governmental functions or whose
MWSS is a government instrumentality vested with real properties are not devoted to public or
corporate powers or a government corporate entity governmental use (except those engaged
as classified by E.O. 596 and GOCC Act of 2011. in water or electric supply) are subject to
Hence, it is exempt from RPT, unless the beneficial RPT since they are not enumerated herein,
use of its properties has been extended to a taxable unless they fall under other exceptions.
person. (MWSS v. The Local Government of
Quezon City, G.R. No. 194388, November 7, 2018, b. When beneficial use has been granted to a
J. Leonen) taxable person.
Philippine Reclamation Authority (PRA) is a Parcels of land owned by the State but
government instrumentality vested with corporate leased to a private commercial
powers and performing an essential public service establishment are subject to RPT since
pursuant to Section 2 (10) of the Introductory private commercial establishments are the
Provisions of the Administrative Code. Being an taxable beneficial users of the parcels of
incorporated government instrumentality, it is land owned by the State. (City of Pasig vs.
exempt from payment of RPT. The SC also held that Republic of the Philippines, G.R. No.
reclaimed lands are properties of public dominion. 185023, 2011, J. Carpio)
The reclaimed properties owned by the PRA are
exempt from real estate taxes. (Republic v. City of The Mactan-Cebu International Airport
Paranaque, G.R. No. 191109, 2012, J. Mendoza) Authority, is a government instrumentality
whose properties belong to the public
The following are classified by jurisprudence as dominion and/or devoted to public or
government instrumentality vested with corporate governmental use. Thus, its properties
powers or government corporate entity, as adopted actually, solely and exclusively used for
by E.O. 596 and GOCC Act of 2011: public purposes, consisting of the airport
1. Manila International Airport Authority terminal building, airfield, runway, taxiway
(MIAA) and the lots on which they are situated, are
2. Mactan-Cebu International Airport Authority exempt from RPT. However, the portions of
(MCIAA) the land leased to taxable persons like
3. Philippine Ports Authority (PPA) private parties are subject to RPT. (Mactan
4. Philippine Deposit Insurance Corporation Airport Authority vs. City of Lapu- Lapu,
(PDIC) G.R. No. 181756, June 15, 2015, J.
5. Metropolitan Waterworks and Sewerage Leonardo-De Castro)
System (MWSS)
6. Philippine Rice Research Institute (PRRI) 2. Charitable institutions, churches, parsonages,
7. Laguna Lake Development Authority convents appurtenant thereto, mosques, non-
(LLDA) profit or religious cemeteries, lands, buildings
8. Philippine Fisheries Development Authority and improvements actually, directly and
(PFDA) exclusively used for religious, charitable or
9. Bases Conversion and Development educational purposes
Authority (BCDA)
10. Cebu Port Authority (CPA) A charitable institution does not lose its character
11. Cagayan de Oro Port Authority and its exemption simply because it derives income
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from paying patients so long as the money received of water and/or generation and transmission of
is devoted to the charitable object it was intended to electric power
achieve, and no money inures to the benefit of
persons managing the institution. However, a Requisites: [MAWE]
hospital, even though it was a charitable institution, a. This exemption only covers Machinery and
was not exempt from real property tax on the equipment;
portions of its property not actually, directly, and b. Actually, directly, and exclusively used by
exclusively used for charitable purposes. Those local water districts used by local water
leased out for commercial purposes are subject to districts and GOCCs; and
real property tax. (Lung Center of the Philippines v c. Local water districts and GOCCs must be
Quezon City, GR No. 144104, June 29, 2004, J. engaged in the supply and distribution of
Callejo) Water and/or generation and transmission
of Electric power.
Take note that this provision was lifted from the 1987
Constitution, which reads: The privilege of exemption from RPT granted to
NPC cannot be extended to another contracting
Charitable institutions, churches and personages or party by entering into an agreement. (Fels energy,
convents appurtenant thereto, mosques, non-profit Inc. v. Province of Batangas, GR No. 168557,
cemeteries, and all lands, buildings, and February 16, 2007, J. Callejo)
improvements, actually, directly, and exclusively
used for religious, charitable, or educational The contractual provision would appear to make the
purposes shall be exempt from taxation. (1987 NPC liable and give it standing to protest the
Constitution, Art. VI, Sec. 28 (3)) assessment. But the real property tax liability
Therefore, machinery is not included in this imposed is the liability arising from law that the local
exemption. Improvements do not include government unit can rightfully and successfully
machinery. As such, machinery that is permanently enforce, not the contractual liability that is
attached to land and buildings is subject to RPT, enforceable between the parties to a contract. By
even though this is actually, directly, and exclusively law, the tax liability rests on Mirant based on its
used for religious, charitable or educational ownership, use, and possession of the plant and its
purposes. (Local Finance Circular No. 01-2001) machineries, not on NAPOCOR. (NAPOCOR v.
Province of Quezon, G.R. No. 171586, July 15,
However, there is an issue as to the machinery of 2009, J. Brion)
non-stock, non-profit educational institutions used
actually, directly, and exclusively for educational In a contract wherein one party assumes the tax
purposes because of another constitutional liabilities of another, and the latter operates and
provision, which reads: uses the property in question, the former does not
have legal interest to protest the tax imposed by law
All revenues and assets of non-stock, non-profit on the latter. (NAPOCOR v. Province of Quezon,
educational institutions used actually, directly, and G.R. No. 171586, January 25, 2010, J. Brion)
exclusively for educational purposes shall be
exempt from taxes and duties. (1987 Constitution, Persons Having Legal Interest in the Property
Art. XIV, Sec. 4(3)) a. An entity in whose name the real property
shall be listed, valued, and assessed;
Therefore, a machinery (which is an asset) of non- b. Who may be summoned by the local
stock, non-profit educational institutions used assessor to gather information on which to
actually, directly, and exclusively for educational base the market value of the real property;
purposes is exempt from RPT. (CIR v. DLSU, G.R. c. Who may protest the tax assessment before
No. 196596, Nov. 8, 2016, J. Brion; Local Finance the LBAA and may appeal the latter’s
Circular No. 01-2002) decision to the CBAA;
d. Who may be liable for the idle land tax, as
3. Machinery and equipment actually, directly, and well as who may be exempt from the same;
exclusively used by local Water districts and
GOCCs engaged in the supply and distribution
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e. Who shall be notified of any proposed Classifications of RPT Exemptions [OCU]

ordinance imposing a special levy, as well as
who may object the proposed ordinance; 1. Ownership Exemptions
f. Who may pay the real property tax;
g. Who is entitled to be notified of the warrant of Exemptions from real property taxes on the basis of
levy and against whom it may be enforced; ownership are real properties owned by:
h. Who may stay the public auction upon
payment of the delinquent tax, penalties and  Republic;
surcharge; and  Province;
i. Who may redeem the property after it was  City;
sold at the public auction for delinquent taxes  Municipality;
(NAPOCOR v. Province of Quezon, G.R. No.  Barangay; and
171586, January 25, 2010, J. Brion)  Registered cooperatives
4. Real property owned by duly registered 2. Character Exemptions

Cooperatives under RA 6938
Exempted from real property taxes on the basis of
Section 234 of the LGC exempts all real property their character are:
owned by cooperatives without distinction. Nothing
in the law suggests that the real property tax  Charitable institutions;
exemption only applies when the property is used by  Houses and temples of prayer like
the cooperative itself. Leasing of the property to churches, parsonages or convents
another is not a ground for withdrawal of tax appurtenant thereto, mosques; and
exemption. (Provincial Assessor of Agusan Del Sur  Non-profit or religious cemeteries
v. Filipinas Palm Oil Plantation, Inc., G.R. No.
183416, 2016, J. Leonen) 3. Usage exemptions.
PHILRECA, a cooperative registered under P.D. Exempted from real property taxes on the basis of
269, complained that 1991 LGC provision violated the actual, direct and exclusive use to which they
the equal protection clause for limiting its coverage are devoted are:
with cooperatives registered under R.A. 6938. But
the Supreme Court ruled that such provision permits  All lands buildings and improvements
reasonable classification as these exemptions are which are actually, directed and
not limited to existing conditions and apply equally exclusively used for religious, charitable or
to all members of the same class. Exemptions from educational purpose;
local taxation (LGC, Sec. 193), including real  All machineries and equipment actually,
property tax (LGC, Sec. 234), are granted to all directly and exclusively used or by local
cooperatives covered by R.A. No. 6938. water districts or by GOCCs engaged in
(PHILRECA v. Secretary of Interior and Local the supply and distribution of water and/or
Government, GR No. 143076, 10 June 2003, J. generation and transmission of electric
Puno) power; and
 All machinery and equipment used for
5. Machinery & equipment for pollution control and pollution control and environmental
Environment protection protection. To help provide a healthy
environment in the midst of the
Under Section 234(e) of the 1991 LGC, the tax modernization of the country, all
exemption of machineries and equipment used for machinery and equipment for pollution
pollution control and environmental protection is control and environmental protection may
based on usage, i.e., direct, immediate and actual not be taxed by local governments.
application of the property itself to the exempting (Mactan Cebu International Airport
purpose. (Provincial Assessor of Marinduque v.
Authority v. Marcos, G.R. No. 120082,
Court of Appeals, GR No. 170532, 30 Apr. 2009, J.
September 11, 1996)
Austria-Martinez)
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Note: All exemptions previously granted (not falling

within the above enumeration) are withdrawn upon
the effectivity of the LGC. (LGC, Sec. 234)
Persons may likewise be exempt from payment of

real properties if their charters, which were enacted
or reenacted after the effectivity of the Local
Government Code, exempt them payment of real
property taxes. (City of Lapu-Lapu v. PEZA, G.R.
No. 184203, November 26, 2014, J. Leonen)
Proof of Tax Exemption

File with the local assessor within 30 days from date
of declaration of real property sufficient
documentary evidence in support of such claim (i.e.
corporate charters, title of ownership, articles of
incorporation, contracts, affidavits, etc.) (LGC, Sec.
206)
If the required evidence is not submitted, the property

shall be listed as taxable in the assessment roll.
However, if the property shall be proven to be tax
exempt, the same shall be dropped from the
assessment roll. (LGC, Sec. 206)
Authority to Grant Tax Exemption Privileges

LGUs may, through ordinances duly approved, grant
tax exemptions, incentives or reliefs under such
terms and conditions, as they may deem necessary.
(LGC, Sec. 192)
Tax exemptions shall be conferred through the

issuance of a non-transferable Tax Exemption
Certificate. (IRR of LGC, Art. 282)
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XIII. NATIONAL ECONOMY AND Three-Fold Goal of the National Economy

1. More equitable distribution of opportunities,
PATRIMONY
income and wealth;
2. Increase of wealth for the benefit of the
people, and
3. Increased productivity (Phil. CONST, Art.XII,
A. REGALIAN DOCTRINE
§ 1)
B. EXPLORATION, DEVELOPMENT, AND
UTILIZATION OF NATURAL
A. REGALIAN DOCTRINE
RESOURCES
IMPERIUM DOMINIUM
Government authority The capacity of the State
C. FRANCHISES, AUTHORITIES, AND
possessed by the State to own and acquire
CERTIFICATES FOR PUBLIC UTILITY
which is appropriately property.
embraced in sovereignty. It refers to lands held by
D. ACQUISITION, OWNERSHIP, AND
the government in a
TRANSFER OF PUBLIC AND PRIVATE
proprietary character.
LANDS
E. PRACTICE OF PROFESSIONS What is the Regalian doctrine? (Jura Regalia)

Universal feudal theory that all lands were held from
F. ORGANIZATIONS AND REGULATION OF the Crown. All lands not otherwise clearly appearing
PRIVATE AND PUBLIC CORPORATIONS to be privately owned are presumed to belong to the
State. (Cariño v. Insular Government, 212 U.S. 449,
G. MONOPOLIES, RESTRAINT OF TRADE, Feb. 23, 1909)
AND UNFAIR COMPETITION
State Owned: (PWEFFOM)
1. Lands of the Public domain
2. Waters
3. Minerals, coals, petroleum, and other
mineral oils
4. All sources of potential Energy
5. Fisheries
6. Forests or timber
7. Wildlife
8. Flora and fauna
9. Other natural resources
(PHIL. CONST. art. XII, § 2)
General Rule: All natural resources cannot be

alienated.
Exception: Agricultural lands
Native Title
Refers to pre-conquest rights to lands and domains
which, as far back as memory reaches, have been
held under a claim of private ownership by
indigenous cultural communities and indigenous
people, have never been public lands and are thus
indisputably presumed to have been held that way
since before the Spanish conquest. (IPRA, § 3(l)).
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P.P. 310, distributing 670 hectares of CMU’s 25-year Limitation

property, to the indigenous peoples is All agreements with the qualified private sector (i.e
unconstitutional. The lands by their character have Filipino citizens or corporations or associations at
become inalienable from the moment President least 60% whose capital is owned by Filipino citizens)
Garcia dedicated them for CMU’s use in scientific may be for only a period not exceeding 25 years,
and technological research in the field of agriculture. renewable for another 25.
They have ceased to be alienable public lands.
Besides, when Congress enacted the IPRA or RA Note that the 25-year limit is not applicable to water
8371 in 1997, it provided in Section 56 that "property rights for irrigation, water supply, fisheries, or
rights within the ancestral domains already existing industrial uses other than the development of power.
and/or vested" upon its effectivity "shall be
recognized and respected." In this case, ownership Rule on Private Lands
over the subject lands had been vested in CMU as General Rule: Private lands CAN only be conveyed
early as 1958. Consequently, transferring the lands to:
in 2003 to the indigenous peoples around the area is 1. Filipino citizens
not in accord with the IPRA. (CMU v. Executive 2. Corporations or associations incorporated in
Secretary, G.R. 184869, Sept. 21, 2010). the Philippines, at least 60% of whose
capital is owned by Filipino citizens (PHIL.
Limitations on the disposition of the State of CONST. art.XII, § 7)
alienable lands of the public domain
1. Only agricultural lands of the public domain Exceptions:
may be alienated; ● In intestate succession, where an alien heir
2. Only Filipino citizens may acquire lands not of a Filipino is the transferee of private land.
more than 12 hectares by purchase, (PHIL. CONST. art.XII, § 7).
homestead or grant or lease no more than ● A natural-born citizen of the Philippines who
500 hectares. Private corporations may has lost his Philippine citizenship may be a
lease not more than 1,000 hectares for 25 transferee of private land, subject to
years renewable for another 25 years. (PHIL. limitation provided by law. Hence, land can
CONST. art. XII, § 3) be used only for residential purposes. In this
3. The exploration, development and utilization case, he only acquires derivative title (PHIL.
(EDU) of all natural resources shall be under CONST. art.XII, § 7). However, a former
the full control and supervision of the State natural born Filipino citizen who became a
either by directly undertaking such EDU or citizen of other countries may acquire land
through co-production, joint venture, or for business and other purposes. (R.A. No.
production sharing agreements with 8179, § 5).
qualified persons. ● Foreign states may acquire land but only for
4. The use and enjoyment of the marine wealth embassy and staff residence purposes.
of the archipelagic waters, territorial sea,
and the EEZ shall be reserved for Filipino When Filipino citizenship Required
citizens Filipino citizenship is only required at the time the
5. Utilization of natural resources in rivers, land is acquired. Thus, loss of citizenship after
lakes, bays and lagoons may be allowed acquiring the land does not deprive ownership.
only on a ‘small scale’ to Filipino citizens or
cooperatives— with priority for subsistence Scope of Restriction
fishermen and fish workers. (PHIL. CONST. Restriction against aliens only applies to acquisition
art.XII, § 2) of ownership. Therefore:
1. Aliens may be lessees or usufructuaries of
Exception with respect to rule on EDU private lands
For large-scale EDU of minerals, petroleum and 2. Aliens may be mortgagees of land, as long
other mineral oils, the President may enter into as they do not obtain possession thereof and
agreements with foreign-owned corporations do not bid in the foreclosure sale.
involving technical or financial assistance. 3. Land tenure is not indispensable to the free
exercise of religious profession and worship.
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A religious corporation controlled by non- National Economy and Patrimony Investments

Filipinos cannot acquire and own land, even Powers of Congress:
for religious purposes. 1. Reserve to Filipino citizens or to
corporations or associations at least 60% of
Instance when couple Alien-Filipino buys land whose capital is owned by such citizens, or
When a couple buys land, where one is an alien and such higher percentage as Congress may
one is Filipino, the property does not become part of prescribe, certain areas of investment. This
the conjugal property. It will only be owned by the may be done when the national interest
Filipino spouse (Cheeseman v. IAC, G.R. No. 74833, dictates.
Jan. 21, 1991). 2. Enact measures to encourage the formation
and operation of enterprises whose capital is
An alien cannot challenge any act of administration, wholly owned by Filipinos (PHIL. CONST., art.
enjoyment, or alienation of his/her Filipino spouse XII, § 10).
over a piece of land his/her spouse acquired.
(Matthews v. Taylor Spouses, G.R. No. 164584, June In the grant of rights, privileges and concessions
22, 2009). covering the national economy and patrimony, the
State shall give preference to qualified Filipinos. This
Remedies to Recover Private Lands from provision is self-executory. The Supreme Court
Disqualified Aliens: ERR banked on this to uphold the decision of GSIS to
1. Escheat proceedings grant the Manila Hotel project to a Filipino
2. Action for Reversion under the Public Land corporation, even though a Malaysian firm turned
Act out to be the highest bidder. (Manila Prince Hotel v.
3. An action by the former Filipino owner to GSIS, G.R. 122156, Feb. 3, 1997).
Recover the land
However, the GATT Treaty (which placed aliens on
Although the sale of a lot to an alien violated the the same footing as Filipinos) was upheld by the
constitutional prohibition on aliens acquiring land, the Supreme Court. It reasoned that the provision which
acquisition by succession by Filipino citizens mandates preference to Filipinos is only enforceable
qualified to acquire lands, can no longer be impugned with respect to “grant of rights, privileges and
on the basis of the invalidity of the initial transfer. The concessions covering national economy and
flaw in the original transaction is considered cured patrimony,” and not all aspects of trade and
and the title of the transferee is deemed valid commerce. (Tanada v. Angara, G.R. 118295, May 2,
considering that the objective of the constitutional 1997).
proscription against alien ownership of lands, that is
to keep our lands in Filipino hands, has been The Retail Trade Liberalization Act of 2000 (RA
achieved. (Republic v. Register of Deeds, G.R. 8762) is constitutional. It allowed foreign nationals to
158230, July. 16, 2008). engage in retail trade business in the Philippines. It
also allowed natural-born Filipino citizens, who had
Considering that the rights and liabilities of the parties lost their citizenship and now reside in the
under the Contract to Sell is covered by the Philippines, to engage in the retail trade business
Condominium Act wherein petitioner as unit owner with the same rights as Filipino citizens. The mandate
was simply a member of the Condominium for the State to develop a “self-reliant and
Corporation and the land remained owned by independent national economy effectively controlled
respondent, then the constitutional proscription by Filipinos” is not self-executory. The control and
against aliens owning real property does not apply to regulation of trade in the interest of the public welfare
the present case. There being no circumvention of is of course an exercise of the police power of the
the constitutional prohibition, the Court's State. A person’s right to property, whether he is a
pronouncements on the invalidity of the Contract of Filipino citizen or foreign national, cannot be taken
Sale should be set aside (Hulst v. PR Builders, G.R. from him without due process of law. The Court is not
156364, Sept. 25, 2008). convinced that the implementation of RA 8762 would
eventually lead to alien control of the retail trade
business. Petitioners have not mustered any
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concrete and strong argument to support its thesis. outstanding capital. And “capital” should be
The law itself has provided strict safeguards on interpreted to include only voting shares.
foreign participation in that business. (Espina v. Hence, in the computation for “capital,” only
Zamora, G.R. 143855, Sept. 21, 2010). common stock will be considered and not
preferred shares. (Gamboa, et.al. v. Finance
ACTIVITY CITIZENSHIP AND/OR EQUITY Secretary, G.R. 176579, June 28, 2011).
REQUIREMENTS
Exploration 1. Filipino citizens ‘Capital’
of natural 2. Domestic Corporations (60% The term “capital” in Section II, Article XII of the 1987
resources Filipino owned) Constitution refers only to shares of stock entitled to
Operation 1. Filipino citizens vote in the election of directors, and thus in the
of Public 2. Domestic Corporations (60% present case only to common shares, and not to the
Utilities Filipino owned) total outstanding capital stock (common and non-
Acquisition 1. Filipino citizens voting shares).
of alienable 2. Domestic Corporations (60%
lands of the Filipino owned) Pursuant to the Gamboa directive, Section 2 of SEC-
public 3. Former natural-born citizens of RP MC No. 8 provides:
domain (as transferees with certain legal “Section 2. All categories shall, at all times, observe
restrictions) the constitutional or statutory ownership requirement.
4. Alien heirs (as transferees in case For purposes of determining compliance therewith,
of intestate succession) the required percentage of Filipino ownership shall
Practice of 1. Filipino citizens only (natural be applied to BOTH (a) the total number of
ALL persons) outstanding shares of stock entitled to vote in the
professions 2. Congress may, by law, otherwise election of directors; and, (b)
prescribe the total number of outstanding shares of stock,
Mass Media 1. Filipino citizens whether or not entitled to vote.” (Roy III v. Herbosa,
2. Domestic Corporations (100% G.R. No. 207246, Nov. 22, 2016)
Filipino owned)
Advertising 1. Filipino citizens B. EXPLORATION, DEVELOPMENT, AND
2. Domestic Corporations (70% UTILIZATION OF NATURAL
Filipino owned) RESOURCES
Educational 1. Filipino citizens
Institution 2. Domestic Corporations (60% 1. Shall be under the full control and
Filipino owned) supervision of the State
MEANS:
Exception: Schools established by The state may directly undertake such
religious groups and mission boards. activities. The state may enter into co-
production, joint venture or production-
Congress may, by law, increase sharing arrangements with Filipino citizens
Filipino requirements for ALL or corporations or associations at least
educational institutions. 60% of whose capital is owned by such
Other Congress may, by law, reserve to citizens.
economic Filipino citizens or to Domestic LIMITATIONS:
activities Corporations (60% Filipino owned or Period: It should not exceed 25 years,
higher) certain investment areas. renewable for not more than 25 years.
Under terms and conditions as may be
Tests used to determine Nationality of a provided by law.
corporation: 2. In case of water rights, water supply,
1. Voting Control Test – the ownership fisheries, industrial uses other than the
threshold must be complied by the voting development of water power.
shares. 3. The beneficial use may be the measure and
2. Beneficial Ownership Test – the limit of the grant.
ownership threshold must also apply to the
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Under the 1987 Constitution, the state must always extent necessary to carry out the technical and
be involved in the control and supervision of the financial agreement.
exploration, development and utilization of
inalienable natural resources, even if the person A foreign corporation may enter into financial and
engaged is Filipino. technical assistance agreement with the government
involving the management and operation of a mining
EO 211 of President Aquino authorized the Secretary enterprise. Section 2, Article XII of the Constitution
of Natural Resources to authorize such EDU allows other forms of assistance or activities having
agreements entered into under the 1987 to do with technical or financial assistance and it will
Constitution. not prohibit the involvement of foreign corporations in
the management of mining ventures. The policy
Small-scale utilization of natural resources recognizes that foreign corporations who will invest
1. Congress may, by law, authorize small- in mining will require that they be given a say in the
scale utilization of natural resources by management to ensure its success.
Filipino citizens.
2. Congress may also authorize cooperative The Constitutional Commission understood technical
fish farming with priority given to or financial agreements as interchangeable with
subsistence fishermen and fish workers in service contracts. (La Bugal-B’laan Tribal
the rivers, lakes, bays and lagoons. Association, Inc. v. Ramos, G.R. 127882, Jan. 27,
2004, affirmed in 2005).
Large-scale exploration, development, and
utilization of minerals, petroleum, and other Also, the grant of such service contracts must be
mineral oils subject
1. The President may enter into agreements to the following safeguards:
with foreign owned corporations involving 1. it must be in accordance with a general law
technical or financial assistance for large- 2. the President must be the signatory for the
scale exploration, etc. of minerals, government
petroleum, and other mineral oils. These 3. the President must report the executed
agreements should be in accordance with agreement to Congress within 30 days. (La
the general terms and conditions provided Bugal-B’laan Tribal Association, Inc. v.
by law. Ramos, G.R. 127882, Jan. 27, 2004,
2. They should be based on the real affirmed in a MR in 2005).
contributions to economic growth and
general welfare of the country. There is no vested right to mining rights, save for
3. In the agreements, the State should promote patented mining claims that were granted under the
the development and use of local scientific Philippine Bill of 1902. However, when the 1935
and technical resources. Constitution was passed, it prohibited the alienation
4. The President should notify Congress of of mineral lands and allowed only lease rights to
every contract under this provision within 30 mining claimants. This was also maintained by 1943
days from its execution. and 1973 Constitution. On the other hand, the
5. Management and service contracts are not authority of the State to administer inalienable natural
allowed under this rule. resources through “license, concession or lease” was
notably absent under the 1987 Constitution. Under
Under the 1987 Constitution, the Philippine the present Constitution, the state is expected to take
Government may still enter into service contracts, but a more hands-on approach and it exercises control
only for financial and technical agreements with and supervision through the following modes: (1) The
respect to large scale development of minerals, State may directly undertake such activities. (2) co-
petroleum, and other mineral resources. production/joint venture/production sharing
agreements with Filipino citizens or qualified
Management powers may be given to a completely corporations, (3) Congress may allow small-scale
foreign corporation with whom the State enters a utilization of natural resources by Filipino citizens and
service contract. But, such power will only be to the lastly (4) For large-scale exploration, development
and utilization of minerals, petroleum and other
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mineral oils, the President may enter into agreements Primary Franchise v. Secondary Franchise
with foreign-owned corporations involving PRIMARY FRANCHISE SECONDARY
technical/financial assistance. Instead of a first-in- FRANCHISE
time, first-in right approach toward applicants for Invests a body of men The privilege to operate
mining claims and mining rights, the State decides with corporate existence as
what the most beneficial method is when it comes to a public utility after the
exploring, developing, and utilizing minerals. It may corporation has already
choose to either directly undertake mining activities come into being
by itself or enter into co-production, joint venture, or
production sharing agreements with qualified
applicants. (Naredico v. Krominco, G.R. 196892,
The Constitution does not prohibit the mere formation
Dec. 5, 2018).
of a public utility corporation without the required
formation of Filipino capital. What it does prohibit is
Protection of Marine Wealth
the granting of a franchise or other form of
1. The State shall protect its marine wealth in
authorization for the operation of a public utility to a
its archipelagic waters, territorial sea and
corporation already in existence but without the
EEZ.
requisite proportion of Filipino capital (People v.
2. The State shall reserve its use and
Quasha, G.R. L-6055, June 12, 1953).
enjoyment exclusively to Filipino citizens.
3. License Agreement — "a privilege granted
Operation and Ownership of Public Utility
by the State to a person to utilize forest
OPERATION OF A OWNERSHIP OF
resources within any forest land with the
PUBLIC UTILITY PUBLIC UTILITY
right of possession and occupation thereof
May exist independently Relation in law by virtue
to the exclusion of others, except the
and separately from the of which a thing
government, but with the corresponding ownership of the pertaining to one person
obligation to develop, protect and
facilities. is completely subjected
rehabilitate the same in accordance with the
to his will in
terms and conditions set forth in said
One can own said everything not prohibited
agreement" (PD 705, § 3).
facilities without by law or the
4. Private rights must yield when they come in
operating them as a concurrence with the
conflict with this public policy and common
public utility, or rights of another.
interest. They must give way to the police or
conversely, one may
regulatory power of the State, in this case
operate a public utility The exercise of the rights
through the DENR, to ensure that the terms
without owning the encompassed in
and conditions of existing laws, rules and
facilities used to serve ownership is limited by
regulations, and the IFMA itself are strictly
the public. law so that a property
and faithfully complied with. (Republic v.
cannot be operated and
Pagadian City Timber, G.R. 159308, Sept.
used to serve the public
16, 2008).
as a public utility unless
the operator has a
C. FRANCHISES, AUTHORITIES, AND franchise.
CERTIFICATES FOR PUBLIC UTILITY
A Build-Operate-Transfer grantee is NOT a public
Power to Grant: utility. The grantee merely constructs the utility, and
1. Congress may directly grant a legislative it leases the same to the government. It is the
franchise. government which operates the public utility
2. The power to grant franchises may be (operation separate from ownership).
delegated to appropriate regulatory
agencies and/ or LGUs. To Whom Granted:
● Filipino citizens or
Public Utility - The undertaking must involve dealing ● Corporations or associations incorporated in
directly with the public. the Philippines and at least 60% of the
capital is owned by Filipino citizens
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A foreigner or foreign company may own assets of a period than 50 years. (Francisco v. Toll Regulatory
public utility corporation. What is not allowed is the Board, G.R. 166910, Oct. 19, 2010).
grant of the franchise to non-citizens of the
Philippines. While the Republic of the Philippines appointed
petitioner as the exclusive party to conduct petroleum
Rule on Public Utilities operations in the Camago-Malampaya area under
Refers to a utility corporation which renders service the State’s full control and supervision, it does not
to the general public for compensation follow that petitioner has become the State’s “agent”
within the meaning of the law. An agent’s ultimate
Franchise, certificate or any other form of undertaking is to execute juridical acts that would
authorization for the operation of a public utility may create, modify or extinguish relations between his
be issued or granted only to Filipino citizens or principal and third persons. It is this power to affect
entities with 60% capital owned by such citizens. the principal’s contractual relations with third persons
Thus, foreign corporations and foreigners MAY own that differentiates the agent from a service contractor.
the facilities. (Tatad v. Garcia, GR No 114222, Apr. (Shell v. Efren Jalos, et al., G.R. 179918, Sept. 8,
6, 1995) 2010).
Terms and Conditions: PAGCOR is no longer exempt from corporate income

1. Duration: not more than 50 years. tax. Under Section 11, Article XII of the Constitution,
2. Franchise is NOT exclusive in character. PAGCOR's franchise is subject to amendment,
3. Franchise is granted under the condition that alteration or repeal by Congress. A franchise
it is subject to amendment, alteration, or partakes the nature of a grant, which is beyond the
repeal by Congress when the common good purview of the non-impairment clause of the
so requires. Constitution. Also, Article XII, Section 11, of the 1987
Constitution, is explicit that no franchise for the
Participation of Foreign Investors: operation of a public utility shall be granted except
1. Shall be limited to their proportionate share under the condition that such privilege shall be
in its capital. subject to amendment, alteration or repeal by
2. Foreigners cannot be appointed as the Congress as and when the common good so requires
executive and managing officers because (PAGCOR v. BIR, G.R. No. 172087, March 15,
these positions are reserved for Filipino 2011).
citizens (PHIL. CONST. art. XII, § 11).
Franchises can be granted to companies whose
Administrative agencies may be empowered by the capital is at least 60% Filipino-owned. However,
Legislature by means of a law to grant franchises or “capital” here should be interpreted to include only
similar authorizations. In this case, the Court ruled voting shares. Hence, in the computation for “capital,”
that the Toll Regulatory Board (TRB) is empowered only common stock will be considered and not
to grant a franchise for toll road projects. PD 1112 preferred shares. (Gamboa, et.al. v. Finance
provided further that the TRB has the power to Secretary, G.R. 176579, Jun. 28, 2011).
amend or modify a Toll Operation Certificate that it
issued when public interest so requires. Accordingly, SEC Memorandum Circular No. 8, s. 2013, was
there is nothing infirm, much less questionable, about issued and provides that: all covered corporations
the provision in the MNTC (Manila North Tollways shall, at all times, observe the constitutional or
Corp.) Supplemental Toll Operation Agreement statutory ownership requirement in that “the required
allowing the substitution of MNTC in case it defaults percentage of Filipino ownership shall be applied to
in its loans. While the TRB is vested by law with the BOTH (a) the total number of outstanding shares of
power to extend the administrative franchise or stock entitled to vote in the election of directors; AND
authority that it granted, it cannot do so for an (b) the total number of outstanding shares of stock,
accumulated period exceeding 50 years. Otherwise, whether or not entitled to vote in the election of
it would violate the proscription under Article XII, directors.” (Roy III v. Herbosa, G.R. No. 207246, Nov.
Section 11 of the 1987 Constitution, which provides 22, 2016)
that no public utility franchise shall be for a longer
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Police Power and Expropriation over Public department. But this is only a delegated
Utilities power.
1. Police Power - When public interest 2. Forest and national parks - Congress has
requires, under reasonable terms, the State the sole power to reclassify.
may temporarily take over the operation of
any privately owned public utility or those Classification is descriptive of the legal nature of the
with public interest (PHIL. CONST., art. XII, § land and NOT what it looks like. Thus, the fact that
17). forest land is denuded does not mean it is no longer
a. The nature and extent of the forest land (Secretary of DENR v. Yap, G.R. 167707,
emergency is the measure of the Oct. 8, 2008).
duration and the terms of the
takeover. Only the President, upon recommendation of the
b. Just compensation is not required. DENR secretary, may now classify lands of public
c. This power is activated only when domain. This prerogative has been delegated to it by
Congress declares a state of Congress under CA 141. (Director of lands v. Court
national emergency. of Appeals, G.R. 58867, Jun. 22, 1984).
d. 'Businesses affected with public
interest' includes businesses which Classification should be categorical; a land cannot
are quite similar public utilities, such have a mixed classification. For example: an owner
as those having mass-based of an agricultural land in which minerals are
consumers. discovered has no right to utilize such minerals. The
2. Expropriation - The State may, upon State may discontinue his/her ownership after just
payment of just compensation, transfer to compensation in order to extract such minerals.
public ownership utilities and private (Republic v. Court of Appeals, G.R. L-43938, Apr. 15,
enterprises to be operated by the 1988).
government, in the interest of national
welfare or defense. (PHIL. CONST., art. XII, § Reclassification from forest reserves into non-forest
18). reserves – now exclusively a DENR prerogative.
There is no need to wait for Congressional
D. ACQUISITION, OWNERSHIP, AND concurrence. (Apex Mining v. Southeast Mindanao
TRANSFER OF PUBLIC AND PRIVATE Gold, G.R. 152613/152628, Nov. 20, 2009).
LANDS
Can the occupation of forest lands prior to its
Lands of the public domain are classified into: classification as alienable and disposable land be
(MAN-F) considered for purposes of complying with the
requirements for judicial confirmation of title?
1. Mineral lands
(LEONEN)
2. Agricultural Yes. Congress prescribed no requirement that the
3. National Parks land subject of the registration should have been
4. Forest or timber classified as agricultural since June 12, 1945, or
(PHIL. CONST., art. XII, § 3). earlier. As such, A’s imperfect or incomplete title is
derived only from possession and occupation since
Rule on Reclassification or Conversion of Lands June 12, 1945, or earlier. (Public Land Act, § 48(b))
Reclassification or conversion of lands require the This means that the character of the property subject
positive act of government, mere issuance of title is of the application as alienable and disposable
not enough. An affirmative act from the executive or agricultural land of the public domain determines its
eligibility for land registration, not the ownership or
legislative is necessary to reclassify property of
title over it. Alienable public land held by a possessor,
public dominion. (Laurel v. Garcia, GR No. 92013, either personally or through his predecessors-in-
Jul. 25, 1990) interest, openly, continuously and exclusively during
the prescribed statutory period is converted to private
Reclassification: property by the mere lapse or completion of the
1. Public (mineral and agricultural) lands – period. By virtue of this doctrine, corporations may
exclusive prerogative of the executive now acquire lands of the public domain for as long as
the lands were already converted to private
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ownership, by operation of law, as a result of Protection of Indigenous Cultural Communities:

satisfying the requisite period of possession 1. The State protects the rights of indigenous
prescribed by the Public Land Act. (Republic vs cultural communities to their ancestral land
Sogod Development Corp, G.R. No. 175760, Feb. subject to:
17, 2016) a. Constitutional provisions
b. Subject to national development
Limitations Regarding Alienable Lands of Public
policies and programs
Dominion
2. In determining ownership and extent of
Means by which Land of Public Dominion
ancestral domain, Congress may use
Becomes Private Land:
customary laws on property rights and
1. Acquired from the Government by purchase
relations.
or grant.
2. Uninterrupted possession by the occupant
Ancestral Domain - It refers to lands which are
and his predecessors-in-interest since time
considered as pertaining to a cultural region. This
immemorial.
includes lands not yet occupied, such as deep
3. Open, exclusive, and undisputed
forests.
possession of ALIENABLE (agricultural)
public land for a period of 30 years.
Private corporations
a. Upon completion of the requisite
1. They can only hold alienable lands of the
period, the land becomes private
public domain BY LEASE.
property ipso jure without need of
2. Period: Cannot exceed 25 years, renewable
any judicial or other sanction.
for not more than 25 years
b. Possession since time immemorial
3. Area: Lease cannot exceed 1,000 hectares.
leads to the presumption that the
Note: A corporation sole is treated like other
land was never part of public
private corporations for the purpose of
domain.
acquiring public lands.
c. In computing 30 years, start from
when the land was converted to
Filipino citizens
alienable land, not when it was still
1. Can lease up to 500 hectares
forest land
2. Can ACQUIRE not more than 12 hectares
d. Presumption is always that land
by purchase, homestead or grant
belongs to the State.
NHA is an “end-user agency” authorized by law to

E. PRACTICE OF PROFESSIONS
administer and dispose of reclaimed lands. The
The practice of all professions in the Philippines shall
moment titles over reclaimed lands based on the
be limited to Filipino citizens save in cases prescribed
special patents are transferred to the NHA by the
by law (PHIL. CONST., art. XII, § 14).
Register of Deeds, they are automatically converted
to patrimonial properties of the State which can be
sold to Filipino citizens and private corporations, 60%
F. ORGANIZATIONS AND REGULATION
of which are owned by Filipinos. (Chavez v. NHA, OF PRIVATE AND PUBLIC
G.R. 164527, Aug. 15, 2007). CORPORATIONS
1. Private Corporations - Congress can only

Reclaimed foreshore and submerged lands are lands
provide for the formation of private
of public domain, and can only be alienated as
corporations through a GENERAL
private property if it is classified by competent
corporation law.
authority as alienable. (Republic v. Enciso, G.R.
2. GOCCs - May be created through SPECIAL
160145, Nov. 11, 2005).
CHARTERS or a GENERAL corporation
law. (PHIL. CONST., art. XII, § 16).
Perfected mining claims under the Old Mining Law do
not entitle claimants to private ownership (Director of
Lands v. Kalahi Investments Inc., G.R. 48066, Jan.
31, 1989).
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G. MONOPOLIES, RESTRAINT OF TRADE,

AND UNFAIR COMPETITION
1. The Constitution does NOT prohibit the

existence of monopolies.
2. The State may either regulate or prohibit
monopolies, when public interest so
requires.
3. What are prohibited are combinations in
restraint of trade and unfair competition.
(PHIL. CONST., art. XII, § 10).
a. Restrictions upon trade may be
upheld when not contrary to public
welfare and not greater than is
necessary to afford a fair and
reasonable protection to the party in
whose favor it is imposed
b. Even contracts which prohibit an
employee from engaging in
business in competition with the
employer are not necessarily void
for being in restraint of trade. In
sum, contracts requiring exclusivity
are not per se void. Each contract
must be viewed vis-à-vis all the
circumstances surrounding such
agreement in deciding whether a
restrictive practice should be
prohibited as imposing an
unreasonable restraint on
competition (Avon v. Luna, G.R.
No. 153674, Dec. 20, 2006).
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XIV. SOCIAL JUSTICE AND HUMAN

RIGHTS A. CONCEPT OF SOCIAL JUSTICE
Social Justice
TOPIC OUTLINE UNDER THE SYLLABUS It is the embodiment of the principle that those who
have less in life should have more in law.
A. CONCEPT OF SOCIAL JUSTICE
The import of social justice is that when the law can
B. ECONOMIC, SOCIAL, AND CULTURAL be interpreted in more ways than one, an
RIGHTS interpretation that favors the underprivileged must be
favored. It should be noted, however, that for all its
C. COMMISSION ON HUMAN RIGHTS liberality to the underprivileged, it does not tolerate
behavior contrary to law.
Section 1 translates the principle of more in law for

those who have less in life into a duty of the state to
attend to “the enactment of measures that protect
and enhance the right of all the people to human
dignity, reduce social, economic, and political
inequalities, and remove cultural inequities by
equitable diffusing wealth and political power for the
common good.” (PHIL CONST., art. XIII, §1[1])
To achieve social justice, the Constitution provides

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

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

Social and Economic Forces
The promotion of social justice, however, is to be
achieved not through a mistaken sympathy towards
any given group. Social justice is "neither
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communism, nor despotism, nor atomism, nor Civil and Political Rights v. Social Rights
anarchy," but the humanization of laws and the The guarantees of the civil and political rights found
equalization of social and economic forces by the principally in the Bill of Rights are self-executory and
State so that justice in its rational and objectively ready for use. One can assert those rights in a court
secular conception may at least be approximated. of justice.
Social justice means the promotion of the welfare of
all the people, the adoption by the Government of Social rights, on the other hand, are not rights in the
measures calculated to insure economic stability of strict sense that the rights in the Bill of Rights are
all the competent elements of society, through the except to the extent that they prohibit government
maintenance of a proper economic and social from embarking in activity contrary to the ideals of
equilibrium in the interrelations of the members of the social justice. These are primarily in the nature of
community, constitutionally, through the adoption of claims or demands which people expect government
measures legally justifiable, or extra-constitutionally, to satisfy, or they are ideals which government is
through the exercise of powers underlying the expected to respect. Thus, in the nature of things, the
existence of all governments on the time-honored satisfaction of these demands must for the most part,
principle of salus populi est suprema lex. depend on legislation. (Gios-Samar, Inc. v. DOTC,
G.R. No. 217158, March 12, 2019)
Social justice, therefore, must be founded on the
recognition of the necessity of interdependence B. ECONOMIC, SOCIAL, and CULTURAL
among divers and diverse units of a society and of RIGHTS
the protection that should be equally and evenly
extended to all groups as a combined force in our Economic, social, and cultural rights include the
social and economic life, consistent with the rights to adequate food, adequate housing, to
fundamental and paramount objective of the state of education, to health, to social security, to take part in
promoting the health, comfort, and quiet of all cultural life, to water and sanitation, and to work.
persons, and of bringing about "the greatest good to (United Nations Human Rights, Office of the High
the greatest number.” (Calalang v. Williams, G.R. No. Commissioner)
47800, Dec. 2, 1940)
Labor
Principal Activities Article XIII, Section 3 elaborates on the provision in
1. Creation of more economic opportunities and Article II by specifying who are protected by the
Constitution, what rights are guaranteed, and what
more wealth
positive measures the state should take in order to
2. Closer regulation of the acquisition, ownership,
enhance the welfare of labor.
use, and disposition of property in order to
achieve a more equitable distribution of wealth The State, as provided for in the first paragraph, shall
and political power “afford full protection to labor, local and overseas,
3. Creation of economic opportunities based on organized and unorganized, and promote full
freedom of initiative and self-reliance employment and equality of employment
opportunities for all”. (PHIL CONST., art. XIII, §3)
The increases in SSS contributions reflected in the
assailed issuances are a valid exercise of police Notes:
power as they are reasonably necessary to observe  The right to organize is given to all kinds of
the constitutional mandate of promoting social justice workers both in the private and public sectors.
under the Social Security Act. The public interest  The workers have a right to hold peaceful
involved here refers to the State's goal of concerted activities, except the right to strike,
establishing, developing, promoting, and perfecting a which is subject to limitation by law. e.g.,
sound and viable tax-exempt social security system. policemen, firemen, and public school teachers
To achieve this, the Social Security System and the are prohibited from striking.
Social Security Commission are empowered to
 The workers have the right to participate on
adjust from time to time the contribution rate and the
monthly salary credits. Given the past increases matters affecting their rights and benefits, as may
since the inception of the law, the contribution rate be provided by law.
increase of 0.6% applied to the corresponding  Participation may be through:
monthly salary credit does not scream of o Collective bargaining agreements
unreasonableness or injustice. (Kilusang Mayo Uno o Grievance machineries
v. Aquino III, G.R. No. 210500, April 2, 2019) o Voluntary modes of settling disputes
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o Conciliation proceedings mediated by the Agricultural land held by the church in trust may be
Government subject to land reform. The land reform law does not
make a distinction between the various forms of
NAMA-MCCH-NFL had not registered as a labor ownership, whether in trust or absolute title.
organization. Not being a legitimate labor
organization, NAMA-MCCH-NFL is not entitled to Urban or rural poor dwellers cannot be evicted,
those rights granted to a legitimate labor organization except according to law.
under the Labor Code, specifically: 1) To act as the
representative of its members for the purpose of Who Can Be Evicted: [DIC]
collective bargaining; 2) To be certified as the 1. Persons occupying Dangerous areas
exclusive representative of all the employees in an 2. When government Infrastructure projects with
appropriate collective bargaining unit for purposes of allocated funding are going to be implemented
collective bargaining. (Visayas Community Medical 3. When there is Court order for eviction and
Center v. Erma Yballe, et al., G.R. 196156, Jan. 5, demolition
2014) Lands acquired by the NHA for resettlement
purposes or housing development are exempt from
Agrarian and Natural Resources Reform
The mandate for agrarian reform, as stated in the first the coverage of agrarian reform laws. Such
acquisition converts the land by operation of law from
sentence of Section 4, is based on “the right of
agricultural to residential. The NHA is not bound to
farmers and regular farm workers, who are landless,
to own directly or collectively the lands they till or, in pay disturbance compensation to any tenant in
possession of the purchased land (National Housing
the case of other farm workers, to receive a just share
Authority v. Department of Agrarian Reform
of the fruits thereof.”
Adjudication Board, et al., G.R. 175200, May 4, 2010)
Agrarian reform must aim at:
1. Efficient production; While the Constitution subjects “all agricultural lands”
to the envisioned agrarian reform program, it also
2. A more equitable distribution of land which
prescribes that the implementation of the program
recognizes the right of farmers and regular farm should be “subject to such priorities and retention
workers who are landless to own the land they till; limits as Congress may prescribe, taking into account
3. A just share of other or seasonal farm workers in ecological, developmental or equity considerations.”
the fruits of the land Absent priorities and retention limits set by the
Congress, but provided that money has been
Holders of the right to own land: appropriated for a program, the executive
4. Farmers: those who have a tenancy relationship department can proceed with implementation either
with the landowners, which relationship may be in cooperation with landowners voluntarily
present or historical. participating in the program or through judicial
expropriation.
5. Farm workers
(u) Regular: has the right to claim the lands they
 Priorities: refer to various factors which can
till
affect the pace and scope of implementation and
(v) Other: has the right to a just share in the fruits
which can make implementation more
of production
manageable.
The scope of the right of ownership of an agrarian
reform beneficiary can be made subject to limitations.  Retention limits: pertain to the size of land an
Congress has the right to limit the beneficiary’s right individual owner will be allowed to keep, whether
to sell, dispose, or even mortgage the property. It he is a cultivator or not. The general guideline is
may also take measures to prevent fragmentation that it should be reasonable.
resulting in uneconomical or unproductive sizes.
Just Compensation
Scope of Agrarian Reform To the extent that agrarian reform will mean
Extends not only to private agricultural lands, but also government acquisition of land, whether voluntary or
to “other natural resources”, even including the use forced, for distribution to agrarian reform
and enjoyment of “communal marine and fishing beneficiaries, there is need to compensate
resources” and “offshore fishing grounds.” landowners justly. The agrarian reform mandated by
the Constitution is not a land confiscation program.
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Petitioner X is the lawful possessor and cultivator of Police Power and Eminent Domain
the disputed lots as farmer-beneficiary. The transfer This law is an exercise of both police power and
of farmholdings upon death of the farmer-beneficiary eminent domain. The extent that it sets retention
is governed by MC 19. limits, it is an exercise of police power. But the taking
of private lands for redistribution is an exercise of the
Under MC 19, while the succession or transfer of power of eminent domain revolutionary in character
farmholdings granted under PD 27 recognized the in that it “affects all private agricultural lands
pertinent provisions of the Civil Code on succession, wherever found and of whatever kind as long as they
such was subject to certain limitations: (1) ownership are in excess of the maximum retention limits allowed
and cultivation of the farm-holding shall ultimately be their owners”. (Association of Small Landowners v
consolidated in one heir; (2) such owner-cultivator Secretary of Agrarian Reform, G.R. No. 78742,
shall compensate the other heirs to the extent of their 79310, 79744, 79777, July 14, 1989).
respective legal interest in the land; and (3) where
there are several heirs, and in the absence of extra- Definition of Agrarian Reform
judicial settlement or waiver of rights in favor of one RA 6657 defines "agrarian reform" as the
heir, the heirs shall be free to choose from among redistribution of lands to farmers and regular
themselves one who shall have sole provided, farmworkers who are landless to lift the economic
however, that the surviving spouse shall be given first status of the beneficiaries and all other arrangements
preference; otherwise, in the absence or due to the alternative to the physical redistribution of lands,
permanent incapacity of the surviving spouse, priority such as production or profit sharing, labor
shall be determined among the heirs according to administration and the distribution of shares of stock
age. (Golez v. Abais, G.R. No. 191376, Jan. 8, 2020) which will allow beneficiaries to receive a just share
of the fruits of the lands they work.
Primary Jurisdiction of the DAR
The Comprehensive Agrarian Reform Program vests Does Not Include Livestock and Poultry
Department of Agrarian Reform with primary The transcripts of the deliberations of the
jurisdiction over agrarian reform matters and over all Constitutional Commission of 1986 on the meaning
matters involving the implementation of agrarian of the word "agricultural," clearly show that it was
reform. Thus, in carrying out its mandate of resolving never the intention of the framers of the Constitution
disputes and controversies in the most expeditious to include livestock and poultry industry in the
manner, the DAR is not constrained by the technical coverage of the constitutionally-mandated agrarian
rules of procedure and evidence. The Secretary has reform program of the Government. (Luz Farms v.
primary jurisdiction over all matters involving the Secretary of the Department of Agrarian Reform,
implementation of agrarian reform, including the G.R. No. 86889, December 4, 1990)
investigation of acts that he or she believes are
directed toward the circumvention of the objectives of Definition of Agricultural Land
the Comprehensive Agrarian Reform Program. (Fil- Section 4 of R.A. 6657 provides that the CARL shall
Estate Properties, Inc. v. Reyes, G.R. Nos. 152797, "cover, regardless of tenurial arrangement and
189315 & 200684, Sept. 18, 2019) commodity produced, all public and private
agricultural lands." As to what constitutes
The findings of administrative agencies, such as the "agricultural land," it is referred to as "land devoted to
Department of Agrarian Reform, are deemed binding agricultural activity as defined in this Act and not
and conclusive upon the appellate courts. classified as mineral, forest, residential, commercial
Administrative agencies possess special knowledge or industrial land." The deliberations of the
and expertise on matters falling under their Constitutional Commission confirm this limitation.
"Agricultural lands" are only those lands which are
specialized jurisdiction. Thus, their findings, when
"arable and suitable agricultural lands" and "do not
supported by substantial evidence, are accorded include commercial, industrial and residential lands."
great respect and even finality, especially when (Natalia Realty, Inc. v. Department of Agrarian
affirmed by the Court of Appeals. (Fil-Estate Reform, G.R. No. 103302, Aug. 12, 1993)
Properties, Inc. v. Reyes, G.R. Nos. 152797, 189315
& 200684, Sept. 18, 2019) Lands Covered
Republic Act No. 6657 or the Comprehensive
Comprehensive Agrarian Reform Law Agrarian Reform Law generally covers all public and
The Comprehensive Agrarian Reform Law (Republic private agricultural lands. It covers all public and
Act 6657) implements the agrarian reform provisions private agricultural lands, as provided in
of the Constitution. Proclamation No. 131 and Executive Order No. 229,
including other lands of the public domain suitable for
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agriculture, regardless of tenurial arrangement and The provision further provides that the State may
commodity produced. However, a maximum of five “resettle landless farmers and farm workers in its own
(5) hectares of the landowner's compact or agricultural estates which shall be distributed to them
contiguous landholdings may not be distributed to in the manner provided by law”. (PHIL CONST., art.
qualified beneficiaries, as it is within the landowner's XIII, §6(2)). The “farmers” and “farm workers”
rights to retain this area. mentioned are not to be considered as agricultural
employees of the state but as resettlers and eventual
The CARP covers the following lands: owners of the land once these estates are dissolved.
1. All alienable and disposable lands of the public The term “farm workers” also includes laid-off
domain devoted to or suitable for agriculture; industrial workers who might want to return to the
2. All lands of the public domain exceeding the total provinces to engage in farming.
area of five hectares and below to be retained by
the landowner; Section 7 makes specific reference to the rights of
small fishermen. The objects of protection are
3. All government-owned lands that are devoted to
“subsistence fishermen”. The right given to them is
or suitable for agriculture; and preferential, but not exclusive, use of communal
4. All private lands devoted to or suitable for marine fishing resources, both inland and offshore.
agriculture, regardless of the agricultural The protection also extends to foreign intrusion in
products raised or can be raised on these lands. offshore fishing grounds.
As a general rule, agricultural lands that were Section 8 sees agrarian reform as a unique
reclassified as commercial, residential, or industrial instrument for releasing locked up capital in land for
by the local government, as approved by the HLURB, use in industrialization in particular and economic
before June 15, 1988 are excluded from the CARP. development in general. For this purpose,
A farm lot is not included in any of these categories. government must create an atmosphere favorable to
The reclassification of Salas' landholding into a farm investment by, among others, providing landowners
lot subdivision, although effected before Republic Act with incentives to investment, and by placing usable
No. 6657, has not changed the nature of these capital in the hands of landowners subjected to
agricultural lands, the legal relationships existing agrarian reform.
over such lands, or the agricultural usability of the
lands. Thus, these lots were properly subjected to Urban Land Reform and Housing
compulsory coverage under the CARL. (Heirs of The State shall, by law, and for the common good,
Augusto Salas Kr. v Cabungcal, G.R. No. 191545, undertake, in cooperation with the public sector, a
March 29, 2017) continuing program of urban land reform and housing
which will make available at affordable cost decent
housing and basic services to underprivileged and
Other Provisions
homeless citizens in urban centers and resettlements
Section 5 recognizes the right of farmers and regular
areas. It shall also promote adequate employment
farm workers to participate in the program itself. The
opportunities to such citizens. In the implementation
right of non-regular farm workers is that of laborers
of such program the State shall respect the rights of
as provided for in Section 3. The State shall also
small property owners. (PHIL CONST., art. XIII, §9)
“provide support to agriculture through appropriate
technology and research, and adequate financial,
The principal object of this constitutional mandate is
production, marketing, and other support services”.
“social housing program”. The objects of concern are
(PHIL CONST., art. XIII, §5)
not just the underprivileged in general but the
“underprivileged and homeless.”
Section 6 extends the principles of agrarian reform to
the disposition of other natural resources. At the
Different Kinds of Housing Programs:
heart of agrarian reform is the principle “land to the
(a) Open Market Housing Program - addressed
tiller”. It is this which must be applied, mutatis
mutandis, to the utilization of natural resources. to those of the higher income sector who can
Thus, one may speak of “natural resources reform.” afford to choose the kind of houses they want
(w) Economic Market Housing Program -
Stewardship, as mentioned in this provision, means addresses the lower income bracket who are in
that the individual would have free use or occupancy, search of affordable housing
but he would not be given a legal title to the land. This (x) Social Housing Program - addresses those
is what is referred to in law as usufructuary. who cannot afford even low-cost housing and
needs some sort of subsidy
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Urban or rural poor dwellers shall not be evicted nor People’s Organization
their dwellings demolished, except in accordance
with law and in a just and humane manner. No Role and Rights of People’s Organizations
resettlement of urban or rural dwellers shall be Section 15 embodies one of those elements of direct
undertaken without adequate consultation with them
democracy – a recognition of the direct role which
and the communities where they are to be relocated.
people have played and will play in setting the
(PHIL CONST., art. XIII, §10)
directions the nation will take. It defines people’s
Eviction and demolition "in accordance with law and organizations as – bona fide associations of citizens
in a just and humane manner" does not mean that with demonstrated capacity to promote the public
the validity or legality of the demolition or eviction is interest and with identifiable leadership,
hinged on the existence of a resettlement area membership, and structure. “People” here refers not
designated or earmarked by the government." just to the electorate but to all the people.
Rather, it means that "the person to be evicted be
accorded due process or an opportunity to controvert C. COMMISSION ON HUMAN RIGHTS
the allegation that his or her occupation or
possession of the property involved is unlawful or 1. Powers: [IAC-PE2RM-IRA]
against the will of the landowner; that should the (a) Investigate all forms of human rights
illegal or unlawful occupation be proven, the violations involving civil or political rights and
occupant be sufficiently notified before actual eviction recommend.
or demolition is done; and there be no loss of lives, (b) Adopt operational guidelines and rules of
physical injuries or unnecessary loss of or damage to procedure.
properties. (People v. Leachon, G.R. Nos. 108725-
(c) Cite for Contempt for violations of its rules, in
726, 1998)
accordance with the Rules of Court.
The National Housing Authority is authorized to order (d) Provide appropriate legal measures for the
relocation of persons occupying the land and the protection of the human rights of all persons,
demolition of the improvements thereon as part of its within the Philippines, as well as Filipinos
mandate to improve blighted areas. residing abroad, and provide for preventive
measures and legal aid services to the
Health underprivileged whose human rights have
The State shall adopt an integrated and been violated or need protection.
comprehensive approach to health development (e) Exercise visitorial powers over jails, prisons
which shall endeavor to make essential goods, health and other detention facilities.
and other social services available to all the people (f) Establish continuing programs for research,
at affordable cost. There shall be priority for the education and information in order to
needs of the underprivileged sick, elderly, disabled, enhance respect for the primacy of human
women, and children. The State shall endeavor to rights.
provide free medical care to paupers. (PHIL CONST.,
(g) Recommend to congress effective measures
art. XIII, §11)
to promote human rights and to provide
The key concepts in Section 11 are “integrated and compensation to victims of human rights
comprehensive” and “affordable”. Integration violations or their families.
connotes a unified health delivery system, a (h) Monitor compliance by the government with
combination of public and private sector while international treaty obligations on human
comprehensiveness includes health promotion, rights.
disease prevention, education, and planning. (i) Grant Immunity from prosecution to any
Although the right to health should be enjoyed by all, person whose testimony or whose
Sections 11 to 13 express a clear bias for the possession of documents or other evidence
underprivileged.
is necessary or convenient to determine the
Women truth in any CHR investigation.
The State shall protect working women by providing (j) Request assistance from any department,
safe and healthful working conditions, taking into bureau, office, or agency in the performance
account their maternal functions, and such facilities of its functions.
and opportunities that will enhance their welfare and (k) Appoint its officers and employers in
enable them to realize their full potential in the accordance with law. (PHIL CONST., art. XIII,
service of the nation (PHIL CONST., art. XIII, §14). §11)
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Notes:
 Violations may be committed by public officers or
by civilians or rebels.
 CHR cannot investigate violations of social rights.
 CHR has NO adjudicatory powers over cases
involving human rights violations.
 They cannot investigate cases where no rights
are violated. e.g., There is no right to occupy
government land (squat). Therefore, eviction
therefrom is NOT a human rights violation.
 The CHR can initiate court proceedings on behalf
of victims of human rights violations.
 The CHR can recommend the prosecution of
human rights violators, but it cannot itself
prosecute these cases.
 The CHR cannot issue restraining orders or
injunctions against alleged human rights
violators. These must be obtained from the
regular courts.
2. Composition And Qualification Of

Members
The Commission is composed of a Chairman and

four (4) members who must be natural born citizens
of the Philippines and a majority of whom must be
members of the Bar. The term of office, other
qualifications, and disabilities shall be provided for by
law. (PHIL CONST., art. XIII, §17[2])
The appointment of the CHR members is not subject

to CA confirmation; and the CHR is not of the same
level as the COMELEC, CSC, or COA.
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XV. AMENDMENTS OR REVISIONS OF ● a switch from the presidential system to a

THE CONSTITUTION parliamentary system;
● a switch from a bicameral system to a
(PHIL CONST., art. XVII.) unicameral system (Lambino v. COMELEC,
Amendment G.R. No. 174153, Oct. 25, 2006).
● An alteration of one or a few specific
separable provisions of the Constitution. Two-part test in determining whether a proposal
The changes brought about by amendments involves an amendment or revision.
1. Quantitative test — The court examines
will not affect the other provisions of the
only the number of provisions affected and
Constitution (Bernas, 1987 Philippine
does not consider the degree of the change.
Constitution: A Commentary, 1345, 2009).
Whether the proposed change is so
● An addition or change within the lines of the
extensive in its provision as to change
original constitution as will effect an
directly the “substance entirety” of the
improvement, or better carry out the purpose
Constitution by the deletion or alteration of
for which it was framed; a change that adds,
numerous provisions.
reduces or deletes without altering the basic
2. Qualitative test — Inquires into the
principles involved; affects only the specific
qualitative effects of the proposed change in
provision being amended. (Lambino v.
the Constitution. The main inquiry is whether
COMELEC, G.R. No. 174153, Oct. 25,
the change will “accomplish such far-
2006)
reaching changes in the nature of our basic
Examples: governmental plan as to amount to a
● a change reducing the voting age from 18 revision” (Lambino v. COMELEC, G.R. No.
years to 15 years; 174153, Oct. 25, 2006).
● a change reducing Filipino ownership of
mass media companies from 100% to 60%; Necessary Steps to Give Effect to Amendments
or Revisions (PSR)
a change requiring a college degree as an
1. Proposal of amendments or revisions by the
additional qualification for election to the
proper constituent assembly
Presidency (Lambino v. COMELEC, G.R.
2. Submission of the proposed amendments or
No. 174153, Oct. 25, 2006).
revisions to the people
3. Ratification
Revision
● A re-examination of the entire Constitution
Ways of Proposing Amendments (CCP)
or of provisions which have over-all
implications for the entire Constitution to 1. Constituent Assembly (ConAss)
determine how and to what extent it should ● Acting as a Constituent Assembly, the
be altered. A revision implies substantive Congress by itself may propose
change, affecting the Constitution as a amendments by 3/4 vote of all its members.
whole (Bernas, 1987 Philippine Constitution:
A Commentary, 1345, 2009). Notes:
● A change that alters a basic principle in the ● The power of Congress to propose
constitution, like altering the principle of amendments is NOT part of its ordinary
separation of powers or the system of legislative power. Congress possesses
checks-and-balances; alters the substantial constituent power only because it has been
entirety of the constitution, as when the specifically given that power by and under
change affects substantial provisions of the the conditions of Article XVII (Bernas, The
constitution. 1987 Philippine Constitution: A
Comprehensive Reviewer, 544, 2011, citing
Examples: Gonzales v. COMELEC, G.R. No. L-28196,
● altering the principle of separation of powers Nov. 9, 1967).
or the system of checks-and-balances;
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● Each House may separately formulate 2. Every legislative district must be

amendments by a vote of 3/4 of all its represented by at least 3% of the registered
members, and then pass it on to the other voters therein.
house for similar process. Nothing is said
about joint sessions (Bernas, The 1987
Philippine Constitution: A Comprehensive ● While the substance of the proposals made
Reviewer, 544, 2011). by each type of ConAss is not subject to
● Even in a joint session, they must still vote judicial review, the manner the proposals
separately because Congress is bicameral. were made is subject to judicial review.
● Since a ConAss owes their existence to the
2. Constitutional Convention (ConCon) Constitution, the courts may determine
● Congress may call a ConCon by a 2/3 vote whether the assembly has acted in
of all its members, or accordance with the Constitution, for
● By a majority vote of all its members, example:
Congress may submit to the electorate the o Whether a proposal was approved
question of calling a ConCon. by the required number of votes in
Congress (acting as a constituent
Notes: assembly).
● The choice of either a ConAss or ConCon o Whether the approved proposals
for the purpose of initiating amendments or were properly submitted to the
revisions is left to the discretion of Congress. people for ratification.
In other words, it is a political question.
● The manner of calling a ConCon is subject Notes:
to judicial review, because the Constitution ● The electorate can propose through initiative
has provided for voting requirements. ONLY amendments, since it would be
● If Congress, acting as a ConAss, calls for a practically impossible to have an over-all
ConCon but does not provide the details for review of the Constitution through action by
the calling of such ConCon, Congress — the entire electoral population.
exercising its ordinary legislative power — ● No amendment through a People’s Initiative
may supply such details. But in so doing, shall be authorized within 5 years following
Congress (as legislature) should not the ratification of the 1987 Constitution (Feb.
transgress the resolution of Congress acting 2, 1987) nor more often than once every 5
as a constituent assembly (Bernas, The years. Congress shall provide for the
1987 Philippine Constitution: A implementation of the exercise of this right.
Comprehensive Reviewer, 544-545, 2011). (Art. XVII, Sec.2)
● Congress, as a ConAss and the ConCon, ● Revision of the Constitution cannot be
has no power to appropriate money for their effected through initiative and referendum.
expenses. Money may be spent from the Formulation of provisions revising the
treasury only pursuant to an appropriation Constitution requires both cooperation and
made by law. However, the constitutional debate which can only be done through a
convention is free to dispose the funds collegial body. (BERNAS)
appropriated by Congress for the
Convention’s operation (Bernas, The 1987 Ways of Proposing Revisions
Philippine Constitution: A Comprehensive 1. By Congress, upon a vote of 3/4 of its
Reviewer, 545, 2011). members
2. By a Constitutional Convention
3. People’s Initiative
Doctrine of Proper Submission
For a valid People’s Initiative, there must be: A plebiscite may be held on the same day as a
1. Petition to propose such amendments must regular election (Gonzales v. COMELEC, G.R. No. L-
be signed by at least 12% of all registered 28196, Nov. 9, 1967). The entire Constitution must
voters. be submitted for ratification at one plebiscite only.
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The people must have a proper “frame of reference”.

(Tolentino v. COMELEC, G.R. No. L-34150, Oct. 16, All the amendments to be proposed by the same
1971). No “piecemeal submission,” e.g. submission Convention must be submitted to the people in a
of age amendment ahead of other proposed single "election" or plebiscite (Tolentino v.
amendments. (Lambino v. COMELEC, G.R. COMELEC, G.R. No. L-34150, Oct. 16, 1971).
No.174153, Oct. 25, 2006)
Presidential proclamation is NOT required for
N.B. The process of revision is the same in all effectivity of amendments/revisions.
respects except that it cannot be proposed via a ● Exception: When the proposed
People’s Initiative. [Id.] amendments or revisions so provide
Judicial Review of Amendments
Comprehensive Reviewer, 550, 2011).
The validity of the process of amendment is not a
political question because the Court must review if
constitutional processes were followed. [Id.]
Date of Effectivity of an Amendment or Revision
Ratification of Proposal if made through ConAss Since Section 4 of Article XVII, says that any
or ConCon amendment or revision ‘shall be valid when ratified’,
● Amendments and revisions are valid when the date of effectivity of any amendment or revision
should be the same as that of the date of ratification,
ratified by a majority of votes cast in a
that is, the day on which the votes are cast. However,
plebiscite. the amendments themselves might specify
● Plebiscite is held not earlier than 60 days nor otherwise. (BERNAS)
later than 90 days from the approval of such
amendments or revisions.
Amendments v. Revisions
Ratification of Proposal if made through People’s AMENDMENTS REVISIONS
Initiative Change in the Constitution
● Valid when ratified by a majority of votes Purpose is to improve Purpose is to examine
cast in a plebiscite. specific parts entirety
● Plebiscite is held not earlier than 60 days nor Affects only the specific Affects several provisions
provision amended
later than 90 days after the certification by
Adds, reduces, deletes Affects basic principles
COMELEC of the petition's sufficiency.
without altering basic Affects substantial
principle entirety
Requisites for Valid Ratification: (PCR) E.g. lowering the voting E.g. shift from
1. Held in a Plebiscite conducted under the age presidential to
election law. parliamentary system
2. Supervised by the COMELEC.
3. Where only franchised (Registered) voters
take part.
The Constitution does not require that amendments

and revisions be submitted to the people in a special
election. Thus, they may be submitted for ratification
simultaneously with a general election.
The determination of the conditions under which

proposed amendments/revisions are submitted to
the people falls within the legislative sphere. That
Congress could have done better does not make the
steps taken invalid.
All the proposed amendments or revisions made by

the constituent assemblies must be submitted for
ratification in one single plebiscite. There cannot be
a piece-meal ratification of amendments/revisions.
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CAN BE DONE BY: HOW RATIFICATION

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

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

members, Congress may
submit to the electorate the
question of calling a ConCon
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XVI. EDUCATION, SCIENCE, A. ACADEMIC FREEDOM

TECHNOLOGY, ARTS, CULTURE AND Academic freedom shall be enjoyed in all institutions
of higher learning. (PHIL CONST., art XIV, § 5, ¶ 2)
SPORTS
Whose Academic Freedom?
TOPIC OUTLINE UNDER THE SYLLABUS 1. Institutions
2. Faculty
A. ACADEMIC FREEDOM 3. Students
B. CONSTITUTIONAL TAX EXEMPTIONS Note: Freedom of the institution and freedom of the
FOR CERTAIN INSTITUTIONS faculty are different.
Freedom of the Faculty

It is the freedom of professionally qualified persons
to inquire, discover, publish and teach the truth as
they see it in the field of their competence, subject to
control of the methods. (Garcia v. Faculty Admission
Committee, G.R. No. L-40779, Nov. 28, 1975)
Faculty Members Have:

1. Full freedom in research and in the publication of
the results, subject to the adequate performance
of their other academic duties.
2. Freedom in the classroom in discussing their
subjects, but they should be careful not to
introduce into their teaching controversial matter
which has no relation to their subjects.
3. Freedom from institutional censorship or
discipline, when faculty members speak or write
in their capacity as citizen.
Institutional Academic Freedom

From the standpoint of the institution: to provide that
atmosphere which is most conducive to speculation,
experimentation, and creation. The four essential
freedoms of a university are:
(a) Who may teach
(b) What may be taught
(c) How it shall teach
(d) Who may be admitted to study
(Garcia v. Faculty Admission Committee, G.R.
No. L-40779, Nov. 28, 1975; citing J.
Frankfurter, concurring in Sweezy v. New
Hampshire, 354 US 234, June 17, 1957)
Right to Decide for Itself

Institutional academic freedom includes the right of
the school or college to decide for itself, its aims and
objectives, and how best to attain them free from
outside coercion or interference save possibly when
the overriding public interest calls for some restraint.
Right to Discipline Students

The right to discipline the student likewise finds basis
in the freedom "what to teach." Indeed, while it is
categorically stated under the Education Act of 1982
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that students have a right "to freely choose their field Limitations:
of study, subject to existing curricula and to continue (a) Police power of the State
their course therein up to graduation," such right is (b) Social interest of the community
subject to the established academic and disciplinary
standards laid down by the academic institution. Constitutional Right of Speech and Assembly
(DLSU Inc., v. CA, G.R. No. 127980, Dec. 19, 2007) Academic freedom cannot be used to discriminate
against students exercising constitutional right of
Freedom to Determine Who May be Admitted to speech and assembly. However, it is NOT protected
Study Includes: when speech materially disrupts classwork or causes
4. Right to determine who may be granted degrees disorder or invasion of the right. (Non v. Dames, G.R.
5. Right to determine who are entitled to the grant of No. 89317, May 20, 1990)
honors (University of San Carlos v. CA, G.R. No.
79237, Oct. 18, 1988) Right to Select Profession or Course of Study
Every citizen has a right to select a profession or
Institutions cannot be compelled by mandamus to course of study, subject to fair, reasonable, and
admit students because there is no duty to admit. At equitable admission and academic requirements.
most, students can lay claim to a privilege, NOT a (PHIL CONST., art XIV, § 5, ¶ 3)
right. (Garcia v. Faculty Admission Committee, G.R.
No. L-40779, Nov. 28, 1975) Rights of Teachers and Other Personnel
The State shall enhance the right of teachers to
Right to Education Subject to Academic professional advancement. Non-teaching academic
Freedom and non-academic personnel shall enjoy the
Right to education is subject to broad academic protection of the State. (PHIL CONST., art. XIV, § 5, ¶
freedom to impose fair, reasonable, and equitable 4)
admission and academic requirements. Right to
receive education is not a right to be admitted to Non-teaching and non-academic personnel also
institutions. (Pimentel v. LEB, G.R. No. 230642, July enjoy protection. They are essential to the success of
2, 2019) the education system.
General Rule on the State’s Power Highest Budgetary Priority to Education

The state’s power over educational institutions is only The State shall assign the highest budgetary priority
supervisory and regulatory. The state can only to education and ensure that teaching will attract and
impose minimum regulations. (Pimentel v. LEB, G.R. retain its rightful share of the best available talents
through adequate remuneration and other means of
No. 230642, July 2, 2019)
job satisfaction and fulfillment. (PHIL CONST., art XIV,
§ 5, ¶ 5)
Exceptions:
1. Marked arbitrariness or grave abuse of discretion
This provision does not mean that all must yield to
on the part of the institution giving highest budgetary priority to education. This
2. Overriding public welfare (Pimentel v. LEB, G.R. cannot deprive the Congress from responding to
No. 230642, July 2, 2019) national interest and other state policies or
objectives. For instance, allocation of larger share to
A state-imposed pass or fail exam that dictates upon debt service than education is NOT unconstitutional.
schools who are to be admitted exceeds minimum (Guingona v. Carague, G.R. No. 9457, Apr. 22, 1991)
standards. It goes beyond mere supervision and
regulation. It violates academic freedom to determine B. CONSTITUTIONAL TAX EXEMPTIONS
who may be admitted. (Pimentel v. LEB, G.R. No. FOR CERTAIN INSTITUTIONS
230642, July 2, 2019)
Tax Exemption
Rights of Students
All revenues and assets of non-stock, non-profit
Students have the right to enjoy in school the
educational institutions used actually, directly, and
guarantees of the Bill of Rights.
exclusively for educational purposes shall be exempt
from taxes and duties.
Upon the dissolution or cessation of the corporate

existence of such institutions, their assets shall be
disposed of in the manner provided by law.
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Proprietary educational institutions, including those

cooperatively owned, may likewise be entitled to In comparison: The tax exemption granted to
such exemptions, subject to the limitations provided charitable institutions, churches, parsonages or
by law, including restrictions on dividends and convents, mosques, and non-profit cemeteries
provisions for reinvestment. (PHIL CONST., art XIV, § applies ONLY to the assets actually, directly, and
4, ¶ 3) exclusively used for religious, charitable, or
educational purposes. (PHIL CONST., art VI, § 28, ¶ 3)
Two Kinds of Educational Institutions:
(a) Non-stock, non-profit educational institutions Development of Policies and Programs
(b) Proprietary educational institutions The State shall take into account regional and
sectoral needs and conditions and shall encourage
Revenue local planning in the development of educational
Amounts earned by a person or entity from the policies and programs. (PHIL CONST., art XIV, § 5, ¶
conduct of business operation 1)
Assets ————- end of topic ————-
Tangible and intangible properties owned by a
person or entity (i.e. lands, buildings, and
improvements)
Expanded Tax Coverage

The coverage (in Art. XIV, § 4) is broad because it
includes “all revenues and assets” and “taxes and
duties”. It therefore expands the tax coverage on Art.
VI, Sec. 28(3) which covers only “lands, buildings and
improvements”. It also covers “duties” on such items,
for instance as laboratory equipment, audio-visual
vans, supplies, books and library equipment.
However, the coverage is precise because these
assets and revenues must be “used directly and
exclusively for educational purposes.” (Bernas, The
1987 Constitution of the Republic of the Philippines,
2009)
Requisites for Tax Exemption

1. The institution is a non-stock, non-profit
educational institutions.
2. The revenues are used actually, directly, and
exclusively for educational purposes.
NOTE: Revenues need NOT be sourced from

educational activities.
The tax exemption granted to non-stock, non-profit

educational institutions is conditioned only on the
actual, direct and exclusive use of their revenues and
assets for educational purposes. While tax
exemptions may also be granted to proprietary
educational institutions, these exemptions may be
subject to limitations imposed by Congress.
The marked distinction between a non-stock, non-

profit and a proprietary educational institution is
crucial in determining the nature and extent of the tax
exemption granted to non-stock, non-profit
educational institutions (CIR v. DLSU, G.R. No.
196596, Nov. 9, 2016).
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XVII. PUBLIC INTERNATIONAL LAW PRELIMINARIES
What is the traditional definition of public

TOPIC OUTLINE UNDER THE SYLLABUS international law?
International law is a body of rules and principles of
A. CONCEPTS action which are binding upon civilized states in their
relations to one another (Bernas, Public International
B. RELATIONSHIP BETWEEN INTERNAITONAL Law, 2009).
AND PHILIPPINES DOMESTIC LAW
C. SOURCES OF INTERNATIONAL LAW What is the modern definition of public

international law?
D. SUBJECTS OF INTERNATIONAL LAW International law as the law which deals with the
1. States conduct of states and of international organizations
2. International organizations and with their relations inter se, as well as some of
3. Individuals their reasons with persons, whether natural or
E. REQUISITIES OF STATEHOOD juridical. (Restatement (Third) of Foreign Relations
Law of the United States).
F. JURISDICTION OF STATES
1. Basis of Jurisdiction
a. Territoriality principle What is the difference between public and
b. Nationality principle and statelessness private international law?
c. Protective principle
PUBLIC PRIVATE
d. Universality principle
e. Passive personality principle Governs the relation Deals with private
2. Exemption from jurisdiction of sovereign States individuals.
a. State Immunity from Suit and other entities with
b. Act of State doctrine an international
c. Diplomatic Immunity personality.
d. International organizations and their They are generally It is really municipal
officers accepted principles of or national in
public international character because
G. GENERAL PRINCIPLES OF TREATY LAW law, giving the subject each State has its
an international own conflict rules.
H. DOCTRINE OF STATE RESPONSIBILITY\
nature.
I. REFUGEES Sanctions may be in Relief prayed for may
the form of peaceful be obtained from
J. EXTRADITION remedies (i.e. municipal tribunals.
diplomatic
K. BASIC PRINCIPLES OF INTERNATIONAL
negotiation,
HUMAN RIGHTS LAW mediation,
L. BASIC PRINCIPLES OF INTERNATIONAL conciliation,
arbitration, diplomatic
HUMANITARIAN LAW efforts, settlement bythe
M. LAW OF THE SEA ICJ)
1. Baselines
2. Archipelagic States
What is hard law?
3. Internal waters
This refers to binding international legal norms or
4. Territorial sea
those which have coercive character.(SARMIENTO)
5. Contiguous zone
6. Exclusive economic zone
7. Continental shelf What is soft law?
8. International Tribunal for the Law of the Sea It is used to describe international instruments that
their makers recognize are not treaties, but have as
N. INTERNATIONAL ENVIRONMENTAL LAW their purpose the promotion of ‘norms’ which are
1. Precautionary principle
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believed to be goods and therefore should have What is the difference between erga omnes
general or universal application. omnium and erga omnes partes?
ERGA OMNES ERGA OMNES
What is international comity (comitas gentium)? OMNIUM PARTES
Refers to the rules of politeness, convenience, and Basis
goodwill observed by States in their mutual General International Multilateral treaty
intercourse without being legally bound by them. Law
To whom owed
A. CONCEPTS
The international All the other States
community, in any parties to the same
1. WHAT ARE OBLIGATIONS ERGA given case treaty in any given
OMNES? case
Interest
The term erga omnes (literal meaning: in relation to
The common values The common values
everyone) in international law has been used as a
legal term describing obligations owed by States of the international of States parties and
towards the community of states as a whole (Romulo community and their concern for
v. Vinuya, G.R. 162230, 2010). concern for compliance
compliance
By their very nature, these are the obligations of a 2. WHAT IS JUS COGENS?
State towards the international community as a
whole. Such obligations derive, for example, in
In international law, the term "jus cogens" (literal
contemporary international law, from the outlawingof
meaning: compelling law) refers to norms accepted
acts of aggression, and of genocide, as also from the
and recognized by the international community of
principles and rules concerning the basicrights of the
States as a whole, that command peremptory
human person, including protection from slavery and
authority, superseding conflicting treaties and
racial discrimination. Some of the corresponding
custom. Jus cogens norms are considered
rights of protection have entered into the body of
peremptory in the sense that they are mandatory, do
general international law others are conferred by
not admit derogation, and can be modified only by
international instruments of a universal or quasi-
general international norms of equivalent authority
universal character. (Vinuya v. Romulo, G.R.
(Vinuya v. Romulo, G.R. 162230, April 28, 2010).
162230, April 28, 2010).
“The term ‘jus cogens’ means the ‘compelling law.’”
What are the two types of obligations erga Corollary, “a jus cogens norm holds the highest
omnes? hierarchical position among all other customary
Some authorities classify erga omnes obligationsinto norms and principles.” As a result, jus cogens
either: norms are deemed “peremptoryand non-derogable.”
1. erga omnes omnium, or (Bayan Muna v. Romulo,
2. erga omnes partes [see IDI, Resolution on G.R. No. 159618, February 1, 2011).
Obligations erga omnes in International Law
(2005), art. 1]. A peremptory norm of general international law is a
norm accepted and recognized by the international
community of States as a whole as anorm from which
no derogation is permitted and which can be modified
only by a subsequent normof general international
law having the same character. (Vienna Convention
on the Law of Treaties, art. 53)
Note, however, that the definition quoted here

(referring to Article 53 of the Vienna Convention on the
Law of Treaties) is based on the legal effect of the
rule and not on its intrinsic nature. It seems to say
that the rule is jus cogens because no derogation
from it is permitted. However, what jus cogens really
means is that no derogation is allowed because it is
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jus cogens. It is the intrinsic nature of the rule that the obligations owed by states towards the
disallows derogation. (Bernas, Public International international community.
Law, 2009) (emphasis supplied).
3. WHAT IS EX AEQUO ET BONO?
What are Elements of Jus Cogens? ADS
(Vienna Convention on the Law of Treaties, art.
53) Literally, justice and fairness. The ancient conceptis
based upon the idea of ‘fundamental fairness’ as a
1. A norm Accepted and recognized by the guideline principle in arbitration and other dispute
international community of states as a settlement processes. (the auspices of the Max
whole. Planck Institute for Comparative Public Law and
2. No Derogation is permitted. International Law)
3. It can only be modified by a
Subsequentnorm having the same Under the ICJ Statute, the International Court of
character. Justice is given the authority to decide a case ex
aequo et bono (according to what is fair and good)
provided that the parties expressly agree. (ICJ
EQUITY EX AEQUO ET Statute, art. 38(2))
BONO
When accepted, is an Pertains to the power What is equity?

instrument whereby of the International Equity is not an independent source of obligation.
conventional or Court of Justice to When accepted, it is an instrument whereby
customary law may be decide a case conventional or customary law may be supplemented
supplemented or equitably outside the or modified in order to achieve justice. It has both a
procedural and substantive aspect. Procedurally, it
modified in order to rules of law at the
means a mandate given to a judge to exercise
achieve justice. instance of the parties
discretion in order to achieve adetermination that is
Procedurally, it means to the case. more equitable and fair. (Bernas, Public International
a mandate given to a Law, 2009)
judge to exercise
discretion in order to
achieve a What is the difference between equity and ex
determination that is aequo et bono?
more equitable and The power to apply principles of equity in no way
restricts the power of the ICJ to decide cases based
fair. on Ex Aequo et Bono should the parties so agree that
What is the status of a later treaty which is the controversy is to be decided on the said principle.
contrary to jus cogens?
A treaty is void, if at the time of its conclusion, it
conflicts with a peremptory norm of general
international law or jus cogens. (Vienna Convention
on the Law of Treaties, art. 53)
If a new peremptory norm of general internationallaw

emerges, any existing treaty which is in conflict with
that norm becomes void and terminates. (Vienna
Convention on the Law of Treaties, art. 64). (Jus
cogens > Treaty)
What is the difference between jus cogens and

erga omnes?
Jus cogens is different from erga omnes. (One is not
the subset of the other). Jus cogens pertains to the
non-derogability of a norm and the validity of rules
and acts that conflict with it. Erga omnes pertains to
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B. RELATIONSHIP BETWEEN What are the theoretical approaches to the

INTERNATIONAL AND PHILIPPINES relationship between international law and
DOMESTIC LAW national law?
1. Monism – there is no substantial
distinction between international law and
What is the difference between internationallaw
municipal law. Under this theory,
and domestic law?
international law and domestic law belong
INTERNATIONAL DOMESTIC LAW to only one system of law.
LAW a. Theory 1: Municipal law
subsumes and is superior to
Scope international law.
The conduct of States Applies to a single b. Theory 2: International law is
and international country or nation, superior to domestic law.
organizations, their within a determined
relations with each territory and its 2. Dualism – International law and national
other and, in certain inhabitants. law are essentially different from each
circumstances, their other as to source (i.e. municipal law is
relations with persons, a product of local custom or legislation;
natural or juridical. whereas sources of international law are
[American Third treaties and custom grown among
Restatement] states.); as regards the relations they
regulate (i.e. municipal law regulated
How Made relations between individual persons
Through consent, Issued by a political under the state; whereas international
adopted by States as superior for lawregulates relations between states);
a common rule of observance. and lastly, as to substance (i.e.
action. municipal law is a law of the sovereign
over individuals whereas international
Relations Regulated law is a law between sovereign states).
Regulates relations of Regulates relations of (Bernas, Public International Law,
States and other individuals among 2009).
international persons. themselves or with
(Bernas, Public their own States. MUNICIPAL LAW INTERNATIONAL
International Law, (Bernas, Public LAW
2009) International Law, 2009) Regulate relations Regulates relations
Sources of individuals under between states.
Derived principally Consists mainly of a state
A product of local Derived from such
from treaties, enactments from the
custom or sources as
international custom lawmaking authority
legislation international customs,
and general principles of each State. conventions, or
of law. (ICJ Statute, general principles of
art.38(1)) law
Settlement of Disputes Law of the International law is a
sovereign over the law between
By means of State-to- By means of local individual sovereign states
State transactions administrative and
judicial processes. For the dualists, when international law and
Responsibility municipal law conflict, municipal law must prevail.
Collective Breach of domestic (Bernas, Public International Law, 2009).
responsibility because law entails individual
Under dualism, no conflict can ever arise between
it attaches directly to responsibility
international and municipal law, because the two
the State and not to systems are mutually exclusive. If International lawis
its nationals. applied within a state, it is only because it has been
expressly incorporated by municipal law. The
Philippines is a dualist state.
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When the constitutional violation is manifest and

What are the theories as the manner of adopting concerns a rule of internal law of fundamental
international law as part of the law ofthe State? importance, treaty can be ignored domestically but
1. Doctrine of Incorporation - A State is, only at the risk of international repercussions before
byreason of its membership in the family an international court. Should a conflict arise
of nations, bound by the generally between an international agreement and the
accepted principles of international law, Constitution, the treaty would not be valid and
the same being considered as part of its operative as domestic law. The Constitution, in
own laws. Article VIII, Section 5(2)(a) explicitly recognizes the
2. Doctrine of Transformation – This is power of the Supreme Court to declare a treaty
based on a strict dualist approach. Since unconstitutional. (Bernas, Public International Law,
the two systems are distinct and operate 2009).
separately, for international law to
becomepart of domestic law it must be
How to resolve conflict between treaty and
expressly and specifically transformed
domestic legislation?
into domestic law through the appropriate
In the case of Secretary of Justice v. Lantion, it was
constitutionalmachinery such as an act of
held that efforts should first be exerted to harmonize
Congress of Parliament. (Bernas, Public
them, so as to give effect to both. In case it is
International Law, 2009).
irreconcilable, municipal courts should uphold
municipal law. The fact that international law has
How to resolve conflict between international been made part of the law of the land does not imply
and municipal law?
the primacy of international law over municipal law. It
was also ruled therein that a treaty may repeal a
A. International Rule or Conflict Resolved statute and a statute may repeal a treaty. However,
by International Tribunal – Before an in Pangilinan v. Cayetano, the Supreme Court
international tribunal, a state may not clarified Lantion. It ruled that the principle that a treaty
plead its own law as an excuse for failure may repeal a statute and a statute may repeal a
to comply with international law. A State, treaty, was an obiter dictum, misplaced and
which has contracted valid international unsupported by its internal logic. (Pangilinan v.
obligations, must modify its laws to ensure Cayetano, G.R 23875)
fulfillment of its obligations under the
treaty, unless the constitutional violation is
manifest and concerns a rule of internal What is Fitzmaurice Compromise?
law of fundamental importance. National Assumes that since the two systems, international
laws must yield to the laws of nations and national law, do not operate in common field,they
because international law provides the can never come into conflict. Each one of them is
standards by which legality of State supreme in its own domain, thereby any apparent
conduct is to be determined. conflict in the domestic field is automatically settled
by the domestic conflict rulesof the forum and any
conflict in the international field would be resolved by
B. Municipal Rule of Conflict Resolved International Law.
by Local Court – When the conflict
comes before a domestic court, domestic
courts are bound to apply the domestic C. SOURCES OF INTERNATIONAL LAW
law. Rules of international law are given
a standing equal, not superior, to national 1. ARTICLE 38. INTERNATIONAL
legislative enactments. Should a conflict COURTOF JUSTICE STATUTE
arise between an international
agreement and the Constitution, the What are the sources of international law
treaty would not be valid and operative according to Article 38(1) of the ICJ Statute?
as domestic law. It does not, however, a. international conventions, whether general
lose its character as international law. or particular, establishing rules expressly
(Bernas, Public International Law, 2009). recognized by the contestingstates;
b. international custom, as evidence of a
How to resolve conflict between a state’s general practice accepted as law;
constitution and international law? c. the general principles of law recognized by
civilized nations;
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d. subject to the provisions of Article 59,judicial international law, whether embodied in a single
decisions and the teachings of the most instrument or in two or more related instruments and
highly qualified publicists of the various whatever its particular designation. (VCLT, art.
nations, as subsidiary means for the 2(1)(a)).
determination of rules of law. (ICJ Statute,
art.38(1))
What are the requisites of a treaty?
1. Must be concluded between States
What are the primary sources? (TCG) 2. In written form
a. Treaties: Conventional International Law; 3. Governed by International Law
International conventions, whether general 4. Must be embodied in a single instrument
or particular, establishing rules expressly or in two or more related instruments
recognized by the contracting states.
b. Customary International Law:
International custom, as evidence of a What is the basis of a treaty obligation?
general practice accepted as law; Treaty obligation is based on consent. No state may
c. General Principles of Law: General be bound by a treaty obligation unless it has so
principles of law recognized by civilized consented. (VCLT, art. 34).
nations. [ICJ Statute, art.38(1)(a)-(c)]
Note: It is not an independent source of What is pacta sunt servanda?
international law. Under the principle of pacta sunt servanda, a state
party to a treaty is bound to comply with the
obligations it assumed under such treaty in good
What are the subsidiary sources? (JT) faith. (VCLT, art. 26)
a. Judicial decisions; and
b. Teachings of the most highly qualified
publicists of the various nations. [ICJ b. Custom
Statute, art. 38(1)(d)]
What is the definition of custom?
While the primary sources create law, the subsidiary General and consistent practice of States followedby
sources constitute evidence of what thelaw is. them from a sense of legal obligation. (Restatement
(Third) of Foreign Relations Law of the United States)
There is no stare decisis: Case law is considered only
“subsidiary means.” Even the decisions of the ICJ
itself do not create binding precedent since it only What are the elements of International Custom?
binds the parties and in respect of the particular case. 1. State Practice (DUG) – A consistent and
(ICJ Statute, art. 59). uniform external conduct of States. Generally,
both what States say and what they do are
considered state practice.
Teachings of publicists may include the work of a. Duration of practice
organizations such as the International Law b. Uniformity, consistency ofpractice
Commission (established by UN General Assembly c. Generality (majority of speciallyaffected
to initiate studies and make recommendations for the States) (Bernas, Public International
purpose of encouraging the development of Law, 2009).
international law and codification), the Institut de 2. Opinio Juris Sive Necessitatis (Opinio Juris)
DroitInternational, the International Law Association, – As an element in the formation of customary
a multinational body, the (Revised) Restatement of norm in international law, it is required that
Foreign Relations Law of the United States, and the States, in their conduct amounting to general
annual publication of the Hague Academy of practice, must act out a sense of legal duty and
International Law. (Bernas, Public InternationalLaw, not only by the motivation of courtesy,
2009). convenience or tradition.
a. Treaties Not only must acts amount to a settled practice, but

they must also be such or be carried out in such a
way, as to be evidence of a belief that this practice is
What is the definition of treaty? rendered obligatory by the existence of a rule of law
A treaty is an international agreement concluded requiring it. (International Court of Justice in the North
between States in written form and governed by
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Sea Continental Shelf Cases, cited in Mijares v. because of courtesy or political expedience (North
Ranada, G.R. No. 139325, April12, 2005) Sea Continental Shelf Cases (ICJ) February 20,
1969).
Unlike treaties, customary norms are legally binding
upon all States regardless of whether theyconsent, It is the existence of opinion juris that distinguishes
subject to the persistent objector rule[infra] binding custom from mere usage, from comity, and
from courtesy or protocol.
Note that the theory of tabula rasa does not erase
obligations under Cudtomary International Law. What is the scope of custom?
Custom may be:
No particular length of time is required for the a. General, which is binding upon all or most
formation of customary norms so long as the states; or
existence of the two elements of custom are manifest b. Particular, which is binding only between
(North Sea Continental Shelf Cases (ICJ) February two or among a few states.
20, 1969).
*The ICJ has recognized the possibility of regional
The number of parties, the explicit acceptance of custom (Asylum Case (ICJ) November 20, 1950) and
rules of law, and, in some cases, the declaratory of bilateral custom (Right of Passage over Indian
nature of the provisions produces a strong law- Territory Case (ICJ) April 12, 1960).
creating effect at least as great as the general
practice considered sufficient to support a customary
rule (BROWNLIE). What is the principle of persistent objector?
When a State has continuously objected to a new
customary norm at the time when it is yet in the
What is the element of state practice?
process of formation, by such persistent objectionthe
The practice must be consistent and general.
norm will not be applicable as against thatstate.
However, consistency requires substantialuniformity
(MAGALLONA)
and not necessarily complete uniformity in practice
What is the principle of subsequent objector?
(Asylum Case (ICJ), November 20,1950). Generality
The court in the Anglo-Norwegian Fisheries case
likewise does not require universality.
stated, "if a substantial group of states asserts a
What is the evidence of state practice?
new rule, the momentum of increased defection,
The following acts may evidence state practice: complemented by acquiescence, may result in a
a. Diplomatic correspondence; new rule... If the process is slow and theither the
b. Policy statements; new nor the old rule has an overwhelming majorityof
c. Press releases; adherents, the consequence is a network ofspecial
d. Opinions of official legal advisers; relationsbased on opposability,
e. Official manuals on legal decisions acquiescence and even perhaps historic title."
(executive decisions and practices, and
government comments on drafts by the ILC);
f. International and national judicial What is regional custom?
decisions; A practice among states within a particular area forthe
g. Recitals in treaties and international world which can be sufficiently well established and
accepted as law that is binding among the states of
instruments;
h. Practice of international organs (HARRIS) that region but not elsewhere.
What is instant custom (Diritto Spontaneo)?

UN General Assembly resolutions are generally just Customary law may emerge even within arelatively
recommendations. However, such resolutions may
short period of time, if within that period, State
be an evidence of state practice that is relevant in the
practice has been uniform and extensive. It comes
development of custom. (See Nicaragua Case (ICJ, out as a spontaneous activity of a greatnumber of
June 27, 1986).
states supporting a specific line ofaction. (Bernas,
Public International Law, 2009).
What is the element of opinion juris give
necessitates (opinion of law or necessity)?
This refers to the belief on the part of states that a
particular practice is required by law, and not
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What is special or local custom? retained, the enemy having acquired only
A long continued practice between two states, its temporary use (Noceda v. Escobar,
accepted by them as regulating their relations that G.R. No. L-2939, August 29, 1950)
form the basis of mutual rights and obligations.
(Portugal v. India (ICJ), April 12, 1960). 10. The principle that a State has the right
to protect itself and its revenues, a right
not limited to its own territory but
What are the customary norms identified by extending to the high seas (Asaali v.
the Supreme Court of the Philippines? Commissioner,
G.R. No. L-24170, December 16, 1968).
1. Rules and principles of land warfare and c. General Principles of Law

of humanitarian law under the Hague
Convention and the Geneva Convention What is the definition of general principles of
(Kuroda v. Jalandoni, G.R. No. L-2662, law?
March 26, 1949) Principles based on natural justice common to most
2. Pacta sunt servanda (La Chemise national systems of law. These refer to thosegeneral
Lacoste v. Fernandez, G.R. Nos. L- principles in municipal law (particularly those of
63796- 97, May 2,1984) private law) that may be appropriated to apply to the
3. Human rights as defined under the relations of states [OPPENHEIM]. (e.g., good faith,
Universal Declaration of Human Rights estoppel, exhaustion of local remedies, unjust
(Reyes v. Bagatsing, G.R. No. L-65366, enrichment).
November 9, 1983) This is also not an independent source of law/
4. The Principle of the Sovereign Equality of obligation.
States (Sanders v. Veridiano, G.R. No.L-
46930, June 10, 1988) 1. The ban on enforced disappearance is a
5. The principle in diplomatic law that generally accepted principle of international
thereceiving state has the special law which is considered partof the law of
duty to protect the premises of the the land (Razon v. Tagitis,
diplomatic mission of the sending 2. G.R. No. 182498, December 3, 2009).Note,
state (Reyes v.Bagatsing, G.R. No. however, that RA 10353 (An Act Defining
L-65366, November 9,1983) and Penalizing Enforced or Involuntary
6. The right of a citizen to return to his own Disappearance) was passed on December
country (Marcos v. Manglapus, G.R. 21, 2012.
No.88211, September 15, 1989) 3. The Yogyakarta Principles (the Application
7. The principle that “a foreign army allowed of International Human Rights Law In
to march through friendly country or to be Relation to Sexual Orientation and Gender
stationed in it, by permission of its Identity) has not yet evinced an obligatory
government or sovereign, is exempt from norm in the Philippines. There are
the civil and criminal jurisdiction of the declarations and obligations outlined in said
place” (Raquiza v. Bradford, G.R. No. L- Principles which are not reflective of the
44, September 13,1945) current state of international law, and do not
8. The principle that judicial acts, not of a find basis in any of the sources of
political complexion, of a de facto international law enumerated under Article
government established by the military 38(1) of the Statute of the International Court
occupant in an enemy territory, are valid of Justice. (Ang Ladlad LGBT Party v.
under international law. It is legal truism COMELEC, G.R. No. 190582, April 8, 2010).
in political and international law that all 4. Rep. Act No. 9851 defines and provides for
acts and proceedings of the legislative, the penalties of crimes against humanity,
executive and judicial departments of serious violations of IHL, genocide, and
a de facto government are good and other crimes against humanity. This law
valid Montebon v. Director of Prisons, provides for the non- prescription of the
G.R. No. L-1352, April30, 1947) prosecution of and execution of sentences
9. The principle that private property seized imposed with regard to the crimes defined in
and used by the enemy in times of war the Act. It also provides for the jurisdiction of
under circumstances not constituting the Regional Trial Court over the crimes
validrequisition does not become enemy defined in the Act. These crimes are,
property and its private ownership is therefore, separate from or independent
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from the crime of rebellion even if they occur d. Judicial decisions

on the occasion of or argued to be
connected with the armed uprisings. What are judicial decisions?
(Ocampo v. Abando, Leonen’s Concurring A subsidiary means for the determination of rules of
Opinion, G.R. No. 176830, 2014). law that are acceptable so long as they correctly
interpret and apply international law.
What principles are considered as general
principles of international law? Decisions of national courts, when applying
Roman Principles international law, are acceptable.
1. Principles such as estoppel, res judicata,
res inter alios acta, and prescription; e.g.
With respect to estoppel, when Thailand Does stare decisis apply?
did not object to, and has in fact benefited The ICJ Statute directs the Court to apply judicial
from, the Treaty of 1904 for 50 years, it is decisions as subsidiary means for the determination
deemed to have accepted said treaty. It of the rules of law, but this is made subject to Article
is thereby precluded from questioning 59 of the same statute, which states that “the
Annex I thereof, which showed that the decisions of the court have no binding force except
Temple of Preah Vihear was within between the parties and in respect of that particular
Cambodian territory (Temple of Preah case.” (Bernas, Public International Law, 2009).
Vihear Case (ICJ, June 15, 1962)).
2. Other substantive principles, such as the
duty to make reparations (Chorzow
e. Teachings of the Most Highly
Factory Case, PCIJ, September 13, QualifiedPublicists
1928), principle of reciprocity, pacta sunt
servanda, separate corporate What are “Highly-qualified publicists?”
personality (see Barcelona Traction Highly-qualified publicists are writers whose main
Case, ICJ, February 5, 1970). value depends on the extent to which their books and
3. Procedural rules, such as rules articles are cited as works of scholarship (i.e based
governing the use of circumstantial and on thorough research into what the law is said to be
hearsay evidence are likewise so (lex lata) rather than comparing the views of other
considered. e.g. Press reports can be writers as to what they think the law out to be (lex
used to corroborate the existence of a ferenda).
fact. When theydemonstrate matters of
public knowledge which have received
extensive press coverage, they can be A highly qualified publicist is a scholar of public
used to prove a factto the satisfaction of international law and the term usually refers to legal
the court (NicaraguaCase, ICJ, June 27, scholars or “academic writers. (Bayan Muna
1986). Romulo, G.R. No. 159618, February 1, 2011).
4. Circumstantial evidence is admitted as
indirect evidence in all systems of law and
its use is recognized by international 2. EFFECT OF UNITED NATIONS
decisions. Such circumstantial evidence, DECLARATIONS, SECURITY
however, must consist of a series of facts COUNCIL RESOLUTIONS
or events that lead to a single conclusion
(Corfu Channel Case, ICJ, April 9, 1949).
5. Jurisdictional principles, such as the What is the effect of United Nations Declarations
power of a tribunal to determine the and Resolutions?
extentof its own jurisdiction (competence Declarations of legal principles and Resolutions bythe
de la competence). United Nations are generally considered merely
recommendatory except on matters involving
membership. Resolutions can also bea reflection of
What are the secondary sources? what has become customary law (Bernas, Public
a. Judicial decisions International Law, 2009).
b. Teachings of the Most Highly Qualified
Publicists (ICJ statute, art. 38).
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What is opinio juris communis? D. SUBJECTS OF INTERNATIONAL LAW

When the UN Declarations and Resolutions are
supported by all the states, they are an expressionof
opinion juris communis. (Bernas, Public International What is a subject of international law?
Law, 2009). It is an entity that has rights and responsibilities under
international law and which has the capacity to
maintain its rights by bringing international claims.
Are UN Security Council Resolutions binding?
YES. The Members of the United Nations agree to They are entities endowed with rights and
accept and carry out the decisions of the Security obligations in the international order andpossessing
Council in accordance with the present Charter. (UN the capacity to take certain kinds of actions on the
Charter, art. 25.). international plane. In other words, they are those
who have international personality. (Bernas, Public
It has been contended that Article 25 of the Charter International Law, 2009).
applies only to enforcement measuresadopted under
Chapter VII of the Charter. It is notpossible to find in
the Charter any support for this view. Article 25 is not What are examples of subjects of international
law?
confined to decisions in regard to enforcement action
a. States
but applies to “the decisions of the Security Council”
adopted in accordance with the Charter. (Advisory b. Colonies and dependencies
c. Mandates and trust territories
Opinion onNamibia, June 21, 1971).
d. Belligerent communities
e. International administrative bodies
If Article 25 had reference solely to decisions of the
f. The United Nations
Security Council concerning enforcement action
g. The Vatican and the Holy See
under Articles 41 and 42 of the Charter, that is to say,
if it were only such decisions which had binding
effect, then Article 25 would be superfluous….” What are objects of international law?
(Advisory Opinion on Namibia, June 21, 1971). Those who directly have rights under or are
beneficiaries of international law through subjectsof
international law. (Bernas, Public International Law,
The language of a resolution of the Security Council
should be carefully analysed before aconclusion can 2009).
be made as to its binding effect. (Advisory Opinion on
Namibia, June 21, 1971). They are those who indirectly have rights under orare
beneficiaries of international law through subjects of
international law. (Bernas, Public International Law,
3. EFFECT OF ACTIONS OF ORGANS 2009).
OFINTERNATIONAL ORGANIZATION
CREATED BY TREATY
What is the effect of actions of organs of

international organizations created by treaty
Although international organizations have personality
in international law, their powers and privileges are
by no means like those of states. Their powers and
privileges are limited by the constituent instrument
that created them. (Bernas,Public International Law,
2009).
International organizations are governed by the

“principle of speciality,” that is to say, they are
invested by the States which create them with
powers, the limits of which are a function of the
common interests whose promotion those States
entrust to them. (Bernas citing Advisory Opinion on
the Use of Nuclear Weapons, July 8, 1996).
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What is the difference between subjects and reasonable certainty of identifying it. No
objects? minimum land area is required.
SUBJECT OBJECT (Montevideo Convention, art. 1).
Has the rights Does not have

andduties under rightsand duties but What are the modes of acquiring territory?
international law. are merely the There are four modes of acquiring territory. The
first two are original modes while the last two are
object of subject’s derivative modes.
rights and 1. Occupation - refers not to mere
duties. discovery, but to effective exercise of
Directly governed Indirectly governed sovereignty over a territory which is terra
bythe rules of bythe rules of nullius (i.e., not subject to the sovereignty
international law. international law. of any other state). It is the acquisition of
territory that is terra nullius by any State
It can be a proper Its rights are
which has the intention to claim
party in receivedand its sovereignty and occupies that territory by
transactions obligations imposed, exercising effective and continued control.
involving the indirectly through the 2. Accession or accretion - the natural
application of instrumentality of an process of land formation resulting in the
international law international agency. increase of territory.
among members of 3. Cession - the transfer of territory from one
state to another by treaty (derivative). It is
the international
the only bilateral mode of acquiring
community. territorial sovereignty.
4. Prescription - title is acquired by
1. STATES continuous and undisturbed exercise of
sovereignty over a period of time.
What are States? 5. Conquest - the taking of a territory of
State, as a subject of international law, has another sovereign by force of arms.
international personality which means that it has the Conquest is generally accepted to have
right to have its claims respected internationally. A been prohibited an considered acts as of
State has absolute personality. aggression andviolative of the prohibition
on the use of force and territorial integrity.
[See Definition of Aggression, UN GA
What are the elements of a State? GSPoT
Res. 3314 (XXIX) (1974)
1. Government – the physical
manifestation of a state. Government
must be organized, exercising control What is effective government?
over and capable of maintaining law and General Rule: There must be a central government
order within its territory. operating as a political body within thelaw of the land
2. Sovereignty – the capacity to enter into in effective control of the territory. [AUST].
relations with other States. Exception: The requirement of effective government
3. Permanent Population – The is not strictly applied when the State, already long-
population does not have to be existing, happens to undergo a period of civil strife or
homogeneous racially, ethnically, internal chaos due to naturaldisaster or invasion.
tribally, religiously, linguistically, or
otherwise. But it must be a settled
What is a failed state?
population, although the presence of
certain nomadic inhabitants does not One which has not had a government in control of
matter. most of the territory for several years. [AUST]
Defined Territory – State territory is that A failed State does not cease to be a State. (See,
defined portion of the surface of the globe e.g. Somalia, which has not had an effective
which is subjected to the sovereignty of government in years, but continues to be
the State. (OPPENHEIM) A state must recognized by the UN).
exercise control over certain area. It need
not be exactly defined by metes and
bounds, so long as there exists a
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Further, some States were deemed States even governments which came into power by
before their governments were very well- organized extra-constitutional means [e.g.
(e.g., Poland, Burundi, and Rwanda). revolution, civil war, coup d’etat or other
forms of internal violence] should not be
recognized, at least until the change had
What are governments de facto and de jure? been accepted by the people. [After US
1. Government de jure – government from President Wilson, 1913 and Ecuadorian
law, that is, one with a color of legitimacy. FM Tobar (1907)]
2. Government de facto – one that governs 2. Stimson Doctrine - Doctrine of not
without a mandate of law. So long as it is recognizing any situation, treaty or
in place, it may command obedience from agreement brought about by non- legal
the inhabitants of the occupied area. The means. Precludes recognition of any
de facto ruler may suspend laws and government established as a result of
enact new ones. external aggression. [After US Sec. of
State Henry Stimson (1932)]
What is jus postlimium? 3. Estrada Doctrine - States should refrain
Acts (executive, legislative, and judicial) done under from recognizing governments, as such
the control of a de facto government, when they are are superfluous. Change in government
not of a political complexion remain goodeven upon does not affect the change in status of a
the restoration of the legitimategovernment. [See Co state. This in effect results in the
Kim Cham v. Valdez Tan Keh (November 16, 1945)] automatic recognition of governments in
all circumstances. Posits that dealing or
not dealing with the government
What is recognition? established through a political upheaval
Recognition is an act by which a state acknowledges isnot a judgment on the legitimacy of the
the existence of another state, government or said government. [After Mexican Minister
belligerent community and indicates willingness to Genaro Estrada (1930)] [SHAW]
deal with the entity as suchunder international law. 4. Sovereignty v. Independence
Sovereignty and Independence
aredifferent. Sovereignty refers
Recognition is not a legal duty. As a public act of to the supreme and
state, recognition is an optional and political act and uncontrollable power inherent
there is no legal duty in this regard. (Note thatthis is in the state by which the State is
under the Declaratory School) governed. Independence refers to the
power of a State to manage its external
What are the two views regarding recognition? affairs without direction or interference
from another state.
1. Declarative Theory - recognition is 5. Principle of Auto-Limitation
merely “declaratory” of the existence of The concept of sovereignty as auto-
the state and that its being a state limitation is the property of State-force
depends upon its possession of the dueto which it has the exclusive
required elements and not upon capacity of legal self-determination and
recognition. (Bernas, Public International self- restriction. (People v. Gozo, G.R.
Law, 2009). No. L- 36409, October 26, 1973, citing
2. Constitutive Theory - recognition Jellinek). Any State may, by its consent,
“constitutes” a state, that is, it is what it express orimplied, submit to a restriction
makes a state a state and confers legal of its sovereign rights. (People v. Gozo,
personality on the entity. (Bernas, Public G.R. No. L-36409, October 26, 1973)
International Law, 2009).
The weight of authority favors the “declaratoryview.” What is the concept of association of states?
(Bernas, Public International Law, 2009). An association is formed when two States ofunequal
power voluntarily establish durable links.In the basic
What are the doctrines on Recognition of de model, one State, the associate,delegates certain
facto governments? responsibilities to the other, the principal, while
maintaining its international status as a State.
1. Wilson/Tobar Doctrine - Also known as
However, this concept is notrecognized under the
“Doctrine of Legitimacy” or “Policy of
present Constitution. The Constitution does not
Democratic Legitimacy.” Holds that
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contemplate any State in thisjurisdiction other than 2. INTERNATIONAL ORGANIZATIONS

the Philippine State, muchless does it provide for a
transitory status that aims to prepare any part of
Philippine territory forindependence. (The Province What are international organizations?
of North Cotabato v. GRP Panel on Ancestral International organizations are created
Domains, G.R. No.183591, October 14, 2008). by sovereign States and whose functioning are
regulated by international law, not the law of any
given country. They have functional personality
What is the principle of state continuity? which is limited to what is necessary to carry out
The State continues as a juristic being their functions as found in the instruments of the
notwithstanding the changes in its circumstances, organization.
provided only that such changes do not result in the
loss of any of its essential elements. This is different from an international NGO. NGOs
are a diverse group of organizations that defy
generalization, ranging from small informal groups to
What are the rights of states? large formal agencies. NGOs play different roles and
a. Jurisdiction take different shapes within and across different
b. Equality societies. As a result, ‘‘NGO’’ as an analytical
c. Individual or collective self-defense category remains complex and unclear. For example,
d. Independence despite the fact that NGOs are neither run by
e. Legation government, nor driven by the profit motive, there are
nevertheless some NGOs that receive high levels of
What are the duties of states? government funding, and others that seek to
1. To carry out in good faith all its obligations; generate profits to plough back into their work.
Boundaries are unclear, and as one might expect
2. To refrain from recognizing any territorial
from a classification that emphasizes what they are
acquisition by another State which
resortsto war or to the use of threat or not rather than what they are, NGOs therefore turn
out to be quite difficult to pin down analytically
force;
3. To refrain from giving assistance to any
State which resorts to war or threat or use What is its personality?
of force, or against which the UN is taking General Rule - The status and powers of an
preventive or enforcement actions international organization is determined by
4. To conduct its relations with other States agreement and not by general or customary
in accordance with International Law international law. They are considered subjects of
5. To ensure that conditions prevailing in its international law “if their legal personality is
territory do not menace international established by their constituent instrument.”
peace and order
6. To refrain from resorting to war and the
threat or use of force Further, its constituent rights and duties, or
7. To treat all persons under its jurisdiction capacities and immunities, are limited to those set
with respect for human rights and forth in the treaty creating the international
fundamental rights, without organization. Thus, legal personality in this contextis a
discrimination relative concept. (MAGALLONA)
8. To refrain from intervening
9. To settle its disputes with other States by Exception – United Nations. It has objective
peaceful means international personality. Its personality is binding on
the whole international community, including States
who are not UN members. (Reparations for Injuries
Advisory Opinion, ICJ, April 11, 1949).
What are the preconditions for international

personality?
1. It must constitute a permanent association
of states, with lawful objects, equipped
with organs;
2. There must be a distinction, in terms of
legal powers and purposes, between the
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organization and its member states; and 4. The London Agreement of the
3. It must have legal powers that it may International Military Tribunal at
exercise on the international plane and not Nuremberg, relating to crimes against
solely within the national systems of one peace, war crimes and crimes against
or more states. [BROWNLIE] humanity, imposed duties and liabilities
upon individuals as well as upon states.
3. INDIVIDUALS 5. Convention on the Prevention and
Punishment of the Crime of Genocide,
What is the personality of individuals? art. VI defined “parties charged with
Under modern international law, an individual has genocide” as including individuals.
limited personality. (MAGALLONA)
6. The International Criminal Court has
jurisdiction over individuals who commit
The question whether the Philippine government
should espouse claims of its nationals against a genocide, crimes against humanity and
foreign government is a foreign relations matter, the war crimes, subject to conditions under
authority for which is demonstrably committedby our the ICC Statute. (ICC Statute, art. 25(1)
Constitution not to the courts but to the political inrelation to art. 5)
branches. In the Comfort Women Case, the
Executive Department has decided that it is to the E. REQUISITES OF STATEHOOD
best interest of the country to waive all claims of its
nationals for reparations against Japan in theTreaty of
Peace of 1951. The wisdom of such decision is not 1. What is a state?
for the courts to question; thus, saiddetermination by
the Executive Department cannot be questioned An entity that possesses
through a petition for certiorari. (Vinuya v. Romulo
G.R. No. 162230, April 28, 2010).
a. A permanent population
- Permanent population refers to the
What is the special personality of individuals? State permanently having
Individuals may assume the status of subjects of population, not necessarily to that
international law only on the basis of agreement by population consisting of those who
states and in specific context, not in accordance with reside permanently within that
general or customary international law. State’s territory.
- What is required is the existence of
What are its examples? a permanent population of
individuals who owe allegiance and
1. UNCLOS, art. 187(c)-(e) provides for obedience to that State, i.e.
jurisdiction of the Sea-Bed Disputes nationals as well as non-national
Chamber of the ITLOS over disputes residents who are subject to that
between parties to contracts relating to State’s laws. ( AKEHURST)
the exploitation of marine resources.
Parties to such contracts may be natural b. A defined territory
or juridical persons. - Territory is the physical or
geographical area, separated by
2. The Claims Settlement Declaration of
borders from other areas, over
1981 between US and Iran provides for which a State has sovereignty, i.e.
direct access to the Iran-US Claims the competence to exercise its
Tribunal to individuals for the settlement exclusive authority within that
of their claims involving more than territory and prohibit foreign
$250,000either against Iran or the US. governments from exercising their
3. The Mixed Claims Tribunals established authority there.
inthe Treaties of Peace concluded at the - National and international
end of World War I provided for locus jurisprudence is also clear that
standi of individuals in actions against territorial sovereignty is not
constituted by the instances and
states relating to contracts, debts, and
patterns of the effective exercise of
property adversely affected by the war.
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State authority. The rules for - It can be said that the capacity to
statehood do not necessarily apply enter into full range of international
for depriving States thereof. The relations can be a valuable
loss of effective control over part of measure, but capacity or
its territory does not deprive the competence in this sense depends
State of the authority to exercise in part on the power of the
sovereign regulatory powers over government, without which as State
that part of territory, and the State is cannot carry out its international
equally sovereign with regard to obligations. The ability of the
any part of its territory whether it government to independently carry
effectively controls it or not. out its obligations and accept
(AKEHURST) responsibility for them in turn
greatly depends on the effective
government. (CRAWFORD)
c. Government (Art 1. Montevideo Convention on the Rights and
- A State cannot come into existence Duties of States)
or exist for long, unless it has a
government. The existence of a
government implies the capacity to
autonomously establish and
F. JURISDICTION OF STATES
maintain a legal order.
(AKEHURST)
OVERVIEW
- A State does not cease to exist
when it is temporarily deprived of an
What is jurisdiction?
effective government as a result of
Jurisdiction means the power of a state under
civil war or similar upheavals
international law to govern persons and property by
 The long period of de facto
its municipal law. This may be criminal or civil, and
partition of Lebanon did
may be exclusive or concurrent with other states.
not hinder its continued
[HARRIS]
legal status as a State.
 the lack of a government in
Somalia in the 1990s did What are the kinds of jurisdiction?
not lead to the abolition of 1. Prescriptive jurisdiction refers to the
the international legal
power of a State to makes its law
personality of Somalia or
make its territory terra applicable to the activities, relations, or
nullius. status of persons, or the interests of
 Even when all of its persons in things, whether by legislation,
territory is occupied by the by executive act or order, by
enemy in wartime, the administrative rule or regulation, or by
State continues to exist. determination by a court.
(AKEHURST) 2. Adjudicative jurisdiction refers to a
d. Capacity to enter into relations State’s jurisdiction to subject persons or
with other states things to the process of its courts or
- The capacity to enter into relations administrative tribunals, whether in civil or
with States is not the exclusive
in criminal proceedings, whether or not the
entitlement of States: autonomous
state is a party to the proceedings.
national authorities, liberation
movements and insurgents are all 3. Enforcement jurisdiction refers to a
capable of maintaining relations State’s jurisdiction to enforce or compel
with States and other subjects of compliance or to punish noncompliance
international law. While States do with its laws or regulations, whether
possess that capacity, it is not a through the courts or by use of executive,
requirement, but a consequence of administrative, police, or other nonjudicial
statehood. A consequence which is action.
moreover irregular and dependent
on the status and situation of a
particular State.
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1. BASIS OF JURISDICTION conduct is generally recognized as criminal by

states in theinternational community. (Bernas, citing
Restatement (402)[3])
What is Territoriality Principle?
The fundamental source of jurisdiction is
sovereignty over territory. A State has absolute, but What is the Universality Principle?
not necessarily exclusive, power to prescribe, Recognizes that certain offenses are soheinous
adjudicate and enforce rules for conduct that occurs and so widely condemned that any State, if it
within its territory. (Bernas, Public International Law, captures the offender, mayprosecute and punish that
2009) person on behalf of the international community,
regardless of thenationality of the offender or victim
or wherethe crime was committed. (Bernas, citing
What is the effects doctrine? Bassiouini).
A State also has jurisdiction over acts occurring
outside its territory but having effects within it.
(Bernas, Public International Law, 2009) Recognizes that certain activities, universally
dangerous to states and their subjects, require
authority in all community members to punish such
What are the two principles of effectsdoctrine? acts wherever they may occur, even absent a link
1. Subjective territorial principle – a between the state and the parties or the acts in
state has jurisdiction to prosecute and question. (Bernas, Public International Law, 2009)
punish for crime commenced within the
state but completed or consummated
What is the Passive Personality Principle?
abroad.
A State may apply law – particularly criminal law – to
2. Objective territorial principle – a an act committed outside its territory by a person not
state has jurisdiction to prosecute and its national where the victim ofthe act was its national.
punish for crime commenced without the
state but consummated within its
territory. (Bernas, Public International The principle has not been ordinarily accepted for
Law, 2009) ordinary torts or crimes, but is increasinglyaccepted
as applied to terrorist and other organized attacks on
a state’s nationals by reason of their nationality, or to
What is Nationality Principle? assassinationof a state’s diplomatic representatives
Every state has jurisdiction over its nationals even or otherofficials. (Bernas, citing The Comment on §
when those nationals are outside the state. (Bernas, 402 of Third Restatement)
Public International Law, 2009)
When is there a conflict of jurisdiction?
What is Statelessness? Since there are various accepted principles for
Stateless persons are those who do not have a assuming jurisdiction, more than one State may have
nationality. They are either de jure or de facto a valid claim to jurisdiction. (Bernas, Public
stateless. (Bernas, Public International Law, 2009) International Law, 2009).
Who are de jure stateless persons? What are the modes to resolve the conflict?
Those who have lost their nationality, if they had one, a. Was there an actual or intended effect
and have not acquired a new one. (Bernas, Public on the State acquiringjurisdiction?
International Law, 2009) b. Is the effect sufficiently large to present
a cognizable injury?
c. Are the interest and link to the State
Who are de facto stateless persons? sufficiently strong, vis-à-vis those of
Those who have a nationality but to whom other nations, to justify an assertion of
protection is denied by their state when out of the extraordinaryauthority?
state. This is the situation of many refugees. If the answer is yes to all, then the court will assume
(Bernas, Public International Law,2009) jurisdiction. (Timberlane Lumber Co. v. Bank of
America, 549 F2d 597, 1976).
What is the Protective Principle?
A State may exercise jurisdiction over conductoutside
its territory that threatens its security, as long as that
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International Comity 2. EXEMPTION FROM JURISDICTION

If exercising jurisdiction will be unreasonable, the
Stateshould refrain from doing so.Unreasonableness
is determined byevaluating various factors, such as What is State Immunity from Suit
the linkof the activity to the territory of the regulating It refers to a principle by which a state, its agents,and
State, the connection, such as nationality and property are immune from the jurisdiction of another
residence or economic activity, between the state (MAGALLONA).
regulating state and the person principally
responsible for the activity to be regulated, the This principle is premised on the juridical equality of
character of the activity to be regulated, the existence states, according to which a state may not impose its
of justified expectations that might be protected or authority or extend its jurisdiction to another state
hurt by the regulation, the likelihood of conflict with without the consent of the latterthrough a waiver of
regulation by another state. (Hartford Fire Insurance immunity.
Co. v. California, 509 US 764, 1993).
Thus, domestic courts must decline to hear cases
Forum non conveniens against foreign sovereigns out of deference to their
The principle is based on the real unfairness to one role as sovereigns.
of the suitors in permitting the choice of a forum
which is not the natural or proper forum, either on the What are the types of immunity?
ground of convenience of trial or the residence or 1. Absolute sovereign immunity – where a
domicile of parties or of its being the locuscontractus, state cannot be sued in a foreign court no
or locus solutionis. Its application is discretionary on matter what the act it is sued for; or
the part of the court. Forum conveniens presumption 2. Restrictive sovereign immunity – where
is with the plaintiff. (Piper Aircraft Co. v. Reyno, 545 a state is immune from suits involving
U.S. 235, 1981). governmental actions (jure imperii), butnot
from those arising from commercial or
non-governmental activity (jure gestionis).
What are the requisites for forum non
(Bernas, Public International Law, 2009)
conveniens?
Under the rule of forum non conveniens, a Philippine
Absolute sovereign immunity is the dominant view
court or agency may assume jurisdictionover the case
in keeping with the maxim par in parem non habet
if it chooses to do so, provided:
imperium which stated that all states are sovereign
1. that the Philippine court is one to which equals and cannot assert jurisdiction over one
the parties may conveniently resort to; another. A contrary attitude would "unduly vex the
2. that the Philippine court is in a position to peace of nations". (Bernas, Public International law,
make an intelligent decision as to the law 2009)
and the facts; and
3. that the Philippine court has or is likely to What is the status of principle of sovereign
have power to enforce its decision. immunity from suits in international law?
(Manila Hotel v. NLRC, G.R. No. 120077, It is a customary norm of international law that holds,
October 13, 2000). unless waived by the state concerned.
Such immunity applies even if the claim against the

What is reserved domain of domestic state is for violation of a jus cogens norm in
jurisdiction? international law.
It is the domain of state activities where the
jurisdiction of the state is not bound by international
Furthermore, State assets are also immune from
law. The extent of this domain depends on
execution in connection with such claim.(Germany v.
international law and varies accordingly to its
Italy, Jurisdictional Immunities of the State Case, ICJ,
development (i.e., when a norm crystallizes into
February 3, 2012).
custom).
Who determines immunity in the Philippines?
The reservation of this domain is without prejudiceto Under Philippine law, the DFA’s function includesthe
the use of enforcement measures under UN Charter, determination of persons and institutionscovered by
Ch. VII diplomatic immunities. While exclusiveto the DFA,
the DFA’s determination is notconclusive.
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Even with a DFA certification, however, What is the rule on immunity of warships from
the court is not precluded from makingan inquiry execution?
into the intrinsic correctness of suchcertification. A state’s naval vessel may not be proceeded against
(China National Machinery & Equipment Corp. v. to answer for said state’s financial
Santamaria, G.R. No. 185572,February 7, 2012)
What is the act of state doctrine?
Courts of one country will not sit in judgment onthe
What is the rule on criminal jurisdiction on
acts of the government of another in duedeference
board merchant ships and government ships
to the independence of sovereignty of every
operated for commercial purpose?
sovereign State (PCGG v. Sandiganbayan,G.R. No.
The criminal jurisdiction of the coastal State shouldnot
124772, August 14, 2007).
be exercised on board a foreign ship passing through
the territorial sea to arrest any person or to conduct
any investigation in connection with any crime The Act of State doctrine is one of the methods by
committed on board the ship during its passage. which States prevent their national courts from
deciding disputes which relate to the internal affairs
of another State, the other two being immunity and
What are the exceptions to the rule above?
non-justiciability. It is an avoidance technique that is
a. If the consequences of the crime extend tothe
directly related to a State’s obligation to respect the
coastal State;
independence and equality of other States by not
b. If the crime is of a kind to disturb the peaceof
requiring them to submit to adjudication in a national
the country or the good order of the territorial
court or to settlement of their disputes without their
sea;
consent. It requires the forum court to exercise
c. If the assistance of the local authorities has
restraint in the adjudication of disputes relating to
been requested by the master of the ship or
legislative or other governmental acts which a foreign
by a diplomatic agent or consular officer of
State has performed within its territorial limits. (PCGG
the flag State; or
v. Sandiganbayan, G.R. No. 124772, August
d. If such measures are necessary for the
14,2007).
suppression of illicit traffic in narcotic drugs
or psychotropic substances.
What is Diplomatic Immunity?
Diplomatic immunity essentially differs from State
Except as provided in Part XII (Protection and immunity in that the modern law on diplomatic
Preservation of the Marine Environment) or with immunity is contained in the 1961 Vienna Convention
respect to violations of laws and regulations adopted on Diplomatic Relations
in accordance with Part V (Exclusive Economic
Zone), the coastal State may not take any steps on
Consequently, the rules on diplomatic immunity work
board a foreign ship passing throughthe territorial sea
much more smoothly and uniformly than, say, the
to arrest any person or to conduct any investigation
‘rules’ on State immunity.
in connection with any crime committed before the
ship entered the territorial sea, if the ship, proceeding
from a foreign port, is only passing through the Diplomatic relations are established by mutual
territorial sea without entering internal waters. consent between the two States concerned.
(UNCLOS, art. 27). However, they may be broken off unilaterally (often
as a mark of disapproval of an illegal or unfriendly act
by the other State); when State A breaks off
Can the immunity be invoked in non- diplomatic relations with State B, it not only withdraws
commercial transactions of ships owned and its own diplomatic mission from State B, but also
operated by a State? requires State B to withdraw its mission from State A.
Unless otherwise agreed between the States (AKEHURST)
concerned, a State which owns or operates a ship
cannot invoke immunity from jurisdiction before a
court of another State which is otherwise competent Immunity from the jurisdiction of courts
in a proceeding which relates to the operation of that The preamble to the 1961 Vienna Convention recites
ship if, at the time the cause of action arose, the ship that “the purpose of such privileges and immunities is
was used for other than government non-commercial not to benefit individuals but to ensure the efficient
purposes. (UN Convention on Jurisdictional performance of the functions of diplomatic missions
Immunities of Statesand Their Property, art. 16) as representing States”
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it is still the case that diplomatic immunity under democratically constituted international
Article 31 VCDR is wider than State immunity bodies in which all thenations concerned
available to all State officials, in that Article 31 does are represented;
not focus on the nature of acts in relation to which 2. No country should derive any national
immunities may be claimed. (AKEHURST) financial advantage by levying fiscal
charges on common international funds;
When are diplomats made liable? and
One of the most striking features of the Vienna 3. The international organization should, as
Convention is that it does not grant full immunity to a collectivity of States members, be
all the staff of a diplomatic mission. In addition to accorded the facilities for the conduct of
diplomatic agents, the Convention speaks of itsofficial business customarily extended
administrative and technical staff (for example, to each other by its individual member
clerical assistants) and of service staff (for example, States. (International Catholic
drivers and receptionists). ImmigrationCommission v. Calleja, G.R.
No. 85750, September 28, 1990)
These two categories of subordinate staff have
complete immunity from criminal jurisdiction, but their G. GENERAL PRINCIPLES OF TREATY
immunity from civil and administrative jurisdiction is LAW
limited to their official acts. The same is true of
diplomatic agents who are nationals or permanent Definition of a Treaty
residents of the receiving State A treaty is an international agreement concluded
between States in written form and governed by
When an individual ceases to be a member of the international law, whether embodied in a single
staff of a diplomatic mission, his immunity continues instrument or in two or more related instruments and
for a reasonable time thereafter, in order to give him whatever its particular designation. (Article 2,Vienna
time to leave the country. After that, he may be sued Convention on the Law of Treaties.)
for private acts done during his period of office, but
not for official acts. (AKEHURST) Under the VCLT, the term “treaty” includes all
agreements between states, regardless of how they
What are the immunities of international are called. Thus, for purposes of international law,
organizations and its officers? treaties, executive agreements, exchanges ofnotes,
One of the basic immunities of an international etc., are all treaties.
organization is immunity from local jurisdiction, i.e., it
is immune from the legal writs and processes issued Under the E.O. 459, a treaty is defined as
by the tribunals of the country where it is found. The international agreements entered into by the
obvious reason for this is that the subjection of such
an organization to the authority of the local courts Philippines which require legislative concurrence
would afford a convenient medium thru whichthe host after executive ratification. This term may include
government may interfere in theiroperations or even compacts like conventions, declarations, covenants
influence or control its policies and decisions of the and acts. (E.O. 459, Section 2)
organization; besides, such subjection to local
jurisdiction would impair the capacity of such body to
Requisites of a Valid Treaty
discharge its responsibilities impartially on behalf of
its member-states. (Southeast Asian Fisheries v. 1. Treaty making capacity, which is
NLRC, G.R. No. 86773, February14, 1992). possessed by all States as an attribute of
sovereignty. International organizations
also possess treaty- making capacity,
There are basically three propositions underlying the although limited by the organization’s
grant of international immunities to international purpose;
organizations. These principles, contained in the ILO 2. Competence of the representative/organ
Memorandum are statedthus: making the treaty, which may be the head
of state, which generally has full powers,
or other persons called plenipotentiaries,
1. International institutions should have a which must produce an instrument
status which protects them against showing authority to sign a treaty binding
control or interference by any one their government;
government in the performance of 3. Consent freely given by the parties. If
functions for the effective discharge of consent was given erroneously, or was
which they are responsible to induced by fraud, the treaty shall be
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voidable; the choice of the form of agreement is the parties’

4. Object and subject matter, which must be intent and desire to craft an international agreement
lawful; in the form they so wish to further their respective
5. Ratification in accordance with the interests. Verily, the matter of form takes a back
constitutional process of the parties seat when it comes to effectiveness and binding
concerned. effect of the enforcement of a treaty oran executive
agreement, as the parties in either international
agreement each labor under the pacta sunt servanda
Effect of an Unwritten Treaty principle. (Bayan Muna v. Romulo, G.R. No. 159618,
Feb 1, 2011).
a. Convention rules on Matters governed by
international law independently of Power to Negotiate and Senate Concurrence
convention shall apply; In the realm of treaty-making, the President has the
b. Convention rules apply to the Relations of sole authority to negotiate with other States. Itfollows
states as between themselves under that Congress, while possessing vast legislative
international agreement with other subjects powers, may not interfere in the field of treaty
as parties; and negotiations. While Article VII, Section 21 provides
c. Has Legal force for Senate concurrence, such pertains only to the
validity of the treaty under consideration, not to the
conduct of negotiations attendant to its conclusion.
Treaty v. Executive Agreement Moreover, it is not evenCongress as a whole that has
TREATY EXECUTIVE been given the authority to concur as a means of
checking the treaty-making power of the President,
AGREEMENT
but only theSenate (AKBAYAN v. Aquino, G.R. No.
170516, July 16, 2008).
Subject Matter: Subject Matter:
1. Political issues 1. Arrangements of The signing of a treaty is composed of two separate

2. Changes in Temporary Nature and distinct processes to which each requires the
National Policy 2. Implementation of exclusive prerogative and act of the executive and
3. International Treaties and legislative:
arrangements of a Statutes
Permanent 3. Transitory
a. One is the signing of the treaty which is
Character effectivity
handled by the executive department during
4. Adjustment of the negotiation stage.
details carrying out b. The other is the ratification stage where the
established president ratifies a treaty but with the
national policies concurrence of 2/3 of the Senate.
and tradition
Must be ratified by 2/3 Does not need to be It is within the authority of the President to refuse to
of the Senate to ratified by the Senate. submit a treaty to the Senate or, having refused its
become valid and consent for ratification, refuse to ratify it. The
effective (1987 Senate’s role is limited only to giving or withholdingits
Constitution, art. 7, § concurrence to the ratification. The Senate cannot,
21). by mandamus, compel the executive to transmit a
treaty for concurrence (Pimentel v. Executive
Under international law, there is no difference Secretary, G.R. No. 158088, July 6, 2005).
between treaties and executive agreements in terms
of their binding effects on the contracting states
concerned, as long as the negotiating functionaries EDCA remained within the parameters set by the two
have remained within their powers. (Bayan Muna v. treaties (the MDT and the VFA). Mere adjustments in
Romulo, G.R. No. 159618, 2011). detail to implement the MDT and the VFA can be in
the form of executive agreements. The “activities”
There are no hard and fast rules on the propriety of referred to in the MDTare meant to be specified and
entering, on a given subject, into a treaty or an identified in further agreements. EDCA is an example
executive agreement as an instrument of of suchagreement. The President’s choice to enter
international relations. The primary consideration in into EDCA by way of executive agreement is in view
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of the vast constitutional powers and prerogatives In the Philippines, the negotiation of treaties and their
granted to him in the field of foreign affairs. (Saguisag ratification are executive functions, subject to
v. Executive Secretary, G.R. Nos. 212426/212444, concurrence of the Senate.
July 26,2016)
Consent to be bound by the terms of a treaty

Full Powers may be expressed through:
The authority granted by a Head of State or
Govemment to a delegation head enabling the latter SIGNATURE.
to bind his country to the commitments made in the
negotiations to be pursued. (E.O No. 459) The consent to be bound by a treaty is expressed by
the signatureof its representative when:
In addition to the constitutional requirement, a. The treaty provides that signature shall
ratification is necessary under internationallaw have that effect;
when: b. It is otherwise established that the
1. The treaty provides for consent to be negotiating states agreed that signature
expressed by means of ratification; should have that effect;or
2. It is otherwise established that the c. The intention of the state to give that effect
negotiating states agreed that ratification to the signature appears from the full
should be required; powers of its representative or was
3. The representative of the state has signed expressed during negotiation (VCLT,
the treaty subject to ratification [VCLT, art. Article 12 (1));
14(1)], that is, when the intent was tomake it
subject to ratification.
Practice of Alternat:
Arrangement under which eachnegotiator is allowed
Treaty-making Process to sign first on the copy of the treaty which he will
NEGOTIATION. bringhome to his own country, the purpose being to
The state representative 1 discuss preserve the formal appearance of equality among
the terms and provisions of the the contracting states and to avoid delicate questions
treaty. of precedence among the signatories.
ADOPTION.
When the form and content have
been settled by the negotiating Effect of Signature with respect Ratification
states, the treaty is adopted. This is Signature does not create an obligation toratify.
only preparatory to (1) the
authentication of thetext of the treaty Obligation not to defeat the object andpurpose of
and (2) the signing thereof. (VCLT, a treaty before its Entry into Force:
art. 9) A state is obliged to refrain from actswhich would
ADOPTION. defeat the object and purpose of a treaty when:
A definitive text of the treaty is a. It has signed the treaty or has exchanged
established as the correct and instruments constitutingthe treaty subject
authenticone; to ratification, acceptance or approval,
EXPRESSION OF CONSENT. until it shall have made its intention clear
The state parties express their not to become a party to the treaty; or
consent to be boundby the terms of
b. it has expressed its consent to be bound
the treaty. The modes of such
by the treaty, pending the entry into force
expression are provided in the
of the treaty and provided that such entry
VCLT.
into force is not unduly delayed. (VCLT,
REGISTRATION.
Art.18)
The treaty is then registered with the
Secretariat of the United 5 Nations.
EXCHANGE OF INSTRUMENTS.
Otherwise, the treaty may not be
invoked before any UN organ (UN
Charter, art. 102(2)) including the The consent of States to be bound by a treaty
constituted by instruments exchanged between them
ICJ
is expressed by that exchange when:
a. The instruments provide that the
exchange will have such effect
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b. It is established that those states were Interpretation of Treaties

agreed that the exchange ofinstruments a. Actuality – based on actual text
shall have that effect(VCLT, Article 13) b. Natural and Ordinary Meaning
c. Integration – interpreted as a whole
d. Effectiveness – based on object andpurpose
RATIFICATION, ACCEPTANCE orAPPROVAL. e. Subsequent Practice
f. Contemporaneity - interpreted in light of
The consent of the State tobe bound by a treaty is linguistic usage existing at the time the treaty
expressed by ratification when: was concluded
a. The treaty provides for suchconsent to
be expressed through ratification
b. It is established that the negotiating Travaux Preparatoires
state were agreed that ratification The ‘preparatory work; of a treaty that contains its
should be required legislative history. It is used as a supplementary
c. The representative of the State has means of interpretation of a treaty. (VCLT, Art. 32)9.
signed the treaty subject to ratification;
or Amendment or modification of treaty
d. The intention of the State to sign the General rule: Consent of all the parties is required.
treaty subject to ratification appears Exception: If the treaty itself so allows, two states
from the full powers of itsrepresentative may modify a provision only insofar as their
or was expressed during negotiation. relationship inter se.
(VCLT, Article14)
Reservations
General rule: A reservation is a unilateralstatement
ACCESSION
made by a state upon entering a treaty and operates
to exclude or modify the legal effect of certain
Consent is expressed by accession when:
provision/s of the treaty in their application to the
a. The treaty provides that such consent reserving state. [VCLT, art. 19]
may be expressed by that State by
means of accession.
b. It is otherwise established that the Exceptions: A reservation shall not operate to
negotiation states were agreed that modify or exclude the provisions of a treaty:
such consent may beexpressed by that 1. Where the treaty expressly prohibits
State by meansof accession; or reservations in general;
c. All the parties have subsequently 2. Where the treaty expressly prohibits that
specific reservation being made; or
agreed that such consent may be
3. Where the reservation is incompatible
expressed by that state by means of
with the object and purpose of the treaty.
accession. (VCLT, Article 15)
(Reservation to the Genocide
Conventions Advisory Opinion, ICJ,
Kinds of Accession 1951)
1. Accession proper — non-
signatory becomes a party to allthe Invalid treaties
provisions of the treaty
1. If the treaty violates a jus cogens norm of
2. Adhesion or Adherence - non- international law;
signatory becomes a party in some 2. If the conclusion of a treaty is procured by
of the provisions of the treaty
threat or use of force;
3. Error of fact, provided that such fact
formed an essential basis of a state’s
consent to be bound;
4. If the representative of a state was
corrupted to consent by another
negotiating state;
5. If consent was obtained through
fraudulent conduct of another negotiating
state;
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6. If the representative consented in 12. Jus cogens application, or the emergence

violation of specific restrictions on of a new peremptory norm of general
authority provided the restriction was international law which renders void any
notified to the other negotiating states existing, conflicting treaty.
prior to the representative expressing
such consent; In Pangilinan v Cayetano, the Court adopted the
7. If consent was given in violation of following guidelines for evaluating cases concerning
provisions of internal law regarding the president’s withdrawal from international
competence to conclude treaties that is agreements:
manifest and of fundamental importance. a. President enjoys some leeway in
(VCLT) withdrawing from agreements which
he or she determines to be contrary
to the Constitution or statutes.
Grounds for termination of a treaty b. President cannot unilaterally
1. Expiration of the term, or withdrawal of a withdraw from agreements which
party in accordance with the treaty; were entered into pursuant to
2. Extinction of a party to the treaty, when the congressional imprimatur
treaty rights and obligations would not c. President cannot unilaterally
devolve upon the successor- state; withdraw from international
3. Mutual agreement of parties; agreements where the Senate
4. Denunciation or desistance by a party; concurred and expressly declared
5. Supervening impossibility of performance; that any withdrawal must also be
6. Conclusion of a subsequent made with its concurrence.
inconsistenttreaty; The withdrawal made by Duterte from ICC should not
7. Loss of subject matter have been allowed because unilateral withdrawals
8. Material breach or violation of treaty are not allowed if the agreement was concurred by
9. Fundamental change in circumstance the senate. However, the court ruled that the issue
(similar to the customary norm of rebus on the withdrawal’s validity is already moot and
sic stantibus) such that the foundation academic because ICC already accepted it.
upon which the consent of a state to be (Pangilinan v Cayetano. G.R. No. 238875, 2021).
bound initially rested has disappeared. Pacta Sunt Servanda
(VCLT, art. 62). The requisites are: Every treaty in force is binding upon the parties to it
and must be performed by them in good faith.
(Vienna Convention on the Law of Treaties, art. 26).
a. The change is so substantial that
the foundation of the treaty has
altogether disappeared; A state can avoid performance if the treaty collides
b. The change was unforeseen or with its Constitution, but it cannot escape liability that
unforeseeable at the time of the it may incur as a result of such nonperformance.
perfection of the treaty;
c. The change was not caused by
From the perspective of public international law, a
the party invoking the doctrine
treaty is favored over municipal law pursuant to the
d. The doctrine was invoked within
principle of pacta sunt servanda. A party to a treatyis
areasonable time;
not allowed to invoke the provisions of its internal law
e. The duration of the treaty is as justification for its failure to perform a treaty.
indefinite; Nevertheless, as far as the Court is concerned, a
f. The doctrine cannot operate treaty is always subject to qualification or
retroactively (it must not amendment by a subsequent law, or that, it is subject
adverselyaffect provisions which to the police power of the State (Lim v. Executive
have already been complied with Secretary, G.R. No. 151445, 2002).
prior to the vital change);
10. Outbreak of war between the parties,
unless the treaty relates to the conduct of Rebus Sic Stantibus
war; General Rule: A fundamental change of
11. Severance of diplomatic relations, if such circumstances is not a ground for a treaty to be
relationship is indispensable for the suspended or terminated.
treaty’s application;
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Exceptions: or States as is reasonably adequate depending on

1. The circumstance is the essential basis of the merits of the case in question. (Boczek, The A to
consent. Z of International Law, 121, 2010).
2. The obligation is transformed radically that Every internationally wrongful act of a state entails
it becomes burdensome or unreasonable. the international responsibility of that State.
Elements
Exceptions to the Exceptions:
There is an internationally wrongful act of a State
1. If the treaty establishes a boundary;
when conduct consisting of an action or omission:
2. If the fundamental change is the result of
a breach by the party invoking it either of a. is attributable to the State under
an obligation under the treaty or of any international law; and
other international obligation owed to any b. constitutes a breach of an international
other party to the treaty. (VCLT, art. 62) obligation of the State. (ASR, art. 2)
Note: Rebus Sic Stantibus is an exception to the
rule of Pacta Sunct Servanda The characterization of an act of a State as
internationally wrongful is governed by international
Grounds for Invalidity of a Treaty: DJ-FEC law. Such characterization is not affected by the
a. Duress Jus cogens characterization of the same act as lawful by internal
b. Fraud law. (ASR, art. 3)
c. Error of fact
d. Corruption Attribution of Conduct to States
(VCTL Art. 48 – 53)
Conduct of Organs of a State;
Clean Slate Rule The conduct of any State organ shall be considered
General Rule: When one State ceases to exist and an act of that State under international law, whether
is succeeded by another on the same territory, the the organ exercises legislative, executive, judicial or
newly independent State is not bound to maintain in any other functions, whatever position it holds in the
force, or become a party to, any treatymade by its organization of the State, and whatever its character
predecessor although, at the date of succession of as an organ of the central Government or of a
States, the treaty was in force with respect to territorial unit of the State.
the territory to which the succession of State relates.
(Vienna Convention on the Succession of States in An organ includes any person or entity which has that
Respect of Treaties, art. 16) status in accordance with the internal law of the
State. (ASR, art. 4)
Exceptions: Conduct of persons or entities exercising

1. When the new State agrees to be elements of governmental authority;
boundby the treaties made by its
predecessor. The conduct of a person or entity which is not an
2. Treaties affecting boundary regime (uti organ of the State under article 4 but which is
possidetis juris). empowered by the law of that State to exercise
3. Customary international law elements of the governmental authority shall be
considered an act of the State under international
H. DOCTRINE OF STATE law, provided the person or entity is acting in that
RESPONSIBILITY capacity in the particular instance. (ASR, art. 5)
Definition Conduct of organs placed at the disposal of a

State responsibility is a fundamental principle of State by another State;
international law whereby a State, either by an act or The conduct of an organ placed at the disposal of a
omission, has breached an international obligation in State by another State shall be considered an act of
force and incurs, in the absence of circumstances the former State under international law if the organ
precluding wrongfulness of its conduct, certain legal is acting in the exercise of elements of the
consequences for the internationally wrongful act governmental authority of the State at whose
attributable to it, including the obligation to cease the disposal it is placed. (ASR, art. 6)
wrongful conduct and make such full reparation of
any material and moral damage to the injured State
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Excess of authority or contravention of participation… in the financing, organizing, training,

instructions; supplying and equipping of the contras, the selection
The conduct of an organ of a State or of a person or of its military or paramilitary targets, and the planning
entity empowered to exercise elements of the of the whole of its operation, is still insufficient in
governmental authority shall be considered an act of itself… for the purpose of attributing to the United
the State under international law if the organ, person States the acts committed by the contras in the
or entity acts in that capacity, even if it exceeds its course of their military or paramilitary operations in
authority or contravenes instructions. (ASR, art. 7) Nicaragua… and even the general control by the
respondent State over a force with a high degree of
Conduct directed or controlled by a State; dependency on it, would not in themselves mean,
The conduct of a person or group of persons shall be without further evidence, that the United States
considered an act of a State under international law directed or enforced the perpetration of the acts
if the person or group of persons is in fact acting on contrary to human rights and humanitarian law
the instructions of, or under the direction or control of, alleged by the applicant State…
that State in carrying out the conduct. (ASR, art. 8) For this conduct to give rise to legal responsibility of
the United States, it would in principle have to be
Conduct carried out in the absence or default of proved that that State had effective control of the
the official authorities; military or paramilitary operations in the course of
The conduct of a person or group of persons shall be which the alleged violations were committed.” (U.S.
considered an act of a State under international law v. Nicaragua, ¶115, Jun. 27, 1986)
if the person or group of persons is in fact exercising It was clarified in Bosnian genocide case that to
elements of the governmental authority in the prove effective control, it must be shown that
absence or default of the official authorities and in “…State’s instructions were given, in respect of each
circumstances such as to call for the exercise of operation in which the alleged violations occurred,
those elements of authority. (ASR, art. 9) not generally in respect of the overall actions taken
by the persons or groups of persons having
committed the violations.” [Case Concerning
Conduct of an insurrectional or other
Application of the Convention on the Prevention and
movement; and
Punishment of the Crime of Genocide (“Bosnian
The conduct of an insurrectional movement which
Genocide Case”), ¶400, Feb. 26, 2007]
becomes the new Government of a State shall be
considered an act of that State under international
law.
In the case of U.S. v. Nicaragua, on the question of
The conduct of a movement, insurrectional or other, the U.S.’ responsibility for the action of contras in
Nicaragua, the I.C.J. held that the:
which succeeds in establishing a new State in part of
the territory of a pre-existing State or in a territory
“United States participation… in the financing,
under its administration shall be considered an act of
the new State under international law. organizing, training, supplying and equipping of the
contras, the selection of its military or paramilitary
This article is without prejudice to the attribution to a targets, and the planning of the whole of its operation,
is still insufficient in itself… for the purpose of
State of any conduct, however related to that of the
movement concerned, which is to be considered an attributing to the United States the acts committed by
act of that State by virtue of articles 4 to 9. (ASR, art. the contras in the course of their military or
10) paramilitary operations in Nicaragua… and even the
general control by the respondent State over a force
with a high degree of dependency on it, would not in
Conduct acknowledged and adopted by a State themselves mean, without further evidence, that the
as its own United States directed or enforced the perpetration of
Conduct which is not attributable to a State under the the acts contrary to human rights and humanitarian
preceding articles shall nevertheless be considered law alleged by the applicant State…
an act of that State under international law if and to For this conduct to give rise to legal responsibility of
the extent that the State acknowledges and adopts the United States, it would in principle have to be
the conduct in question as its own. (ASR, art. 11) proved that that State had effective control of the
military or paramilitary operations in the course of
Effective Control which the alleged violations were committed.” (U.S.
In the case of U.S. v. Nicaragua, on the question of v. Nicaragua, ¶115, Jun. 27, 1986)
the U.S.’ responsibility for the action of contras in It was clarified in Bosnian genocide case that to
Nicaragua, the I.C.J. held that the: “United States prove effective control, it must be shown that
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“…State’s instructions were given, in respect of each Breach of International Obligation

operation in which the alleged violations occurred, There is a breach of an international obligation by a
not generally in respect of the overall actions taken State when an act of that State is not in conformity
by the persons or groups of persons having with what is required of it by that obligation,
committed the violations.” [Case Concerning regardless of its origin or character. (ASR, art. 12)
Application of the Convention on the Prevention and
Punishment of the Crime of Genocide (“Bosnian An act of a State does not constitute a breach of an
Genocide Case”), ¶400, Feb. 26, 2007] international obligation unless the State is bound by
the obligation in question at the time the act occurs.
Overall Control (ASR, art. 13)
In order to attribute the acts of a military or
paramilitary group to a State, it must be proved that Example:
the State wields overall control over the group, not “This inaction of the Iranian Government by itself
only by equipping and financing the group, but also constituted clear and serious violation of Iran's
by coordinating or helping in the general planning of obligations to the United States under…the 1961
its military activity. (Prosecutor v. Tadić, Appeals Vienna Convention on Diplomatic Relations, and
Chamber, 131, Jul. 15, 1999) …the 1963 Vienna Convention on Consular
Relations. Similarly, with respect to the attacks on the
Effective Control v. Overall Control Consulates at Tabriz and Shiraz, the inaction of the
On one hand, the Overall Control Test “is employed Iranian authorities entailed clear and serious
to determine whether or not an armed conflict is breaches of its obligations under the provisions of
international” (Bosnian Genocide Case, ¶404, Feb. several further articles of the 1963 Convention on
26, 2007) Consular Relations. So far as concerns the two
private United States nationals seized as hostages
The Effective Control Test, on the other hand, is used by the invading militants, that inaction entailed, albeit
to determine whether an act or acts are attributable incidentally, a breach of its obligations under …1955
to a State. Treaty of Amity, Economic Relations, and Consular
Rights which, in addition to the obligations of Iran
Genocide will be considered as attributable to a State existing under general international law, requires the
if and to the extent that the physical acts constitutive parties to ensure ‘the most constant protection and
of genocide that have been committed by organs or security’ to each other’s nationals in their respective
persons other than the State’s own agents were territories (U.S. v. Iran, ¶67, May 24, 1980).
carried out, wholly or in part, on the instructions or Serious Breach of Obligation Under Peremptory
directions of the State, or under its effective control. Norms of General International Law
(Bosnian Genocide Case, ¶401, Feb. 26, 2007) A breach of such an obligation arising under a
peremptory norm of general international law is
serious if it involves a gross or systematic failure by
EFFECTIVE OVERALL
the responsible State to fulfil the obligation. (ASR, art.
CONTROL CONTROL
40)
Used to determine the Used to determine
attributability of act/s to whether or not an Consequences:
States in the context of armed conflict is
1. States shall cooperate to bring to an end
State Responsibility international or not.
through lawful means any serious breach
Requires a higher Requires a lower within the meaning of article 40.
threshold of control as threshold of control as
2. No State shall recognize as lawful a situation
it must be shown that it only requires that
created by a serious breach within the
State’s instructions another State wields
meaning of article 40, nor render aid or
were given, in respect overall control over the
assistance in maintaining that situation.
of each operation in group, not only by
3. This article is without prejudice to the other
which the alleged equipping and
consequences referred to in this part and to
violations occurred, not financing the group,
such further consequences that a breach to
generally in respect of but also by
which this chapter applies may entail under
the overall actions coordinating or helping
international law. (ASR, art. 41)
taken by the persons or in the general planning
groups of persons of its military activity
having committed the
violations.
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Extension of Breaches of International 5. Distress

Obligation 6. Necessity
1. The breach of an international obligation by an 7. Compliance with Peremptory Norms
act of a State not having a continuing character (ASR, Ch. V).
occurs at the moment when the act is Consent
performed, even if its effects continue. Valid consent by a State to the commission of a given
2. The breach of an international obligation by an act by another State precludes the wrongfulness of
act of a State having a continuing character that act in relation to the former State to the extent
that the act remains within the limits of that consent.
extends over the entire period during which the
(ASR, art. 20)
act continues and remains not in conformity
with the international obligation.
Self-defense
3. The breach of an international obligation The wrongfulness of an act of a State is precluded if
requiring a State to prevent a given event the act constitutes a lawful measure of self- defense
occurs when the event occurs and extends taken in conformity with the Charter of the United
over the entire period during which the event Nations. (ASR, art. 21)
continues and remains not in conformity with
that obligation. (ASR, art. 14) Requisites of Self-Defense:
a. A State must have been the victim of an
Responsibility of a State in connection with the armed attack;
Act of Another State b. That State must declare itself as a victim of
1. A State which aids or assists another State in the an armed attack. The assessment on
commission of an internationally wrongful act by whether an armed attack had taken place or
the latter is internationally responsible for doing not, is done by the State who was subjected
so if: to the attack.
a. that State does so with knowledge c. In the case of collective self-defense, the
of the circumstances of the victim State must request for assistance.
internationally wrongful act; and (U.S. v. Nicaragua, ¶195)
b. the act would be internationally
wrongful if committed by that State. Countermeasure in Respect of an Internationally
(ASR, art. 16) Wrongful Act
2. A State which directs and controls another State The wrongfulness of an act of a State not in
in the commission of an internationally wrongful conformity with an international obligation towards
act by the latter is internationally responsible for another State is precluded if and to the extent that the
that act if: act constitutes a countermeasure taken against the
a. that State does so with knowledge latter State. (ASR, art. 22)
of the circumstances of the
internationally wrongful act; and Force Majeure
b. the act would be internationally The wrongfulness of an act of a State not in
wrongful if committed by that State. conformity with an international obligation of that
(ASR, art. 17) State is precluded if the act is due to force majeure,
3. A State which coerces another State to that is the occurrence of an irresistible force or of an
commit an act is internationally responsible for unforeseen event, beyond the control of the State,
that act if: making it materially impossible in the circumstances
a. the act would, but for the coercion, to perform the obligation.
be an internationally wrongful act of
the coerced State; and This does not apply if:
b. the coercing State does so with a. the situation of force majeure is due, either
knowledge of the circumstances of alone or in combination with other factors, to
the act. (ASR, art. 18) the conduct of the State invoking it; or
b. the State has assumed the risk of that
Circumstances Precluding Wrongfulness situation occurring. (ASR, art. 23)
1. Consent
2. Self-Defense Distress
3. Countermeasure in Respect of an The wrongfulness of an act of a State not in
conformity with an international obligation of that
Internationally Wrongful Act
State is precluded if the author of the act in question
4. Force Majeure
has no other reasonable way, in a situation of
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distress, of saving the author’s life or the lives of other internationally wrongful act.
persons entrusted to the author’s care.
Injury includes any damage, whether material or
This does not apply if: moral, caused by the internationally wrongful act of a
a. the situation of distress is due, either alone State. (ASR, art. 31)
or in combination with other factors, to the
conduct of the State invoking it; or State cannot invoke internal law
b. the act in question is likely to create a
comparable or greater peril. (ASR, art. 24) The responsible State may not rely on the provisions
of its internal law as justification for failure to comply
Necessity with its obligations to make reparations. (ASR, art.
Necessity may not be invoked by a State as a ground 32)
for precluding the wrongfulness of an act not in
conformity with an international obligation of that 3 forms of Reparation:
State unless the act: a. Restitution
a. is the only way for the State to safeguard an b. Compensation
essential interest against a grave and c. Satisfaction
imminent peril; and Either singly or in combination (ASR, art. 34).
b. does not seriously impair an essential
interest of the State or States towards which Restitution
the obligation exists, or of the international A State responsible for an internationally wrongful act
community as a whole. is under an obligation to make restitution, that is, to
reestablish the situation which existed before the
In any case, necessity may not be invoked by a State wrongful act was committed, provided and to the
as a ground for precluding wrongfulness if: extent that restitution:
a. the international obligation in question a. Is not materially impossible;
excludes the possibility of invoking b. Does not involve a burden out of all
necessity; or proportion to the benefit of the party deriving
b. the State has contributed to the situation of from restitution instead of compensation.
necessity. (ASR, art. 25) (ASR, art. 35)
Compliance with Peremptory Norms Compensation

Nothing in the ASR precludes the wrongfulness of The State responsible for an internationally wrongful
any act of a State which is not in conformity with an act is under an obligation to compensate for the
obligation arising under a peremptory norm of damage caused thereby, insofar as such damage is
general international law. (ASR, art. 26) not made good by restitution.
Implications and Consequences of State The compensation shall cover any financially
Responsibility assessable damage including loss of profits insofar
as it is established. (ASR, art. 36)
Duty to cease the act
Satisfaction
The State responsible for an internationally wrongful
The State responsible for the wrongful act is under act is under an obligation to give satisfaction for the
the obligation to: injury caused by that act insofar as it cannot be made
a. Cease the act if it is still continuing; and good by restitution or compensation.
b. Offer appropriate assurances and
guarantees of non-repetition, if Satisfaction may consist in an acknowledgement of
circumstances so require (ASR, art. 30). the breach, an expression of regret, a formal apology
or another appropriate modality.
The legal consequences of an internationally
wrongful act under this part do not affect the Satisfaction shall not be out of proportion to the injury
continued duty of the responsible State to perform and may not take a form humiliating to the
the obligation breached. (ASR, art. 29) responsible State. (ASR, art. 37)
Duty to make reparations
The responsible State is under an obligation to make
full reparation for the injury caused by the
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Objects and limits of countermeasures c. obligations of a humanitarian character

1. An injured State may only take prohibiting reprisals;
countermeasures against a State which is d. other obligations under peremptory norms of
responsible for an internationally wrongful general international law.
act in order to induce that State to comply
with its obligations. A State taking countermeasures is not relieved from
2. Countermeasures are limited to the non- fulfilling its obligations:
performance for the time being of a. under any dispute settlement procedure
international obligations of the State taking applicable between it and the responsible
the measures towards the responsible State;
State. b. to respect the inviolability of diplomatic or
3. Countermeasures shall, as far as possible, consular agents, premises, archives and
be taken in such a way as to permit the documents. (ASR, art. 50)
resumption of performance of the Termination of Countermeasures
obligations in question. (ASR, art. 49) Countermeasures shall be terminated as soon as the
responsible State has complied with its obligations
Proportionality of countermeasures under part two in relation to the internationally
Countermeasures must be commensurate with the wrongful act. (ASR, art. 53)
injury suffered, taking into account the gravity of the
internationally wrongful act and the rights in question. I. REFUGEES
(ASR, art. 51)
Definition
Conditions for Countermeasures As a result of events occurring before January 1,
1. Before taking countermeasures, an injured 1951, and owing to a well-founded fear of being
State shall: persecuted for reason of race, religion, nationality,
a. call upon the responsible State, in membership of a particular social group or political
accordance with [the procedure for opinion, is outside the country of his nationality, and
putting forward claims], to fulfil its is unable, or owing to such fear, is unwilling to avail
obligations; himself of the protection of that country.
b. notify the responsible State of any
decision to take countermeasures It is also one who, not having a nationality and being
and offer to negotiate with that outside the country of his former habitual residence
State. as a result of such events, is unable or, owing to such
2. Notwithstanding paragraph 1 (b), the injured fear, is unwilling to return to it. [1951 Convention
State may take such urgent Relating to the Status of Refugees (“1951
countermeasures as are necessary to Convention”), art. 1(A)(2)]
preserve its rights.
3. Countermeasures may not be taken, and if Governing Statutes
already taken must be suspended without The controlling international convention on refugee
undue delay if: law is the 1951 Convention relating to the Status of
a. the internationally wrongful act has Refugees (1951 Convention) and its 1967 Optional
ceased; and Protocol relating to the Status of Refugees.
b. the dispute is pending before a
court or tribunal which has the Persons not covered by the 1951 Convention
authority to make decisions binding Relating to the Status of Refugees
on the parties. 1. One who has committed a crime against
4. Paragraph 3 does not apply if the peace, a war crime, or a crime against
responsible State fails to implement the humanity, as defined in the international
dispute settlement procedures in good faith. instruments drawn up to make provision in
(ASR, art. 52) respect of such crimes;
2. One who has committed a serious non-
Obligations not Affected by Countermeasures political crime outside the country of refuge
Countermeasures shall not affect: prior to his admission to that country as a
a. the obligation to refrain from the threat or refugee;
use of force as embodied in the Charter of 3. One who has been guilty of acts contrary to
the United Nations; the purposes and principles of the United
b. obligations for the protection of fundamental Nations. [1951 Convention, art 1(F)].
human rights;
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Rights of Refugees 6. Right to receive the same treatment as that

Refugee law and international human rights law are accorded to aliens generally with regard to
closely intertwined; refugees are fleeing the following rights:
governments that are either unable or unwilling to a. The right to choose their place of
protect their basic human rights. Additionally, in residence (art. 26)
cases where the fear of persecution or threat to life b. The right to move freely within the
or safety arises in the context of an armed conflict, country (art. 26)
refugee law also intersects with international
humanitarian law. Principle of Non-Refoulement
No Contracting State shall expel or return (“refouler”)
Specific Rights under the 1951 Convention a refugee in any manner whatsoever to the frontiers
1. Right to have rights previously acquired and of territories where his life or freedom would be
dependent on personal status, more threatened on account of his race, religion,
particularly rights attaching to marriage, be nationality, membership of a particular social group
respected, subject to compliance [art. 12(2)] or political opinion.
2. Free access to courts of law [art. 16(1)]
3. Right to receive the same treatment as The benefit of the present provision may not,
nationals of the receiving country with however, be claimed by a refugee whom there are
regard to the following rights: reasonable grounds for regarding as a danger to the
a. Free exercise of religion and security of the country in which he is, or who, having
religious education (art. 4) been convicted by a final judgment of a particularly
b. Protection of rights in literary, serious crime, constitutes a danger to the community
artistic and scientific works (art. 14) of that country. (1951 Convention, art. 33)
c. Protection of intellectual property,
such as inventions and trade It does not distinguish between returning them to the
names (art. 14) State from which they might have come or to one that
d. Free access to the courts, including will also maltreat them.
legal assistance and exemption
from caution judicatum solvi [art. Internally Displaced Persons
16(2)] Persons or groups of persons who have been forced
e. Access to elementary education or obliged to flee or to leave their homes of places of
[art. 22(1)] habitual residence, in particular as a result of or in
f. Access to public relief and order to avoid the effects of armed conflict, situations
assistance (art. 23) of generalized violence, violations of human rights or
g. Protection provided by social natural or human-made disasters, and who have not
security [art. 24(1)(b)] crossed an internationally recognized State border.
h. Equal treatment by taxing (UN Guiding Principles on Internal Displacement,
authorities [art. 29(1)] par. 2)
4. Right to receive the most favorable
treatment provided to nationals of a foreign Stateless Persons
country with regard to the following rights: A person who is not considered as a national by any
a. Right of association (art. 15) State under the operation of its law. [1954
b. The right to engage in wage- Convention relating to the Status of Stateless
earning employment [art. 17(1)] Persons (“Statelessness Convention”), art. 1(1)]
5. Right to receive the most favorable
treatment possible, which must be at least Stateless Convention Not Applicable to the
as favorable to that accorded aliens Following:
generally in the same circumstances, with 1. To persons who are at present receiving
regard to the following rights: from organs or agencies of the United
a. The right to own property (art. 13) Nations other than the United Nations High
b. The right to self-employment (art. Commissioner for Refugees protection or
18) assistance so long as they are receiving
c. The right to practice a profession such protection or assistance;
[art. 19(1)] 2. To persons who are recognized by the
d. Access to housing (art. 21) competent authorities of the country in which
e. Access to higher education [art they have taken residence as having the
22(2)] rights and obligations which are attached to
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the possession of the nationality of that Asylum Seeker

country; A person who has left their country and is seeking
3. To persons with respect to whom there are protection from persecution and serious human rights
serious reasons for considering that: violations in another country, but who hasn’t yet been
a. they have committed a crime legally recognized as a refugee and is waiting to
against peace, a war crime, or a receive a decision on their asylum claim. (Amnesty
crime against humanity, as defined International)
in the international instruments
drawn up to make provisions in Foundlings
respect of such crimes;
b. they have committed a serious non- Definition
political crime outside the country of A foundling shall be a deserted or abandoned child
their residence prior to their or infant with unknown facts of birth and parentage.
admission to that country; This shall also include those who have been duly
c. they have been guilty of acts registered as a foundling during her or his infant
contrary to the purposes and childhood, but have reached the age of majority
principles of the United Nations. without benefitting from adoption procedures upon
[Statelessness Convention, art. the passage of this law (R.A 11767. Foundling
1(2)] Recognition and Protection Act)
Rights of Stateless Persons
Under the Statelessness Convention, a stateless A foundling found in the territory of a Contracting
person is entitled to, among others, the right to State shall, in the absence of proof to the contrary,
religion and religious instruction, access to courts, be considered to have been born within the territory
elementary education, public relief and assistance of parents possessing the nationality of that State.
and rationing of products in short supply, as well as (Poe-Llamanzares v. COMELEC, G.R. No. 221697,
treatment of no less favorable than that accorded to Mar. 8, 2016, citing 1961 United Nations Convention
aliens. on the Reduction of Statelessness, art. 2)
Also, under the Universal Declaration of Human These principles found in the two conventions are
Rights: generally accepted principles of international law.
a. Everyone has a right to the nationality. [9 art. (Poe-Llamanzares v. COMELEC, G.R. No. 221697,
15(1)] Mar. 8, 2016)
b. No one shall be arbitrarily deprived of his
nationality nor denied the right to change his That the Philippines is not a party to the 1930 Hague
nationality. [art. 15(2)] Convention nor to the 1961 Convention on the
Reduction of Statelessness does not mean that their
Types of Stateless Persons principles are not binding. While the Philippines is not
1. De Jure Stateless Persons - Persons who a party to the 1930 Hague Convention, it is a
are not nationals of any State, either signatory to the Universal Declaration on Human
because at birth or subsequently they were Rights, Article 15 (1) of which effectively affirms
not given any nationality, or because during Article 14 of the 1930 Hague Convention. Article 2 of
their lifetime they lost their own nationality the 1961 "United Nations Convention on the
and did not acquire a new one. (UN Study of Reduction of Statelessness" merely "gives effect" to
Statelessness, p.7) Article 15 (1) of the UDHR. (Poe-Llamanzares v.
COMELEC, G.R. No. 221697, Mar. 8, 2016)
2. De Facto Stateless Persons - Persons
who, having left the country of which they Citizenship of Foundlings
were nationals, no longer enjoy the Foundlings are citizens under international law.
protection and assistance of their national Article 24 of the International Covenant on Civil and
authorities, either because these authorities Political Rights provides for the right of every child “to
refuse to grant them assistance and acquire a nationality.” The Philippines is obligated
protection, or because they themselves under UDHR, UNCRC and ICCPR to grant nationality
renounce the assistance and protection of from birth and ensure that no child is stateless. This
the countries of which they are nationals. grant of nationality must be at the time of birth, and it
(UN Study of Statelessness, p. 7) cannot be accomplished by the application of our
present naturalization laws, Commonwealth Act No.
473, as amended, and RA 9139, both of which
require the applicant to be at least 18 years old. (Poe-
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Llamanzares v. COMELEC, G.R. No. 221697, Mar. Exceptions to the Exception:

8, 2016) 1. Attentat clause - murder of the Head of a foreign
Government or of a member of his family, should
In a case decided by the Supreme Court, the Chief not be considered a political crime.
Justice pointed out that in 166 out of 189 countries
surveyed (or 87.83%), foundlings are recognized as Although the attentat clause originated in
citizens. These circumstances, including the practice Belgium in 1856, it has since been widely
of jus sanguinis countries, show that it is a generally adopted. [Oppenheim’s International Law, Vol. 1
accepted principle of international law to presume Peace (9th Ed.), 2008, p. 969]
foundlings as having been born of nationals of the
country in which the foundling is found. (Poe- 2. Article 7 of the Genocide Convention 1948
Llamanzares v. COMELEC, G.R. No. 221697, Mar. provides that the crime of genocide shall not be
8, 2016) considered a political crime for the purpose of
avoiding extradition in accordance with laws and
J. EXTRADITION treaties in force. [Oppenheim’s International Law,
Vol. 1 Peace (9th Ed.), 2008, p. 970]
Definition
The removal of an accused from the Philippines with Principle of Specialty
the object of placing him at the disposal of foreign A condition of extradition that the surrendered
authorities to enable the requesting state or individual shall be tried and punished for those
government to hold him in connection with any crimes exclusively for which his extradition has been
criminal investigation directed against him or the asked and granted, or for those at least which the
execution of a penalty imposed on him under the extradition treaty concerned enumerates.
penal or criminal law of the requesting state or [Oppenheim’s International Law, Vol. 1 Peace (9th
government. [Philippine Extradition Law, Section Ed.), 2008, p. 961]
2(a)]
Who may be Extradited
Extradition means the surrender of a person by one In principle, any individual, whether he is a national
state to another state where he is wanted for of the prosecuting state, or of the state which is
prosecution or, if already convicted, for punishment. required to extradite him, or of a third state, may be
extradited. [Oppenheim’s International Law, Vol. 1
Fundamental Principles Peace (9th Ed.), 2008, p. 955]
General Rule: There can only be extradition if there Absence of a Special Agreement
is a treaty between the States. (Philippine Extradition In the absence of special agreement, the offense
Law, Sec. 3) Outside a treaty, there is no rule in must have been committed within the territory or
international law compelling a State to extradite against the interests of the demanding state.
anyone.
Aut dedere aut judicare
Extradition may also sometimes take place as a This means “either extradite or prosecute.”
matter of comity in the absence of an extradition
treaty, if the states concerned are willing to allow it, This principle is found in several multilateral treaties
although this has occasioned protests from a third dealing with offences evoking the general
state whose nationals are extradited in such condemnation of the international community have
circumstances [Oppenheim’s International Law, Vol. adopted the practice of obliging parties either to
1 Peace (9th Ed.), 2008, pp. 951-952] extradite persons found on their territory but wanted
for trial on such an offence by another party, or to try
Exception: Political criminals are, as a rule, not such persons themselves. [Oppenheim’s
extradited, and according to many extradition International Law, Vol. 1 Peace (9th Ed.), 2008, p.
treaties, military deserters and persons who have 953]
committed offences against religion are likewise
excluded from extradition; and many states refuse A state subject to this obligation is bound to extradite
extradition if the death penalty will be enforced for the if it does not prosecute, and prosecute if it does not
crime. [Oppenheim’s International Law, Vol. 1 Peace extradite.
(9th Ed.), 2008, p. 959]
Principle of Double Criminality
According to this, extradition is only granted in
respect of a deed which is a crime according to the
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law of the state which is asked to extradite, as well as 6. Appeal to CA within 10 days whose decision
of the state which demands extradition— although shall be final and executory
not necessarily a crime of the same name in each, so 7. Decision forwarded to DFA through the DOJ
long as there is a substantial similarity between the 8. Individual placed at the disposal of
offences in each state. This is usually included in authorities of the requesting State. The
extradition treaties. [Oppenheim’s International Law, costs and expenses is to be shouldered by
Vol. 1 Peace (9th Ed.), 2008, p. 958] the Requesting State. (Philippine Extradition
Law, §§ 4-8, 12, 16 & 18).
Extradition for a crime before treaty effectivity
A party to an extradition treaty may ask the other Distinguished from deportation
party to extradite a person for a crime committed a. Extradition is the “removal of an accused
before the effectivity of a treaty. It does not violate the from the Philippines with the object of
prohibition against ex post facto laws. The placing him at the disposal of foreign
constitutional prohibition applies to penal laws only. authorities.” (PD 1069, §2(a)). It is a form of
An extradition treaty is not a penal law. (Wright v. CA, international judicial assistance designed to
G.R. No. 113213, Aug. 15, 1994). deny criminals a safe haven abroad. It is a
formal procedure whereby an individual,
Notice and Hearing accused or convicted of a crime under the
A person does not have the right to notice and laws of one State, is arrested in another
hearing during the evaluation stage of the extradition State and handed over to the former State,
process. Extradition is a proceeding sui generis. It is at that State’s request, for trial or
not a criminal proceeding which will call into punishment. (Boczek, The A to Z of
operation all the rights of an accused guaranteed by International Law, 60, 2010).
the Bill of Rights. The process of extradition does not b. Deportation is the act or an instance of
involve the determination of the guilt or innocence of removing a person to another country.
an accused. There is no deprivation of the right to due (Black’s Law Dictionary, 504, 2004). It is
process. (Secretary of Justice v. Hon. Lantion and exercised by the President to expel or deport
Mark Jimenez, G.R. No. 139465, Oct. 17, 2000). aliens whose presence is deemed inimical to
the public interest. Deportation is based on
Right to Bail the face that since the aliens are not part of
An extraditee should not be deprived of his right to the nation, their admission to the territory is
apply for bail, provided that a certain standard for the a matter of purse permission and simple
grant is satisfactorily met. The standard of proof tolerance which creates no obligation on the
required in granting or denying bail in extradition part of the government to permit them to
cases is clear and convincing evidence that the stay. (Djumantan v. Domingo, G.R. No.
extraditee is not a flight risk and will abide with the 99358, Jan. 30, 1995)
orders of the extradition court. (Government of Hong
Kong v. Olalia, Jr., G.R. No.153675, Apr. 19, 2007). Extradition v. Deportation
EXTRADITION DEPORTATION
If bail can be granted in deportation proceedings, Effected at the request Unilateral act of the
there is no justification not to allow it for extradition of another state State
because both are administrative proceedings where Based on Offenses Based on causes
the innocence or guilt of the parties is not in issue. Committed in the State arising in the local State
(Government of Hong Kong v. Olalia, Jr., G.R. or origin
No.153675, Apr. 19, 2007). Calls for the return of An undesirable alien
the fugitive to the may be deported to a
Procedure for Extradition requesting state State other than his
1. Foreign diplomat of the Requesting State or own or the State of
Government requests for extradition with origin
Secretary of Foreign Affairs.
2. DFA forwards request to DOJ. Aliens may be expelled or deported from the
3. DOJ files a petition for extradition with RTC. Philippines only on grounds and in the manner
4. RTC issues summons or Warrant of Arrest provided for by the Constitution, the Philippine
to compel the appearance of the individual. Immigration Act of 1940, as amended and
5. Hearing (provide for counsel de officio if the administrative issuances pursuant thereto. (Sec. of
accused does not have a legal counsel at Justice v. Koruga, G.R. No. 166199, Apr. 24, 2009).
the day of the hearing).
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K. BASIC PRINCIPLES OF as Resolution 217A (III). As a resolution, it is merely

INTERNATIONAL HUMAN RIGHTS recommendatory.
LAW
Despite this, the UDHR is considered a normative
instrument that creates binding obligations for all
PRELIMINARIES
states because of the consensus evidenced by the
Definition of Human Rights
practice of states that the UDHR is now binding as
Human rights are rights that every human being has
part of international law (Carillo).
by virtue of his or her human dignity. [OHCHR,
Human Rights Handbook for Parliamentarians (“HR
Rights Covered
Handbook”), p. 19]
The UDHR embodies both first and second
Basic Principles of Human Rights
generation rights.
Human rights are:
a. Universal - Human rights are universal
The civil and political rights enumerated include:
because they are based on every human
1. The right to life, liberty, and security of
being's dignity, irrespective of race, color,
person (art. 3);
sex, ethnic or social origin, religion,
2. Prohibition against slavery or servitude (art.
language, nationality, age, sexual
4);
orientation, disability or any other
3. Prohibition against torture or cruel, inhuman
distinguishing characteristic. (HR
or degrading treatment or punishment (art.
Handbook, p. 21)
5);
b. Inalienable – No person may be divested of
4. The right not to be subjected to arbitrary
his or her human rights, save under clearly
arrest, detention or exile (art. 9);
defined legal circumstances. (HR
5. The right to a fair and public hearing by an
Handbook, p. 22)
independent and impartial tribunal, in the
c. Indivisible and Interdependent - Each
determination of his rights and obligations
human right entails and depends on other
and of any criminal charge against him (art.
human rights, violating one such right affects
10);
the exercise of other human rights. (HR
6. The right to a nationality, to not be arbitrarily
Handbook, p. 22)
deprived of such and to not be denied the
d. Non-discriminatory - The right to equality
right to change it (art. 15).
and the prohibition of discrimination,
7. The right to freedom of thought, conscience
explicitly set out in international and regional
and religion (art. 18);
human rights treaties, are central to the
8. The right to freedom of opinion and
protection of all human rights. (HR
expression (art. 19);
Handbook, p. 23)
9. Right to peaceful assembly and association
(art. 20);
Rights Classification
10. The right to take part in the government of
1. First generation rights consist of civil and
his country [art. 21(1)].
political rights;
2. Second generation rights consist of
The economic, social and cultural rights
economic, social and cultural rights;
enumerated include:
3. Third generation rights consist of the rights
11. The right to social security (art. 22);
to development, to peace, and to
12. The right to work and protection against
environment. (Vasak)
unemployment [art. 23(1)];
13. The right to equal pay for equal work [art.
UNIVERSAL DECLARATION OF HUMAN RIGHTS 23(2)];
(“UDHR”)
14. The right to form and join trade unions [art.
23(4)];
Overview 15. The right to rest and leisure [art. 24].
The UDHR, adopted by the UN General Assembly in
1948, was the first legal document to set out the UDHR as Customary International Law
fundamental human rights to be universally Rights covered by UDHR are customary international
protected. (OHCHR Website, What are human law; hence, even during the times when the Bill of
rights?, ¶ 2). Rights under the Constitution are inoperative, rights
under UDHR remained in effect. (Republic v.
It is not a treaty. It has no obligatory character
Sandiganbayan, G.R. No. 104768, Jul. 21, 2003)
because it was adopted by the UN General Assembly
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any of those rights must be permissible under the

INTERNATIONAL COVENANT ON CIVIL AND relevant provisions of the Covenant.
POLITICAL RIGHTS (ICCPR)
Overview Where such restrictions are made, States must
The ICCPR is an international covenant and is demonstrate their necessity and only take such
binding on the respective state parties. It embodies measures as are proportionate to the pursuance of
the first generation of human rights, although it lists legitimate aims in order to ensure continuous and
more rights than the UDHR. effective protection of Covenant rights.
Rights Guaranteed In no case may the restrictions be applied or invoked

1. Right of the peoples to self-determination in a manner that would impair the essence of a
[art. 1(1)] Covenant right. [General Comment No. 31, ¶6]
2. Right to an effective remedy [art. 2(3)(a)]
3. Equal rights of men and women in the States Parties are required by article 2, paragraph 1,
enjoyment of civil and political rights/non- to respect and to ensure the Covenant rights to all
discrimination on the basis [arts. 3 & 4(1)] persons who may be within their territory and to all
4. Right to life [art. 6(1)] persons subject to their jurisdiction. This means that
5. Freedom from torture or cruel, inhuman or a State party must respect and ensure the rights laid
degrading treatment or punishment (art. 7) down in the Covenant to anyone within the power or
6. Freedom from slavery and servitude [arts. effective control of that State Party, even if not
8(1)-(2)] situated within the territory of the State Party.
7. Right to liberty and security of person [art. [General Comment No. 31, ¶10]
9(1)]
8. Right to be treated with humanity in cases of
deprivation of liberty [art. 10(1)] Obligations of State Parties under the ICCPR
9. Freedom from imprisonment for failure to (art.2)
fulfill a contractual obligation (art. 11) 1. State parties undertake to respect and to
10. Freedom of movement and the right to travel ensure to all individuals within their territory
[art. 12(1)] and subject to their jurisdiction the rights
11. Right to a fair, impartial and public trial [art. enumerated therein, without distinction of
14(1)] any kind, such as race, color, sex, language,
12. Freedom from ex post facto laws [art. 15(1)] religion, political or other opinion, national or
13. Right of recognition everywhere as a person social origin, birth or other status.
before the law (art. 16) 2. State parties are required to take the
14. Right to privacy [art. 17(1)] necessary steps to adopt legislative or other
15. Freedom of thought, conscience, and measures that are necessary to give effect
religion [art. 18(1)] to the rights recognized in the ICCPR.
16. Freedom of expression [art. 19(2)] 3. State parties must ensure that any person
17. Freedom of peaceful assembly (art. 21) whose rights or freedoms are violated have
18. Freedom of association [art. 22(1)] an effective remedy, notwithstanding that
19. Right to marry and found a family [art. 23(2)] the violation has been committed by persons
20. Right of a child to protection, a name and action in an official capacity.
nationality (art. 24) 4. State parties must ensure that any person
21. Right to participation, suffrage, and access claiming such remedy shall have his right
to public service (art. 25) thereto determined by competent judicial,
22. Right to equal protection before the law (art. administrative or legislative authority, and
26) that they shall enforce the remedy when
23. Right of minorities to enjoy their own culture, granted.
to profess and practice their religion and to
use their own language (art. 27). Non-Derogable Rights
1. Article 4 of the ICCPR provides that even in
Nature of the Obligations under ICCPR times of public emergency that threatens the
The legal obligation under article 2, paragraph 1, is life of the nation, no derogation may be
both negative and positive in nature. made from the following rights:
2. Right to life [art. 6);
States Parties must refrain from violation of the rights 3. Prohibition of torture, cruel, inhuman and
recognized by the Covenant, and any restrictions on degrading treatment (art. 7);
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4. Prohibition of medical or scientific INTERNATIONAL COVENANT ON ECONOMIC,

experimentation without consent (art. 7); SOCIAL, AND CULTURAL RIGHTS (ICESCR)
5. Prohibition of slavery, slave trade and
servitude (art. 8); The ICESCR, like the ICCPR, is an international
6. Prohibition of imprisonment because of covenant and is binding on the respective State
inability to fulfil contractual obligation (art. Parties. It embodies the second generation of human
11); rights, although it lists more rights than the UDHR.
7. Principle of legality in criminal law i.e. the
requirement that criminal liability and Rights Guaranteed
punishment is limited to clear and precise 1. Right of self-determination
provisions in the law, that was in force at the 2. Right to work and accompanying rights
time the act or omission took place, except thereto
in cases where a later law imposes a lighter 3. Right to social security and other social
penalty (art. 15); rights
8. Recognition everywhere as a person before 4. Adequate standard of living including:
the law (art. 16); a. Right to adequate housing
9. Freedom of thought, conscience and religion b. Right to adequate food
(art. 18) c. Right to adequate clothing
Lawful Derogation Under ICCPR d. Right to the continuous
Before a State moves to invoke article 4 (and improvement of living conditions
temporarily derogates from its obligations), two 5. Right to health
fundamental conditions must be met: 6. Right to education
a. the situation must amount to a public 7. Cultural rights
emergency which threatens the life of the
nation, and State Parties’ Obligations In ICESCR
b. the State party must have officially General Duties/ Obligations of States
proclaimed a state of emergency. (General 1. Respect - Refrain from interfering with
Comment No. 29, ¶2) enjoyment of rights.
2. Protect (negative obligation) - Prevent
Permissible Derogations violations by third parties.
1. During a state of emergency threatening the 3. Fulfill (positive obligation) - Take appropriate
life of the nation; and measures towards the full realization of the
2. subject to compliance with conditions: rights. (OHCHR, FAQ on Economic, Social,
a. Prescribed by Law and Cultural Rights, p. 11)
b. Legitimate Aim
c. Reasonableness Specific Obligations Under Article 2 of the
d. Necessity: necessary to protect the ICESCR (Progressive Realization Clause)
invoked legitimate aim 1. Take steps to the maximum extent of
e. Proportionality: it is the least available resources, towards the
intrusive measure available. progressive realization of the rights in the
f. Compatibility with the aims and covenant.
provisions of the ICCPR: 2. Non-discrimination - States guarantee the
derogation should not undermine exercise of the rights without discrimination.
the state’s ability to respect and
protect other rights found in the Minimum Core Obligations
ICCPR Governments, no matter what level of resources are
at their disposal, are obligated to make sure that
Right to Life people living under their jurisdiction enjoy at least
The right to life is a right that should not be interpreted essential levels of protection of each of their
narrowly. It concerns the entitlement of individuals to economic, social, and cultural rights. While the
be free from acts and omissions that are intended or ICESCR recognizes the principle of progressive
may be expected to cause their unnatural or realization of ESCR, this does not mean that states
premature death, as well as to enjoy a life with are free to postpone undertaking their duties vis-à-vis
dignity. Article 6 of the Covenant guarantees this right ESCR until a later date. Protection from starvation,
for all human beings, without distinction of any kind, primary education, emergency healthcare, and basic
including for persons suspected or convicted of even housing are among the minimum requirements to live
the most serious crimes. (General Comment No. 36, a dignified life and it is the duty of governments to
¶3) ensure these at all times. Even in cases of economic
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downturn or other emergency, these core the United Nations Charter of 1945, are the
requirements must be guaranteed to everyone. core ingredients of jus ad bellum
States should use all the available resources, 2. Jus in bello regulates the conduct of parties
including international assistance, to make sure that engaged in an armed conflict. IHL is
every individual in their territory enjoys a bare synonymous with jus in bello; it seeks to
minimum of ESCR. (ESCR-net, Minimum Core minimize suffering in armed conflicts,
Obligations) notably by protecting and assisting all
victims of armed conflict to the greatest
Right to Health extent possible. (ICRC)
The right to health is not to be understood as a right
to be healthy. The right to health contains both Two Branches
freedoms and entitlements. The freedoms include the 1. Law of The Hague - the body of rules
right to control one’s health and body, including establishing the rights and obligations of
sexual and reproductive freedom, and the right to be belligerents in the conduct of hostilities, and
free from interference, such as the right to be free which limits means and methods of warfare.
from torture, non-consensual medical treatment and
experimentation. By contrast, the entitlements 2. Law of Geneva - the body of rules that
include the right to a system of health protection protects victims of armed conflict, such as
which provides equality of opportunity for people to military personnel who are hors de combat
enjoy the highest attainable level of health. (General and civilians who are not or are no longer
Comment No. 14, ¶8) directly participating in hostilities (ICRC)
States are obligated to provide health facilities, goods International Human Rights Law v. International
and services that are available, accessible, Humanitarian Law
acceptable, and of quality (AAAQ). (General
Comment No. 14, ¶12) IHRL IHL
L. BASIC PRINCIPLES OF
INTERNATIONAL HUMANITARIAN Both are aimed at protecting the individual and
LAW apply simultaneously in times of international
& non-international armed conflicts.
Overview
International humanitarian law (IHL) regulates
relations between States, international organizations Protects the individual Regulates the
and other subjects of international law. It is a branch from abusive or arbitrary conduct of hostilities
of public international law that consists of rules that, exercise of power by and the protection of
in times of armed conflict, seek – for humanitarian State authorities persons in situations
reasons – to protect persons who are not or are no of armed conflict
longer directly participating in the hostilities, and to
restrict means and methods of warfare.
Human rights law applies The personal,
In other words, IHL consists of international treaty or only where individuals material and territorial
customary rules (i.e. rules emerging from State find themselves within applicability
practice and followed out of a sense of obligation) territory controlled by a of IHL essentially
that are specifically meant to resolve humanitarian State, including occupied depends on the
issues arising directly from armed conflict, whether of territories (territorial existence of a nexus
an international or a non-international character. jurisdiction), or where a with an armed
[International Committee of the Red Cross (“ICRC”)]. State exercises effective conflict
control, most commonly
physical custody, over
Jus ad Bellum v. Jus in Bello individuals outside its
1. Jus ad bellum refers to the conditions under territorial jurisdiction
which States may resort to war or to the use (personal jurisdiction).
of armed force in general. The prohibition
against the use of force amongst States and
the exceptions to it (self-defense and UN
authorization for the use of force), set out in
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Human rights law IHL also directly “Armed Conflict” Defined in

focuses specifically on protects, for example, International Humanitarian Law?,
human beings livestock, civilian ICRC, Opinion Paper, March 2008,
objects, cultural p. 2 (“ICRC Opinion Paper”)]
property, the 2. Non-international armed conflicts
environment and the (“NIAC”), between governmental forces
political order of and non-governmental armed groups, or
occupied territories. between such groups only. (ICRC Opinion
Human rights law is IHL is binding on all Paper, p. 1)
binding only on States parties to an armed
conflict, including Armed conflicts subject to foreign intervention are a
non-State armed special form of armed conflict sometimes also less
groups accurately referred to as “internationalized” armed
conflicts. In essence, this concept refers to a State,
or coalition of States, intervening in a pre-existing
Human rights law applies IHL applies only in non-international armed conflict, thereby becoming a
irrespective of whether armed conflicts and is (co-belligerent) party to that conflict. (Intro to IHL, p.
there is an armed conflict. specifically designed 73).
In times of public for such situations.
emergency, however, Therefore, unless International Armed Conflicts (IAC)
human rights law allows expressly foreseen in
for derogations from the relevant treaty An international armed conflict occurs when one or
protected rights to the provisions, the rules more States have recourse to armed force against
extent actually required and principles of IHL another State, regardless of the reasons or the
by the exigencies of the cannot be derogated intensity of this confrontation. No formal declaration
situation. from of war or recognition of the situation is required.
[Table made from IHL: A Comprehensive
The existence of an international armed conflict, and
Introduction (“Intro to IHL”), p. 27-30]
as a consequence, the possibility to apply IHL to this
situation, on what actually happens on the ground. It
CATEGORIES OF ARMED CONFLICT
is based on factual conditions. (ICRC)
Armed Conflict v. War General Rule: Under Article 2(4) of the UN Charter,
all Members shall refrain in their international
ARMED CONFLICT WAR relations from the threat or use of force against the
Today, an international Traditionally, States territorial integrity or political independence of any
armed conflict is expressed their state, or in any other manner inconsistent with the
presumed to exist as belligerent intent Purposes of the United Nations.
soon as a State uses (animus belligerendi)
armed force against through formal Exception: Nothing in the present Charter shall
another State, declarations of war, impair the inherent right of individual or collective
regardless of the which, ipso facto, self-defense if an armed attack occurs against a
reasons for or intensity created a political state Member of the United Nations, until the Security
of the confrontation, of war and triggered the Council has taken measures necessary to maintain
and irrespective of applicability of the law international peace and security. (UN Charter, art. 51
whether a political state of war (jus in bello)
of war has been between them, even in Anticipatory Self Defense
formally declared or the absence of open Article 51 of the UN Charter recognizes the inherent
recognized. hostilities. right of States to self-defense if an armed attack
(Table made from Intro to IHL, p. 56) occurs.
Types of Armed Conflict Collective Self-Defense

IHL distinguishes two types of armed conflicts, Before a State can be justified in assisting another by
namely: way of collective self -defense:
1. International armed conflicts (“IAC”), 1. A State must have been the victim of an
opposing two or more States armed attack;
a. Wars of National Liberation are also 2. That State must declare itself as a victim of
considered IAC. [How is the Term an armed attack. The assessment of
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whether an armed attack had taken place or

not, is done by the State who was subjected Requisites of an NIAC:
to the attack. A third State cannot exercise a a. Protracted armed violence
right of collective self-defense based on that b. Such armed violence is between
third State’s own assessment; governmental authorities and organized
3. In the case of collective self-defense, the armed groups or between such groups
victim State must request for assistance. within a State. (Prosecutor v. Tadić Trial
(U.S. v. Nicaragua, ¶232, Jun. 27, 1986) Decision, ¶561, May 7, 1997)
Self Defense v. Just War Threshold of Protracted Armed Violence

SELF-DEFENSE JUST WAR A criterion that in practice has been interpreted as
It refers to the use of Once a State has a referring more to the intensity of the armed violence
force to repel an attack valid reason for than to its duration.
or imminent threat of resorting to
attack directed against force, there is no limit Indicative factors for assessing “intensity” have
oneself or others or a on the extent of force included: “the number, duration and intensity of
legally protected which could be individual confrontations; the type of weapons and
interest. employed. other military equipment used; the number and
caliber of munitions fired; the number of persons and
Self-defense in type of forces partaking in the fighting; the number of
international law refers casualties; the extent of material destruction; and the
to the inherent right of a number of civilians fleeing combat zones. (Intro to
State to use of force in IHL, p.70)
response to an armed
attack. (ICRC) Organized Armed Group
Internal or Non-International Armed Conflict The armed wing of a non-state party to a non-
(NIAC) international armed conflict, and may be comprised
These are armed conflicts that take place in the of either:
territory of a High Contracting Party between its dissident armed forces (for example, breakaway
armed forces and dissident armed forces or other parts of state armed forces); or
organized armed groups which, under responsible other organized armed groups which recruit their
command, exercise such control over a part of its members primarily from the civilian population but
territory as to enable them to carry out sustained and have developed a sufficient degree of military
concerted military operations. organization to conduct hostilities on behalf of a party
to the conflict.
It does not include situations of internal disturbances
and tensions, such as riots, isolated and sporadic The term organized armed group refers exclusively
acts of violence and other acts of a similar nature, as to the armed or military wing of a non-state party to a
not being armed conflicts. [Additional Protocol II to non-international armed conflict. It does not include
the Geneva Conventions of 1949 (AP II)], art. 1]. those segments of the civilian population that are
supportive of the non-state party such as its political
Difference of AP II, art. 1 and Common Article 3 wing. (ICRC)
of the Geneva Conventions
The level of organization of non-State armed groups
A NIAC within the meaning of common Article 3 does has in practice been assessed based on a series of
not necessarily have to involve a government; it can indicative factors including elements such as: “the
also take place entirely between organized armed existence of a command structure and disciplinary
groups, a scenario that is particularly relevant in rules and mechanisms within the group; the
areas existence of a headquarters; the fact that the group
of weak governance, such as so-called “failed controls a certain territory; the ability of the group to
States.” gain access to weapons, other military equipment,
recruits and military training; its ability to plan,
In order for a non-State armed group to be coordinate and carry out military operations,
considered a “party” to a conflict, common Article 3 including troop movements and logistics; its ability to
does not require any recognition of belligerency by define a unified military strategy and use military
the opposing State, nor popular support, territorial tactics; and its ability to speak with one voice and
control or political motivation. (Intro to IHL, p. 68)
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negotiate and conclude agreements such as cease- 2. It is forbidden to kill or injure an enemy who
fire or peace accords. surrenders or who is hors de combat .
[Additional Protocol II to the Geneva Conventions of 3. The wounded and sick shall be collected and
1949 (AP II), art. 1]. (Intro to IHL, p.69) cared for by the party to the conflict which
has them in its power. Protection also covers
medical personnel, establishments,
Internationalized Armed Conflict transports and equipment. The emblem of
An internationalized armed conflict refers to an the red cross or the red crescent is the sign
internal conflict that had become internationalized of such protection and must be respected.
because of external support. An NIAC becomes 4. Captured combatants and civilians under
internationalized when another State has overall the authority of an adverse party are entitled
control over an organized armed group, which is to respect for their lives, dignity, personal
going beyond the mere financing and equipping of rights and convictions. They shall be
such forces and involving also participation in the protected against all acts of violence and
planning and supervision of military operations. reprisals. They shall have the right to
(Prosecutor v. Tadić) correspond with their families and to receive
relief.
Wars of National Liberation 5. Everyone shall be entitled to benefit from
Armed conflicts in which people are fighting against fundamental judicial guarantees. No one
colonial domination and alien occupation and against shall be held responsible for an act he has
racist regimes in the exercise of their right of self- not committed. No one shall be subjected to
determination. Those engaged in such a conflict physical or mental torture, corporal
receive combatant status and are entitled to punishment or cruel or degrading treatment.
combatant rights and duties. This conflict is 6. Parties to a conflict and members of their
considered an international armed conflict under armed forces do not have an unlimited
Article 1, 3rd and 4th pars., Protocol 1. (Additional choice of methods and means of warfare. It
Protocol I to the Geneva Conventions of 1949). is prohibited to employ weapons or methods
of warfare of a nature to cause unnecessary
Wars by peoples against racist, colonial and alien losses or excessive suffering.
domination “for the implementation of their right to 7. Parties to a conflict shall at all times
self-determination and independence is legitimate distinguish between the civilian population
and in full accord with principles of international law,” and combatants in order to spare civilian
and that any attempt to suppress such struggle is population and property. Neither the civilian
unlawful [Resolution 3103 (XXVIII)]. population as such nor civilian persons shall
be the object of attack. Attacks shall be
When peoples subjected to alien domination resort to directed solely against military objectives.
forcible action in order to exercise their right to self- (Basic Rules of International Humanitarian
determination, they “are entitled to seek and to Law in Armed Conflicts, ICRC, Dec. 31,
receive support in accordance with the purposes and 1988)
principles of the Charter.” [UN GA Reso. 2625 (XXV)]
The ICCPR, particularly its protection on the right to
CORE INTERNATIONAL OBLIGATIONS OF life, does not determine the legality of the use of
STATES IN INTERNATIONAL HUMANITARIAN nuclear weapons in an armed conflict. What applies
LAW is the lex specialis, which is the IHL. It determines
whether the taking of life in times of war has been
Common Article 1 of all four Geneva Conventions is arbitrary.
a key provision when it comes to a state’s
responsibilities under IHL. It provides that states are International Humanitarian Law covers two
responsible to “respect and ensure respect” for the areas:
conventions in all circumstances. 1. the protection of those who are not, or no
longer, taking part in the fighting; and
In general, IHL defines the following obligations: 2. restrictions on the means of warfare, in
1. Persons hors de combat and those who do particular, weapons and methods of warfare,
not take a direct part in hostilities are entitled such as military tactics. (What is
to respect for their lives and their moral and International Humanitarian Law?, Advisory
physical integrity. They shall in all Service on International Humanitarian Law,
circumstances be protected and treated ICRC, Jul. 2004)
humanely without any adverse distinction.
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Obligations are found primarily in the four Geneva Principle of Distinction

Conventions of 1949 and the Additional Protocols The principle of distinction is a fundamental principle
I and II thereto. Other sources include: of international humanitarian law which provides that
 1954 Convention for the Protection of parties to an armed conflict must “at all times
Cultural Property in the Event of Armed distinguish between the civilian
Conflict, and its two protocols; population and combatants and between civilian
 1972 Biological Weapons Convention; objects and military objectives and accordingly shall
direct their operations only against military
 1980 Conventional Weapons Convention
objectives”.
and its five protocols;
 1993 Chemical Weapons Convention; This implies that indiscriminate attacks and the use
 1997 Ottawa Convention on anti-personnel of indiscriminate means and methods of warfare are
mines; prohibited. (ICRC)
 2000 Optional Protocol to the Convention on
the Rights of the Child on the involvement of Perfidy
children in armed conflict (What is It is prohibited to kill, injure or capture an adversary
International Humanitarian Law?, Advisory by resort to perfidy. Acts inviting the confidence of an
Service on International Humanitarian Law, adversary to lead him to believe that he is entitled to,
ICRC, Jul. 2004) or is obliged to accord, protection under the rules of
international law applicable in armed conflict, with
PRINCIPLES ON INTERNATIONAL intent to betray that confidence, shall constitute
HUMANITARIAN LAW perfidy.
4 Principles of IHL The following acts are examples of perfidy:

1. Humanity a. The feigning of an intent to negotiate under
2. Proportionality a flag of truce or of a surrender;
3. Distinction b. the feigning of an incapacitation by wounds
4. Military Necessity or sickness;
c. the feigning of civilian, non-combatant
Principle of Humanity status; and
The principle of humanity forbids the infliction of all d. the feigning of protected status by the use of
suffering, injury or destruction not necessary for signs, emblems or uniforms of the United
achieving the legitimate purpose of a conflict. (ICRC) Nations or of neutral or other States not
Parties to the conflict. (AP I, art. 37)
Principle of Proportionality
The principle of proportionality prohibits attacks Ruses of War
against military objectives which are “expected to Ruses of war are not prohibited. Such ruses are acts
cause incidental loss of civilian life, injury to civilians, which are intended to mislead an adversary or to
damage to civilian objects, or a combination thereof, induce him to act recklessly but which infringe no rule
which would be excessive in relation to the concrete of international law applicable in armed conflict and
and direct military advantage anticipated”. which are not perfidious because they do not invite
the confidence of an adversary with respect to
In other words, the principle of proportionality seeks protection under that law. The following are examples
to limit damage caused by military operations by of such ruses: the use of camouflage, decoys, mock
requiring that the effects of the means and methods operations and misinformation. (AP I, art. 37)
of warfare used must not be disproportionate to
the military advantage sought. (ICRC) Hors de combat
Under Article 41(2), Protocol I, a person is hors de
Military Necessity combat if:
The principle of military necessity permits only that 1. He is in the power of an adverse party;
degree and kind of force required to achieve the 2. He clearly expresses an intention to
legitimate purpose of a conflict, i.e. the complete or surrender; or
partial submission of the enemy at the earliest 3. He has been rendered unconscious or is
possible moment with the minimum expenditure of otherwise incapacitated by wounds or
life and resources. It does not, however, permit the sickness, and is therefore incapable of
taking of measures that would otherwise be defending himself;
prohibited under IHL. (ICRC)
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4. Provided that in any of these cases, he civilians or civilian objects without

abstains from any hostile act and does not distinction.
attempt to escape. 5. Among others, the following types of attacks
are to be considered as indiscriminate:
a. an attack by bombardment by any
methods or means which treats as
Protected Persons a single military objective a number
Those who enjoy or are entitled to protection under of clearly separated and distinct
the Geneva Conventions. Including: military objectives located in a city,
1. The wounded, the sick, and shipwrecked; town, village or other area
2. Prisoners of war; containing a similar concentration
3. Civilians of civilians or civilian objects; and
b. an attack which may be expected to
Civilians cause incidental loss of civilian life,
A civilian is any person who does not belong to one injury to civilians, damage to civilian
of the categories of persons referred to in Article 4 A objects, or a combination thereof,
(1), (2), (3) and (6) of the Third Convention and in which would be excessive in
Article 43 of AP I. In case of doubt whether a person relation to the concrete and direct
is a civilian, that person shall be considered to be a military advantage anticipated.
civilian. 6. Attacks against the civilian population or
civilians by way of reprisals are prohibited.
The civilian population comprises all persons who are 7. The presence or movements of the civilian
civilians. The presence within the civilian population population or individual civilians shall not be
of individuals who do not come within the definition of used to render certain points or areas
civilians does not deprive the population of its civilian immune from military operations, in
character. (AP I, art. 50) particular in attempts to shield military
objectives from attacks or to shield, favour or
Treatment of Civilians impede military operations. The Parties to
1. The civilian population and individual the conflict shall not direct the movement of
civilians shall enjoy general protection the civilian population or individual civilians
against dangers arising from military in order to attempt to shield military
operations. To give effect to this protection, objectives from attacks or to shield military
the following rules, which are additional to operations.
other applicable rules of international law,
shall be observed in all circumstances. Combatants are not entitled to the rights afforded to
2. The civilian population as such, as well as civilians.
individual civilians, shall not be the object of
attack. Acts or threats of violence the Prisoners of War (POW)
primary purpose of which is to spread terror Prisoners of war are captured for security reasons
among the civilian population are prohibited. and not for punishment.
3. Civilians shall enjoy the protection afforded
by this Section, unless and for such time as General Rule: A prisoner of war shall not be liable to
they take a direct part in hostilities. judicial prosecution even if he has committed to
4. Indiscriminate attacks are prohibited. facilitate escape (e.g., theft, drawing of false papers).
Indiscriminate attacks are: Exception: When the escapee has used violence
a. those which are not directed at a against life and limb during his escape.
specific military objective;
b. those which employ a method or Who are POWs?
means of combat which cannot be Generally, persons who have fallen into the power
directed at a specific military of an adverse party to a conflict are entitled to
objective; or prisoner-of-war status if they qualify as:
c. those which employ a method or a. combatants (members of the armed forces
means of combat the effects of or participantsi n a levée en masse);
which cannot be limited as required b. civilians formally authorized to accompany
by this Protocol; and consequently, the armed forces;
in each such case, are of a nature c. demobilized military personnel in occupied
to strike military objectives and territory;
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d. military personnel interned in neutral personnel, establishments, transports and

territory. (Intro to IHL, p. 178) equipment.
Under the third Geneva Convention, POWs are Combatants

persons belonging to one of the following categories, Members of the armed forces of a party to a conflict.
who have fallen into the power of the enemy: They have the right to participate directly and
1. Members of the armed forces of a party to indirectly in hostilities [AP I, art. 43(2)]. Only
the conflict, including militias or volunteer combatants are allowed to engage in hostilities.
corps;
2. Militias or volunteer corps operating in or A combatant is allowed to use force, even to kill, and
outside their own territory, even if such will not be held personally responsible for his acts, as
territory is occupied provided: he would be where he to the same as a normal citizen
a. They are being commanded by a (Gasser).
person responsible for his
subordinates; Martens clause/principle of humanity
b. Have a fixed distinctive sign In cases not covered by Additional Protocol I or by
recognizable at a distance; other international agreements, civilians and
c. Carries arms openly; combatants remain under the protection and
d. Conducts their operations in authority of the principles of international law derived
accordance with the laws and from established custom, from the principles of
customs of war; humanity and from the dictates of public conscience.
3. Members of regular armed forces who (Legality of the Threat or Use of Nuclear Weapons,
profess allegiance to a government or ¶78, Jul. 8, 1996)
authority not recognized by the detaining
power; Levée en masse
4. Civilians who accompany the armed forces, Used to describe the inhabitants of a non-occupied
provided that they have received territory who, on the approach of the enemy,
authorization from the armed forces which spontaneously take up arms to resist the invading
they accompany; forces without having had time to form themselves
5. Members of crews of merchant marine and into regular armed units, provided they carry arms
the crews of civil aircraft of the parties to the openly and respect the laws and customs of war.
conflict; [Geneva Convention III, art. 4(A)(6)]
6. Inhabitants of a non-occupied territory who
on the approach of the enemy Participants in a levée en masse are the only armed
spontaneously take up arms to resist the actors who are excluded from the civilian population
invading forces, without having had time to although, by definition, they operate spontaneously
form themselves into regular armed units, and lack sufficient organization and command to
provided they carry arms openly and respect qualify as members of the armed forces. All other
the laws and customs of war (AP I, art. 4) persons who directly participate in hostilities on a
merely spontaneous, sporadic or unorganized basis
Rights of Prisoners of War: HIT-PNB2-CFR must be regarded as civilians. [Interpretative
 To be treated humanely Guidance on the Notion of Direct Participation in
 Not subject to torture Hostilities under International Humanitarian Law,
 Allowed to communicate with their families ICRC, Part 2-A(I)(3), May 2009]
 Receive food, clothing, religious articles,
medicine Law On Neutrality
 Bare minimum of information In a conflict, there are some who wish to stay out of
the way and adopt an attitude of impartiality. Such an
 Keep personal belongings
attitude must be recognized by the opposing Party-
 Proper burial States and creates both rights and duties in the
 Grouped according to nationality neutral States.
 Establishment of an informed bureau
 Repatriation for sick and wounded The decision to employ a neutral stance is dictated
by political/internal mechanisms. Neutral States must
The wounded and the sick shall be collected and not engage in activities which interfere with the
cared for by the party to the conflict which has them activities of the belligerents while the latter respect
in its power. Protection also covers medical the former’s rights.
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Neutral power particular the children, the pregnant women, the

mothers with infants and young children, wounded
In essence, the law of neutrality has three aims: and sick, may be accommodated in a neutral state in
a. to protect neutral States (i.e. all States that the course of hostilities, by agreement between the
are not party to an international armed parties to the conflict.
conflict) from belligerent action;
b. to ensure neutral States do not militarily Protecting power
support belligerent States; and A protecting power is:
c. to maintain normal relations between neutral 1. Either a neutral State or other State not a
and belligerent States. (ICRC) Party to the conflict;
2. Designated by a Party to the conflict and
A neutral State may not openly participate in accepted by the enemy Party; and
hostilities, nor (1) lend assistance to belligerents; (2) 3. Has agreed to carry out the functions
recruit troops for the belligerents or allow third parties assigned to a Protecting Power under
to do so on its territory; (3) supply military equipment international humanitarian law. (ICRC)
on any pretext whatsoever; (4) supply military
intelligence. Apart from these prohibitions a neutral The Protecting Power’s duty is to safeguard the
State retains the right to trade with all belligerent interests of the Parties to the conflict. (Geneva
States. (ICRC) Conventions I, II, III, art. 8)
The Hague Convention Respecting the Rights and Responsibility to Protect

Duties of Neutral Powers (1907) governs the status The State carries the primary responsibility for
of neutrality by the following rules: protecting populations from genocide, war crimes,
1. The territory of the neutral power is crimes against humanity and ethnic cleansing, and
inviolable (art. 1) their incitement;
2. Belligerents are forbidden to move troops or
convoys of either munitions of war or The international community has a responsibility to
supplies across the territory of a neutral encourage and assist States in fulfilling this
power. (art. 2) responsibility;
3. A neutral power is forbidden to allow
belligerents to use its territory for moving The international community has a responsibility to
troops, establishing communication use appropriate diplomatic, humanitarian and other
facilities, or forming corps of combatants. peaceful means to protect populations from these
(art. 5) crimes. If a State is manifestly failing to protect its
4. Troops of belligerent armies received by a populations, the international community must be
neutral power in its territory shall be interned prepared to take collective action to protect
away from the theatre of war. (art. 11) populations, in accordance with the Charter of the
5. The neutral power may supply the interned United Nations (UN General Assembly Resolution
with food, clothing or relief required by 60/1, 2005).
humanity. (art. 12)
6. If the neutral power receives escaped International Terrorism
prisoners of war, it shall leave them at Article 2(b) of the International Convention for the
liberty. It may assign them a place of Suppression of the Financing of Terrorism (1999)
residence if it allows them to remain in its provides:
territory. (art. 13)
7. The neutral power may authorize the “Any other act intended to cause death or serious
passage into its territory of the sick and bodily injury to a civilian, or to any other person not
wounded if the means of transport bringing taking an active part in the hostilities in a situation of
them does not carry personnel or materials armed conflict, when the purpose of such act, by its
of war. (art. 14) nature or context, is to intimidate a population, or to
compel a Government or an international
The Geneva Convention (III) allows neutral powers organization to do or to abstain from doing any act.”
to cooperate with the parties to the armed conflict in
making arrangements for the accommodation in the Criminal acts intended or calculated to provoke a
former’s territory of the sick and wounded prisoners state of terror in the general public, a group of
of war. (Geneva Convention III, art. 109) persons or particular persons for political purposes
are in any circumstance unjustifiable, whatever the
Interned persons among the civilian population, in considerations of a political, philosophical,
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ideological, racial, ethnic, religious or any other

nature that may be invoked to justify them. (UN Kinds of Baselines
General Assembly Resolution 51/210, 1996, ¶2). 1. NORMAL BASELINE METHOD. The
normal baseline for measuring the breadth
Criminal acts, including against civilians, committed of the territorial sea is the low-water line
with the intent to cause death or serious bodily injury, along the coast as marked on large-scale
or taking of hostages, with the purpose to provoke a charts officially recognized by the coastal
state of terror in the general public or in a group of State. (UNCLOS, art. 5)
persons or particular persons, intimidate a population 2. STRAIGHT BASELINE METHOD. Straight
or compel a government or an international lines are drawn connecting selected points
organization to do or to abstain from doing any act, on the coast without departing to any
which constitute offenses within the scope of and as appreciable extent from the general
defined in the international conventions and direction of the coast. The seas lying within
protocols relating to terrorism, are under no the lines must be sufficiently closely linked
circumstances justifiable by considerations of a to the land domain to be subject to the
political, philosophical, ideological, racial, ethnic, regime of internal waters. (UNCLOS, art. 7)
religious or other similar nature (UN Security Council
Resolution 1566, 2004, ¶3). 2. ARCHIPELAGIC STATES
Right to unilateral secession or external self- Definition

determination under International Law? A State constituted wholly by one or more
General Rule: The people's right to self- archipelagos and may include other islands.
determination should not be understood as extending [UNCLOS, art. 46(a)]
to a unilateral right of secession.
Archipelago
Exception: International law, at best, only A group of islands, including parts of islands,
recognizes the right to external self-determination in interconnecting waters and other natural features
situations of (1) former colonies; (2) where a people which are so closely interrelated that such islands,
is oppressed, as for example under foreign military waters and other natural features form an intrinsic
occupation; or (3) where a definable group is denied geographical, economic and political entity, or which
meaningful access to government to pursue their historically have been regarded as such. [UNCLOS,
political, economic, social and cultural development art. 46(b)]
(Province of North Cotobato v. GRP, G.R. No.
183591, Oct. 14, 2008) There are two kinds of archipelagos:
1. COASTAL. Situated close to a mainland
and may be considered part thereof (i.e.,
M. LAW OF THE SEA Norway);
2. MID-OCEAN. situated in the ocean at such
Overview distance from the coasts of firm land, (i.e.,
The United Nations Convention on Law of the Sea Indonesia).
(UNCLOS) is the body of treaty rules and customary
norms governing the use of the sea, the exploitation The archipelagic state provisions apply only to mid-
of its resources, and the exercise of jurisdiction over ocean archipelagos composed of islands, and not to
maritime regimes (Magallona). a partly continental state.
It is the branch of public international law which 3. Internal Waters

regulates the relations of states with respect to the
use of the oceans. Definition
Except as provided in Part IV (Archipelagic States),
1. BASELINES waters on the landward side of the baseline of the
territorial sea form part of the internal waters of the
Definition State. (UNCLOS, art. 8)
A baseline is the line from which a breadth of the
territorial sea and other maritime zones, such as the Sovereignty over these waters is the same in extent
contiguous zone and the exclusive economic zone is as sovereignty over land, and there is no right of
measured. Its purpose is to determine the starting innocent passage.
point to begin measuring maritime zones boundary of
the coastal state.
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Where the establishment of a straight baseline in 6. Exclusive Economic Zone

accordance with the method set forth in Article 7 has
the effect of enclosing as internal waters areas which Definition
had not previously been considered as such, a right The exclusive economic zone shall not extend
of innocent passage as provided in this Convention beyond 200 nautical miles from the baselines from
shall exist in those waters. (UNCLOS, art. 8) which the breadth of the territorial sea is measured.
(UNCLOS, art. 57)
4. Territorial Sea
The exclusive economic zone is an area beyond and
Every State has the right to establish the breadth of adjacent to the territorial sea, subject to the specific
its territorial sea up to a limit not exceeding 12 legal regime established in this Part, under which the
nautical miles, measured from baselines determined rights and jurisdiction of the coastal State and the
in accordance with the UNCLOS. (UNCLOS, art. 3). rights and freedoms of other States are governed by
the relevant provisions of the UNCLOS (UNCLOS,
Sovereignty over these waters (including the art. 55).
airspace above it and the seabed under it) is the
same extent as its sovereignty over land. There is a Jurisdiction over EEZ
right of innocent passage (UNCLOS, art. 7), and in In the exclusive economic zone, the coastal State
case of certain straits, to transit passage. has:
1. sovereign rights for the purpose of exploring
Under the UNCLOS, features that are above water at and exploiting, conserving and managing
high tide generate an entitlement to at least a 12 the natural resources, whether living or non-
nautical mile territorial sea, whereas features that are living, of the waters superjacent to the
submerged at high tide generate no entitlement to seabed and of the seabed and its subsoil,
maritime zones. (The South China Sea Arbitration, and with regard to other activities for the
2013-19, Jul. 12, 2016) economic exploitation and exploration of the
zone, such as the production of energy from
5. Contiguous Zone the water, currents and winds;
2. jurisdiction as provided for in the relevant
Definition provisions of the UNCLOS with regard to:
The contiguous zone may not extend beyond 24 a. the establishment and use of
nautical miles from the baselines from which the artificial islands, installations and
breadth of the territorial sea is measured. (UNCLOS, structures;
art. 33) b. maritime scientific research;
c. the protection and preservation of
Area of water not exceeding 24 nautical miles from the marine environment;
the baseline. It thus extends 12 nautical miles from 3. Other rights and duties provided for in the
the edge of the territorial sea (UNCLOS, art. 33). UNCLOS. (UNCLOS, art. 56)
Jurisdiction over Contiguous Zone Under the UNCLOS, states have the sovereign right
In the contiguous zone, the coastal State may to exploit the resources of this zone, but shall share
exercise the control necessary to: that part of the catch that is beyond its capacity to
 Prevent infringement of its customs, fiscal, harvest. (UNCLOS, art. 62)
immigration, or sanitary laws and
regulations within its territory or territorial Obligations of Coastal State
sea; In exercising their rights and performing their
 Punish infringement of the above laws and duties under the UNCLOS in the exclusive
regulations committed within its territory or economic zone, the coastal State shall have due
territorial sea. (UNCLOS, art. 33) regard to the rights and duties of other States and
shall act in a manner compatible with the
provisions of the UNCLOS (UNCLOS, art. 56)
Obligations of States in EEZ

In exercising their rights and performing their duties
under the UNCLOS in the exclusive economic zone,
States:
1. shall have due regard to the rights and
duties of the coastal State and;
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2. shall comply with the laws and regulations taking into account the respective importance of the
adopted by the coastal State in accordance interests involved to the parties as well as to the
with the provisions of the UNCLOS and international community as a whole (UNCLOS, art.
other rules of international law. (UNCLOS, 59).
art. 58)
Geographically Disadvantaged States
Other obligations of coastal states:
1. Ensuring conservation and management Definition
measures that the living resources of the Coastal States, including states bordering enclose or
EEZ are not subject to overexploitation. semi- enclosed seas, whose geographical situation
(UNCLOS, art. 61) makes them dependent upon the exploitation of the
2. Promote the objective of “optimum living resources of the EEZ of other states in the
utilization” of the living resources. subregion or region for adequate supplies of fish for
(UNCLOS, art. 62) the nutritional purposes of their populations or parts
thereof, and coastal States which can claim no
The entitlement of a feature to an exclusive economic exclusive economic zones of their own. (UNCLOS,
zone depends on the objective capacity of a feature, art. 70).
in its natural condition, to sustain either a stable
community of people or economic activity that is Geographically disadvantaged states have the right
neither dependent on outside resources nor purely to participate, on equitable basis, in the exploitation
extractive in nature. The current presence of official of the surplus of the living resources in the EEZ of
personnel on the features is not enough to establish coastal states of the same sub region or region
the right to an EEZ. (The South China Sea (UNCLOS, art. 70).
Arbitration, 2013-19, Jul. , 2016)
A coastal state whose economy is overwhelmingly
If after determining the maximum allowable catch, the dependent on the exploitation of its EEZ, however, is
coastal State does not have the capacity to harvest not required to share its resources. (UNCLOS, art.
the entire catch, it shall give other states access to 71).
the surplus by means of arrangements allowable
under the UNCLOS. (UNCLOS, art. 62) The 7. Continental Shelf
UNLCOS, however, does not specify the method for Also known as the archipelagic or insular shelf which
determining “allowable catch.” refers to:
1. The seabed and subsoil of the submarine
Within its EEZ, a coastal state may also: areas adjacent to the coastal State but
1. Establish and use of artificial islands, outside the territorial sea, to a depth of 200
installations and structures; (UNCLOS, art. meters, or beyond that limit, to where the
60) depth allows exploitation, and
2. Conduct scientific research; and 2. The seabed and subsoil of areas adjacent to
3. Preserve and protect its marine islands. (UNCLOS, art. 76).
environment.
Extended Continental Shelf
However, under Article 58, UNCLOS, all states enjoy It is part of the Continental Shelf that lies beyond the
the freedom of navigation, over flight, and laying of 200 nautical miles from the coastal baselines. It is the
submarine cables and pipelines in the EEZ of coastal seabed and subsoil of the submarine areas
states. extending beyond the territorial sea of the coastal
state throughout the natural prolongation of its lands
The coastal state has the right to enforce all laws and territory up to:
regulations enacted to conserve and manage the 1. The outer edge of the continental margin; or
living resources in its EEZ. It may board and inspect 2. A distance of 200 nautical miles from the
a ship, arrest a ship and its crew and institute judicial baselines of the territorial sea where the
proceedings against them. In detention of foreign outer edge of the continental margin does
vessels, the coastal state has the duty to promptly not extend up to that distance. (UNCLOS,
notify the flag state of the action taken. (UNCLOS, art. 76)
art. 73)
Continental margin
Conflicts regarding the attribution of rights and The submerged prolongation of the land mass of the
jurisdiction in the EEZ must be resolved on the basis coastal state, and consists of the seabed and subsoil
of equity and in the light of all relevant circumstances, of the shelf, the slope and the rise. (UNCLOS, art. 76)
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Apply only to sedentary Do not pertain to

Limits of the Continental Shelf species of such living sedentary species
The juridical or legal continental shelf covers the area resources
until 200 nautical miles from baselines.
High Seas
The extended continental shelf covers the area from All parts of the sea that are not included in the
the 200-mile mark to 350 nautical miles from the exclusive economic zone, in the territorial sea or in
baselines depending on geomorphologic or the internal waters of a State, or in the archipelagic
geological data and information. waters of an archipelagic State. (UNCLOS, Art. 86)
When the continental shelf extends beyond 200 Allowable Acts in the High Seas
nautical miles, the coastal state shall establish its 1. Freedom of navigation
outer limits. 2. Freedom of overflight
3. Freedom of scientific research
At any rate, the continental shelf shall not extend 4. Freedom to construct artificial islands and
beyond 350 nautical miles from the baseline of the structures
territorial sea, or 100 nautical miles from the 2500- 5. Freedom of fishing
meter isobath (i.e., the point where the waters are 6. Freedom to lay submarine cables and
2500 meters deep). pipelines (UNCLOS, art. 87).
Rights of the Coastal State China’s “nine-dash line” and its claim to resources
The continental shelf does not form part of the based on historic right is incompatible with the
territory of the coastal state. detailed allocation of rights and maritime zones under
the UNCLOS. Even if China had historic rights to
It only has sovereign rights with respect to the resources in the waters of the South China Sea, such
exploration and exploitation of its natural resources, rights were extinguished by the entry into force of the
including the mineral and other non-living resources Convention to the extent they were incompatible with
of the seabed and subsoil together with living the Convention’s system of maritime zones. Further,
organisms belonging to the sedentary species. China’s historical navigation and fishing in the waters
(UNCLOS, art. 77) of the South China sea represents the exercise of
high seas freedom, not the exercise of historic right.
The coastal state has the exclusive right to authorize (The South China Sea Arbitration, 2013-19, July. 12,
and regulate oil-drilling on its continental shelf. 2016)
(UNCLOS, art. 81)
Bays
These rights are exclusive in the sense that when the Well-marked indentation whose penetration is in
coastal state does not explore its continental shelf or such proportion to the width of its mouth as to contain
exploit its resources, no one may undertake these landlocked waters and constitute more than a mere
activities without the coastal state’s consent. curvature of the coast. An indentation shall not,
(UNCLOS, art. 77) however, be regarded as a bay unless its area is as
large as, or larger than, that of the semi-circle whose
CONTINENTAL EXCLUSIVE diameter is a line drawn across the mouth of that
SHELF ECONOMIC ZONE indentation. [UNCLOS, art. 10(2)]
Duty to conserve and manage living resources
No duty The coastal state is The Area
obliged to manage and Definition
conserve the living "Area" means the seabed and ocean floor and
resources in the EEZ subsoil thereof, beyond the limits of national
Rights of the coastal state to natural resources jurisdiction. (UNCLOS, art. 1)
Relate to mineral and Have to do with natural
other non-living resources of both Legal Status of the Area and Its Resources
resources of the waters super adjacent No State shall claim or exercise sovereignty or
seabed and the subsoil to the seabed and sovereign rights over any part of the Area or its
those of the seabed resources, nor shall any State or natural or juridical
and the subsoil person appropriate any part thereof. (UNCLOS, art.
Rights of the coastal state to living resources 137)
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The Area and its resources are the common heritage Jurisdiction of the ITLOS
of mankind. (UNCLOS, art. 136) Activities in the Area Its jurisdiction comprises all disputes and all
shall be carried out for the benefit of mankind as a applications submitted to it in accordance with the
whole. (UNCLOS, art. 140) UNCLOS. It also includes all matters specifically
provided for in any other agreement which confers
The Area shall be open to use exclusively for jurisdiction on the Tribunal (UNCLOS, Annex VI, Art.
peaceful purposes by all States. (UNCLOS, art. 141) 21). It has jurisdiction to deal with disputes
(contentious jurisdiction) and legal questions
(advisory jurisdiction) submitted to it.
International Seabed Authority
Definition The Tribunal, however cannot exercise jurisdiction
It is the organization established by UNCLOS which
over certain types of disputes such as disputes over
acts on behalf of mankind in governing the regime of sovereignty over the islands of South China Sea and
resources in the Area. It organizes, carries out and
the delimitation of maritime boundary. (The South
controls the activities of the Area on behalf of
China Sea Arbitration, 2013-19, Jul. 12, 2016)
mankind as a whole. (UNCLOS, art. 157)
Certain preconditions must be present before the

Composition
Tribunal can exercise jurisdiction. This includes a
The following form the Authority:
dispute settlement mechanism entered into by State
The Assembly – all state parties to the UNCLOS
Parties and an exchange of views between the State
(UNCLOS, arts. 156 & 159)
Parties on the means of settling their dispute. This
The Council – the executive organ whose 36
requirement was met in the record of diplomatic
members are elected by the Assembly (UNCLOS,
communications between Philippines and China.
art. 161)
(The South China Sea Arbitration, 2013-19, Jul. 12,
The Enterprise – the organ directly engaged in the 2016)
exploration and exploitation of the resources of the
Area, including the transporting, processing and
marketing of minerals (UNCLOS, art. 170) Both the Philippines and China are parties to the
Convention and bound by its provisions on the
settlement of disputes. China’s decision not to
Activities in the Area
participate does not deprive the Tribunal of
The Enterprise carries out mining activities on behalf
jurisdiction and Philippines’ decision to commence
of the Authority:
arbitration unilaterally was not an abuse of the
1. Directly; or
Convention’s dispute settlement procedures. (The
2. By joint ventures with:
South China Sea Arbitration, 2013-19, Jul. 12, 2016)
a. State parties;
Peaceful Settlement of Disputes
b. State enterprises; or
Under Article 2, 3rd par., UN Charter, states have the
c. Natural or juridical persons
duty to settle disputes by peaceful means. This
sponsored by state parties.
obligation extends to state parties of the UNCLOS,
underscoring the right of the parties to resort to
Applicants for license in deep seabed mining are peaceful means of their own choice on which they
limited to those controlled by states parties to the
can agree any time.
UNCLOS or by their nationals.
Compulsory Settlement of Disputes

8. International Tribunal for the Law of Where no successful settlement can be achieved, or
the Sea if the parties are unable to agree on the means of
Definition settlement of a dispute concerning the application of
The International Tribunal for the Law of the Sea is UNCLOS, such dispute may be governed by the
an independent judicial body to adjudicate disputes principle of compulsory settlement, where
arising out of the interpretation and application of the procedures entail binding decisions.
UNCLOS. It is the proper venue to resolve the issue
on the Baselines Law. The parties may choose, through a written revocable
and replaceable declaration, to submit the dispute to:
 ITLOS;
 ICJ;
 Arbitral tribunal;
 Special arbitral tribunal (UNCLOS, art. 287)
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 Settings in which harm might be irreversible

and what is lost is irreplaceable; and
The court or tribunal has jurisdiction over:
 Settings in which the harm that might result
 Any dispute submitted to it concerning the would be serious. (International Service for
application or interpretation of UNCLOS; or the Acquisition of Agri-Biotech Applications
 Any dispute concerning the interpretation or v. Greenpeace, G.R. No. 209271, Dec. 8,
application of an international agreement: 2015)
 Related to the purposes of the UNCLOS;
 When such dispute is submitted to it in When in doubt, cases must be resolved in favor of
accordance with that agreement. (UNCLOS, the constitutional right to a balanced an d healthful
art. 288) ecology. Parenthetically, judicial adjudication is one
of the strongest fora in which the precautionary
principle may find applicability. (International Service
N. INTERNATIONAL ENVIRONMENTAL for the Acquisition of Agri-Biotech Applications v.
LAW Greenpeace, G.R. No. 209271, Dec. 8, 2015)
Overview The precautionary principle only applies when the

It is the branch of public international law comprising link between the cause, that is the human activity
those substantive, procedural, and institutional rules sought to be inhibited, and the effect, that is the
which have as their primary objective the protection damage to the environment, cannot be established
of the environment, the term environment being with full scientific certainty. (West Tower
understood as encompassing “both the features and Condomimium v. First Philippine Industrial
the products of the natural world and those of human Corporation, G.R. No. 194239, Jun. 16, 2015)
civilization” (Sands, Principles of International
Environmental Law).
1. Precautionary Principle
In order to protect the environment, the precautionary
approach shall be widely applied by States according
to their capabilities. 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 (Principle 15, Rio Declaration).
Factors to be Considered
Threatening to human life or health;
Inequity to present or future generations; or
Prejudice to the environment without legal
consideration of the environmental rights of those
affected (International Service for the Acquisition of
Agri-Biotech Applications v. Greenpeace, G.R. No.
209271, Dec. 8, 2015, citing Part V, Rule 20 of the
Rules)
For purposes of evidence, the precautionary principle

should be treated as a principle of last resort, where
application of the regular Rules of Evidence would
cause in an inequitable result for the environmental
plaintiff. (International Service for the Acquisition of
Agri-Biotech Applications v. Greenpeace, G.R. No.
209271, Dec. 8, 2015)
The case for the precautionary principle is strongest

when the following features coincide;
 Settings in which the risks of harm are

uncertain;
PAGE 489 of 490

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PAGE 490 of 490

Ateneo Central Political & International Law: Bar Operations 2022

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ATENEO CENTRAL

BAR OPERATIONS 2022 POLITICAL & INTERNATIONAL LAW

I. BASIC CONCEPTS UNDER THE 1987 CONSTITUTION ........................................................................... 17

A. DECLARATION OF PRINCIPLES AND STATE POLICIES ................................................................... 17

II. GENERAL PRINCIPLES OF TAXATION ................................................................................................. 31

A. DEFINITION, CHARACTERISTICS AND PURPOSE OF TAXATION .................................................... 31

III. LEGISLATIVE DEPARTMENT .............................................................................................................. 50

A. LEGISLATIVE POWER ................................................................................................................... 50

IV. EXECUTIVE DEPARTMENT ............................................................................................................... 77

A. QUALIFICATIONS, ELECTION, AND TERM OF PRESIDENT AND VICE-PRESIDENT .......................... 77

V. JUDICIAL DEPARTMENT .................................................................................................................... 98

VI. CONSTITUTIONAL COMMISSIONS.................................................................................................. 115

A. COMMON PROVISIONS ............................................................................................................. 115

IX. BILL OF RIGHTS .............................................................................................................................. 130

A. DUE PROCESS OF LAW .............................................................................................................. 131

a. Search Incidental to a Lawful Arrest ................................................................................. 152

3. EXPROPRIATION BY LOCAL GOVERNMENT UNITS ................................................................... 196

VIII. CITIZENSHIP ................................................................................................................................. 236

A. WHO ARE FILIPINO CITIZENS ..................................................................................................... 236

b. Reacquiring Citizenship.................................................................................................... 241

IX. LAW ON PUBLIC OFFICERS ............................................................................................................. 245

A. GENERAL PRINCIPLES ................................................................................................................ 245

X. ADMINISTRATIVE LAW.................................................................................................................... 281

A. GENERAL PRINCIPLES ................................................................................................................ 281

XI. ELECTION LAW ............................................................................................................................... 307

A. SUFFRAGE ................................................................................................................................. 307

B. CANDIDACY ............................................................................................................................... 315

XII. LOCAL GOVERNMENTS ................................................................................................................. 353

A. PRINCIPLES OF LOCAL AUTONOMY ........................................................................................... 354

3. POWER OF EMINENT DOMAIN (EXPROPRIATION)................................................................... 371

a. Local Taxation [ULIPE] ..................................................................................................... 402

XIII. NATIONAL ECONOMY AND PATRIMONY ..................................................................................... 412

A. REGALIAN DOCTRINE ................................................................................................................ 412

XIV. SOCIAL JUSTICE AND HUMAN RIGHTS ......................................................................................... 423

A. CONCEPT OF SOCIAL JUSTICE .................................................................................................... 423

XV. AMENDMENTS OR REVISIONS OF THE CONSTITUTION ................................................................. 431

A. ACADEMIC FREEDOM ................................................................................................................ 436

XVII. PUBLIC INTERNATIONAL LAW ..................................................................................................... 440

A. CONCEPTS ................................................................................................................................. 441

3. EFFECT OF ACTIONS OF ORGANS OFINTERNATIONAL ORGANIZATION CREATED BY TREATY .... 449

I. BASIC CONCEPTS UNDER THE 1987 A. DECLARATION OF PRINCIPLES AND

Self-Executing and Non-Self Executing

Exceptions to the Exceptions:

NOTE: Whether or not a provision is self-executing

Policies Exceptions to policy against nuclear weapons may

Examples: Social Justice has been defined as the humanization

Freedom from Nuclear Weapons Elements for the Application of Precautionary

Regime of Islands E. STATE IMMUNITY

Doctrine of State Immunity

Principle of Equality of States Extent of Immunity

a. If there was a valid delegation, Examples:

finance energy resource development and G. FUNDAMENTAL POWERS OF THE

benefit but protection, of the property

Police Power in General The matter is legislative, however, “once authority is

3. TAXATION 3. As to Administrative Agencies — When

II. GENERAL PRINCIPLES OF TAXATION A. DEFINITION, CHARACTERISTICS AND

2. It is legislative in character. It is generally not

Exceptions where delegation is allowed: be found only in the responsibility of the

v. Cojuangco, G.R. No. 147062-64, 2001).

No limit Limited to the No limit RELATIONSHIP TO CONSTITUTION

C. SCOPE AND LIMITATIONS OF 1. Delegation to local governments

a. Public Purpose In the case of Abakada Guro v. Executive

General rule – The power to tax is exclusively vested