2023 Political Law Golden Notes

FACULTY OF CIVIL LAW (1734)
POLITICAL LAW
2023 GOLDEN NOTES

FACULTY OF CIVIL LAW
UNIVERSITY OF SANTO TOMAS
MANILA
The UST GOLDEN NOTES is the annual student-edited bar review material of
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Academics Committee
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2023 Edition.
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Released in the Philippines, 2023.

Faculty of Civil Law (1734)
ACADEMIC YEAR 2022-2023

CIVIL LAW STUDENT COUNCIL
NICOLO B. BONGOLAN PRESIDENT
IVAN ARNIE C. QUIAMCO VICE PRESIDENT INTERNAL
JANNODIN D. DIPATUAN VICE PRESIDENT EXTERNAL
BRIAN CHOOYE S. LIM SECRETARY
ROMBERT JOSEPH EMIEL D. CRUZ TREASURER
HARLEY JANSEN L. CALDERON AUDITOR
BIENVENIDO L. ORTIZ III PUBLIC RELATIONS OFFICER
KAREN DARYL L. BRITO CHIEF-OF-STAFF
UST BAR-OPS
JUSTINE RENEE GERVACIO CHAIRPERSON

PAULINNE STEPHANY G. SANTIAGO VICE-CHAIRPERSON
KAREN DARYL L. BRITO HEAD, SECRETARIAT
JAN YSABEL U. DE LEON HEAD, PUBLIC RELATIONS OFFICER
GABRIEL C. LAPID HEAD, FINANCE COMMITTEE
BIANCA PATRICIA ALLEN C. FLORES HEAD, HOTEL ACCOMMODATIONS COMMITTEE
FRITZ N. CANTERO HEAD, LOGISTICS COMMITTEE
ARNET C. PAGUIRIGAN ASST. HEAD, SECRETARIAT
ANGELO RAFAEL V. CO ASST. HEAD, FINANCE
NEIL FRANCIS V. ALBUERO ASST. HEAD, LOGISTICS
JOSEPHINE GRACE W. ANG SENIOR MEMBER
MA. ANDREA D. CABATU SENIOR MEMBER
SABINA MARIA H. MABUTAS SENIOR MEMBER
JEDIDIAH R. PADUA SENIOR MEMBER
VANESSA A. SIENA SENIOR MEMBER
ATTY. AL CONRAD B. ESPALDON

ADVISER
ACADEMICS COMMITTEE 2023

ANGELA BEATRICE S. PEÑA KATHERINE S. POLICARPIO
SECRETARIES-GENERAL
RON-SOPHIA NICOLE C. ANTONIO CRIMINAL LAW
HERLENE MAE D. CALILUNG LABOR LAW AND SOCIAL LEGISLATION
POLITICAL LAW AND

PATRISHA LOUISE E. DUMANIL
PUBLIC INTERNATIONAL LAW
LEGAL AND JUDICIAL ETHICS WITH PRACTICAL

ALEXANDRA MAUREEN B. GARCIA
EXERCISES
HANNAH JOY C. IBARRA COMMERCIAL LAW
JEDIDIAH R. PADUA CIVIL LAW
PAULINNE STEPHANY G. SANTIAGO TAXATION LAW
DIANNE MICAH ANGELA D. YUMANG REMEDIAL LAW
EXECUTIVE COMMITTEE
PAULA ANDREA F. PEÑAFLOR COVER DESIGN ARTIST

POLITICAL LAW COMMITTEE 2023

PAULA ANDREA F. PEÑAFLOR
POLITICAL LAW SUBJECT HEAD
ASST. HEADS, POWERS AND STRUCTURES OF

MARIA ALEXA LOUISE U. DAÑO
GOVERNMENT, NATIONAL ECONOMY AND
BRYAN ANDRAE LIMEN
PATRIMONY
ASST. HEAD, THE CITIZEN IN RELATION TO THE
MARNIE CELEDONIO
STATE
ASST. HEAD, LAW ON PUBLIC OFFICERS,
JODEE A. AGONCILLO ADMINISTRATIVE LAW, ELECTION LAW, AND
LOCAL GOVERNMENT
DANA MAE D. SALGADO ASST. HEAD, PUBLIC INTERNATIONAL LAW
MEMBERS
DIN EVE JAMES F. AMANTE CHYNA PATRICIA S. MANANQUIL
CLAIRE ANGELA B. CABALLES CLAIRE MAE S. SERRANO
RAIAH CASSANDRA O. GUITAN ADRIANNE C. TAMAYO
CHELSEA KATE M. LAVILLA ARIEL B. TAMONDONG
IANNA NICOLE B. LUCAS JOHN ELEZER S. UGTO
VINICE NICOLE S. URSAL
ADVISERS
ATTY. AL CONRAD B. ESPALDON
ATTY. VICTORIA V. LOANZON
ATTY. NOEL RAYMOND R. OSTREA

ACADEMIC OFFICIALS
ATTY. NILO T. DIVINA REV. FR. ISIDRO C. ABAÑO, O.P.
DEAN REGENT
ATTY. ARTHUR B. CAPILI

FACULTY SECRETARY
ATTY. ELGIN MICHAEL C. PEREZ

LEGAL COUNSEL
UST CHIEF JUSTICE ROBERTO CONCEPCION LEGAL AID CLINIC
JUDGE PHILIP A. AGUINALDO

SWDB COORDINATOR
LENY G. GADIANA, R.G.C.

GUIDANCE COUNSELOR
OUR DEEPEST APPRECIATION TO OUR

MENTORS AND INSPIRATION
Justice Amy Lazaro-Javier Atty. Rafaelito M. Garayblas †
Justice Oswaldo D. Agcaoili Atty. Kristjan Vicente T.

Gargantiel
Judge Charito M. Sawali Atty. Allan B. Gepty
Judge Rigor R. Pascual Atty. Rene B. Gorospe
Dean Lope E. Feble Atty. Victoria V. Loanzon
Dean Antonio G.M. La Viña Atty. Anicia C. Marquez
Dean Rodel A. Taton Atty. Edwin R. Sandoval
Chairman Sheriff M. Abas Atty. Ismael L. Sarangaya, Jr.
Atty. Carlo L. Cruz Atty. Mauricio C. Ulep
Atty. Enrique V. Dela Cruz Atty. Ronald C. Chua
Atty. Al Conrad B. Espaldon Atty. Glenn M. Mangaoil
Atty. Abraham D. Genuino, II Atty. Noel Raymond R. Ostrea
For being our guideposts in understanding the intricate sphere of Commercial Law.
– Academics Committee 2023
DISCLAIMER
THE RISK OF USE OF THIS BAR

REVIEW MATERIAL SHALL BE
BORNE BY THE USER
TABLE OF CONTENTS
PART ONE: POLITICAL LAW
POWERS AND STRUCTURES OF GOVERNMENT

I. PRELIMINARY CONCEPTS ...................................................................................................................................................... 1
A. NATURE OF A CONSTITUTION ........................................................................................................................................ 1
1. PARTS ................................................................................................................................................................................ 1
2. MANNER OF INTERPRETATION (SELF-EXECUTING AND NON-EXECUTING CHARACTER) ................. 2
3. PROCESS OF CHANGE (AMENDMENTS AND REVISIONS) ................................................................................ 2
B. THE PHILIPPINES AS A STATE ........................................................................................................................................ 6
1. ELEMENTS (PEOPLE, TERRITORY, GOVERNMENT, AND CAPACITY TO ENTER INTO RELATIONS
WITH OTHER STATES) ..................................................................................................................................................... 6
2. DISTINCTION BETWEEN INTERNAL AND EXTERNAL SELF-DETERMINATION ....................................... 9
C. FUNDAMENTAL POWERS OF THE STATE ................................................................................................................... 9
1. POLICE POWER .............................................................................................................................................................. 9
2. EMINENT DOMAIN ..................................................................................................................................................... 11
3. TAXATION ..................................................................................................................................................................... 17
a) CONSTITUTIONAL EXEMPTION PRINCIPLES .............................................................................................. 22
D. RELEVANCE OF THE DECLARATION OF PRINCIPLES AND STATE POLICIES................................................ 25
E. DYNAMICS AMONG THE BRANCHES OF GOVERNMENT ...................................................................................... 30
1. SEPARATION OF POWERS ....................................................................................................................................... 31
2. SYSTEM OF CHECKS AND BALANCES ................................................................................................................... 33
3. DELEGATION OF POWERS ....................................................................................................................................... 34
F. STATE IMMUNITY ............................................................................................................................................................ 36
1. BASIS ............................................................................................................................................................................... 36
2. EXCEPTIONS ................................................................................................................................................................. 40
G. THE NATIONAL TERRITORY ........................................................................................................................................ 41
1. SCOPE (TERRESTRIAL, AERIAL, AND FLUVIAL DOMAINS) .......................................................................... 41
2. ARCHIPELAGIC DOCTRINE ...................................................................................................................................... 41
II. LEGISLATIVE DEPARTMENT ............................................................................................................................................ 43
A. NATURE OF LEGISLATIVE POWER ............................................................................................................................. 43
1. DERIVATIVE AND DELEGATED POWER ............................................................................................................. 44
2. PLENARY CHARACTER ............................................................................................................................................. 45
3. LIMITATIONS ............................................................................................................................................................... 45
a) SUBSTANTIVE – BILL OF RIGHTS .................................................................................................................... 46
b) PROCEDURAL – MANNER OF PASSAGE AND FORM OF BILLS ............................................................... 47
4. LAW-MAKING DISTINGUISHED FROM LAW-EXECUTION ............................................................................ 47
a) FILLING-UP DETAILS ........................................................................................................................................... 47
b) ASCERTAINMENT OF FACTS ............................................................................................................................. 48
5. EXCEPTIONS TO NON-DELEGABILITY ................................................................................................................. 48
a) LOCAL GOVERNMENTS ....................................................................................................................................... 48
b) PRESIDENTIAL POWER IN TIMES OF WAR AND NATIONAL EMERGENCY, INCLUDING MARTIAL
LAW AND IN A REVOLUTIONARY CONTEXT .................................................................................................... 48
c) FIXING TARIFF RATES, QUOTAS, AND OTHER DUTIES ........................................................................... 48
6. LEGISLATIVE POWER OF THE PEOPLE THROUGH INITIATIVE AND REFERENDUM .......................... 49
B. BICAMERAL CONGRESS ................................................................................................................................................. 50
1. SENATE........................................................................................................................................................................... 50
2. HOUSE OF REPRESENTATIVES .............................................................................................................................. 51
a) DISTRICT REPRESENTATIVES AND MECHANICS OF APPORTIONMENT........................................... 52
AC No. 146
b) PARTY-LIST SYSTEM ............................................................................................................................................54
C. LEGISLATIVE PRIVILEGES, DISCLOSURE OF FINANCIAL AND BUSINESS AFFAIRS, PROHIBITIONS,
INHIBITIONS, AND DISQUALIFICATIONS ......................................................................................................................58
D. QUORUM AND VOTING MAJORITIES ..........................................................................................................................61
E. DISCIPLINE OF MEMBERS ..............................................................................................................................................63
F. PROCESS OF LAW-MAKING ...........................................................................................................................................64
1. FUNCTION OF THE BICAMERAL CONFERENCE COMMITTEE .......................................................................65
2. LIMITATIONS ON LEGISLATIVE POWER .............................................................................................................66
a) LIMITATIONS ON REVENUE, APPROPRIATIONS, AND TARIFF .............................................................66
b) PRESIDENTIAL VETO AND CONGRESSIONAL OVERRIDE ........................................................................67
G. RULES ON APPROPRIATION AND RE-ALIGNMENT ...............................................................................................68
H. ELECTORAL TRIBUNALS AND COMMISSION ON APPOINTMENTS ..................................................................69
1. COMPOSITION ..............................................................................................................................................................69
2. POWERS AND JURISDICTION ..................................................................................................................................70
I. POWERS OF CONGRESS ....................................................................................................................................................73
1. LEGISLATIVE INQUIRIES AND THE OVERSIGHT FUNCTIONS ......................................................................73
2. NON-LEGISLATIVE ......................................................................................................................................................78
a) INFORMING FUNCTION .......................................................................................................................................78
b) POWER OF IMPEACHMENT ...............................................................................................................................78
III. EXECUTIVE DEPARTMENT ...............................................................................................................................................80
A. NATURE OF EXECUTIVE POWER .................................................................................................................................80
1. IN RELATION TO THE IMPLEMENTATION OF LAWS (INCLUDING DELEGATED POWERS)...............80
2. EXPRESS OR IMPLIED (INCLUDING THE FAITHFUL EXECUTION OF LAWS AND RESIDUAL
POWERS) ............................................................................................................................................................................80
B. CONCEPT OF PRESIDENTIAL IMMUNITY ..................................................................................................................81
1. CONDUCT COVERED ...................................................................................................................................................81
2. WAIVER AND EXCEPTIONS ......................................................................................................................................83
C. CONCEPT OF EXECUTIVE PRIVILEGES........................................................................................................................83
1. TYPES ..............................................................................................................................................................................83
2. WHO MAY INVOKE ......................................................................................................................................................85
D. QUALIFICATIONS, ELECTIONS, TERM OF THE PRESIDENT AND VICE-PRESIDENT, AND RULES ON
SUCCESSION ............................................................................................................................................................................86
E. OTHER PRIVILEGES, INHIBITIONS, AND DISQUALIFICATIONS ........................................................................88
F. POWERS OF THE PRESIDENT ........................................................................................................................................89
1. EXECUTIVE AND ADMINISTRATIVE POWERS ...................................................................................................89
2. POWER OF APPOINTMENT ......................................................................................................................................89
a) PROCESS OF CONFIRMATION BY THE COMMISSION ................................................................................90
b) BY-PASSED APPOINTMENTS AND THEIR EFFECTS...................................................................................91
c) APPOINTMENTS BY AN ACTING PRESIDENT ...............................................................................................91
d) SCOPE OF MIDNIGHT APPOINTMENTS .........................................................................................................91
e) RECESS OF AD-INTERIM APPOINTMENTS ....................................................................................................93
f) POWER OF REMOVAL ...........................................................................................................................................94
3. POWER OF CONTROL AND SUPERVISION ..........................................................................................................94
a) DOCTRINE OF QUALIFIED POLITICAL AGENCY ..........................................................................................94
b) EXECUTIVE DEPARTMENTS AND OFFICES ...................................................................................................95
c) LOCAL GOVERNMENT UNITS .............................................................................................................................95
4. EMERGENCY POWERS................................................................................................................................................96
5. COMMANDER-IN-CHIEF POWERS ..........................................................................................................................96
a) CALLING OUT POWERS........................................................................................................................................96
b) DECLARATION OF MARTIAL LAW AND THE SUSPENSION OF THE PRIVILEGE OF THE WRIT OF
HABEAS CORPUS (INCLUDING EXTENSION OF PERIOD) ............................................................................. 97
6. PARDONING POWERS ............................................................................................................................................. 101
a) SCOPE AND LIMITATIONS ............................................................................................................................... 101
b) FORMS OF EXECUTIVE CLEMENCY ............................................................................................................... 104
7. FOREIGN RELATIONS POWERS ........................................................................................................................... 105
a) IN GENERAL .......................................................................................................................................................... 105
b) TO CONTRACT OR GUARANTEE FOREIGN LOANS .................................................................................. 106
c) ENTRY INTO TREATIES OR INTERNATIONAL AGREEMENTS.............................................................. 106
8. POWERS RELATIVE TO APPROPRIATION MEASURES ................................................................................ 106
9. VETO POWERS ........................................................................................................................................................... 106
IV. JUDICIAL DEPARTMENT ................................................................................................................................................. 108
A. CONCEPT OF JUDICIAL POWER .................................................................................................................................. 108
B. JUDICIAL REVIEW .......................................................................................................................................................... 108
1. REQUISITES ................................................................................................................................................................ 109
2. POLITICAL QUESTIONS DOCTRINE .................................................................................................................... 110
3. MOOT QUESTIONS.................................................................................................................................................... 111
4. OPERATIVE FACT DOCTRINE ............................................................................................................................... 112
C. JUDICIAL INDEPENDENCE AND FISCAL AUTONOMY.......................................................................................... 112
D. APPOINTMENTS TO THE JUDICIARY ...................................................................................................................... 115
1. QUALIFICATIONS OF MEMBERS .......................................................................................................................... 115
2. JUDICIAL AND BAR COUNCIL ................................................................................................................................ 116
a) COMPOSITION...................................................................................................................................................... 116
b) POWERS ................................................................................................................................................................. 117
E. THE SUPREME COURT .................................................................................................................................................. 117
1. COMPOSITION, POWERS, AND FUNCTIONS .................................................................................................... 117
2. EN BANC AND DIVISION CASES ............................................................................................................................ 118
3. ADMINISTRATIVE SUPERVISION OVER LOWER COURTS .......................................................................... 118
4. ORIGINAL AND APPELLATE JURISDICTION .................................................................................................... 119
V. CONSTITUTIONAL COMMISSIONS (COMELEC, COA, CSC) ..................................................................................... 120
A. CONSTITUTIONAL SAFEGUARDS TO ENSURE INDEPENDENCE OF COMMISSIONS ................................. 120
B. COMMON PROVISIONS ................................................................................................................................................. 120
C. POWERS, FUNCTIONS, AND JURISDICTION ........................................................................................................... 121
D. COMPOSITION AND QUALIFICATIONS OF MEMBERS........................................................................................ 123
E. PROHIBITED OFFICES AND INTERESTS ................................................................................................................. 126
F. JUDICIAL REVIEW OF FINAL ORDERS, RESOLUTIONS, AND DECISIONS ...................................................... 126
1. RENDERED IN THE EXERCISE OF QUASI-JUDICIAL FUNCTIONS .............................................................. 126
2. RENDERED IN THE EXERCISE OF ADMINISTRATIVE FUNCTIONS........................................................... 127
THE CITIZEN IN RELATION TO THE STATE
I. CITIZENSHIP .......................................................................................................................................................................... 129
A. WHO ARE FILIPINOS ..................................................................................................................................................... 130
B. MODES OF ACQUIRING CITIZENSHIP ...................................................................................................................... 130
C. LOSS AND RE-ACQUISITION OF PHILIPPINE CITIZENSHIP .............................................................................. 131
D. DUAL CITIZENSHIP AND DUAL ALLEGIANCE ....................................................................................................... 133
E. FOUNDLINGS.................................................................................................................................................................... 134
1. FOUNDLING RECOGNITION AND PROTECTION ACT (R.A. No. 11767) .................................................. 134
II. BILL OF RIGHTS .................................................................................................................................................................. 136
A. PRIVATE ACTS AND THE BILL OF RIGHTS ............................................................................................................. 136
B. DUE PROCESS .................................................................................................................................................................. 137
1. PROCEDURAL AND SUBSTANTIVE ..................................................................................................................... 138
2. VOID-FOR-VAGUENESS........................................................................................................................................... 141
3. JUDICIAL AND ADMINISTRATIVE DUE PROCESS .......................................................................................... 142
C. EQUAL PROTECTION .................................................................................................................................................... 144
1. REQUISITES FOR VALID CLASSIFICATION ...................................................................................................... 145
2. STANDARDS OF JUDICIAL REVIEW .................................................................................................................... 146
a) RATIONAL BASIS TEST ..................................................................................................................................... 146
b) STRICT SCRUTINITY TEST .............................................................................................................................. 146
c) INTERMEDIATE SCRUTINITY TEST .............................................................................................................. 147
D. ARRESTS, SEARCHES, AND SEIZURES ..................................................................................................................... 147
1. REQUISITES OF A VALID WARRANT.................................................................................................................. 148
a) ARREST WARRANT ............................................................................................................................................ 148
b) SEARCH WARRANT............................................................................................................................................ 148
2. WARRANTLESS ARRESTS AND DETENTION ................................................................................................... 153
3. WARRANTLESS SEARCHES ................................................................................................................................... 154
4. ADMINISTRATIVE ARRESTS ................................................................................................................................. 160
5. EXCLUSIONARY RULE ............................................................................................................................................. 161
E. PRIVACY OF COMMUNICATIONS AND CORRESPONDENCE ............................................................................. 163
1. PRIVATE AND PUBLIC COMMUNICATIONS ..................................................................................................... 164
2. WHEN INTRUSION IS ALLOWED ......................................................................................................................... 166
3. EXCLUSIONARY RULE ............................................................................................................................................. 169
F. FREEDOM OF SPEECH AND EXPRESSION ............................................................................................................... 169
1. PRIOR RESTRAINT AND SUBSEQUENT PUNISHMENT ................................................................................ 173
2. CONTENT-BASED AND CONTENT-NEUTRAL REGULATIONS .................................................................... 176
3. FACIAL CHALLENGES AND OVERBREADTH DOCTRINE ............................................................................. 177
4. TESTS TO DETERMINE THE VALIDITY OF GOVERNMENTAL REGULATION ....................................... 178
5. STATE REGULATION OF DIFFERENT TYPES OF MASS MEDIA.................................................................. 180
6. COMMERCIAL SPEECH ............................................................................................................................................ 181
7. UNPROTECTED SPEECH ......................................................................................................................................... 181
G. FREEDOM OF RELIGION .............................................................................................................................................. 183
1. NON-ESTABLISHMENT AND FREE EXERCISE CLAUSES............................................................................... 185
2. BENEVOLENT NEUTRALITY AND CONSCIENTIOUS OBJECTOR ............................................................... 187
3. TESTS TO DETERMINE THE VALIDITY OF GOVERNMENTAL REGULATION ....................................... 190
a) CLEAR AND PRESENT DANGER...................................................................................................................... 190
b) COMPELLING STATE INTEREST .................................................................................................................... 190
H. LIBERTY OF ABODE AND RIGHT TO TRAVEL ....................................................................................................... 191
1. SCOPE AND LIMITATIONS ..................................................................................................................................... 191
2. WATCH-LIST AND HOLD DEPARTURE ORDERS ............................................................................................ 193
I. RIGHT TO INFORMATION ............................................................................................................................................. 194
J. EMINENT DOMAIN .......................................................................................................................................................... 197
1. CONCEPT ..................................................................................................................................................................... 197
2. PUBLIC USE ................................................................................................................................................................. 198
3. JUST COMPENSATION ............................................................................................................................................. 199
4. EXPROPRIATION BY LOCAL GOVERNMENT UNITS ...................................................................................... 201
K. RIGHT TO ASSOCIATION ............................................................................................................................................. 203
L. NON-IMPAIRMENT OF CONTRACTS......................................................................................................................... 204
M. FREE ACCESS TO COURTS AND ADEQUATE LEGAL ASSISTANCE .................................................................. 205
N. CUSTODIAL INVESTIGATION ..................................................................................................................................... 206
1. MEANING OF CUSTODIAL INVESTIGATION ..................................................................................................... 206
2. RIGHTS OF A PERSON UNDER CUSTODIAL INVESTIGATION .................................................................... 206
3. REQUISITES OF A VALID WAIVER ...................................................................................................................... 208
4. EXCLUSIONARY DOCTRINE ................................................................................................................................... 209
O. RIGHTS OF THE ACCUSED ........................................................................................................................................... 210
1. CRIMINAL DUE PROCESS ....................................................................................................................................... 210
2. BAIL ............................................................................................................................................................................... 211
3. PRESUMPTION OF INNOCENCE ........................................................................................................................... 214
4. RIGHT TO BE HEARD ............................................................................................................................................... 215
5. RIGHT TO COUNSEL ................................................................................................................................................. 216
6. RIGHT TO BE INFORMED OF THE NATURE AND CAUSE OF ACCUSATION ........................................... 217
7. RIGHT TO SPEEDY, IMPARTIAL AND PUBLIC TRIAL ................................................................................... 218
8. RIGHT OF CONFRONTATION ................................................................................................................................ 218
9. RIGHT TO COMPULSORY PROCESSES ............................................................................................................... 219
10. TRIAL IN ABSENTIA .............................................................................................................................................. 219
P. RIGHT TO SPEEDY TRIAL AND SPEEDY DISPOSITION OF CASES ................................................................... 220
Q. RIGHT AGAINST SELF-INCRIMINATION................................................................................................................. 223
2. IMMUNITY STATUTES ............................................................................................................................................ 225
R. RIGHT AGAINST DOUBLE JEOPARDY ...................................................................................................................... 226
1. REQUISITES AND LIMITATIONS .......................................................................................................................... 226
S. RIGHT AGAINST INVOLUNTARY SERVITUDE ....................................................................................................... 230
T. RIGHT AGAINST EXCESSIVE FINES, AND CRUEL AND INHUMAN PUNISHMENTS..................................... 231
U. NON-IMPRISONMENT FOR DEBTS ........................................................................................................................... 232
V. EX POST FACTO LAWS AND BILLS OF ATTAINDER ............................................................................................. 232
W. WRITS OF HABEAS CORPUS, KALIKASAN, HABEAS DATA, AND AMPARO ................................................ 234
III. SOCIAL JUSTICE AND HUMAN RIGHTS ...................................................................................................................... 250
A. CONCEPT OF SOCIAL JUSTICE .................................................................................................................................... 250
B. ECONOMIC, SOCIAL, AND CULTURAL RIGHTS ...................................................................................................... 251
C. COMMISSION ON HUMAN RIGHTS ............................................................................................................................ 252
1. POWERS AND FUNCTIONS..................................................................................................................................... 253
IV. EDUCATION, SCIENCE, TECHNOLOGY, ARTS, CULTURE, AND SPORTS .......................................................... 256
A. ACADEMIC FREEDOM ................................................................................................................................................... 256
NATIONAL ECONOMY AND PATRIMONY
I. REGALIAN DOCTRINE ......................................................................................................................................................... 260
II. PUBLIC TRUST DOCTRINE............................................................................................................................................... 262
III. NATIONALIST AND CITIZENSHIP REQUIREMENT PROVISIONS ....................................................................... 263
IV. EXPLORATION, DEVELOPMENT, AND UTILIZATION OF NATURAL RESOURCES ........................................ 264
V. ACQUISITION, OWNERSHIP, AND TRANSFER OF PUBLIC AND PRIVATE LANDS ......................................... 267
VI. CONCEPT OF ANCESTRAL DOMAIN (INCLUDING ANCESTRAL LANDS) ......................................................... 269
VII. PRACTICE OF PROFESSIONS ........................................................................................................................................ 270
LAW ON PUBLIC OFFICERS, ADMINISTRATIVE LAW, ELECTION LAW, AND LOCAL GOVERNMENT
I. LAW ON PUBLIC OFFICERS ............................................................................................................................................... 272
A. GENERAL PRINCIPLES .......................................................................................................................................................... 272
B. MODES OF ACQUIRING TITLE TO PUBLIC OFFICE ................................................................................................................. 275
C. MODES AND KINDS OF APPOINTMENT ................................................................................................................................. 275
D. ELIGIBILITY AND QUALIFICATION REQUIREMENTS............................................................................................................. 280
E. DISABILITIES AND INHIBITIONS OF PUBLIC OFFICERS......................................................................................................... 283
F. POWERS AND DUTIES OF PUBLIC OFFICERS ......................................................................................................................... 286
G. RIGHTS OF PUBLIC OFFICERS ............................................................................................................................................... 287
H. LIABILITIES OF PUBLIC OFFICERS ........................................................................................................................................ 288
1. PREVENTIVE SUSPENSION AND BACK SALARIES ......................................................................................... 291
2. ILLEGAL DISMISSAL, REINSTATEMENT, AND BACK SALARIES................................................................ 294
I. IMMUNITY OF PUBLIC OFFICERS ........................................................................................................................................... 295
J. DISTINGUISH: DE FACTO AND DE JURE OFFICERS ................................................................................................................. 296
K. TERMINATION OF OFFICIAL RELATION ................................................................................................................................ 298
1. INVOLUNTARY RETIREMENT .............................................................................................................................. 300
L. THE CIVIL SERVICE ................................................................................................................................................................ 302
1. SCOPE ........................................................................................................................................................................... 302
2. APPOINTMENTS TO THE CIVIL SERVICE ......................................................................................................... 305
3. PERSONNEL ACTIONS ............................................................................................................................................. 309
M. ACCOUNTABILITY OF PUBLIC OFFICERS .............................................................................................................................. 310
1. TYPES OF ACCOUNTABILITY ................................................................................................................................ 310
a) ADMINISTRATIVE .............................................................................................................................................. 310
b) CRIMINAL .............................................................................................................................................................. 310
2. DISCIPLINE ................................................................................................................................................................. 310
a) GROUNDS .............................................................................................................................................................. 310
b) JURISDICTION ...................................................................................................................................................... 318
c) DISMISSAL, PREVENTIVE SUSPENSION, REINSTATEMENT, AND BACK SALARIES...................... 320
d) CONDONATION DOCTRINE ............................................................................................................................. 320
3. IMPEACHMENT vs. QUO WARRANTO ............................................................................................................... 320
4. THE OMBUDSMAN AND THE OFFICE OF THE SPECIAL PROSECUTOR .................................................. 326
a) FUNCTIONS ........................................................................................................................................................... 326
b) JUDICIAL REVIEW IN ADMINISTRATIVE PROCEEDINGS ...................................................................... 331
c) JUDICIAL REVIEW IN PENAL PROCEEDINGS ............................................................................................. 332
5. THE SANDIGANBAYAN ........................................................................................................................................... 333
N. TERM LIMITS ........................................................................................................................................................................ 337
II. ADMINISTRATIVE LAW .................................................................................................................................................... 340

A. GENERAL PRINICIPLES ......................................................................................................................................................... 340
B. ADMINISTRATIVE AGENCIES ................................................................................................................................................ 341
C. POWERS OF ADMINISTRATIVE AGENCIES............................................................................................................................. 344
1. QUASI-LEGISLATIVE (RULE-MAKING) POWER.............................................................................................. 345
a) KINDS OF ADMINISTRATIVE RULES AND REGULATIONS .................................................................... 348
b) REQUISITES FOR VALIDITY ............................................................................................................................ 348
2. QUASI-JUDICIAL (ADJUDICATORY) POWER ................................................................................................... 350
a) ADMINISTRATIVE DUE PROCESS.................................................................................................................. 353
b) ADMINISTRATIVE APPEAL AND REVIEW .................................................................................................. 356
c) ADMINISTRATIVE RES JUDICATA ................................................................................................................. 356
3. FACT-FINDING, INVESTIGATIVE, LICENSING, AND RATE-FIXING POWERS ........................................ 358
D. JUDICIAL RECOURSE AND REVIEW ....................................................................................................................................... 361
1. DOCTRINE OF PRIMARY ADMINISTRATIVE JURISDICTION ..................................................................... 361
2. DOCTRINE OF EXHAUSTION OF ADMINISTRATIVE REMEDIES ............................................................... 363
3. DOCTRINE OF FINALITY OF ADMINISTRATIVE ACTION ............................................................................ 370
III. ELECTION LAW .................................................................................................................................................................. 371
A. SUFFRAGE............................................................................................................................................................................. 371
1. QUALIFICATIONS AND DISQUALIFICATION OF VOTERS ............................................................................ 372
2. REGISTRATION AND DEACTIVATION OF VOTERS........................................................................................ 373
3. INCLUSION AND EXCLUSION PROCEEDINGS................................................................................................... 375
4. LOCAL AND OVERSEAS ABSENTEE VOTING .................................................................................................... 377
5. DETAINEE VOTING ................................................................................................................................................... 377
B. CANDIDACY ...................................................................................................................................................................... 380
1. QUALIFICATIONS AND DISQUALIFICATIONS OF CANDIDATES ............................................................... 380
2. FILING OF CERTIFICATES OF CANDIDACY ....................................................................................................... 383
a) EFFECT OF FILING .............................................................................................................................................. 384
b) SUBSTITUTION AND WITHDRAWAL OF CANDIDATES ......................................................................... 384
c) NUISANCE CANDIDATES ................................................................................................................................... 386
d) DUTIES OF THE COMMISSION ON ELECTIONS (COMELEC) ................................................................. 387
C. CAMPAIGN ........................................................................................................................................................................ 388
1. PREMATURE CAMPAIGNING ................................................................................................................................ 388
2. PROHIBITED CONTRIBUTIONS ........................................................................................................................... 388
3. LAWFUL AND PROHIBITED ELECTION PROPAGANDA ............................................................................... 389
4. LIMITATIONS ON EXPENSES................................................................................................................................. 390
5. STATEMENT OF CONTRIBUTIONS AND EXPENSES ...................................................................................... 390
D. REMEDIES AND JURSIDICTION ................................................................................................................................. 390
1. PETITION TO DENY DUE COURSE OR CANCEL A CERTIFICATE OF CANDIDACY ................................ 390
2. PETITION FOR DISQUALIFICATION ................................................................................................................... 391
3. FAILURE OF ELECTION, CALL FOR SPECIAL ELECTION .............................................................................. 393
4. PRE-PROCLAMATION CONTROVERSY .............................................................................................................. 395
5. ELECTION PROTEST ................................................................................................................................................ 398
6. QUO WARRANTO ...................................................................................................................................................... 401
a) COMELEC ............................................................................................................................................................... 402
b) SENATE ELECTORAL TRIBUNAL (SET) ....................................................................................................... 403
c) HOUSE OF REPRESENTATIVES ELECTORAL TRIBUNAL (HRET)........................................................ 404
7. RECALL ......................................................................................................................................................................... 404
E. PROSECUTION OF ELECTION OFFENSES ................................................................................................................................ 407
IV. LOCAL GOVERNMENT ...................................................................................................................................................... 410

A. PUBLIC CORPORATIONS ....................................................................................................................................................... 410
1. CONCEPT; DISTINGUISHED FROM GOVERNMENT-OWNED OR CONTROLLED CORPORATIONS . 410
2. CLASSIFICATIONS ..................................................................................................................................................... 411
a) QUASI-CORPORATIONS .................................................................................................................................... 411
b) MUNICIPAL CORPORATIONS .......................................................................................................................... 412
(1) ELEMENTS ...................................................................................................................................................... 412
(2) NATURE AND FUNCTIONS ........................................................................................................................ 412
(3) REQUISITES FOR CREATION, CONVERSION, DIVISION, MERGER OR DISSOLUTION ........... 412
B. PRINCIPLES OF LOCAL AUTONOMY....................................................................................................................................... 414
C. AUTONOMOUS REGIONS AND THEIR RELATION TO THE NATIONAL GOVERNMENT ............................ 416
D. LOCAL GOVERNMENT UNIT (LGU) ....................................................................................................................................... 418
1. POWERS ....................................................................................................................................................................... 418
a) POLICE POWER .................................................................................................................................................... 418
b) EMINENT DOMAIN ............................................................................................................................................. 425
c) TAXING POWER ................................................................................................................................................... 430
d) CLOSURE AND OPENING OF ROADS ............................................................................................................. 436
e) LEGISLATIVE POWER ........................................................................................................................................ 437
(1) REQUISITES OF VALID ORDINANCE ....................................................................................................... 440
(2) LOCAL INITIATIVE AND REFERENDUM ............................................................................................... 443
f) CORPORATE POWERS........................................................................................................................................ 445
g) ULTRA VIRES ACTS ............................................................................................................................................ 445
2. LIABILITY OF LGUs .................................................................................................................................................. 447
3. SETTLEMENT OF BOUNDARY DISPUTES ......................................................................................................... 450
4. VACANCIES AND SUCCESSION OF LOCAL OFFICIALS ................................................................................... 452
5. RECALL ......................................................................................................................................................................... 457
6. TERM LIMITS ............................................................................................................................................................. 457
PART TWO: PUBLIC INTERNATIONAL LAW
I. SOURCES OF OBLIGATIONS .............................................................................................................................................. 460

A. TREATIES .......................................................................................................................................................................... 460
1. CONCEPT OF JUS COGENS (PEREMPTORY NORMS OF INTERNATIONAL LAW) ................................. 467
2. RESERVATIONS, WITHDRAWAL, TERMINATION, AND REBUS SIC STANTIBUS .................................. 468
B. CUSTOMARY INTERNATIONAL LAW ....................................................................................................................... 471
1. ELEMENTS................................................................................................................................................................... 472
2. OBLIGATIONS ERGA OMNES................................................................................................................................. 473
C. GENERAL PRINCIPLES OF LAW ................................................................................................................................. 474
D. APPLICATION OF INTERNATIONAL LAW BY DOMESTIC COURTS ................................................................ 476
1. MONISM ....................................................................................................................................................................... 476
2. DUALISM ..................................................................................................................................................................... 477
3. INVERTED MONISM ................................................................................................................................................. 479
4. HARMONIZATION .................................................................................................................................................... 479
II. INTERNATIONAL LEGAL PERSON ................................................................................................................................. 480
A. STATES .............................................................................................................................................................................. 480
1. ELEMENTS................................................................................................................................................................... 482
2. RECOGNITION OF STATES AND GOVERNMENTS .......................................................................................... 484
B. NON-STATE ENTITIES .................................................................................................................................................. 488
C. INTERNATIONAL ORGANIZATIONS ......................................................................................................................... 489
D. STATUS OF INDIVIDUALS AND CORPORATIONS ................................................................................................ 490
III. JURISDICTION .................................................................................................................................................................... 492
A. BASIS OF JURISDICTION .............................................................................................................................................. 492
1. TERRITORIALITY PRINICPLE .............................................................................................................................. 492
2. NATIONALITY PRINICIPLE.................................................................................................................................... 493
3. PROTECTIVE PRINCIPLE ....................................................................................................................................... 494
4. PASSIVE PERSONALITY PRINCIPLE ................................................................................................................... 495
B. TITLE TO TERRITORY .................................................................................................................................................. 495
C. ADJACENT MARITIME SEAS.................................................................................................................................................. 496
1. TERRITORIAL SEA ................................................................................................................................................... 498
2. CONTIGUOUS ZONE ................................................................................................................................................. 502
3. EXCLUSIVE ECONOMIC ZONE ............................................................................................................................... 503
4. CONTINENTAL SHELF ............................................................................................................................................. 505
D. JURISDICTION OVER PERSONS AND ECONOMIC ACTIVITY ................................................................................................... 509
1. CRIMINAL JURISDICTION ...................................................................................................................................... 509
a) GENERAL THEORY ............................................................................................................................................. 509
b) EXTRADITION ..................................................................................................................................................... 509
2. CIVIL JURISDICTION ................................................................................................................................................ 512
3. IMMUNITY FROM JURISDICTION ........................................................................................................................ 513
a) SOVEREIGN IMMUNITY .................................................................................................................................... 513
b) DIPLOMATIC AND CONSULAR IMMUNITY ................................................................................................ 513
4. AREAS NOT SUBJECT TO JURISDICTION TO INDIVIDUAL STATES ......................................................... 521
a) HIGH SEAS ............................................................................................................................................................. 521
b) DEEP SEABED....................................................................................................................................................... 526
c) OUTER SPACE ....................................................................................................................................................... 526
IV. INTERNATIONAL RESPONSIBILTY .............................................................................................................................. 528
A. CONCEPT OF IMPUTABILITY OF INTERNATIONALLY WRONGFUL ACT OR OMISSION .......................................................... 528
B. REPARATION......................................................................................................................................................................... 529
C. INTERNATIONAL PROTECTION OF HUMAN RIGHTS (INCLUDING REFUGEES AND STATELESS PERSONS)........................... 530
1. REMEDIES UNDER TREATY-BASED MECHANISMS ....................................................................................... 544
D. INTERNATIONAL MINIMUM STANDARD AND NATIONAL TREATMENT (INCLUDING EXPROPRIATION OF FOREIGN-OWNED
PROPERTIES) ............................................................................................................................................................................ 544
E. ENVIRONMENTAL HARM ....................................................................................................................................................... 545
1. PRECAUTIONARY PRINCIPLE............................................................................................................................... 545
F. INTERNATIONAL CLAIMS ...................................................................................................................................................... 546
V. DISPUTE RESOLUTION...................................................................................................................................................... 551

A. LEGALITY OF THE USE OF FORCE .......................................................................................................................................... 551
B. CONCEPT OF INTERNATIONAL AND NON-INTERNATIONAL ARMED CONFLICTS ................................... 551
1. THE ROLE OF THE INTERNATIONAL CRIMINAL COURT ............................................................................ 551
C. JUDICIAL AND ARBITRAL SETTLEMENT................................................................................................................................ 553
1. INTERNATIONAL COURT OF JUSTICE................................................................................................................ 553
2. PERMANENT COURT OF ARTBITRATION ........................................................................................................ 555
LEGEND United Nations Convention on
UNCLOS -
AFP - Armed Forces of the Philippines the Law of the Sea
Autonomous Region in Muslim Vienna Convention on Consular
ARMM - VCCR -
Mindanao Relations
ATC - Anti-Terror Council Vienna Convention of Diplomatic
VCDR -
Bangsamoro Autonomous Relations
BARMM -
Region in Muslim Mindanao VCM - Vote Counting Machine
BEI - Boards of Election Inspectors VFA - Visiting Forces Agreement
BOC - Board of Canvassers
BOI - Board of Inspectors
CC - Component City PART ONE: POLITICAL LAW
CHR - Commission on Human Rights
COA - Commission on Audit
CoC - Certificate of Candidacy
COMELEC - Commission on Elections
ConAss - Constituent Assembly
ConCon - Constitutional Convention
CSC - Civil Service Commission
DOF - Department of Finance
ER - Election Returns
I. PRELIMINARY CONCEPTS
GAA - General Appropriations Act
Government-Owned or
GOCC -
Controlled Corporation
HoR - House of Representatives
House of Representatives A. NATURE OF A CONSTITUTION
HRET -
Electoral Tribunal
HUC - Highly Urbanized City
ICC - International Criminal Court 1. PARTS
ICJ - International Criminal of Justice
International Tribunal for the
ITLOS - Constitution
Law of the Sea
LGC - Local Government Code
A Constitution is a written instrument enacted by
MBOC - Municipal Board of Canvassers
direct action of the people by which the
MeTC - Metropolitan Trial Court
fundamental powers of the government are
MTC - Municipal Trial Court
established, limited and defined, and by which those
NCC - New Civil Code
powers are distributed among the several
National Human Rights
NHRI - departments for their safe and useful exercise for
Institution
the benefit of the body politic. (Bernas, 2009)
OEC - Omnibus Election Code
OSG - Office of the Solicitor General
Philippine Constitution and Effectivity Dates
PET - Presidential Electoral Tribunal
ROC - Rules of Court
1. 1935 Constitution – 14 May 1935
RTC - Regional Trial Court
2. 1973 Constitution – 17 Jan. 1973
Special Boards of Election
SBEI - 3. 1986 Freedom Constitution – 25 Mar. 1986
Inspectors
4. 1987 Constitution – 02 Feb. 1987
SET - Senate Electoral Tribunal
Universal Declaration of Human
UDHR -
Rights
UN - United Nations
1
POLITICAL LAW AND PUBLIC INTERNATIONAL LAW
Three Basic Parts of a Constitution Self-executing Provision
1. Constitution of Liberty – series of prescription A self-executing provision is complete in itself and

setting forth the fundamental civil and political becomes operative without the aid of
rights of the citizens and imposing limitations supplementary or enabling legislation, or that
on the powers of government as a means of which supplies a sufficient rule by means of which
securing the enjoyment of those rights; the right it grants may be enjoyed or protected.
(Manila Prince Hotel v. GSIS, G.R. 122156, 03 Feb
2. Constitution of Government – series of 1997)
provisions outlining the organization of the
government, enumerating its powers, laying GR: The provisions of the Constitution are
down certain rules relative to its considered self-executing, and do not require future
administration, and defining the electorate; and legislation for their enforcement.
3. Constitution of Sovereignty – provisions XPN: Provisions that lay down a general principle is
pointing out the mode or procedure in usually not self-executing.
accordance with which formal changes in the
fundamental law may be brought about. Examples:
(Nachura, 2016)
1. Article II, Sec. 15 - The right to health is also
2. MANNER OF INTERPRETATION self-executing (Imbong v. Ochoa, G.R. No.
(SELF-EXECUTING AND NON-EXECUTING 204819, 8 Apr. 2014)
CHARACTER)
2. Article II, Sec. 16 - The right to a balanced and
healthful ecology is self-executory and does not
Basic Principles of Constitutional Construction
need an implementing legislation (Oposa v.
Factoran, G.R. No. 101083, 30 July 1993).
1. Verba legis – The words used in the
Constitution must be given their ordinary
3. Article II, Sec. 28 – The duty of full public
meaning except where technical terms are
disclosure is self-executory (Province of North
employed;
Cotabato v. GRP, G.R. No. 183591, 14 Oct. 2008)
2. Ratio legis est anima – The words of the

Constitution should be interpreted in 3. PROCESS OF CHANGE
accordance with the intent of the framers; and (AMENDMENTS AND REVISIONS)
3. Ut magit valeat quam pereat – The Amendments

Constitution has to be interpreted as a whole.
(Francisco v. House of Representatives, G.R. No. Amendment broadly refers to a change that adds,
160261, 10 Nov. 2003) reduces, deletes, without altering the basic principle
in the Constitution involved. (Lambino v. COMELEC,
NOTE: In case of doubt, the provisions should be G.R. No. 1741153, 25 Oct. 2006)
considered self-executing (Manila Prince Hotel v.
GSIS, G.R. No. 122156, 03 Feb. 1997), mandatory An amendment envisages an alteration of one or a
rather than directory, and prospective rather that few specific and isolated provisions of the
retroactive. (Nachura, 2016) Constitution. Its guiding original intention is to
improve specific parts or to add new provisions or
to suppress existing ones accordingly as addition or
2
2023 GOLDEN NOTES
subtraction might be demanded by existing b. Constitutional Convention - either by vote
conditions. (Bernas, 2011) of 2/3 of all the members of Congress or by
a majority vote of all members of Congress
Revision with a question of whether to call or not to
call a convention to be resolved by the
Revision broadly implies a change that alters a basic people in a plebiscite; or
principle in the Constitution, like altering the
principle of separation of powers or the system of c. People’s Initiative - at least 12% of the
checks and balances. There is also revision if the total number of registered voters, of which
change alters the substantial entirety of the every legislative district must be
Constitution. (Lambino v. COMELEC, G.R. No. represented by at least 3% of the registered
1741153, 25 Oct. 2006) voters therein. Limitation is once every five
(5) years.
In revision, the guiding intention and plan
contemplate a re-examination of the entire NOTE: No amendment in this manner shall
document to determine how and to what extent it be authorized:
should be altered. The end product of a revision can
a. within five (5) years following the
be an important structural change in the
government or a change which affects several ratification of the 1987 Constitution;
nor
provisions of the Constitution. (Bernas, 2011)
b. more often than once every five (5)

Two-Part Test
years. (Sec. 2, Art. XVII, 1987
Constitution)
1. Quantitative Test – Asks whether the proposed
change is “so extensive in its provisions as to
NOTE: Constitutional provisions on
change directly the ‘substantial entirety’ of the
constitution by the deletion or alteration of amendments via People’s Initiative are not
numerous existing provisions.” The court self-executory. (Defensor-Santiago v.
COMELEC, G.R. No. 127325, 19 Mar. 1997)
examines only the number of provisions
affected and does not consider the degree of
change; and 2. Ratification of the proposed amendment
through:
2. Qualitative Test – Inquires into the qualitative
effects of the proposed change in the a. A majority of votes cast in a plebiscite held
not earlier 60 days nor later than 90 days
constitution. The main inquiry is whether the
change will “accomplish such far reaching after the approval of the proposal by
changes in the nature of our basic governmental Congress or the Constitutional Convention;
or
plan as to amount to revision.” (Lambino v.
COMELEC, G.R. No. 1741153, 25 Oct. 2006)
b. A majority of votes cast in a plebiscite held
Two Steps in Amendatory Process not earlier than 60 days nor later than 90
days after the certification of the
1. Proposal or the adoption of the suggested Commission on elections of the sufficiency
change in the Constitution. A proposed of the petition for initiative under Sec. 2,
amendment may come from: Art. XVII, 1987 Constitution.
a. Congress – (as a Constituent Assembly) by

vote of 3/4 of all its members;
3
Doctrine of Proper Submission should be the same as that of the date of ratification,
that is, the day on which the votes are cast. However,
Since the Constitution itself prescribes the time the amendments themselves might specify
frame within which the plebiscite is to be held, the otherwise. (Bernas, 2009)
question of whether the time given to people to
determine the merits and demerits of the proposed
amendment is adequate will no longer arise.
Judicial Review of Amendments
The validity of the process of amendment is not a

political question because the Court must review if
constitutional processes were followed. (Lambino v.
COMELEC, G.R. No. 174153)
Ratification of Proposal if Made Through ConAss

or ConCon
1. Amendments and revisions are valid when

ratified by a majority of votes cast in a
plebiscite.
2. Plebiscite is held not earlier than 60 days nor

later than 90 days from the approval of such
amendments or revisions.
Ratification of Proposal if made through

People’s Initiative
1. Valid when ratified by a majority of votes cast

in a plebiscite.
2. Plebiscite is held not earlier than 60 days nor

later than 90 days after the certification by
COMELEC of the petition's sufficiency.
Requisites for Valid Ratification: (C-P-R)
1. Held in a Plebiscite conducted under the

election law.
2. Supervised by the COMELEC.
3. Where only franchised (Registered) voters take
part.
Date of Effectivity of an Amendment or Revision
Sec. 4, Art. XVII, 1987 Constitution says that any

amendment or revision shall be valid when ratified.
The date of effectivity of any amendment or revision
4
2023 GOLDEN NOTES
CONSTITUENT ASSEMBLY CONSTITUTIONAL
PEOPLE’S INITIATIVE
(ConAss) CONVENTION (ConCon)
How proposed
1. By Congress, upon a vote of 2/3
of ALL its members (to call for a
By the people, upon a petition
ConCon); or
thru a plebiscite (at least 12% of
By Congress, acting as
the TOTAL number of registered
Constituent Assembly upon a vote 2. By Congress, upon a majority
voters, of which every legislative
of 3/4 of ALL its members (2014 vote of ALL its members to submit
district must be represented by
BAR) to the Electorate the question of
3% of the registered voters
calling a ConCon (+Plebiscite)
therein (Sec. 2, Art. XVII, 1987
NOTE: Although the law is silent (Sec. 3, Art. XVII, 1987
Constitution) (+Full text of the
on whether the voting is done Constitution)
proposed amendments attached
separately or jointly, the
in the petition)
prevailing view is for separate NOTE: Although the law is silent
voting as the Congress is on whether the voting is done
NOTE: No amendment shall be
bicameral. separately or jointly, the
authorized more than once every
prevailing view is for separate
five years thereafter.
voting as the Congress is
bicameral.
As to Coverage
Amendment or Revision Amendment ONLY
As to Legal Questions (Subject to Judicial Review)
1. Manner of Proposal; or
2. Manner of calling ConCon
- This is a case where Congress, acting as a ConAss,
Propositions can be declared null and void for
calls for a ConCon but does not provide details for
violation of the Constitution.
the calling of such ConCon, and Congress, in
exercising its ordinary legislative power, may
supply such details.
As to Political Questions
Substance of the proposal. None None
Whether ConAss or ConCon should initiate the
None
amendment or revision.
As to Limits
No amendment be authorized oftener than once
None
every 5 years. (Sec. 2, Art. XVII, 1987 Constitution).
5
4. Sovereignty – independence from outside
B. THE PHILIPPINES AS A STATE control. The Montevideo Convention expresses
this in positive terms as including “the capacity
to enter into relations with other states.” The
latter element of sovereignty is dependent on
Republican State (1996 BAR)
recognition. (Bernas, 2009)
The Philippines is a democratic and republican NOTE: Sovereignty as an element of state is related
State. Sovereignty resides in the people and all but not identical with the broader concept of self-
government authority emanates from them. (Sec. 1, determination. (Bernas, 2009)
Art. II, 1987 Constitution)
PEOPLE
A state wherein all government authority emanates
from the people and is exercised by representatives
Definition
chosen by the people. (Dissenting Opinion of Justice
Puno, Tolentino v. COMELEC, G.R. No. 148334, 21 Jan.
As a requisite for statehood, the people must be
2004)
adequate in number for self-sufficiency and defense
and consist of both sexes for perpetuity. (Nachura,
Manifestations of Republicanism
2014)
(La-R-A-Bi-L S)
TERRITORY
1. Ours is a government of Laws and not of men;
2. Rule of Majority (Plurality in elections);
3. Accountability of public officials; Definition
4. Bill of Rights;
5. Legislature cannot pass irrepealable laws; and The national territory comprises the Philippine
6. Separation of powers archipelago, with all the islands and waters
embraced therein, and all other territories over
1. ELEMENTS which the Philippines has sovereignty or
(PEOPLE, TERRITORY, GOVERNMENT, AND jurisdiction, consisting of its terrestrial, fluvial, and
CAPACITY TO ENTER INTO RELATIONS WITH aerial domains, including its territorial sea, the
OTHER STATES) seabed, the subsoil, the insular shelves, and other
submarine areas. (Sec. 1, Art. I, 1987 Constitution)
Elements of the State

The territory includes the domains of: (A-F-A-T)
1. People – community of persons sufficient in

1. Terrestrial;
number and capable of maintaining the
2. Aerial;
permanent existence of the community and
3. Fluvial; and
held together by a common bond of law;
4. All other territories outside archipelago over
(Bernas, 2009)
which the Philippines has sovereignty or
jurisdiction.
2. Territory – a definite territory over which an
entity exercises permanent sovereignty; Composition of National Territory
(Bernas, 2009)
1. Philippine Archipelago, with all the islands and
3. Government – the agency or instrumentality waters embraced therein;
through which the will of the State is
formulated, expressed and realized; (Nachura,
2016) and
6
2023 GOLDEN NOTES
2. Internal waters (water around, between and Doctrine of Parens Patriae
connecting the islands of the archipelago,
regardless of breadth and dimensions); and The Government may act as guardian of the rights of
people who may be disadvantaged or are suffering
3. All other territories over which the Philippines from some disability or misfortune. (Nachura, 2016)
has sovereignty or jurisdiction.
Classification of Government based on
The Philippine Archipelago Legitimacy
The Philippine archipelago is that body of water 1. De jure – Legal and regularly constituted
studded, with islands which is delineated in the government; possessing all the legal requisites
Treaty of Paris of 10 December 1898, as modified by of government; and
the Treaty of Washington of 07 November 1900, and
the Treaty with Great Britain of 02 January 1930. 2. De facto – In control of the political affairs in the
These are the same treaties that delineated state; lacking one or more of the legal requisites
Philippine territory in Art. I of the 1935 of government. (Nachura, 2016)
Constitution. (Bernas, 2011)
Types of De Facto Governments (V-I-P)
GOVERNMENT
1. Government that usurps government and
Definition maintains itself against the will of the majority
by force or by Violence;
Government of the Philippines is the “corporate
governmental entity through which the functions of 2. Government established as an independent
government are exercised throughout the government by inhabitants who rise in
Philippines, including, save as the contrary appears Insurrection against the parent state; and
from the context, the various arms through which
political authority is made effective in the 3. Government established and maintained by
Philippines, whether pertaining to the autonomous military forces which invade or occupy a
regions, the provincial, city, municipal or barangay territory of the enemy in the course of war; a
subdivisions or other forms of local government.” government of Paramount force. (Nachura,
(Sec. 2, Administrative Code of 1987) 2016)
Classification based on the System of

Functions of the Government
Government
1. Governmental or Constituent - Mandatory for
1. Presidential - There is a separation of executive
government to perform because they constitute
(lodged in the President) and legislative (vested
the very bonds of society (e.g., maintenance of
in the Congress) powers; and
peace and order, regulation of property); and
2. Parliamentary - There is a fusion of both

2. Proprietary or Ministrant - Optional;
executive and legislative powers in the
Functions intended to promote the welfare of
parliament, although the actual exercise powers
the people, progress and prosperity. (Nachura,
is vested in a Prime Minister who is chosen by,
2016)
and accountable to, Parliament. (Nachura,
2016)
7
Classification based on the Form of Governance Jurisdiction
1. Unitary – Single, centralized government, 1. Territorial – power of the state over persons
exercising power over both the internal and and things within its territory;
external affairs of the state; and
XPNs:
2. Federal – Consists of autonomous state (local) a. Foreign states, head of state, diplomatic
government units merged into a single state, representative, and consuls to a certain
with a national government exercising a limited degree;
degree of power over the domestic affairs but
generally full direction of the external affairs of b. Foreign state property (e.g., embassies,
the state. (Nachura, 2016) consulates and public vessels engaged in
non-commercial activities);
SOVEREIGNTY
c. Acts of state;
Definition
d. Foreign merchant vessel exercising the
The supreme and uncontrollable power inherent in rights of innocent passage or involuntary
a State by which that state is governed. (Nachura, entry, such as arrival under stress;
2016)
e. Foreign armies passing through or
Characteristics stationed in its territory with its
permission; and
1. Permanence;
2. Exclusiveness; f. Such other persons or property, including
3. Comprehensiveness; organizations like the Unites Nations, over
4. Absoluteness; which it may, by agreement, waive
5. Indivisibility; jurisdiction
6. Inalienability; and
7. Imprescriptibility. 2. Personal - power of the state over its nationals,
which may be exercised by the state even if the
Kinds of Sovereignty individual is outside the territory of the state;
1. Legal - power to issue final commands; 3. Extraterritorial - power exercised by the state
2. Political - sum total of all the influences which beyond its territory in the following cases:
lie behind the law;
3. Internal - supreme power over everything a. Assertion of its jurisdiction over its
within its territory; and nationals abroad or the exercise of its rights
4. External - also known as independence, which to punish certain offenses committed
is freedom from external control (Nachura, outside its territory against its national
2016) interest even if the offenders are non-
resident aliens;
b. By virtue of its relations with other states

or territories, as when it establishes a
colonial protectorate, or a condominium, or
administer a trust territory, or occupies
enemy territory in the course of war;
8
2023 GOLDEN NOTES
c. Local states waive its jurisdiction over 2. Claim to be free from external coercion or
persons and things within its territory, as claim to overthrow effective rulers and
when a foreign army stationed therein establish a new government – the assertion of
remains under the jurisdiction of the the right of revolution; or the claim of people
sending state; within an entity to be given autonomy. (Bernas,
2009)
d. By Principle of Extraterritoriality, as
illustrated by the immunities of the head of Kinds of Self-determination
state in a foreign country;
1. Internal self-determination – a people’s
e. Through enjoyment of easement or pursuit of its political, economic, social and
servitudes, such as the easement of cultural development within the framework of
innocent passage or arrival under stress; an existing state; and
and
2. External self-determination – the
f. The exercise of jurisdiction by the state in establishment of a sovereign and independent
the high seas or its vessels; over pirates; in state, the free association or integration with an
the exercise of the right to visit and search; independent state or the emergence into any
and under the doctrine of hot pursuit. other political status freely determined by a
(Nachura, 2016) people. (Province of North Cotabato v.
Government of the Republic of the Philippines
Peace Panel on Ancestral Domain, G.R. No.
2. DISTINCTION BETWEEN INTERNAL AND
183591, 14 Oct. 2008)
EXTERNAL SELF-DETERMINATION
Self-determination
C. FUNDAMENTAL POWERS OF THE STATE
The State shall pursue an independent foreign

policy. In its relations with other states, the
paramount consideration shall be national 1. POLICE POWER
sovereignty, territorial integrity, national interest,
and the right to self-determination. (Sec. 7, Art. II, Definition
1987 Constitution)
Police power is the power of the state to promote
Both the International Covenant on Civil and Political public welfare by restraining and regulating the use
Rights and the International Covenant on Economic, of liberty and property. It is the most pervasive, the
Social, and Cultural Rights assert the principle of least limitable, and the most demanding of the three
self-determination of people in identical language: fundamental powers of the State.
“All peoples have the right of self-determination. By
virtue of that right they freely determine their Generally, police power extends to all the great
political status and freely pursue their economic, public needs. Its particular aspects, however, are the
social and cultural development.” (Bernas, 2009) following:
1. Public health;
Two Main Categories of Various Levels of Claim 2. Public morals;
to Self-determination 3. Public safety; and
4. Public welfare
1. Establishment of new states – the claim by a
group within an established state to break away
and form a new entity; and
9
Requisites for a valid exercise of police power policies, the bulk of the rehabilitation activities
(Su-Mean) involved inspection, testing, demolition, relocation,
and construction. These works could not have easily
1. Lawful Subject – The interests of the public been done with tourists present. The rehabilitation
generally, as distinguished from those of a works in the first place were not simple, superficial
particular class, require the exercise of the or mere cosmetic but rather quite complicated,
police power; and major, and permanent in character as they were
intended to serve as long-term solutions to the
2. Lawful Means – The means employed are problem. (Zabal v. Duterte, G.R. No. 238467, 12 Feb.
reasonably necessary for the accomplishment 2019)
of the purpose and not unduly oppressive upon
individuals. (National Development Company Q: The City of Manila enacted Ordinance No. 7774
and New Agrix, Inc. v. Philippine Veterans Bank, entitled, “An Ordinance Prohibiting Short-Time
G.R. Nos. 84132-33, 10 Dec. 1990) Admission, Short-Time Admission Rates, and
Wash-Up Rate Schemes in Hotels, Motels, Inns,
Q: President Rodrigo Duterte issued Lodging Houses, Pension Houses, and Similar
Proclamation No. 475 formally declaring a state Establishments in the City of Manila.” The City of
of calamity in Boracay and ordering its closure Manila asserts that the subject establishments
for six (6) months. Due to this, Boracay residents "have gained notoriety as venue of ‘prostitution,
Mark Anthony Zabal and Thiting Jacosalem filed adultery and fornications’ in Manila since they
a petition alleging that they would suffer grave ‘provide the necessary atmosphere for
and irreparable damage as their livelihood clandestine entry, presence and exit and thus
depends on the tourist activities therein. They became the ‘ideal haven for prostitutes and
attacked the order on the ground that it is an thrill-seekers. The purpose of the ordinance is
invalid exercise of legislative powers. Is the to prohibit motel and inn operators from
order invalid? offering short-time admission, as well as pro-
rated or “wash-up” rates for abbreviated stays.
A: NO. The assailed governmental measure in this Is the ordinance a valid exercise of police
case is within the scope of police power. Verily, the power?
statutes from which the said measure draws
authority and the constitutional provisions which A: NO. A reasonable relation must exist between the
serve as its framework are primarily concerned purposes of the measure and the means employed
with the environment and health, safety, and well- for its accomplishment, for even under the guise of
being of the people, the promotion and securing of protecting the public interest, personal rights and
which are clearly legitimate objectives of those pertaining to private property will not be
governmental efforts and regulations. The only permitted to be arbitrarily invaded. It must also be
question now is whether the temporary closure of evident that no other alternative for the
Boracay as a tourist destination for six months is accomplishment of the purpose less intrusive of
reasonably necessary under the circumstances? The private rights can work. In the present case, there is
answer is in the affirmative. less intrusive measures which can be employed
such as curbing out the prostitution and drug use
Tourist arrivals in the island were clearly far more through active police force. The ordinance has a
than Boracay could handle. Certainly, the closure of lawful purpose but does not have the lawful means
Boracay, albeit temporarily, gave the island its hence, unconstitutional. (White Light Corporation
much-needed breather, and likewise afforded the vs. City of Manila, G.R. No. 122846, 20 Jan. 2009)
government the necessary leeway in its
rehabilitation program. Note that apart from Q: Are the rates to be charged by utilities like
review, evaluation and amendment of relevant MERALCO subject to State regulation?
10
2023 GOLDEN NOTES
A: YES. The regulation of rates to be charged by 2. EMINENT DOMAIN
public utilities is founded upon the police powers of
the State, and statutes prescribing rules for the
Definition
control and regulation of public utilities are a valid
exercise thereof. When private property is used for
Also known as the power of expropriation.
a public purpose and is affected with public interest,
(Nachura, 2016) Eminent domain is the right or
it ceases to be juris privati only and becomes subject
power of a sovereign state to appropriate private
to regulation. The regulation is to promote the
property to uses to promote public welfare. It is an
common good. As long as use of the property is
indispensable attribute of sovereignty; a power
continued, the same is subject to public regulation.
grounded in the primary duty of government to
(Republic v. Manila Electric Company, G.R. No.
serve the common need and advance the general
141314, 15 Nov. 2002)
welfare. The power of eminent domain is
inseparable in sovereignty being essential to the
NOTE: Mall owners and operators cannot be validly
existence of the State and inherent in government.
compelled to provide free parking to their
(NTC vs. Oroville Devt. Corp., G.R. No. 223366, 01 Aug.
customers because requiring them to provide free
2017)
parking space to their customers is beyond the
scope of police powers. It unreasonably restricts the
In the exercise of the power of eminent domain,
right to use property for business purposes and
property interests are appropriated and applied to
amounts to confiscation of property. (OSG v. Ayala
some public purpose, and thus, payment of just
Land, Inc., 600 SCRA 617, 18 Sept. 2009) (2014 BAR)
compensation is necessary. (Manila Memorial Park
v. Secretary, DSWD, G.R. No. 175356, 03 Dec. 2013)
Requisites for the Valid Exercise of Police Power
by the Delegate: (Ex-Mu-Terri)
Requisites for the Exercise of the Power of
Eminent Domain
1. Express grant by law;
2. Must not be contrary to law; and
1. Necessity – the foundation of the right to
3. Within Territorial limits of LGUs.
eminent domain is genuine necessity and that
necessity must be of public character; (Lagcao
XPN: When exercised to protect water supply.
v. Judge Labra, G.R. No. 155746, 13 Oct. 2004)
(Wilson v. City of Mountain Lake Terraces, 417
P.2d 632, 18 Aug. 1966)
2. Private property – all private property capable
of ownership may be expropriated, except
Q: Can MMDA exercise police power?
money and choses in action. Even services may
be subject to eminent domain; (Nachura, 2016)
A: NO. The MMDA cannot exercise police powers
since its powers are limited to the formulation,
3. Taking in the constitutional sense – where
coordination, regulation, implementation,
there is taking in the constitutional sense, the
preparation, management, monitoring, setting of
property owner need not file a claim for just
policies, installing a system, and administration.
compensation with the Commission on Audit;
Nothing in R.A. No. 7924 granted the MMDA police
the owner may go directly to court to demand
power, let alone legislative power (MMDA v.
payment; (Amigable v. Cuence, G.R. No. L-26400,
Trackworks, G.R. No. 179554, 16 Dec. 2009)
29 Feb. 1972; De los Santos v. Intermediate
Appellate Court, G.R. No. L-71998-99, 2 June
1993)
4. Public use – general concept of meeting public
need or public exigency. Synonymous with
“public interest”, “public benefit”, and “public
11
convenience”; (Reyes v. National Housing Power of Expropriation as Exercised by
Authority, G.R. No. 147511, 20 Jan. 2003) and Congress vs. Power of Expropriation as
Exercised by Delegates
5. Just compensation – the full and fair equivalent
of the property taken; it is the fair market value POWER OF POWER OF
of the property. (Nachura, 2014) EXPROPRIATION AS EXPROPRIATION AS
EXERCISED BY EXERCISED BY
Elements of the Exercise of the Power of CONGRESS DELEGATES
Eminent Domain (C-U-T-O) As to Scope
The power is pervasive
1. Taking of private property; and all-encompassing;
2. For public Use;
It can reach every form
3. Just Compensation; and
of property which may
4. Observance of due process. be needed by the State
for public use. In fact, it It can only be broad as
NOTE: There must be a valid offer to buy the can reach even private the enabling law and
property and refusal of said offer. property already the conferring
dedicated to public use, authorities want it to
Eminent Domain v. Regulatory Taking or even property be.
already devoted to
REGULATORY religious worship.
EMINENT DOMAIN
TAKING (Barlin v. Ramirez, G.R.
As to Power Exercised No. L-2832, 24 Nov.
An inherent power of It is the exercise of the 1906
the state based on the state of its police As to Question of Necessity
Constitution. power. Judicial question (The
As to Compensation courts can determine
Just compensation whether there is
need not be paid. Political question genuine necessity for
Just compensation its exercise, as well as
must be paid. Anything taken by the value of the
virtue of police power property)
is not compensable.
Requisites for a Valid Taking (Pri-Mo-Co-De-U)
Delegation of the Power of Eminent Domain
(P-L-A-T-E) 1. The expropriator must enter a Private
property;
1. Delegation to People at large (in cases of 2. Entry must be for more than a Momentary
initiative and referendum); period;
2. Delegation to Local Government Units; 3. Entry must be under warrant or Color of legal
3. Delegation to Administrative Bodies; authority;
4. Delegation of Tariff powers to the 4. Property must be Devoted to public use or
President; and otherwise informally appropriated or
5. Delegation of Emergency powers to the injuriously affected; and
President. 5. Utilization of property must be in such a way
as to oust the owner and deprive him of
beneficial enjoyment of the property. (Republic
v. De Castellvi, G.R. No. L-20620, 15 Aug. 1974)
12
2023 GOLDEN NOTES
Nature of Property Taken public-use character because the notion of public
use now includes the broader notion of indirect
GR: All private property capable of ownership, public benefit or advantage. (Manosca v. CA, G.R. No.
including services, can be taken. 106440, 29 Jan. 1996)
XPNs: Concept of Vicarious Benefit
1. Money; and This abandons the traditional concept that number

2. Choses in action - personal right not reduced in of actual beneficiaries determines public purpose.
possession but recoverable by a suit at law such Public use now includes the broader notion of
as right to receive, demand or recover debt, indirect public advantage, i.e., conversion of a slum
demand or damages on a cause of action ex area into a model housing community, urban land
contractu or for a tort or omission of duty. reform and housing. There is a vicarious advantage
to the society. (Filstream International Incorporated
NOTE: A chose in action is a property right in v. CA, G.R. No. 125218, 23 Jan. 1998)
something intangible, or which is not in one’s
possession but enforceable through legal or court Q: The Republic, through the Office of the
action e.g. cash, a right of action in tort or breach of Solicitor-General, instituted a complaint for
contract, an entitlement to cash refund, checks, expropriation of a piece of land in Taguig,
money, salaries, insurance claims. alleging that the National Historical Institute
declared said land as a national historical
Requisites before an LGU can Exercise Eminent landmark, because it was the site of the birth of
Domain (Pu-J-O-O) Felix Manalo, the founder of Iglesia ni Cristo. The
Republic filed an action to expropriate the land.
1. The power of eminent domain is exercised for Petitioners argued that the expropriation was
Public use, purpose or welfare, or for the not for a public purpose. Is their argument
benefit of the poor and the landless; correct?
2. There is payment of Just compensation; A: NO. Public use should not be restricted to the
traditional uses. It has been held that places
3. An Ordinance is enacted by the local legislative invested with unusual historical interest is a public
council authorizing the local chief executive, in use for which the power of eminent domain may be
behalf of the LGU, to exercise the power of authorized. The purpose in setting up the marker is
eminent domain or pursue expropriation essentially to recognize the distinctive contribution
proceedings over a particular private property of the late Felix Manalo to the culture of the
Philippines, rather than to commemorate his
4. A valid and definite Offer has been previously founding and leadership of the Iglesia ni Cristo. The
made to the owner of the property sought to be practical reality that greater benefit may be derived
expropriated, but said offer was not accepted. by members of the Iglesia ni Cristo than by most
(City of Manila v. Roces-Prieto, G.R. No. 221366, others could well be true but such a peculiar
08 July 2019) advantage still remains to be merely incidental and
secondary in nature. Indeed, that only a few would
Expansive Concept of “Public Use” actually benefit from the expropriation of property
does not necessarily diminish the essence and
Public use does not necessarily mean “use by the character of public use. (Manosca v. CA, G.R. No.
public at large.” Whatever may be beneficially 106440, 29 Jan. 1996)
employed for the general welfare satisfies the
requirement. Moreover, that only few people
benefit from the expropriation does not diminish its
13
Just Compensation compensation must be reckoned from the time of
the filing of the original complaint which is deemed
It is the full and fair equivalent of the property taken to be the time of taking of the property. (Republic v.
from the private owner (owner’s loss) by the Castillo, et.al., G.R. No. 190453, 26 Feb. 2020, J.
expropriator. It is usually the fair market value Hernando)
(FMV) of the property and must include
consequential damages (damages to the other XPN: At the time the inverse condemnations
interest of the owner attributed to the proceedings were instituted.
expropriation) minus consequential benefits
(increase in the value of other interests attributed to Illustrations:
new use of the former property).
1. In NPC vs. Macabangkit Sangkay (G.R. No.
The transfer of property through expropriation 165828, 24 Aug. 2011), compensation that is
proceedings is a sale or exchange within the reckoned on the market value prevailing at the
meaning of Secs. 24(D) and 56(A)(3) of the NIRC, time either when NPC entered or when it
and profit from the transaction constitutes capital completed the tunnel, as NPC submits, would
gain. Since CGT is a tax on passive income, it is the not be just, for it would compound the gross
seller who are liable to shoulder the tax. (Republic of unfairness already caused to the owners by
the Philippines v. Bunsay, G.R. No. 205473, 10 Dec. NPC's entering without the intention of
2019) formally expropriating the land, and without
the prior knowledge and consent of the Heirs
JUST COMPENSATION = of Macabangkit. NPC's entry denied
FMV elementary due process of law to the owners
+ consequential DAMAGES since then until the owners commenced the
- consequential BENEFITS inverse condemnation proceedings. The Court
is more concerned with the necessity to
Fair Market Value prevent NPC from unjustly profiting from its
deliberate acts of denying due process of law to
The price that may be agreed upon by parties who the owners. As a measure of simple justice and
are willing but are not compelled to enter into a ordinary fairness to them, therefore, reckoning
contract of sale. (City of Manila v. Estrada, G.R. No. just compensation on the value at the time the
7749, 09 Sept. 1913) owners commenced these inverse
condemnation proceedings is entirely
NOTE: The fair market value of the expropriated warranted.
property is determined by its character and its price
at the time of actual taking. 2. In the case of National Power Corporation v.
Spouses Saludares, (G.R. No. 189127, 02 Apr.
Period to Determine Just Compensation 2012), NAPOCOR should have instituted
eminent domain proceedings before it
GR: Just compensation must be reckoned from the occupied the spouses' property. Because it
time of taking or filing of the complaint, whichever failed to comply with this duty, respondent
came first. (NTC vs. Oroville Dev’t. Corp, G.R. No. spouses were constrained to file the instant
223366, 1 Aug. 2017) Complaint for just compensation before the
trial court. From the 1970s until the present,
NOTE: In an expropriation case where no actual they were deprived of just compensation,
taking was evident prior to the filing of the original while NAPOCOR continuously burdened their
complaint, and, subsequently, an amended property with its transmission lines. The Court
complaint was filed, the computation of just
14
2023 GOLDEN NOTES
cannot allow petitioner to profit from its must be fair not only to the owner but also to the
failure to comply with the mandate of the law. taker. Consequential damages are only awarded if
as a result of the expropriation, the remaining
The Court ruled that, to adequately property of the owner suffers from an impairment
compensate respondent spouses from the or decrease in value. In this case, no evidence was
decades of burden on their property, submitted to prove any impairment or decrease in
NAPOCOR should be made to pay the value of value of the subject property as a result of the
the property at the time of the filing of the expropriation. More significantly, given that the
instant Complaint when respondent spouses payment of capital gains tax on the transfer· of the
made a judicial demand for just compensation. subject property has no effect on the increase or
decrease in value of the remaining property, it can
NOTE: Inverse condemnation has the objective to hardly be considered as consequential damages that
recover the value of property taken in fact by the may be awarded to respondents. (Republic v. Sps.
governmental defendant, even though no formal Salvador, G.R. No. 205428, 07 June 2017)
exercise of the power of eminent domain has been
attempted by the taking agency. (NPC vs. Heirs of Consequential Benefits
Makabangkit Sangkay, G.R. No. 165828, 24 Aug.
2011) Where the expropriator takes only part of a parcel
of land and the remainder, as a result of the
Consequential Damages expropriation, is placed in a better location (such as
fronting a street where it used to be an interior lot),
Consist of injuries directly caused on the residue of the owner will enjoy consequential benefits which
the private property taken by reason of should be deducted from the consequential
expropriation. Where, for example, the expropriator damages. (Cruz, 2015)
takes only part of a parcel of land, leaving the
remainder with an odd shape or area as to be Form of Payment
virtually unusable, the owner can claim
consequential damages. (Cruz and Cruz, 2015) GR: Compensation has to be paid in money.
Q: Spouses Salvador owns a land where a one- XPN: In cases involving CARP, compensation may be
storey building is erected. The said land is in bonds or stocks, for it has been held as a non-
subject to expropriation wherein the DPWH traditional exercise of the power of eminent
shall construct the NLEX extension exiting domain. It is not an ordinary expropriation where
McArthur Highway. DPWH paid the spouses only a specific property of relatively limited area is
amounting to P685,000 which was the fair sought to be taken by the State from its owner for a
market value of the land and building. RTC specific and perhaps local purpose. It is rather a
issued a Writ of Possession in favor of the revolutionary kind of expropriation. (Association of
Republic but ordered the Republic to pay an Small Landowners in the Philippines, Inc. v. Secretary
additional amount corresponding to the capital of Agrarian Reform, G.R. No. 78742, 17 July 1989)
gains tax paid by the spouses. The Republic,
represented by DPWH contested the decision of NOTE: The owner is entitled to the payment of
the RTC adding the capital gains tax as interest from the time of taking until just
consequential damages on the part of the Spouse compensation is actually paid to him. The
Salvador. Is the decision of the RTC correct? expropriator has to reimburse the taxes paid by the
owner from the time of the taking until the transfer
A: NO. Just compensation is defined as the full and of title (which can only be done after the actual
fair equivalent of the property sought to be payment of just compensation), during which he did
expropriated. The measure is not the taker’s gain not enjoy any beneficial use of his property. (The
but the owner’s loss. The compensation, to be just,
15
City of Manila v. Roxas, G.R. No. 39671, 29 June 1934; government cannot keep the property and
Cruz, 2015) dishonor the judgment. (Republic v. Lim, G.R. No.
161656, 29 June 2005)
From 01 July 2013 onwards and until full payment,
the interest rate to be used in computing for just Abandonment of Intended Use and Right of
compensation shall be 6% per annum pursuant to Repurchase
Bangko Sentral ng Pilipinas Circular No. 799, series
of 2013. (Land Bank of the Philippines v. Hababag, Q: Several parcels of lands located in Lahug,
G.R. No. 172352, 16 Sept. 2015) Cebu City were the subject of expropriation
proceedings filed by the Government for the
The Right to Recover cannot be Defeated by expansion and improvement of the Lahug
Statutory Prescription (2014 BAR) Airport. The RTC rendered judgment in favor of
the Government and ordered the latter to pay
The right to recover just compensation is enshrined the landowners the fair market value of the land.
in no less than our Bill of Rights, which states in The landowners received the payment.
clear and categorical language that “private
property shall not be taken for public use without Thereafter, the lot was transferred and
just compensation”. This constitutional mandate registered in the name of the Government. The
cannot be defeated by statutory prescription. (NPC projected improvement and expansion plan of
v. Sps. Saludares, G.R. No. 189127, 25 Apr. 2012) the old Lahug Airport, however, was not
pursued.
Role of the Judiciary
Thus, the landowners initiated a complaint for
The final determination of just compensation is a the recovery of possession and reconveyance of
judicial function. The Regional Trial Court, sitting as ownership of the lands based on the
Special Agrarian Court has the original and compromised agreement they entered into with
exclusive jurisdiction over such and not appellate. the ATO. Do the former owners have the right to
(Land Bank vs. Eugenio Dalauta, G.R. No. 190004, 08 redeem the property?
Aug. 2017)
A: YES. It is well settled that the taking of private
Effect of Delay property by the Government’s power of eminent
domain is subject to two mandatory requirements:
GR: Non-payment of just compensation by the
government does not entitle private owners to (1) that it is for a particular public purpose; and
recover possession of the property because (2) that just compensation be paid to the property
expropriation is an in rem proceeding and not an owner.
ordinary sale. It only entitles them to demand
These requirements partake of the nature of implied
payment of the fair market value of the property.
conditions that should be complied with to enable
the condemnation or to keep the property
XPNs:
expropriated.
1. When there is a deliberate refusal to pay just

More particularly, with respect to the element of
compensation; and
public use, the expropriator should commit to use
the property pursuant to the purpose stated in the
2. When the government fails to pay
petition for expropriation filed, failing which, it
compensation within 5 years from the finality of
should file another petition for the new purpose. If
the judgment in the expropriation proceedings.
not, it is then incumbent upon the expropriator to
This is in connection with the principle that the
return the said property to its private owner, if the
16
2023 GOLDEN NOTES
latter desires to reacquire the same. Accordingly, 3. It is imposed by the State by virtue of its
the private property owner would be denied due Sovereignty. (PCGG v. Cojuangco, G.R. No.
process of law, and the judgment would violate the 147062-64, 14 Dec. 2001)
property owner’s right to justice, fairness, and
equity. (MIAA and Air Transportation Office v. Inherent Limitations (P-I-T-I-E)
Lozada, G.R. No. 176625, 25 Feb. 2010)
1. Public Purpose;
NOTE: The expropriator who has taken possession 2. Inherently Legislative;
of the property subject of expropriation is obliged 3. Territorial;
to pay reasonable compensation to the landowner 4. International Comity; and
for the period of such possession although the 5. Exemption of government entities, agencies
proceedings had been discontinued on the ground and instrumentalities.
that the public purpose for the expropriation had
meanwhile ceased. (Republic v. Heirs of Borbon, G.R. Constitutional Limitations
No. 165354, 12 Jan. 2015)
1. Provisions directly affecting taxation
3. TAXATION a. Prohibition against imprisonment for
non-payment of poll tax; (Sec. 20, Art. III,
1987 Constitution)
Definition
b. Uniformity and equality of taxation; (Sec.

Taxation is the power by which the sovereign,
28(1), Art. VI, 1987 Constitution)
through its law-making body, raises revenue to
defray the necessary expenses of government. It is
c. Grant by Congress of authority to the
merely a way of apportioning the costs of
President to impose tariff rates; (Sec.
government among those who, in some measure,
are privileged to enjoy its benefits and must bear its
burdens. (Aban, 2001)
d. Prohibition against taxation of religious,
charitable entities, and educational
It is a mode by which governments make exactions
entities; (Sec. 28(3), Art. VI, 1987
for revenue in order to support their existence and
Constitution)
carry out their legitimate objectives. Taxation may
refer to either or both the power to tax or the act or
e. Prohibition against taxation of non-stock,
process by which the taxing power is exercised.
non-profit educational institutions; (Sec.
(Vitug, 2006)
4(3), Art. XIV, 1987 Constitution)
Theories that Justify the Collection of Taxes by

f. Majority vote of Congress for grant of tax
the State
exemption; (Sec. 28(4), Art. VI, 1987
Constitution)
1. Necessity Theory (the existence of the
government is a necessity);
g. Prohibition on use of tax levied for special
2. Taxes are the lifeblood of the Government; and
purpose; (Sec. 29(3), Art. VI, 1987
3. Reciprocal Theory.
Constitution)
Elements of Taxation (E-G-S)
h. President’s veto power on appropriation,
1. It is an Enforced proportional contribution from revenue, tariff bills; (Sec. 27 (2), Art. VI,
persons and properties; 1987 Constitution)
2. It is levied for the support of the Government;
and i. Non-impairment of jurisdiction of the
17
Supreme Court; (Sec. 30, Art. VI, 1987 purpose. (Planters Products, Inc., v. Fertiphil
Constitution) Corporation, G.R. No. 166006, 14 Mar. 2008)
j. Grant of power to the LGUs to create its Q: When is tax considered for public purpose?
own sources of revenue; (Sec. 5, Art. X,
1987 Constitution) A: Tax is Considered for Public Purpose if
k. Origin of Revenue and Tariff Bills; and 1. It is for the welfare of the nation and/or for the
(Sec. 24, Art. VI, 1987 Constitution) greater portion of the population;
2. It affects the area as a community rather than as
l. No appropriation or use of public money individuals; and
for religious purposes. (Sec. 29(2), Art. VI, 3. It is designed to support the services of the
1987 Constitution) government for some of its recognized objects.
2. Provisions indirectly affecting taxation Determination when Enacted Tax Law is for
Public Purpose
a. Due process; (Sec. 1, Art. III, 1987
Constitution) Determination lies in the Congress. However, this
b. Equal protection; (Sec. 1, Art. III, 1987 will not prevent the court from questioning the
Constitution) propriety of such statute on the ground that the law
c. Religious freedom; (Sec. 5, Art. III, 1987 enacted is not for a public purpose; but once it is
Constitution) settled that the law is for a public purpose, the court
d. Non-impairment of obligations of may no longer inquire into the wisdom, expediency,
contracts; and (Sec. 10, Art. III, 1987 or necessity of such tax measure. (Dimaampao,
Constitution) 2021)
e. Freedom of the press. (Sec. 4, Art. III, 1987
Constitution) NOTE: If the tax measure is not for public purpose,
the act amounts to confiscation of property.
INHERENT LIMITATIONS
Principles Relative to Public Purpose
Concept
1. Inequalities resulting from the singling out of
While the power of taxation is inherent to a State, one particular class for taxation or exemption
such power is still subject to limitations. If there infringe no constitutional limitation because
were no limitations imposed on the power, then the the legislature is free to select the subjects of
State would be dangerous, rampant in wielding such taxation;
power. (Ingles, 2021)
NOTE: The legislature is not required to adopt
Public Purpose a policy of “all or none” for the Congress has the
power to select the object of taxation. (Lutz v.
Taxes are exacted only for a public purpose. They Araneta, G.R. No. L-7859, 22 Dec. 1955)
cannot be used for purely private purposes or for
the exclusive benefit of private persons. The reason 2. As the State has the power to determine the
for this is simple. The power to tax exists for the subjects of taxation, it is also free to select those
general welfare; hence, implicit in its power is the who will be exempt from taxation; (Gomez v.
limitation that it should be used only for a public Palomar, G.R. No. L-23645, 29 Oct. 1968)
purpose. It would be robbery for the State to tax its
citizens and use the funds generated for a private
18
2023 GOLDEN NOTES
3. The only benefit to which the taxpayer is must be allowed full play, subject only to the test of
constitutionally entitled is that derived from his reasonableness. If objective and methods alike are
enjoyment of the privileges of living in an constitutionally valid, there is no reason why the
organized society, established and safeguarded State may not levy taxes to raise funds for their
by the devotion of taxes to public purposes; prosecution and attainment. Taxation may be made
(Gomez v. Palomar, G.R. No. L-23645, 29 Oct. to implement the State’s police power. (Lutz v.
1968) Araneta, G.R. No. L-7859, 22 Dec. 1955)
4. Public purpose may legally exist even if the Inherently Legislative

motive which impelled the legislature to impose
the tax was to favor one industry over another; Only the legislature has the full discretion as to the
(Tio v. Videogram Regulatory Board, G.R. No. persons, property, occupation or business to be
75697, 19 June 1987) taxed, provided these are all within the State’s
territorial jurisdiction. It can also fully determine
5. Public purpose is continually expanding. Areas the amount or rate of tax, the kind of tax to be
formerly left to private initiative now lose their imposed and method of collection. (1 Cooley 176-
boundaries and may be undertaken by the 184)
government if it is to meet the increasing social
challenges of the times; and GR: The power to tax is exclusively vested in the
legislative body, being inherent in nature. Hence, it
6. The public purpose of the tax law must exist at may not be delegated. (Delegata potestas non potest
the time of its enactment. (Pascual v. Secretary delegari)
of Public Works, G.R. No. L-10405, 29 Dec. 1960)
Non-Delegable Legislative Powers
Q: Are subsequent laws, which convert a public
fund to private properties, valid? 1. Selection of subject to be taxed;
2. Determination of purposes for which taxes shall
A: NO. Taxes could be exacted only for a public be levied;
purpose; they cannot be declared private properties 3. Fixing of the rate/amount of taxation;
of individuals although such individuals fall within a 4. Situs of tax; and
distinct group of persons. (Pambansang Koalisyon 5. Kind of tax
ng mga Samahang Magsasaka at Manggagagawa sa
Niyugan v. Executive Secretary, G.R. Nos. 147036-37, XPNs:
10 Apr. 2012)
1. Delegation to local government – The LGUs
Q: Lutz assailed the constitutionality of Secs. 2 have the power to create their own sources of
and 3 of C.A. 567, which provided for an increase revenue and to levy taxes, fees, and charges;
of the existing tax on the manufacture of sugar. (Sec. 5, Art. X, 1987 Constitution)
Lutz alleged such tax as unconstitutional and
void for not being levied for a public purpose but NOTE: The constitutional provision does not
for the aid and support of the sugar industry change the doctrine that municipal
exclusively. Is the tax law increasing the existing corporations do not possess inherent powers of
tax on the manufacture of sugar valid? taxation; what it does is to confer municipal
corporations a general power to levy taxes and
A: YES. The protection and promotion of the sugar otherwise create sources of revenue. They no
industry is a matter of public concern. The longer have to wait for a statutory grant of these
legislature may determine within reasonable powers. The power of the legislative authority
bounds what is necessary for its protection and relative to the fiscal powers of local
expedient for its promotion. Legislative discretion governments has been reduced to the authority
19
to impose limitations on municipal powers. taxing authority may determine the “place of
Thus, in interpreting statutory provisions on taxation” or “tax situs.”
municipal fiscal powers, doubts will be resolved
in favor of municipal corporations. (Quezon City GR: The taxing power of a country is limited to
v. ABS-CBN Broadcasting Corporation, G.R. No. persons and property within and subject to its
162015, 06 Mar. 2006) jurisdiction.
2. Delegation to the president – The authority of XPNs:

the President to fix tariff rates, import or export
quotas, tonnage and wharfage dues or other 1. Where tax laws operate outside territorial
duties and imposts; and (Sec. 28(2), Art. VI, 1987 jurisdiction (e.g., taxation of resident citizens on
Constitution) their incomes derived abroad)
NOTE: When Congress tasks the President or 2. Where tax laws do not operate within the
his/her alter egos to impose safeguard territorial jurisdiction of the State
measures under the delineated conditions, the a. When exempted by treaty obligations; or
President or the alter egos may be properly b. When exempted by international comity.
deemed as agents of Congress to perform an act
that inherently belongs as a matter of right to Principles Relative to Territorial Jurisdiction
the legislature. It is basic agency law that the
agent may not act beyond the specifically 1. As the State can exercise its power to tax within
delegated powers or disregard the restrictions its territorial jurisdiction, it can tax sales within
imposed by the principal. (Southern Cross foreign military zones as these military zones
Cement Corporation v. Cement Manufacturers are not considered foreign territory.; (Reagan v.
Association of the Phil., G.R. No. 158540, 03 Aug CIR, G.R. No. L-26379, 27 Dec. 1969)
2005)
2. The State can tax a transaction if the substantial
3. Delegation to administrative agencies –When elements of the contract are situated in the
the delegation relates merely to administrative Philippines; and (Manila Electric Company v.
implementation that may call for some degree Yatco, G.R. No. 45697, 01 Nov. 1939)
of discretionary powers under sufficient
standards expressed by law or implied from the 3. Turnkey contracts relating to the installation of
policy and purpose of the act. (Cervantes v. a wharf complex and an ammonia storage
Auditor General, G.R. No. L-4043, 26 May 1952; complex were actually divisible contracts which
Maceda v. Macaraig, G.R. No. 88291, 08 June each had different stages, with each stage
1993) having different tax implication. (CIR v.
Marubeni, G.R. No. 137377, 18 Dec. 2001)
NOTE: Technically, this does not amount to a
delegation of the power to tax because the International Comity (2009 BAR)
questions which should be determined by
Congress are already answered by Congress It refers to the respect accorded by nations to each
before the tax law leaves Congress. other because they are sovereign equals. Thus, the
property or income of a foreign state may not be the
Territorial (2013 BAR) subject of taxation by another State.
Taxation may be exercised only within the Under international comity, a state must recognize
territorial jurisdiction of the taxing authority. (61 the generally-accepted tenets of international law,
Am. Jur. 88) Within its territorial jurisdiction, the among which are the principles of sovereign
20
2023 GOLDEN NOTES
equality among states and of their freedom from Government will assume taxes initially to be
suit without their consent, that limits that authority paid by Japanese firms should be respected.
of a government to effectively impose taxes in a (Mitsubishi Corporation-Manila Branch v. CIR,
sovereign state and its instrumentalities, as well as G.R. No. 175772, 05 June 2017)
in its property held and activities undertaken in that
capacity. Principle of Pacta Sunt Servanda in Taxation
NOTE: Tax treaties are entered into to minimize the Observance of any treaty obligation binding upon
harshness of international double taxation. (Ingles, the government of the Philippines is anchored on
2021) the constitutional provision that the Philippines
“adopts the generally accepted principles of
Tax treaties are entered into "to reconcile the international law as part of the law of the land. (Sec.
national fiscal legislations of the contracting parties 2, Art. II, 1987 Constitution)
and, in turn, help the taxpayer avoid simultaneous
taxations in two different jurisdictions." [They] are Pacta sunt servanda is a fundamental international
entered into to minimize, if not eliminate, the law principle that requires agreeing parties to
harshness of international juridical double taxation, comply with their treaty obligations in good faith.
which is why they are also known as double tax Hence, the application of the provisions of the NIRC
treaty or double tax agreements. (Air Canada v. must be subject to the provisions of tax treaties
Commissioner of Internal Revenue, G.R. No. 169507, entered into by the Philippines with foreign
11 Jan. 2016) countries. (Air Canada vs. CIR, G.R. No. 169507, 11
Jan. 2016)
International Comity as a Limitation on the
Power to Tax Exemption from Taxation
The Constitution expressly adopted the generally It is the grant of immunity, express or implied, to
accepted principles of international law as part of particular persons or corporations, from a tax upon
the law of the land. (Sec. 2, Art. II, 1987 Constitution) property or an excise tax which persons or
corporations generally within the same taxing
Principles Relative to International Comity districts are obliged to pay.
1. The obligation to comply with a tax treaty must NOTE: It is the legislature, unless limited by a
take precedence over an administrative provision of the state constitution, which has full
issuance. An administrative issuance such as a power to exempt any person, corporation, or class
Revenue Memorandum Order (RMO) should of property from taxation; its power to exempt
not operate to divest entitlement to a relief being as broad as its power to tax. Other than
granted by a tax treaty; (Ingles, 2021) Congress, the Constitution may itself provide for
specific tax exemptions, or local governments may
2. However, tax exemptions based on pass ordinances on exemption only from local
international agreements are still subject to the taxes. (John Hay Peoples Alternative Coalition et al. v.
rule “laws granting exemption are construed Lim et. al., G. R. No. 119775, 24 Oct. 2003)
strictly against the taxpayer”; (Sea-Land
Services, Inc. v. Court of Appeals, G.R. No. 122605, NOTE: Taxation is the rule and exemption is the
30 Apr. 2001) exception. (FELS Energy Inc. v. Province of Batangas,
G.R. No. 168557, 16 Feb. 2007) The burden of proof
3. An Exchange of Notes is considered an rests upon the party claiming exemption to prove
executive agreement binding on states. Hence, that it is, in fact, covered by the exemption so
an Exchange of Notes between the Philippines claimed. As a rule, tax exemptions are construed
and Japan which states that the Philippine strongly against the claimant. Exemptions must be
21
shown to exist clearly and categorically and Meaning of “Charitable” as used in the
supported by clear legal provision. (PAGCOR v. BIR, Constitution
G.R. No. 172087, 15 Mar. 2011)
It is not restricted to relief of the poor or sick. The
a) CONSTITUTIONAL EXEMPTION PRINCIPLES test whether an enterprise is charitable or not is
whether it exists to carry out a purpose recognized
Concept in law as charitable or whether it is maintained for
gain, profit, or private advantage. (Lung Center of the
Taxation, being inherent in sovereignty, need not be Philippines v. Quezon City, G.R. No. 144104, 29 June
clothed with any constitutional authority for it to be 2004)
exercised by the sovereign state. Instead,
constitutional provisions are meant and intended In addition, an organization must meet the
more to regulate and define, rather than to grant, substantive test of charity. Charity is essentially a
the power emanating therefrom. gift to an indefinite number of persons which
lessens the burden of government. In other words,
Prohibition against Taxation of Religious, charitable institutions provide for free goods and
Charitable Entities, and Educational Entities services to the public which would otherwise fall on
the shoulders of government. (CIR v. St. Luke’s
Charitable institutions, churches and parsonages or Medical Center, Inc., G.R. No. 195909, 26 Sept. 2012)
convents appurtenant thereto, mosques, non-profit
cemeteries, and all lands, buildings, and Summary of Rules on Exemption
improvements, actually, directly, and exclusively
used for religious, charitable, or educational SEC. 28(3), ART. VI,
CRITERIA
purposes shall be exempt from taxation. (Sec. 28(3), 1987 CONSTITUTION
Art. VI, 1987 Constitution)
Covers real property tax only;
the income of whatever kind
Q: What is the coverage of tax exemption?
and nature from any of their
Coverage of
properties, real or personal,
A: The exemption only applies to real property tax. constitutional
or from any of their activities
(Lladoc v. CIR, G.R. No. L-19201, 16 June 1965) provision
for profit regardless of the
Accordingly, a conveyance of such exempt property
disposition made of such
can be subject to transfer taxes.
income shall be subject to tax
Properties Exempt under the Constitution from

Property must be “actually,
the Payment of Property Taxes Requisite to
directly, and exclusively used”
avail of this
by religious, charitable, and
1. Charitable institutions; exemption
educational institutions
2. Churches and parsonages or convents
appurtenant thereto;
Test for the Use of the property for such
3. Mosques;
grant of this purposes, not the ownership
4. Non-profit cemeteries; and
exemption thereof
5. All lands, buildings, and improvements
actually, directly and exclusively used for
religious, charitable or educational purposes NOTE: The doctrine of exemption by incidental
shall be exempt from taxation. (Sec. 28(3), Art. purpose is no longer applicable. Such doctrine is
VI, 1987 Constitution) only applicable to cases where the cause of action
arose under the 1935 Constitution.
22
2023 GOLDEN NOTES
Under the 1987 Constitution, it must be proved that exclusively used for educational purposes, the non-
the properties are actually, directly, and exclusively stock, non-profit educational institution shall be
used for the purpose of the institution for the exempt from real property tax. (CIR vs. De La Salle
exemption to be granted. (Sababan, 2008) University, Inc., G.R. No. 196596, 09 Nov. 2016)
Sec. 4(3), Art. XIV and Sec. 28(3), Art. VI of the Income from cafeterias, canteens and bookstores
1987 Constitution Distinguished located within the school premises are also exempt
if they are owned and operated by the educational
SEC. 4(3), ART. XIV SEC. 28(3), ART. VI institution. (RMC 76-2003)
As to Grantee
Charitable institutions, Q: San Juan University is a non-stock, non-profit
churches and educational institution. It owns a piece of land
parsonages or in Caloocan City on which its three 3-storey
convents appurtenant school building stood. Two of the buildings are
thereto, mosques, non- devoted to classrooms, laboratories, a canteen,
Non-stock, non-profit profit cemeteries, and a bookstore, and administrative offices. The
educational institution all lands, buildings, and third building is reserved as dormitory for
improvements, student athletes who are granted scholarships
actually, directly, and for a given academic year.
exclusively used for
religious, charitable, or In 2017, San Juan University earned income
educational purposes from tuition fees and from leasing a portion of
As to Tax Exemption Granted its premises to various concessionaires of food,
All taxes and duties Real property tax books, and school supplies. (2017 BAR)
The tax exemption granted by the Constitution to a. Can the City Treasurer of Caloocan City
non-stock, non-profit educational institutions is collect real property taxes on the land and
conditioned only on the actual, direct, and exclusive building of San Juan University? Explain
use of their assets, revenues, and income for your answer.
educational purposes. A plain reading of the 1987
Constitution would show that Sec. 4(3), Art. XIV does A: YES. The City Treasurer can collect real property
not require that the revenues and income must taxes but on the leased portion. Sec. 4(3), Art. XIV of
have also been sourced from educational activities the 1987 Constitution provides that a non-stock,
or activities related to the purposes of an non-profit educational institution shall be exempt
educational institution. The phrase “all revenues” is from taxes and duties only if the same are used
unqualified by any reference to the source of actually, directly, and exclusively for educational
revenues. purposes. The test of exemption from taxation is the
use of the property for purposes mentioned in the
NOTE: The test to determine exemption is the use Constitution. The leased portion of the building may
of both the revenues and assets. Hence, when the be subject to real property tax since such lease is for
revenues are actually, directly, and exclusively used commercial purposes, thereby, it removes the asset
for educational purposes, the non-stock, non-profit from the property tax exemption granted under the
educational institution shall be exempt from Constitution. (CIR vs. De La Salle University, Inc., G.R.
income tax, VAT, and local business tax. The No. 196596, 09 Nov. 2016)
revenues do not need to come from educational
activities, as long as it used for educational b. Is the income earned by San Juan University
purposes. (La Sallian Educational Innovators for the year 2017 subject to income tax?
Foundation v. CIR, G.R. No. 202792, 27 Feb. 2019) Explain your answer.
And when the assets are actually, directly, and
23
A: NO. The income earned is not subject to income Hence, R.A. No. 7716 violates the non-
tax provided that the revenues are used actually, impairment clause of contracts.
directly, and exclusively for educational purposes Is the contention tenable?
as provided under Sec. 4(3), Art. XIV of the 1987
Constitution. The requisites for availing the tax A: NO. R.A. No. 7716 does not violate the non-
exemption under Sec. 4(3), Art. XIV are as follows: impairment clause. The contention that the
(1) the taxpayer falls under the classification non- imposition of the VAT on the sales and leases of real
stock, non-profit educational institution; and (2) estate by virtue of contracts entered into prior to the
the income it seeks to be exempted from taxation is effectivity of the law would violate the
used actually, directly and exclusively for constitutional provision that “No law impairing the
educational purposes; thus, so long as the requisites obligation of contracts shall be passed” is without
are met, the revenues are exempt from tax. (CIR vs. legal basis.
De La Salle University, Inc., G.R. Nos. 196596, 198841
and 198941, 09 Nov. 2016) The parties to a contract cannot fetter the exercise
of the taxing power of the State. For not only are
Majority Vote of Congress for Grant of Tax existing laws read into contracts in order to fix
Exemption obligations as between parties, but the reservation
of essential attributes of sovereign power is also
No law granting any tax exemption shall be passed read into contracts as a basic postulate of the legal
without the concurrence of a majority of all the order.
members of Congress. (Sec. 28(4), Art. VI, 1987
Constitution) The Contract Clause has never been thought as a
limitation on the exercise of the State’s power of
The inherent power of the State to impose taxes taxation save only where a tax exemption has been
carries with it the power to grant tax exemptions. granted for a valid consideration. (Tolentino v.
Secretary of Finance, G.R. No. 115455, 25 Aug. 1994)
Granting of Exemptions
Q: X Corporation was the recipient in 1990 of
Exemptions may be created: two tax exemptions both from Congress, one
law exempting the company’s bond issues from
1. By the Constitution; or taxes and the other exempting the company
2. By statute, subject to limitations as the from taxes in the operation of its public utilities.
Constitution may provide. The two laws extending the tax exemptions
were revoked by Congress before their expiry
Q: Congress enacted R.A. No. 7716, or otherwise dates. Were the revocations constitutional?
known as the Expanded Value-Added Tax Law, (1997 BAR)
which seeks to widen the tax base of the existing
VAT system and enhance its administration. A: YES. The exempting statutes are both granted
unilaterally by Congress in the exercise of taxing
Thereafter, petitions for the declaration of powers. Since taxation is the rule and tax
unconstitutionality were filed before the exemption, the exception, any tax exemptions
Supreme Court. One of the contentions of the unilaterally granted can be withdrawn at the
petitioners is that the application of such law to pleasure of the taxing authority without violating
existing contracts of sale of real properties by the Constitution. (Mactan Cebu International
installment or on deferred payment basis would Airport Authority v. Marcos, G.R. No. 120082, 11 Sept.
result in substantial increases in the monthly 1996)
amortizations to be paid due to the 10% VAT.
24
2023 GOLDEN NOTES
Summary of Fundamental Powers of the State the general
welfare.
POLICE EMINENT As to Non-Impairment of Contracts
TAXATION
POWER DOMAIN Tax laws
As to Authority Who Exercises the Power generally do
Government not impair
or public contracts
Government Government
service unless the
or its political or its political
companies government is Contracts may Contracts may
subdivision subdivision
and public party to a be impaired. be impaired.
utilities contract
As to Purpose granting
To raise exemption for
To facilitate
revenue in To promote a
the taking of
support of the general consideration.
private
Government; welfare As to Transfer of Property Rights
property for
regulation is through Expropriated
public
merely regulations. Taxes paid No transfer private
purpose.
incidental. become part but only property
As to Persons Affected of public restraint on its becomes
On an funds. exercise. property of
Upon the Upon the
individual as the State.
community or community or
the owner of a As to Scope
class of class of
particular Private
individuals. individuals.
property. All persons, All persons, property upon
As to Amount of Monetary Imposition property and property and payment of
No excises. excises. just
Limited to the
imposition; compensation.
No ceiling cost of
the owner is
except regulation,
paid just
inherent issuance of
compensation D. RELEVANCE OF THE DECLARATION OF
limitations. license, or
for his PRINCIPLES AND STATE POLICIES
surveillance.
property.
As to Benefits Received
NO DIRECT
Relevance
NO DIRECT BENEFIT
BENEFIT The “principles” are binding rules which must be
Maintenance
DIRECT observed in the conduct of government whereas
Protection of a of healthy
BENEFIT “policies” are guidelines for the orientation of the
secured economic state. (Bernas, 2009)
organized standard of
The person
society, society, They are used by the judiciary as aids or as guides in
receives just
benefits intangible
compensation. the exercise of its power of judicial review, and by
received from altruistic
the legislature in its enactment of laws. (Tañada v.
the feeling that he Angara, G.R. No. 118295, 02 May 1997)
government. has
contributed to
It indicates authorship of the Constitution;
enumerates the primary aims and aspirations of the
25
framers; and serves as an aid in the construction of technology. (Sec. 10, Art. XIV, 1987
the Constitution. (Nachura, 2014) Constitution)
Policies of the State on the following: Incentives, tax deductions, and scholarships to
encourage private participation in programs of
1. The symbols of statehood – Flag of the basic and applied scientific research. (Sec. 11,
Philippines. (Sec. 1, Art. XVI, 1987 Constitution) Art. XIV, 1987 Constitution)
Name of the country, National Anthem, and Encouragement of widest participation of

National Seal. (Sec. 2, Art. XVI, 1987 private groups, local governments, and
Constitution) organizations in the generation and utilization
of science and technology. (Sec. 12, Art. XIV,
2. Cultural minorities – Recognition and 1987 Constitution)
Promotion of Rights of Indigenous Cultural
Communities. (Sec. 22, Art. II, 1987 Incorporation Clause
Constitution) (1996, 1994 BAR)
The Philippines adopts the generally accepted
3. Protection of Ancestral Lands of Indigenous principles of international law as part of the law of
Communities. (Sec. 5, Art. XII, 1987 the land. (Sec. 2, Art. II, 1987 Constitution) (See
Constitution) discussion under Public International Law)
4. Application of Principles of Agrarian Reform Doctrine of Incorporation vs. Doctrine of

and Stewardship to Indigenous Communities Transformation
and Landless Farmers. (Sec. 6, Art. XIII, 1987
Constitution) DOCTRINE OF DOCTRINE OF
INCORPORATION TRANSFORMATION
5. Preservation and Development of the Culture, As to Definition
Traditions, and Institutions of Indigenous Rules of international
Generally accepted
Communities. (Sec. 17, Art. XIV, 1987 law are not per se
principles of
Constitution) binding upon the State
International Law form
but must first be
part of the law of the
6. Science and technology – Priority to Education, embodied in legislation
land; no legislative
Science and Technology, Arts, Culture, and enacted by the
action is required to
Sports. (Sec. 17, Art. II, 1987 Constitution) lawmaking body and
make them applicable
(1994, 1992 BAR) so transformed into
in a country.
municipal law.
Development of national talents consisting of
Filipino scientists, entrepreneurs, Civilian Supremacy
professionals, managers, high-level technical
manpower and skilled workers and craftsmen. Civilian authority is, at all times, supreme over the
(Sec. 14, Art. XII, 1987 Constitution) military. The Armed Forces of the Philippines is the
protector of the people and the State. Its goal is to
Mandate on educational institutions. (Sec. 3, secure the sovereignty of the State and the integrity
Art. XIV, 1987 Constitution) of the national territory. (Sec. 3, Art. II, 1987
Constitution)
Priority to research and development,
invention, innovation of science and
26
2023 GOLDEN NOTES
Constitutional provisions which ensure Civilian the rest of the citizenry. It cannot demand that the
supremacy nation follow its beliefs, even if it sincerely believes
that they are good for the country. (Imbong v. Ochoa,
1. By the installation of the President, the highest G.R. No. 204819, 08 Apr. 2014)
civilian authority, as the commander-in-chief of
all the armed forces of the Philippines; and (Sec. Provisions of the Constitution that support the
18, Art. VII, 1987 Constitution) Principle of Separation of Church and State
2. Through the requirement that members of the 1. No law shall be made respecting an
AFP swear to uphold and defend the establishment of religion or prohibiting the
Constitution, which is the fundamental law of a free exercise thereof. The free exercise and
civil government. (Sec. 5(1), Art. XVI, 1987 enjoyment of religious profession and
Constitution) worship, without discrimination or
preference, shall forever be allowed. No
NOTE: By civilian supremacy, it is meant that religious test shall be required for the exercise
civilian authority is, at all times, supreme over the of civil or political rights; (Sec. 5, Art. III, 1987
military. (2009, 2006, 2003 BAR) Constitution)
Mandatory rendition of military services to 2. The party-list representatives shall constitute

defend the State twenty per centum of the total number of
representatives including those under the
One cannot avoid compulsory military service by party list. For three consecutive terms after the
invoking one’s religious convictions or by saying ratification of this Constitution, one-half of the
that he has a sick father and several brothers and seats allocated to party-list representatives
sisters to support. Accordingly, the duty of shall be filled, as provided by law, by selection
government to defend the State cannot be or election from the labor, peasant, urban
performed except through an army. To leave the poor, indigenous cultural communities,
organization of an army to the will of the citizens women, youth, and such other sections as may
would be to make this duty to the Government be provided by law, except the religious sector;
excusable should there be no sufficient men who and (Sec. 5(2), Art. VI, 1987 Constitution)
volunteer to enlist therein. The right of the
Government to require compulsory military service 3. Register, after sufficient publication, political
is a consequence of its duty to defend the State and parties, organizations, or coalitions which, in
is reciprocal with its duty to defend the life, liberty, addition to other requirements, must present
and property of the citizen. (People v. De Sosa, G.R. their platform or program of government; and
No. L-45892-93, 13 July 1938) accredit citizens' arms of the Commission on
Elections. Religious denominations and sects
Separation of Church and State shall not be registered. (Sec. 2(5), Art. IX-CI,
1987 Constitution)
The separation of Church and State shall be
inviolable. (Sec. 3, Art. II, 1987 Constitution) XPNs to the principle are the following provisions of
the Constitution:
The principle of separation of Church and State is
based on mutual respect. Generally, the State cannot 1. Charitable institutions, churches and
meddle in the internal affairs of the church, much parsonages or convents appurtenant
less question its faith and dogmas or dictate upon it. thereto, mosques, non-profit cemeteries,
It cannot favor one religion and discriminate against and all lands, buildings, and improvements,
another. On the other hand, the church cannot actually, directly, and exclusively used for
impose its beliefs and convictions on the State and religious, charitable, or educational
27
purposes shall be exempt from taxation; what Justice Carpio refers to as the second
(Sec. 28 (3), Art. VI, 1987 Constitution) theory of governmental neutrality; and
2. No public money or property shall be 2. Benevolent Neutrality Approach (2016

appropriated, applied, paid, or employed, BAR) – The “wall of separation” is meant to
directly or indirectly, for the use, benefit, or protect the church from the State. It
support of any sect, church, denomination, believes that with respect to governmental
sectarian institution, or system of religion, actions, accommodation of religion may be
or of any priest, preacher, minister, or other allowed, not to promote the government’s
religious teacher, or dignitary as such, favored form of religion, but to allow
except when such priest, preacher, individuals and groups to exercise their
minister, or dignitary is assigned to the religion without hindrance. (Estrada v.
armed forces, or to any penal institution, or Escritor, A.M. No. P-02-1651, 22 June 2006)
government orphanage or leprosarium;
(Sec. 29(2), Art. VI, 1987 Constitution) NOTE: In the Philippine context, the Court
(1997, 1992 BAR) categorically ruled that, “the Filipino people, in
adopting the Constitution, manifested their
3. At the option expressed in writing by the adherence to the benevolent neutrality approach
parents or guardians, religion shall be that requires accommodations in interpreting the
allowed to be taught to their children or religion clauses.” (Estrada v. Escritor, A.M. No. P-02-
wards in public elementary and high 1651, 22 June 2006)
schools within the regular class hours by
instructors designated or approved by the The Establishment and Free Exercise Clause
religious authorities of the religion to
which the children or wards belong, The Establishment and Free Exercise Clauses were
without additional cost to the Government; not designed to serve contradictory purposes. They
and (Sec. 3 (3), Art. XIV, 1987 Constitution) have a single goal—to promote freedom of
individual religious beliefs and practices.
4. Educational institutions, other than those
established by religious groups and The Free Exercise Clause prohibits government
mission boards, shall be owned solely by from inhibiting religious beliefs with penalties for
citizens of the Philippines or corporations religious beliefs and practice, while the
or associations at least sixty per centum of Establishment Clause prohibits government from
the capital of which is owned by such inhibiting religious belief with rewards for religious
citizens. The Congress may, however, beliefs and practices. (Estrada v. Escritor, A.M. No. P-
require increased Filipino equity 02-1651, 22 June 2006)
participation in all educational
institutions.” (Sec. 4(2), Art. XIV, 1987 Conscientious Objector Approach
Constitution)
Everyone has the right to freedom of thought,
Theories on the Separation of Church and State conscience, and religion. This right includes
freedom to change his religion or belief, and
1. Separation Standard – Protects the freedom, either alone or in community with others
principle of church-state separation with a and in public or private, to manifest his religion or
rigid reading of the principle. May take the belief in teaching, practice, worship, and
form of either (a) strict separation, or (b) observance. (Art.18, Universal Declaration of Human
the tamer version of strict neutrality, or Rights)
28
2023 GOLDEN NOTES
In case of conflict between the religious beliefs and votes cast by the people in a national referendum
moral convictions of individuals, on one hand, and held for that purpose, and recognized as a treaty by
the interest of the State, on the other, to provide the other contracting State. (Sec. 25, Art. XVIII, 1987
access and information on reproductive health Constitution)
products, services, procedures and methods to
enable the people to determine the timing, number Kinds of accommodation that result from free
and spacing of the birth of their children, the exercise claim
religious freedom of health providers, whether
public or private, should be accorded primacy. 1. Mandatory – Those which are found to be
constitutionally compelled, i.e., required by the
A conscientious objector should be exempt from Free Exercise Clause;
compliance with the mandates of the RH Law. If they
would be compelled to act contrary to their religious 2. Permissive – Those which are discretionary or
belief and conviction, it would be violative of the legislative, i.e., not required by the Free Exercise
principle of non-coercion enshrined in the Clause; and
constitutional right to free exercise of religion.
(Imbong v. Ochoa, G.R. No. 204819, 08 Apr. 2014) 3. Prohibited – Those which are prohibited by the
religion clauses.
Independent Foreign Policy and a nuclear-free
Philippines NOTE: Based on the foregoing, and after holding
that the Philippine Constitution upholds the
The State shall pursue an independent foreign Benevolent Neutrality Doctrine which allows for
policy. In its relations with other states, the accommodation, the Court laid down the rule that in
paramount consideration shall be national dealing with cases involving purely conduct based
sovereignty, territorial integrity, national interest, on religious belief, it shall adopt the Strict-
and the right to self-determination. (Sec. 7, Art. II, Compelling State interest test because it is most in
1987 Constitution) line with the benevolent neutrality-accommodation.
(Estrada v Escritor, A.M. P-02-1651, 22 June 2006)
The Philippines, consistent with the national
interest, adopts and pursues a policy of freedom What the law prohibits is the use of public money or
from nuclear weapons in its territory. (Sec. 8, Art. II, property for the sole purpose of benefiting or
1987 Constitution) supporting any church. The prohibition
contemplates a scenario where the appropriation is
NOTE: This pertains to use of nuclear weapons and primarily intended for the furtherance of a
not nuclear source of energy. particular church. It does not inhibit the use of
public property for religious purposes when the
All existing treaties or international agreements religious character of such use is merely incidental
which have not been ratified shall not be renewed to a temporary use which is available
or extended without the concurrence of at least two- indiscriminately to the public in general. (Re: Letter
thirds of all the Members of the Senate. (Sec. 4, Art. of Tony Q. Valenciano, Holding of Religious Rituals at
XVIII, 1987 Constitution) the Hall of Justice Building in Quezon City, A.M. No.
10-4-19-SC, 7 Mar. 2017)
After the expiration in 1991 of the Agreement
between the Republic of the Philippines and the Just and Dynamic Social Order
United States of America concerning military bases,
foreign military bases, troops, or facilities shall not The State shall promote a just and dynamic social
be allowed in the Philippines except under a treaty order that will ensure the prosperity and
duly concurred in by the Senate and, when the independence of the nation and free the people from
Congress so requires, ratified by a majority of the poverty through policies that provide adequate
29
social services, promote full employment, a rising
standard of living, and an improved quality of life for E. DYNAMICS AMONG THE BRANCHES OF
all. (Sec. 9, Art. II, 1987 Constitution) GOVERNMENT
Promotion of Social Justice

Legislative
The State shall promote social justice in all phases of
national development. (Sec. 10, Art. II, 1987
The legislative power shall be vested in the
Constitution)
Congress of the Philippines which shall consist of a
Senate and a House of Representatives, except to the
Social justice is the humanization of the laws and the
extent reserved to the people by the provision on
equalization of the social and economic forces of the
initiative and referendum. (Sec. 1, Art. VI, 1987
State so that justice in its rational and objectively
Constitution)
secular conception may at least be approximated.
(Calalang v. Williams, G.R. No. 47800, 02 Dec. 1940)
The Congress also discharges powers of a non-
legislative nature, among them the canvass of the
State Policy on War
presidential elections, the declaration of the
existence of a state of war, the confirmation of
The State renounces war as an instrument of
amnesties, and (through the Commission on
national policy. (Sec. 2, Art. II, 1987 Constitution)
Appointments) presidential appointments, the
amendments or revision of the Constitution, and
NOTE: The Philippines renounces wars of
impeachment. (Cruz, 2014)
aggression, not defensive war because its duty is to
defend its citizens. Under the Constitution, the
Executive
prime duty of the government is to serve and
protect the people. (Secs. 2 and 4, Art. II, 1987
The executive power shall be vested in the President
Constitution)
of the Philippines. (Sec. 1, Art. VIII, 1987
Constitution)
Voting requirements to declare the existence of
a state of war
In the exercise of this power the President of the
Philippines assumes a plentitude of authority and
1. 2/3 vote of both Houses;
the corresponding awesome responsibility, that
2. In joint session; and
make him, indeed, the most influential person in the
3. Voting separately (Sec. 23 (1), Art. VI, 1987
land. (Cruz, 2014)
Constitution)
Executive power is generally defined as the power

to enforce and administer the laws. It is the power
of carrying the laws into practical operation and
enforcing their due observance. (Ople v. Torres, G.R.
No. 127685, 23 July 1998)
Judiciary
Judicial power includes the duty of the courts of

justice to settle actual controversies involving the
rights which are legally demandable and
enforceable, and to determine whether or not there
has been a grave abuse of discretion amounting to
30
2023 GOLDEN NOTES
lack or excess of jurisdiction on the part of any 4. Obtain efficiency. (Nachura, 2014)
branch or instrumentality of the Government. (Sec.
1, Art. VIII, 1987 Constitution) Powers vested in the Three (3) Branches of
Government
The judicial power shall be vested not only in the
Supreme Court but in such lower courts as may be EXECUTIVE LEGISLATIVE JUDICIARY
established by law. As the Constitution speaks only Application/
of one Supreme Court, it is not competent for the Implementation Interpretation
Making of laws
legislature to create even a temporary Supreme of laws of laws
(Power of the
Court to sit in special cases. (Cruz, 2014) (Power of the (Power of
purse)
sword) judicial
review)
1. SEPARATION OF POWERS
Plea Bargaining in Drug Cases

Doctrine of Separation of Powers
The power to promulgate rules of pleading, practice
Legislation belongs to the Congress, and procedure is exclusive domain of the Judicial
implementation to the executive, and settlement of
department and no longer shared with the
legal controversies and adjudication of rights to the
Executive and Legislative departments. The
judiciary. Each department has exclusive adoption of the plea-bargaining framework in Drug
cognizance of and is supreme in matters falling
Cases under Sec. 23 of R.A. No. 9165, or the
within its own constitutionally allocated sphere.
Comprehensive Dangerous Drugs Act of 2002 is
Each is therefore prevented from invading the unconstitutional for the inclusion of the provision in
domain of the others.
the law encroaches on the exclusive constitutional
power of the Supreme Court. (Estipona v. Lobrigo,
The true meaning of the general doctrine of the
G.R. No. 226679, 15 Aug. 2017)
separation of powers seems to be that the whole
power of one department should not be exercised Q: A group of losing litigants, in a case decided
by the same hands which possess the whole power
by the SC, filed a complaint before the
of either of the other department, and that no one
Ombudsman charging the Justices with
department ought to possess directly or indirectly knowingly and deliberately rendering an unjust
an overruling influence over the others. And it has
decision in utter violation of the penal laws of
been that this doctrine should be applied only to the
the land. Can the Ombudsman validly take
powers which because of their nature are assigned cognizance of the case?
by the constitution itself to one of the departments
exclusively. (Ople v. Torres, G.R. No. 127685, 23 July
A: NO. Pursuant to the principle of separation of
1998) powers, the correctness of the decisions of the SC as
final arbiter of all justifiable disputes is conclusive
The doctrine of separation of powers calls for each
upon all other departments of the government; the
branch of government to be left alone to the Ombudsman has no power to review the decisions
discharge of its duties as it sees fit. (Pimentel v.
of the SC by entertaining a complaint against the
House of Representatives Electoral Tribunal, G.R. No.
Justices of the SC for knowingly rendering an unjust
141489-90, 29 Nov. 2002)
decision. (In re: Laureta, G.R. No. L-68635, 14 May
1987)
Purposes of Separation of Powers
Q: May the RTC or any court prohibit a
1. Secure action;
committee of the Senate like the Blue Ribbon
2. Forestall over-action; Committee from requiring a person to appear
3. Prevent despotism; and
31
before it when it is conducting investigation in abused its discretion and violated the
aid of legislation? Constitution. She prayed that her expulsion be
annulled and that she should be restored by the
A: NO. The RTC or any court may not do so because Speaker to her position as Congressman. Is
that would be violative of the principle of separation Amog’s petition before the Supreme Court
of powers. The principle essentially means that justiciable?
legislation belongs to Congress, execution to the
Executive and settlement of legal controversies to A: NO. The petition is not justiciable because as
the Judiciary. Each is prevented from invading the stated by the Supreme Court in the case of
domain of the others. (Senate Blue Ribbon Alejandrino v. Quezon, et al. (G.R. No. 22041, 11 Sept.
Committee v. Majaducon, G.R. No. 136760, 29 July 1924), it could not compel the Senate to reinstate a
2003) Senator who assaulted another Senator and was
suspended for disorderly behaviour, because it
Q: Pres. Benigno Aquino III signed E.O. No. 1 could not compel a separate and co-equal
establishing the Philippine Truth Commission, a department to take any particular action. In Osmeña
special body to investigate reported cases of v. Pendatun (G.R. No. L-17144, 28 Oct. 1960), it was
graft and corruption allegedly committed held that the Supreme Court could not interfere
during the Arroyo administration. Is E.O. No. 1 with the suspension of a Congressman for
constitutional? disorderly behaviour, because the House of
Representatives is the judge of what constitutes
A: NO. The President has no power to create a public disorderly behaviour. The assault of a fellow
office. It is not shared by Congress with the Senator constitutes disorderly behaviour. However,
President, until and unless Congress enacts under Sec. 1, Art. VIII of the 1987 Constitution, the
legislation that delegates a part of the power to the Supreme Court may inquire whether or not the
President, or any other officer or agency. It is a decision to expel Amog is tainted with grave abuse
settled rule that the President’s power of control can of discretion amounting to lack or excess of
only mean the power of an officer to alter, modify, jurisdiction.
or set aside what a subordinate officer had done in
the performance of his duties, and to substitute the Q: Joey Tribbiani was convicted of Estafa. When
judgment of the former for that of the latter. As such, his case reached the Supreme Court, some
the creation by the President of a public office like Justices proposed to alter the penalties provided
the Truth Commission, without either a provision of for under RPC on the basis of the ratio of P1.00
the Constitution or a proper law enacted by to P100.00, believing that it is not fair to apply
Congress authorizing such creation, is not an act the range of penalties, which was based on the
that the power of control includes. (Biraogo v. The value of money in 1932, to crimes committed at
Philippine Truth Commission, G.R. No. 192935, 07 present. However, other justices opposed the
Dec. 2010, Bersamin, J. separate opinion) said proposal for it amounts to judicial
legislation. Is the opposition correct?
Q: Amog was elected Congressman. Before the
end of her first year in office, she inflicted A: YES. The opposition is correct because the Court
physical injuries on a colleague, Camille cannot modify the said range of penalties because
Gonzales, in the course of a heated debate. that would constitute judicial legislation. What the
Charges were filed in court against her as well as legislature's perceived failure in amending the
in the House Ethics Committee. Later, the HoR, penalties provided for in the said crimes cannot be
dividing along party lines, voted to expel her. remedied through this Court's decisions, as that
Claiming that her expulsion was railroaded and would be encroaching upon the power of another
tainted by bribery, she filed a petition seeking a branch of the government.
declaration by the SC that the House gravely
32
2023 GOLDEN NOTES
Verily, the primordial duty of the Court is merely to 2. General Appropriations Law in which the
apply the law in such a way that it shall not usurp President prepares the budget which serves as
legislative powers by judicial legislation and that in the basis of the bill adopted by Congress;
the course of such application or construction, it (supra.)
should not make or supervise legislation, or under
the guise of interpretation, modify, revise, amend, 3. Amnesty granted by the President requires the
distort, remodel, or rewrite the law, or give the law concurrence of the majority of all the members
a construction which is repugnant to its terms. of the Congress; and (supra.)
Succinctly put, the Court should shy away from
encroaching upon the primary function of a co- 4. Power of the COMELEC to deputize law-
equal branch of the Government; otherwise, this enforcement agencies and instrumentalities of
would lead to an inexcusable breach of the doctrine the government for the purpose of ensuring
of separation of powers by means of judicial free, orderly, honest, peaceful, and credible
legislation. (Corpuz v. People, G.R. No. 180016, 29 elections in accordance with the power granted
Apr. 2014) to it by the Constitution to enforce and
administer all laws and regulations relative the
In Commission on Audit v. Hon. Pampilo (G.R. Nos. conduct of elections. (Sec. 2(1), Art. IX-C, 1987
188760, 189660, and 189333, 30 June 2020, J. Constitution; supra.)
Hernando) the Court ruled that it is the DOE-DOJ
Joint Task Force that has the sole power and 2. SYSTEM OF CHECKS AND BALANCES
authority to monitor, investigate, and endorse the
filing of complaints, if necessary, against oil
Principle of Checks and Balances
companies. And considering that the remedy
against cartelization is already provided by law, the
Allows one department to resist encroachments
public respondent trial court exceeded its
upon its prerogatives or to rectify mistakes or
jurisdiction and gravely abused its discretion when
excesses committed by the other departments.
it ordered the COA, the BIR, and the BOC to open and
(Cruz, 2014)
examine the books of account of the Big 3 and
allowed private respondent Cabigao, a certified
Executive Check on the other two branches
public accountant, to become part of the panel of
examiners. Clearly, the RTC not only failed to uphold
LEGISLATIVE JUDICIARY
the law but worse, he contravened the law.
Executive Check
Through its power of
Principle of Blending of Powers
pardon, it may set
aside the judgment of
Refers to an instance when powers are not confined
the judiciary.
exclusively within one department but are assigned Through its veto
to or shared by several departments. power.
Also, by power of
appointment – power
Examples of the Blending of Powers
to appoint members of
the Judiciary.
1. Power of appointment which can be exercised
by each department and be rightfully exercised
by each department over its own administrative
personnel; (Concurring and Dissenting Opinion
of Justice Puno, Macalintal v. COMELEC, G.R. No.
157013, 10 July 2003)
33
Legislative Check on the other two branches XPN: Doctrine of Necessary Implication (2010
BAR)
EXECUTIVE JUDICIARY
Legislative Check Exercise of the power may be justified in the
1. Revoke or amend the absence of an express conferment because the grant
decisions by either: of express power carried with it all other powers
1. Override the veto of
a. Enacting a new that may be reasonably inferred from it. (Cruz,
the President;
law; or 2014)
b. Amending the old
2. Reject certain
law, giving it a 3. DELEGATION OF POWERS
appointments made
certain definition
by the President;
and interpretation Principle of Non-Delegability
different from the
3.Revoke the
old law.
proclamation of GR: What has been delegated cannot be delegated.
martial law or
2. Impeachment of SC
suspension of the It is based upon the ethical principle that such
members;
writ of habeas delegated power constitutes not only as a right, but
corpus; also as a duty to be performed by the delegate
3. Define, prescribe,
through the instrumentality of his own judgment
apportion
4.Impeachment; and not through the intervening mind of another. A
jurisdiction of lower further delegation of such power, unless permitted
courts:
5.Determine the by the sovereign power, would constitute a negation
a. Prescribe the
salaries of the of this duty in violation of the trust reposed in the
qualifications of
President or Vice delegate. (Cruz, 2014)
lower court
President; and
judges; XPNS:
b. Impeachment;
6. Concur to or reject a. Delegations to the People at large;
and
treaties the President
may enter into. b. R.A. No. 6735 – The Initiative and
4. Determination of Referendum Act as authorized by the
salaries of judges constitutional mandate for the creation of a
system of legislation by initiative and
Judicial Check on the other two branches referendum; and
It may declare (through the SC as the final arbiter) c. A plebiscite is required in the creation,
the acts of both the legislature and executive as division, merger, abolition of province, city,
unconstitutional or invalid so long as there is grave municipality, or barangay or the substantial
abuse of discretion amounting to lack or excess of alteration of its boundary.
jurisdiction.
NOTE: These are more of reservations of power
Test to determine whether a given power has by the people than delegations considering the
been validly exercised by a particular fact that the people are repositories of all
department: governmental powers.
GR: Whether the power has been constitutionally 1. Emergency powers of the President; (Sec.
conferred upon the department claiming its 18, Art. VII, 1987 Constitution)
exercise. 2. Tariff powers of the President; (Sec. 28(2),
34
2023 GOLDEN NOTES
3. Delegation to local governments; (Sec. 3, program of the Government. (Sec. 28 (2), Art. VI,
Art. X, 1987 Constitution) and 1987 Constitution)
4. Delegation to administrative bodies of the
power of subordinate legislation. (Cruz, Local Governments
2014)
Pursuant to the State policy on local autonomy, the
Emergency Powers fundamental powers of the State were delegated to
local governments, subject to restrictions imposed
For the delegation of emergency powers to the by Congress. The general law in this regard is the
President to be valid, the following requisites must Local Government Code (LGC).
concur: (N-A-Li-Res)
The purpose for which the foregoing powers have
1. It is done during war or National emergency; been delegated is to enable local authorities to
attend to local concerns in an effective and
2. It must Allow the President to exercise such meaningful manner, instead of relying too much on
powers which are necessary and proper to the national government, whose attention would
carry out a declared national policy.; otherwise be diffuse over a multitude of local
concerns. (Gorospe, 2016)
3. Such exercise must be for a Limited period only;
and Administrative Agencies and Subordinate
Legislation
NOTE: If the Congress does not expressly take
back the power by means of a Resolution, the Administrative agencies are clothed with rule-
same shall cease upon its next Adjournment. making powers. The only requirement is that the
regulation must be germane to the objects and
4. Such exercise must be subject to Restrictions purposes of the law. (People v. Jolliffe, G.R. No. L-
prescribed by the Congress. (Sec. 23 (2), Art. VI, 9553, 13 May 1959)
1987 Constitution)
Tests for Valid Delegation
NOTE: The Congress, through a law, may authorize
the President to exercise such emergency powers 1. Completeness Test – The law must be complete
necessary and proper to carry out a national policy. in itself, setting forth therein the policy to be
(ibid.) executed, carried out, or implemented by the
delegate; and
This specific provision of the Constitution was
applied in the Bayanihan to Heal as One Act, 2. Sufficiency Standard Test – The law must fix a
wherein former President Rodrigo Duterte was standard, the limits of which are sufficiently
given temporary emergency measures to respond to determinate or determinable, to which the
the crisis brought by the COVID-19 pandemic. (Sec.4, delegate must conform in the performance of his
R.A. No. 11469, Bayanihan to Heal as One Act) functions.
Tariff Powers NOTE: For subordinate legislation to be valid, the

Administrative Code of 1987 requires the filing of
The Congress may, by law, authorize the President rules adopted by the administrative agencies with
to fix within specified limits, and subject to such the UP Law Center, in addition to compliance with
limitations and restrictions as it may impose, tariff completeness test and sufficient standard test.
rates, import and export quotas, tonnage and (Quezon City PTCA Federation. Inc. v. DepEd, G.R. No.
wharfage dues, and other duties or imposts within 188720, 23 Feb. 2016)
the framework of the national development
35
Q: The Kindergarten Education Act The purpose of permissible delegation to
institutionalized kindergarten education, which administrative agencies is for the latter to
is one (1) year of preparatory education for “implement the broad policies laid down in a statute
children at least five years old, as part of basic by ‘filling in’ the details which the Congress may not
education, and is made mandatory and have the opportunity or competence to provide.”
compulsory for entrance to Grade 1. On the With proliferation of specialized activities and their
other hand, to be at par with international attendant peculiar problems, the legislature has
standards and in line with the country’s found it necessary to entrust to administrative
commitment in EFA 2015, the Philippine agencies, who are supposed to be experts in the
Congress, on 15 May 2013, passed the K to 12 particular fields assigned to them, the authority to
Law. One of its salient features is expansion of provide direct and efficacious solutions to these
basic education from ten (10) years to thirteen problems.
(13) years, encompassing “at least one (1) year
of kindergarten education, six (6) years of This is effected by the promulgation of
elementary education, and six (6) years of supplementary regulations, such as the K to 12 ITT
secondary education. jointly issued by the DepEd, CHED and TESDA and
the Joint Guidelines issued in coordination with
Secondary education includes four (4) years of DOLE, to address in detail labor and management
junior high school and two (2) years of senior rights relevant to implementation of the K to 12
high school education.” Claiming that the K to 12 Law. (Council of Teachers and Staff of Colleges and
Basic Education Program violates various Universities of the Philippines v. Secretary of
constitutional provisions, petitions were filed Education, G.R. Nos. 216930, 217451, 217725,
before the Court praying that the Kindergarten 218045, 218098, 218123 & 218465, 09 Oct. 2018)
Education Act, K to 12 Law, K to 12 IRR, DO No.
31, Joint Guidelines, and CMO No. 20, be declared
unconstitutional. F. STATE IMMUNITY
Are the petitioners correct?
A. NO. Contrary to petitioners’ contention, the K to 1. BASIS

12 Law was validly enacted. Petitioner’s claim of
lack of prior consultations is belied by the Doctrine of State Immunity
nationwide regional consultations conducted by
DepEd pursuant to DepEd Memorandum Nos. 38 The State may not be sued without its consent. (Sec.
and 98, series of 2011. 3, Art. XVI, 1987 Constitution)
There is no undue delegation of legislative power in GR: All states are sovereign equals and cannot
the enactment of the K to 12 Law. In determining assert jurisdiction over one another, consonant with
whether or not a statute constitutes an undue the public international law principle of par in
delegation of legislative power, the Court has parem non habet imperium. A contrary disposition
adopted two tests: the completeness test and the would "unduly vex the peace of nations." (Arigo v.
sufficient standard test. Clearly, under the two tests, Swift, G.R. No. 206510, 16 Sept. 2014)
the K to 12 Law, read and appreciated in its entirety,
is complete in all essential terms and conditions and The head of State, who is deemed the
contains sufficient parameters on the power personification of the State, is inviolable, and thus,
delegated to the DepEd, CHED, and TESDA. The fact enjoys immunity from suit. (JUSMAG Philippines v.
that the K to 12 Law did not have any provision on NLRC, G.R. No. 108813, 15 Dec. 1994)
labor does not make said law incomplete.
36
2023 GOLDEN NOTES
Likewise, public officials may not be sued for acts countries. The invocation of US federal tort laws and
done in the performance of their official functions or even common law is thus improper considering that
within the scope of their authority. (DOH v. Phil. it is the VFA which governs disputes involving US
Pharmawealth, Inc., G.R. No. 182358, 20 Feb. 2013) military ships and crew navigating Philippine
waters in pursuance of the objectives of the
NOTE: The rule is that if the judgment against such agreement. However, the waiver of State immunity
officials will require the state itself to perform an under the VFA pertains only to criminal jurisdiction
affirmative act to satisfy the same, the suit may be and applicable only to US personnel under VFA and
regarded as against the state itself although it has not to special civil actions such as the present
not been formally impleaded. (Garcia v. Chief of Staff, petition for issuance of a Writ of Kalikasan. The
G.R. No. L-20213, 31 Jan. 1966) principle of State immunity therefore bars the
exercise of jurisdiction by this Court over the
XPN: A State may be sued if it gives consent, persons of the US Officials. (Arigo v. Swift, G.R. No.
whether express or implied. 206510, 16 Sept. 2014)
The Court ruled in BPI v. Central Bank of the Forms of Consent

Philippines (G.R. No. 197593, 12 Oct. 2020, J.
Hernando) While the Central Bank of the 1. Express consent
Philippines (CBP) performed a governmental
func4on in providing clearing house facili4es, it is a. General law
not immune from suit as its Charter, by express
provision, waived its immunity from suit. However, i. Act No. 3083 and CA 327 as amended by Secs.
although the CBP allowed itself to be sued, it did not 49-50, PD 1445 – Money claims arising from
necessarily mean that it conceded its liability. contracts which could serve as a basis of civil
Pe44oner BPI had been given the right to bring suit action between private parties to be first
against CBP, such as in this case, to obtain filed with COA before a suit may be filed in
compensa4on in damages arising from torts, court. The COA must act upon the claim
subject, however, to the right of CBP to interpose within 60 days. Rejection of the claim
any lawful defense. authorizes the claimant to elevate the matter
to the Supreme Court on certiorari.
Q: The USS Guardian of the US Navy ran aground
on an area near the Tubbataha Reefs, a marine ii. Art. 2180, NCC – Tort committed by special
habitat of which entry and certain human agent;
activities are prevented and afforded protection
by Philippine laws and UNCLOS. Bishop Arigo of iii. Art. 2189, NCC – LGUs liable for injuries or
Palawan filed a petition for the issuance of Writ death caused by defective condition of roads
of Kalikasan and impleaded US officials in their or public works under their control (City of
capacity as commanding officers of the US Navy. Manila v. Teotico, et al., G.R. No. L-23052, 29
He argues that there is a waiver of immunity Jan. 1968);
from suit found in the Visiting Forces Agreement
(VFA) between the US and the Philippines, and iv. Sec. 22(2), R.A. 7160, LGC of 1991 – LGUs have
invoke federal statutes in the US under which power to sue and be sued; and
agencies of the US have statutorily waived their
immunity to any action. Is he correct? v. Sec. 24 of LGC – LGUs and their officials are
not exempt from liability for death or injury
A: NO. The VFA is an agreement which defines the or damage to property.
treatment of United States troops and personnel
visiting the Philippines to promote “common NOTE: The express consent of the State to be sued
security interests” between the aforementioned must be embodied in a duly enacted statute and
37
may not be given by a mere counsel of the b. When State enters into a business contract.
government. (Republic v. Purisima, G.R. No. L-36084, (Municipality of San Fernando v. Firme, G.R. No.
31 Aug. 1977) L-52179, 08 Apr. 1991)
Capacities of the State in entering into contracts

b. Special law
i. By virtue of PD 1620, the grant of 1. In jure gestionis – By right of economic or
immunity to IRRI is clear and business relations; commercial, or proprietary
unequivocal, and an express waiver by acts. MAY BE SUED. (US v. Guinto, G.R. No.
its Director General is the only way by 76607, 26 Feb. 1990)
which it may relinquish or abandon
this immunity. (Callado, v. IRRI, G.R. No. NOTE: The State may be said to have
106483, 22 May 1995) descended to the level of an individual and can
thus be deemed to have tacitly given its
2. Implied consent consent to be sued only when it enters into
business contracts. Consequently, the
a. When the State commences litigation, it restrictive application of State immunity is
becomes vulnerable to counterclaim. (Froilan proper only in such case. (Restrictive Theory
v. Pan Oriental Shipping, G.R. No. L-6060, 30 of State Immunity from suit)
Sept. 1954)
2. In jure imperii – By right of sovereign power
Q: In a property dispute, the Attorney General of and in the exercise of sovereign functions. No
the United States and the defendant-intervenor implied consent. (US v. Ruiz, G.R. No. L-35645,
Republic of the Philippines each filed an answer 22 May 1985)
alleging by way of affirmative defense that the
lower court had no jurisdiction over the claim NOTE: In exercising the power of eminent
since the action in that regard constituted a suit domain, the State exercises a power jure
against the United Sates to which it had not given imperii. Yet, it has been held that where
its consent. Did the Republic of the Philippines property has been taken without the payment
by its intervention waive its right of immunity of just compensation, the defense of immunity
from suit? from suit cannot be set up in an action for
payment by the owner. (Republic v.
A: NO. The Republic of the Philippines did not waive Sandiganbayan, G.R. No. 90478, 21 Nov. 1991)
its immunity from suit. It intervened in the case
merely to unite with the defendant Attorney Q: Do all contracts entered into by the
General of the United States in resisting plaintiff’s government operate as a waiver of its non-
claims, and for that reason asked no affirmative suability?
relief. This is not a case where the state takes the
initiative against a private party by filing a A: NO. Distinction must still be made between one
complaint in intervention, thereby surrendering its which is executed in the exercise of its sovereign
privileged position and coming down to the level of function and another which is done in its
the defendant, but one where the state, as one of the proprietary capacity. A State may be said to have
defendants, merely resisted a claim against it descended to the level of an individual and can be
precisely on the ground among others, of its deemed to have actually given its consent to be sued
privileged position, which exempts it from suit. (Lim only when it enters into business contracts. It does
v. Brownell, G.R. No. L-8587, 24 Mar. 1960) not apply where the contract relates to the exercise
of its sovereign functions. (Department of
Agriculture v. NLRC G.R. No. 104269, 11 Nov. 1993)
38
2023 GOLDEN NOTES
When suit is considered as suit against the State sovereign immunity. However, not all contracts
entered into by the government operate as a waiver
1. The Republic is sued by name; of its non-suability; distinction must still be made
between one which is executed in the exercise of its
2. The suit is against an unincorporated sovereign functions and another which is done in its
government agency performing propriety proprietary capacity.
functions; and
Here, not only did PTRI descend to the level of a
3. The suit is on its face against a government contracting party by entering into the subject
officer, but the case is such that ultimate contract, under the subject contract itself, which
liability will belong to the government. contemplated a situation wherein legal action may
(Republic v. Sandoval, G.R. No. 84607, 19 Mar. arise from the execution of the agreement and
1993) incorporating provisions on the procedures to be
undertaken in settling legal disputes, PTRI also
Unincorporated government agency performing manifested unequivocally its consent to be
governmental function vs. one performing subjected to suit with respect to disputes arising
proprietary functions from the subject contract. (Philippine Textile
Research Institute, et al. v. Court of Appeals and E.A.
UNINCORPORATED UNINCORPORATED Ramirez Construction, Inc. G.R. No. 223319, 09 Oct.
GOVERNMENT GOVERNMENT 2019)
AGENCY AGENCY
PERFORMING PERFORMING Suability vs. Liability vs. Execution
GOVERNMENTAL PROPRIETARY
FUNCTIONS FUNCTIONS SUABILITY LIABILITY EXECUTION
As to Definition As to Basis
Immunity has not been Depends on Depends on
upheld in its favor (Air Depends on
Immunity has been the applicable the
Transportation Office v. the consent of
upheld in its favor. law and the appropriation
Sps. David, G.R. No. the State to be
established of funds by the
159402, 23 Feb. 2011) sued
facts Congress
As a Consequence of Another
The circum-
Express consent may be made through a general law A judgment
stance that a
or a special law. As held in Department of Agriculture The State can against the
State is suable
v. National Labor Relations Commission, "the never be held State cannot
does not
general law waiving the immunity of the state from liable if it is be
necessarily
suit is found in Act No. 3083, where the Philippine not suable. automatically
mean that it is
government consents and submits to be sued upon executed.
liable.
any money claim involving liability arising from
contract, express or implied, which could serve as a NOTE: It is one thing to consent to being sued,
basis of civil action between private parties. In this another to admit liability, thus the phrase, “waiver
case, PTRI is being sued upon a claim involving of immunity by the State does not mean a
liability arising from a contract. Hence, the general concession of its liability.”
law on the waiver of immunity from suit finds
application. By consenting to be sued, a state simply waives its
There is implied consent when the State enters into immunity from suit. It does not thereby concede its
a contract. In this situation, the government is liability. (Merritt v. Government of the Philippine
deemed to have descended to the level of the other Islands, G.R. No. L-11154, 21 Mar. 1916)
contracting party and to have divested itself of its
39
Where liability is ascertained judicially, the state is affirmative act of appropriating the needed
at liberty to determine for itself whether to satisfy amount to satisfy the judgment. If the State will
judgment or not. (Municipality of Hagonoy, Bulacan have to do so, then, it is a suit against the State.
v. Dumdum, Jr., G.R. No. 168289; 22 Mar. 2010)
XPNs:
Rule on the liabilities of the following: 1. The public official is charged in his official
capacity for acts that are unlawful and
1. Public officers – By their acts without or in injurious to the rights of others. Public
excess of jurisdiction: any injury caused by him officials are not exempt, in their personal
is his own personal liability and cannot be capacity, from liability arising from acts
imputed to the State. committed in bad faith; or
2. Government agencies – Establish whether or 2. The public official is clearly being sued not
not the State, as principal which may in his official capacity but in his personal
ultimately be held liable, has given its consent. capacity, although the acts complained of
may have been committed while he
3. Government – Doctrine of State immunity is occupied a public position. (Lansang v. CA,
available. G.R. No. 102667, 23 Feb. 2000)
2. EXCEPTIONS Garnishment of government funds
GR: Whether the money is deposited by way of

Instances when a public officer may be sued
general or special deposit, they remain government
without the State’s consent (Co-Re-Pa-Ju-Vi)
funds and are not subject to garnishment.
1. To Compel him to do an act required by law;

XPN: Where a law or ordinance has been enacted
appropriating a specific amount to pay a valid
2. To Restrain him from enforcing an act claimed
government obligation, then the money can be
to be unconstitutional;
garnished.
3. To compel Payment of damages from an

NOTE: Funds belonging to government
already appropriated assurance fund or to
corporations, which can sue and be sued and are
refund tax over-payments from a fund already
deposited with a bank, can be garnished. (PNB v.
available for the purpose;
Pabalan, G.R. No. L-33112, 15 June 1978)
4. To secure a Judgment that the officer

If the local legislative authority refuses to enact a
impleaded may satisfy the judgment by
law appropriating the money judgment rendered by
himself without the State having to do a
the court, the winning party may file a petition for
positive act to assist him; or
mandamus to compel the legislative authority to
enact a law. (Municipality of Makati v. CA, G.R. Nos.
5. Where the government itself has Violated its
89898-99, 01 Oct. 1990)
own laws because the Doctrine of State
Immunity cannot be used to perpetrate an
The government cannot be made to pay interest
injustice.
in money judgments against it, except in the
following instances: (Em-Er-Go)
GR: The true test in determining whether a suit
against a public officer is a suit against the State is
1. Exercise of the power of Eminent domain;
that, if a public officer or agency is sued and
2. Erroneous collection of taxes; and
made liable, the State will have to perform an
40
2023 GOLDEN NOTES
3. Where Government agrees to pay interest thus, technically, no crime under Philippine law
pursuant to law. was committed. Is William correct? (2009 BAR)
A: NO. William is not correct. The premises

G. THE NATIONAL TERRITORY occupied by the United States Embassy do not
constitute territory of the United States but of the
Philippines. Crimes committed within them are
subject to the territorial jurisdiction of the
1. SCOPE
Philippines. Since William has no diplomatic
(TERRESTRIAL, AERIAL, AND FLUVIAL
immunity, the Philippines can prosecute him if it
DOMAINS)
acquires custody over him. (UPLC Suggested
Answers)
Composition of the Philippine Territory
2. ARCHIPELAGIC DOCTRINE
The national territory comprises:
1. The Philippine archipelago, with all the islands Archipelagic Doctrine

and waters embraced therein; and
The term “archipelagic doctrine of national
2. All other territories over which the Philippines territory” means that the islands and waters of the
has sovereignty or jurisdiction, consisting of: Philippine Archipelago are unified in sovereignty,
together with “all the territories over which the
a. Its terrestrial, fluvial and aerial domains; Philippines has sovereignty or jurisdiction.”
and
b. Including its territorial sea, the seabed, the The second sentence of Art. I of the 1987 Constitution
subsoil, the insular shelves, and other provides, “The waters around, between, and
submarine areas. connecting the islands of the archipelago, regardless
of their breadth and dimensions, form part of the
NOTE: The waters around, between, and connecting internal waters of the Philippines”, is an affirmation
the islands of the archipelago, regardless of their of the archipelagic doctrine. (Cruz, 2014)
breadth and dimensions, form part of the internal
waters of the Philippines. (Art. I, 1987 Constitution) Q: A bill was introduced in the House of
Representatives in order to faithfully
Q: William, a private American citizen and implement the provisions of the United Nations
frequent visitor to the Philippines, was inside Convention on the Law of the Sea (UNCLOS) to
the U.S. Embassy when he got into a heated which the Philippines is a signatory.
argument with a private Filipino citizen. Then, Congressman Pat Rio Tek questioned the
in front of many shocked witnesses, he killed the constitutionality of the bill on the ground that
person he was arguing with. The police came the provisions of UNCLOS are violative of the
and brought him to the nearest police station. provisions of the Constitution defining the
Upon reaching the station, the police Philippine internal waters and territorial sea.
investigator, in halting English, informed Do you agree or not with the said objection?
William of his Miranda rights, and assigned him Explain. (2015 BAR)
an independent local counsel. William protested
his arrest. He argued that since the incident took A: NO. UNCLOS III has nothing to do with the
place inside the U.S. Embassy, Philippine courts acquisition or loss of territory. It is a multilateral
have no jurisdiction because the U.S. embassy treaty regulating, among others, sea-use rights over
grounds are not part of Philippine territory; maritime zones, exclusive economic zone, and
continental shelves that UNCLOS III delimits.
41
UNCLOS does not define the internal and territorial
waters of states but merely “prescribes the water-
land ratio, length, and contour of baselines of
archipelagic States like the Philippines”. Whether
referred to as Philippine internal waters or as
archipelagic waters under UNCLOS, the Philippines
exercises sovereignty over the body of water lying
landward of the baselines, including the air space
over it and the submarine areas underneath.
(Magallona v. Ermita, G.R. No. 187167, 16 Aug. 2011)
42
2023 GOLDEN NOTES
Legislative powers of Congress
II. LEGISLATIVE DEPARTMENT
1. General plenary power; (Sec. 1, Art. VI,
1987 Constitution)
2. Specific power of appropriation;
The following may exercise legislative power
3. Taxation and expropriation;
(2002 BAR) (Co-Lo-R)
4. Legislative investigation; and
5. Question hour.
1. Congress;
2. Regional/Local Government Units; and
Non-legislative powers
3. The People through initiative and
Referendum.
1. Power to declare the existence of state of war;
(Sec. 23(1), Art. VI, 1987 Constitution)
Doctrine of Shifting Majority
NOTE: Under Sec. 23(2), Art. VI of the 1987

For each House of Congress to pass a bill, only the
Constitution, Congress may grant the President
votes of the majority of those present in the session,
emergency powers subject to the following
there being a quorum, is required. (Avelino v.
conditions: (War-Li-Re-N)
Cuenco, G.R. No. L-2821, 04 Mar. 1949)
a. There is a War or other national

emergency;
A. NATURE OF LEGISLATIVE POWER b. The grant of emergency powers must
be for a Limited period;
c. The grant of emergency powers is
Nature of Legislative Power subject to such Restrictions as
Congress may prescribe; and
Legislative power is the power of lawmaking, the d. The emergency powers must be
framing and enactment of laws. (Cruz, 2014) exercised to carry out a National policy
declared by Congress.
Purely legislative power, which can never be
delegated, has been described as the authority to The State may, during the emergency and under
make a complete law – complete as to the time when reasonable terms prescribed by it, temporarily
it shall take effect and as to whom it shall be take over or direct the operation of any
applicable – and to determine the expediency of its privately-owned public utility or business
enactment. (Abakada Guro Party List v. Ermita, G.R. affected with public interest. (Sec. 28, Art. XII,
No. 168056, 01 Sept. 2005) 1987 Constitution)
Legislative Power (P-E-A-RL) 2. Power to act as Board of Canvassers in election

of President; (Sec. 10, Art. VII, 1987
The power or competence to Propose, Enact, Constitution)
Amend, or Repeal Laws. It is vested in the Congress
which shall consist of a Senate and a House of 3. Power to call a special election for President
Representatives, except to the extent reserved to and Vice-President; (Sec. 10, Art. VII, 1987
the people by the provision on initiative and Constitution)
referendum. (Sec. 1, Art. VI, 1987 Constitution)
4. Power to judge President’s physical fitness to
discharge the functions of the Presidency; (Sec.
11, Art. VII, 1987 Constitution)
43
NOTE: When allegations regarding the health 1. DERIVATIVE AND DELEGATED POWER
of the President are merely based on what one
perceived from the news articles, have been
What has been delegated cannot be delegated.
characterized by the Supreme Court as
hearsay evidence, twice removed, and are thus
It is based upon the ethical principle that such
without any probative value, unless offered for
delegated power constitutes not only as a right, but
a purpose other than proving the truth of the
also as a duty to be performed by the delegate
matter asserted. (De Leon v. President Duterte,
through the instrumentality of his own judgment
G.R. No. 25211, 08 May 2020)
and not through the intervening mind of another. A
further delegation of such power, unless permitted
5. Power to revoke or extend suspension of the
by the sovereign power, would constitute a negation
privilege of the writ of habeas corpus or
of this duty in violation of the trust reposed in the
declaration of martial law; (Sec. 18, Art. VII,
delegate. (Cruz, 2014)
1987 Constitution)
Tests For Valid Delegation

6. Power to concur in Presidential amnesties
concurrence of majority of all the members of
1. Completeness Test – The law must be
Congress; (Sec. 19, Art. VII, 1987 Constitution)
complete in itself, setting forth therein the
policy to be executed, carried out, or
7. Power to concur in treaties or international
implemented by the delegate.
agreements; concurrence of at least 2/3 of all
the members of the Senate; (Sec. 21, Art. VII,
2. Sufficiency Standard Test – The law must
1987 Constitution)
fix a standard, the limits of which are
sufficiently determinate or determinable,
NOTE: Senate concurrence is the formal act
to which the delegate must conform in the
that renders a treaty or international
performance of his functions.
agreement effective, but it is not, in substance,
the sole criterion for validity and effectivity.
NOTE: For subordinate legislation to be valid, the
Ultimately, a treaty must conform to the
Administrative Code of 1987 requires the filing of
Constitution and statutes. (Pangilinan v.
rules adopted by the administrative agencies with
Cayetano, G.R. Nos. 238875, 239483, 240954, 16
the UP Law Center, in addition to compliance with
Mar. 2021)
completeness test and sufficient standard test.
(Quezon City PTCA Federation. Inc. v. DepEd, G.R. No.
8. Power to confirm certain appointments/
188720, 23 Feb. 2016)
nominations made by the President; (Secs. 9
and 16, Art. VII, 1987 Constitution)
Q: Muntinlupa, when it was still a municipality,
enacted MO 93-35 or the Revenue Code of the
9. Power relative to natural resources; and (Sec.
Municipality of Muntinlupa. Sec. 25 thereof
2, Art. XII, 1987 Constitution)
imposed a franchise tax on private persons or
corporations operating public utilities within its
10. Power of internal organization. (Sec. 16, Art. VI,
territorial jurisdiction at the rate of 50% of 1%
1987 Constitution)
of the gross annual receipts of the preceding
a. Election of officers;
calendar year. Should Section 25 of MO 93-35 be
b. Promulgate internal rules; and
declared null and void for being contrary to law,
c. Disciplinary powers.
unjust and confiscatory?
A: YES. Sec. 25 of MO 93-35 is null and void for being

ultra vires. Applying the Formal Test, the passage of
44
2023 GOLDEN NOTES
the subject ordinance was beyond the corporate 2. No law shall be made respecting an
powers of the then Municipality of Muntinlupa, establishment of religion, or prohibiting the
hence, ultra vires. Based on the Substantive Test, free exercise thereof; (Sec. 5, Art. III, 1987
Sec. 25 of MO 93-35 deviated from the express Constitution)
provision of R.A. No. 7160.
3. No law impairing the obligation of contracts
Sec. 137 of R.A. No. 7610 particularly provides that shall be passed; (Sec. 10, Art. III, 1987
provinces may impose a franchise tax on businesses Constitution)
granted with a franchise to operate. Since provinces
have been vested with the power to levy a franchise 4. No ex post facto law or bill of attainder shall be
tax, it follows that municipalities, pursuant to Sec. enacted; (Sec. 22, Art. III, 1987 Constitution)
142 of R.A. No. 7160, could no longer levy it.
Therefore, Sec. 25 of MO 93-35 which was enacted 5. No money shall be paid out of the Treasury
when Muntinlupa was still a municipality and which except in pursuance of an appropriation made
imposed a franchise tax on public utility by law; (Sec. 29 (1), Art. VI, 1987 Constitution)
corporations within its territorial jurisdiction, is
ultra vires for being violative of Sec. 142 of R.A. No. 6. No public money or property shall be
7160. (Manila Electric Company vs. City Of appropriated, applied, paid, or employed,
Muntinlupa And Nelia A. Barlis, G.R. No. 198529, 09 directly or indirectly, for the use, benefit, or
Feb. 2021, J. Hernando) support of any sect, church, denomination,
sectarian institution, or system of religion, or
2. PLENARY CHARACTER of any priest, preacher, minister, other
religious teacher, or dignitary as such, except
when such priest, preacher, minister, or
Plenary power
dignitary is assigned to the armed forces, or to
any penal institution, or government
The legislative body possesses plenary powers for
orphanage or leposarium; (Sec. 29 (2), Art. VI,
all purposes of civil government. Any power,
1987 Constitution)
deemed to be legislative by usage and tradition, is
necessarily possessed by Congress, unless the
7. All appropriation, revenue, or tariff bills, bills
Constitution has lodged it elsewhere. In fine, except
authorizing increase of the public debt, bills of
as limited by the Constitution, either expressly or
local application, and private bills, shall
impliedly, legislative power embraces all subjects,
originate exclusively in the House of
and extends to matters of general concern or
Representatives, but the Senate may propose
common interest. (League of Cities v. COMELEC, G.R.
or concur with amendments; (Sec. 24, Art. VI,
No. 176951, 15 Feb. 2011)
1987 Constitution)
3. LIMITATIONS 8. The Congress may not increase the

appropriations recommended by the President
Limitations on the Legislative Powers of for the operation of the Government as
Congress specified in the budget; (Sec. 25(1), Art. VI, 1987
Constitution)
1. No law shall be passed abridging freedom of
speech, of expression, or of the press, or the 9. No provision or enactment shall be embraced
right of the people peaceably to assemble and in the general appropriations bill unless it
petition the government for redress of relates specifically to some particular
grievances; (Sec. 4, Art. III, 1987 Constitution) appropriation therein. Any such provision or
enactment shall be limited in its operation to
45
the appropriation to which it relates; (Sec. 25 progressive system of taxation; (Sec. 28(1), Art.
(2), Art. VI, 1987 Constitution) VI, 1987 Constitution)
10. The procedure in approving appropriations for 16. The Congress may, by law, authorize the
the Congress shall strictly follow the procedure President to fix within specified limits, and
for approving appropriations for other subject to such limitations and restrictions as it
departments and agencies; (Sec. 25 (3), Art. VI, may impose, tariff rates, import and export
1987 Constitution) quotas, tonnage and wharfage dues, and other
duties or imposts within the framework of the
11. A special appropriations bill shall specify the national development program of the
purpose for which it is intended and shall be Government; (Sec. 28(2), Art. VI, 1987
supported by funds actually available as Constitution)
certified by the National Treasurer, or to be
raised by a corresponding revenue proposed 17. No law granting any tax exemption shall be
therein; (Sec. 25 (4), Art. VI, 1987 Constitution) passed without the concurrence of a majority
of all the Members of the Congress; (Sec. 28(4),
12. No law shall be passed authorizing any transfer Art. VI, 1987 Constitution)
of appropriations; however, the President, the
President of the Senate, the Speaker of the 18. No law shall be passed increasing the appellate
House of Representatives, the Chief Justice of jurisdiction of the Supreme Court as provided
the Supreme Court, and the heads of in this constitution without its advice and
Constitutional Commissions may, by law, be concurrence; (Sec. 30, Art. VI, 1987
authorized to augment any item in the general Constitution)
appropriations law for their respective offices
from savings in other items of their respective 19. No law granting a title of royalty or nobility
appropriations; (Sec. 25(5), Art. VI, 1987 shall be enacted. (Sec. 31, Art. VI, 1987
Constitution) Constitution)
13. Discretionary funds appropriated for XPN: See Delegation of Legislative Powers.
particular officials shall be disbursed only for
public purposes to be supported by a) SUBSTANTIVE – BILL OF RIGHTS
appropriate vouchers and subject to such
guidelines as may be prescribed by law; (Sec. 1. Express:
25(6), Art. VI, 1987 Constitution) a. Bill of Rights (Art. III, 1987 Constitution);
b. On Appropriations (Secs. 25 and 29 (1&2),
14. If, by the end of any fiscal year, the Congress Art. VI, 1987 Constitution);
shall have failed to pass the general c. On Taxation (Secs. 28 and 29(3), Art. VI,
appropriations bill for the ensuing fiscal year, 1987 Constitution);
the general appropriations law for the d. On Constitutional appellate jurisdiction of
preceding fiscal year shall be deemed SC (Sec. 30, Art. VI, 1987 Constitution);
reenacted and shall remain in force and effect e. No law granting a title of royalty or
until the general appropriations bill is passed nobility shall be enacted. (Sec. 31, Art. VI,
by the Congress; (Sec. 25(7), Art. VI, 1987 1987 Constitution); and
Constitution) f. No specific funds shall be appropriated or
paid for use or benefit of any religion, sect,
15. The rule of taxation shall be uniform and etc., except for priests, etc., assigned to
equitable. The Congress shall evolve a AFP, penal institutions, etc. (Sec. 29(2),
46
2023 GOLDEN NOTES
2. Implied: 4. LAW-MAKING DISTINGUISHED FROM
a. Prohibition against the passage of LAW-EXECUTION
irrepealable laws; and
Law-making
NOTE: Irrepealable laws deprive
succeeding legislatures of the complete
Legislative power is the power of lawmaking, the
freedom in crafting laws appropriate to
framing and enactment of laws. This is effected
the operative milieu. The act of one
through the adoption of a bill, or a proposed or
legislature is not binding upon and does
projected law, which, once approved, becomes a
not tie the hands of future legislatures.
statute. (Cruz, 2014)
(The City of Davao v. GSIS, G.R. No. 127383,
18 Aug. 2005)
Law execution
b. Non-delegation of powers.
Executive power is the power to enforce and
administer laws. In National Electrification
XPNs to Non-Delegation Doctrine:
Administration v. Court of Appeals (G.R. No. 143481,
i. Delegation to the President (Sec.
15 Feb. 2002), the Supreme Court said that as the
23(2) and Sec. 28(2), Art. VI, 1987
administrative head of the government, the
Constitution; and
President is vested with the power to execute,
ii. Delegation to the people (Sec 32,
administer and carry out laws into practical
Art. VI, 1987 Constitution.
operation. Executive power, then, is the power of
b) PROCEDURAL – MANNER OF PASSAGE AND carrying out laws into practical operation and
FORM OF BILLS enforcing their due observance. (Nachura, 2014)
Procedural Limitations a) FILLING-UP DETAILS
1. Every bill passed by Congress shall embrace The purpose of permissible delegation to
only one subject which shall be expressed in its administrative agencies is for the latter to
title; (Sec. 26(1), Art. VI, 1987 Constitution) “implement the broad policies laid down in a statute
by ‘filling in’ the details which the Congress may not
2. Three (3) readings on separate days; printed have the opportunity or competence to provide.”
copies of the bill in its final form to be With proliferation of specialized activities and their
distributed to its members 3 days before its attendant peculiar problems, the legislature has
passage except when the President certifies to found it necessary to entrust to administrative
its immediate enactment to meet a public agencies, who are supposed to be experts in the
calamity or emergency; upon its last reading, particular fields assigned to them, the authority to
no amendment shall be allowed, and the vote provide direct and efficacious solutions to these
thereon shall be taken immediately, and the problems. This is effected by the promulgation of
yeas and nays entered into the Journal; and supplementary regulations, such as the K to 12 IRR
(Sec. 26(2), Art. VI, 1987 Constitution) jointly issued by the DepEd, CHED and TESDA, and
the Joint Guidelines issued in coordination with
3. Appropriation bills, revenue bills, tariff bills, DOLE, to address in detail labor and management
bills authorizing the increase of public debt, rights relevant to implementation of the K to 12
bills of local application and private bills shall Law. (Council of Teachers and Staff of Colleges and
originate exclusively in the House of Universities of the Philippines v. Secretary of
Representatives. (Sec. 24, Art. VI, 1987 Education, G.R. Nos. 216930, 217451, 217725,
Constitution) 218045, 218098, 218123 & 218465, 09 Oct. 2018)
47
b) ASCERTAINMENT OF FACTS b) PRESIDENTIAL POWER IN TIMES OF WAR
AND NATIONAL EMERGENCY, INCLUDING
The preliminary ascertainment of facts as basis for MARTIAL LAW AND IN A REVOLUTIONARY
the enactment of legislation is not of itself a CONTEXT
legislative function but is simply ancillary to
legislation. Thus, the duty of correlating information Emergency Powers
and making recommendations is the kind of
subsidiary activity which the legislature may For the delegation of emergency powers to the
perform through its members, or which it may President to be valid, the following requisites must
delegate to others to perform. concur: (N-A-Li-Res)
Intelligent legislation on the complicated problems 1. It is done during war or National

of modern society is impossible in the absence of emergency.
accurate information on the part of the legislators,
and any reasonable method of securing such 2. It must Allow the President to exercise such
information is proper. powers which are necessary and proper to
carry out a declared national policy.
The Constitution as a continuously operative
charter of government does not require that 3. Such exercise must be for a Limited period
Congress find for itself every fact upon which it only.
desires to base legislative action or that it make for
itself detailed determinations which it has declared NOTE: If the Congress does not expressly
to be prerequisite to application of legislative policy take back the power by means of a
to particular facts and circumstances impossible for Resolution, the same shall cease upon its
Congress itself properly to investigate. (Abakada next Adjournment.
Guro Party List v. Ermita, G.R. Nos. 168056, 168207,
168461, 168463 & 168730, 1 Sep. 2005) 4. Such exercise must be subject to
Restrictions prescribed by the Congress.
5. EXCEPTIONS TO NON-DELEGABILITY (Sec. 23 (2), Art. VI, 1987 Constitution)
NOTE: The Congress, through a law, may authorize

a) LOCAL GOVERNMENTS
the President to exercise such emergency powers
necessary and proper to carry out a national policy.
Pursuant to the State policy on local autonomy, the
(ibid.)
Fundamental Powers of the State were delegated to
Local Governments, subject to restrictions imposed
This specific provision of the Constitution was
by Congress. The general law in this regard is the
applied in the Bayanihan to Heal as One Act,
Local Government Code (LGC). The purpose for
wherein former President Rodrigo Duterte was
which the foregoing powers have been delegated is
given temporary emergency measures to respond to
to enable local authorities to attend to local
the crisis brought by the COVID-19 pandemic. (Sec.
concerns in an effective and meaningful manner,
4, R.A. No. 11469, Bayanihan to Heal as One Act)
instead of relying too much on the national
government, whose attention would otherwise be
c) FIXING TARIFF RATES, QUOTAS, AND OTHER
diffuse over a multitude of local concerns. (Gorospe,
DUTIES
2016)
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
48
2023 GOLDEN NOTES
rates, import and export quotas, tonnage and not accorded the power to "directly propose, enact,
wharfage dues, and other duties or imposts within approve, or reject, in whole or in part, the
the framework of the national development Constitution" through the system of initiative. They
program of the Government. (Sec. 28 (2), Art. VI, can only do so with respect to "laws, ordinances, or
1987 Constitution) resolutions." Secondly, the Act does not provide for
the contents of a petition for initiative on the
6. LEGISLATIVE POWER OF THE PEOPLE Constitution. The use of the clause "proposed laws
THROUGH INITIATIVE AND REFERENDUM sought to be enacted, approved or rejected,
amended or repealed" denotes that R.A. No. 6735
excludes initiative on the amendments of the
Initiative
Constitution.
It is the power of the people to propose
Also, while the law provides subtitles for National
amendments to the Constitution or to propose and
Initiative and Referendum and for Local Initiative
enact legislation through an election called for the
and Referendum, no subtitle is provided for
purpose. (Sec. 3(a), R.A. No. 6735, The Initiative and
initiative on the Constitution. This means that the
Referendum Act)
main thrust of the law is initiative and referendum
on national and local laws. If R.A. No. 6735 were
Kinds of Initiative Under the Initiative and
intended to fully provide for the implementation of
Referendum Act (R.A. 6735) (Co-Sta-Legis)
the initiative on amendments to the Constitution, it
could have provided for a subtitle, considering that
1. Initiative on the Constitution – refers to a
in the order of things, the primacy of interest, or
petition proposing amendments to the
hierarchy of values, the right of the people to
Constitution;
directly propose amendments to the Constitution is
far more important than the initiative on national
2. Initiative on Statutes – refers to a petition
and local laws. (Defensor-Santiago v. COMELEC, G.R.
to enact a national legislation; and
No. 127325, 19 Mar. 1997)
3. Initiative on Local Legislation – refers to a

Referendum
petition proposing to enact a regional,
provincial, municipal, city, or barangay law,
It is the power of the electorate to approve or reject
resolution or ordinance. (Sec. 3(a), R.A. No.
legislation through an election called for that
6735)
purpose. (Sec. 3(c), R.A. No. 6735)
NOTE: Sec. 3(b) of R.A. No. 6735 provides for:
Kinds of Referendum
a. Indirect Initiative – Exercise of initiative by the
people through a proposition sent to Congress 1. Referendum on Statutes - Refers to a
or the local legislative body for action; and petition to approve or reject a law, or part
thereof, passed by Congress.
b. Direct Initiative – The people themselves filed
the petition with the COMELEC and not with 2. Referendum on Local Law – Refers to a
Congress. petition to approve or reject a law,
resolution or ordinance enacted by
R.A. No. 6735 is INADEQUATE in covering the regional assemblies and local legislative
system of initiative on amendments to the bodies. (Sec. 3 (c), R.A. No. 6735)
Constitution (2014 BAR)
Under the said law, initiative on the Constitution is

confined only to proposals to amend. The people are
49
Initiative vs. Referendum (2000 BAR)
XPN: Unless otherwise
INITIATIVE REFERENDUM fixed by law. (Sec. 5(1),
As to Extent Art. VI, 1987
1. Propose Constitution)
amendments to
the Constitution; NOTE: 20% of the total
Approve or reject
and number of
legislation.
representatives shall
2. Propose and enact be party-list
legislation. representatives. (Sec.
5(2), Art. VI, 1987
Limitations on Initiative or Referendum Constitution)
As to qualifications (1999, 1993 BAR)
1. No petition embracing more than one (1) 1. Natural-born
subject shall be submitted to the electorate; and citizen of the
Philippines;
2. Statutes involving emergency measures, the
enactment of which are specifically vested in 2. At least 25 years
Congress by the Constitution, cannot be subject of age on the day
to referendum until 90 days after their of election
effectivity. (Sec. 10, R.A. No. 6735)
1. Natural-born XPN:
citizen of the Youth sector
B. BICAMERAL CONGRESS Philippines; nominees must
2. At least 35 years be at least 25
of age; years of age but
3. Able to read and not more than 30
Composition of Congress
write; years of age on
4. A registered the day of
The Philippine Congress is bicameral in nature,
voter; and election. (Sec.
composed of:
5. Resident of the 9(2), R.A. No.
Philippines for 7941)
1. Senate; and
not less than 2
2. House of Representatives.
years 3. Able to read and
a. District representatives; and
immediately write;
b. Party-list representatives.
preceding the day
of election. (Sec. 3, 4. Except the party-
1. SENATE Art. VI, 1987 list
Constitution) representatives,
Composition, Qualifications, and Term of Office a registered voter
of Members of Congress in the district in
which he shall be
HOUSE OF elected; and
SENATE
REPRESENTATIVES
As to composition 5. Resident thereof
24 Senators (Sec. 2, Art. GR: Not more than 250 for a period of not
VI, 1987 Constitution) members less than 1 year
50
2023 GOLDEN NOTES
immediately NOTE: Domicile requires the fact of presence
preceding the coupled with the intention to remain (animus
day of the manendi) or intention to return when absent
election. (Sec. 6, (animus revertendi) (Imelda Romualdez-Marcos v.
Art. VI, 1987 COMELEC, G.R. No. 119976, 18 Sept. 1995)
Constitution)
As to term of office(2001 BAR) Grounds for Disqualification of Members of
Six (6) years (Sec. 4, Congress
Art. VI, 1987
Constitution) 1. One who has been declared by competent
authority as insane or incompetent; or
Note: Senators have a Three (3) years (Sec. 7,
term of office of 6 Art. VI, 1987 2. One who has been sentenced by final
years on a staggered Constitution) judgment for: (SIR-18-M)
basis - each set of a. Subversion;
twelve senators end b. Insurrection;
their term 3 years c. Rebellion;
apart. d. Any offense for which he has been
As to term limit sentenced to a penalty of more than
Not more than three 18 months; or
Not more than two (2) e. A crime involving Moral turpitude.
(3) consecutive terms.
consecutive terms.
(ibid.)
XPN: When the offender has been given plenary or
As to the effect of voluntary renunciation
pardon or granted amnesty. (Sec. 12, B.P. 881)
Voluntary renunciation of the office for any
length of time shall not be considered as an
interruption in the continuity of his service for 2. HOUSE OF REPRESENTATIVES
the full term for which he was elected. (Sec. 4 and
7, Art. VI, 1987 Constitution) Composition of the HoR (2007, 2002 BAR)
NOTE: The list of qualifications of Members of DISTRICT PARTY-LIST

Congress provided under the Constitution is REPRESENTATIVE REPRESENTATIVE
exclusive. As to who will vote
Elected nationally
Domicile Requirement (those garnering at
least 2% of all votes
Domicile of origin is lost only when: cast for the party-list
Elected by the system are entitled to
1. there is actual removal or change of constituents of his one (1) seat, which is
domicile; respective district. increased according to
2. a bona fide intention of abandoning the proportional
former residence and establishing a new representation, but is in
one; and no way to exceed 3
3. acts which correspond with the purpose. seats per organization.)
As to residency requirement
NOTE: The wife does not automatically acquire the Must be a resident of
No special residency
husband’s domicile because the term “residence” in his legislative district
requirement.
Civil Law does not mean the same thing in Political for at least 1 year
Law.
51
immediately preceding a) DISTRICT REPRESENTATIVES AND
the election. MECHANICS OF APPORTIONMENT
As to name in the ballot
District Representatives
Elected personally, by Voted upon by party
name. or organization.
Those who are elected from legislative districts
As to effect of change in party apportioned among the provinces, cities, and the
affiliation during incumbency Metropolitan Manila area. (Sec. 5(1), Art. VI, 1987
Loses his seat; in which Constitution)
case he will be
substituted by another Apportionment of Legislative Districts
qualified person in the
Does not lose seat. Legislative districts are apportioned in accordance
party or organization
based on the list with the number of their respective inhabitants and
submitted to the on the basis of a uniform and progressive ratio. (Sec.
COMELEC. 5(1), Art. VI, 1987 Constitution)
As to vacancy
Legislative apportionment is the determination of
A special election may the number of representatives which a State,
A substitution will be
be held provided that country, or other subdivision may send to a
made within the party,
the vacancy takes legislative body. It is the allocation of seats in a
based on the list
place at least 1 year legislative body in proportion to the population; the
submitted to the
before the next drawing of voting district lines so as to equalize
COMELEC.
election. population and voting power among the districts.
As to effect of defeat in the election (Bagabuyo v. COMELEC, G.R. No. 176970, 08 Dec.
A district 2008)
representative is not
A party-list
prevented from Each city with a population of at least 250,000 shall
representative cannot
running again as a have at least one (1) representative. Each province,
sit if he ran and lost in
district representative irrespective of the number of inhabitants, shall have
the previous election.
if he lost in the at least one (1) representative. (Sec. 5(3), Art. VI,
previous election. 1987 Constitution)
As to effect of change in party
affiliation within months prior to While Sec. 5(3), Art. VI, of the 1987 Constitution
election requires a city to have a minimum population of
A change in affiliation 250,000 to be entitled to one representative, it does
A change in affiliation within six (6) months not have to increase its population by another
within months prior to prior to election 250,000 to be entitled to an additional district.
election does not prohibits the party-list (Senator Aquino III v. COMELEC, G.R. No. 189793, 07
prevent a district representative from Apr. 2010)
representative from listing as
running under his new representative under NOTE: When one of the municipalities of a
party. his new party or congressional district is converted to a city that is
organization. large enough to entitle it to one legislative district,
the incidental effect is the splitting of district into
two. The incidental arising of a new district in this
manner need not be preceded by a census. (Tobias
v. Abalos, G.R. No. L-114783, 08 Dec. 1994)
52
2023 GOLDEN NOTES
Reapportionment population of 250,000, hence entitling it to one
legislative district. Is the law valid?
It is the realignment or change in legislative districts
brought about by changes in population and A: NO. Congress cannot establish a new legislative
mandated by the constitutional requirement of district based on a projected population of the NSO
equality of representation. (Bagabuyo v. COMELEC, to meet the population requirement of the
G.R. No. 176970, 08 Dec. 2008) Constitution in the reapportionment of legislative
districts.
Manner of Reapportionment
Q: Congress enacted a law reapportioning the
Reapportionment may be made through a special composition of the Province of Camarines Sur
law. The Constitution does not preclude the and created legislative districts thereon.
Congress from increasing its membership by Frankie challenged the law because it runs afoul
passing a law other than a general reapportionment to the constitutional requirement that there
law. To hold that reapportionment can only be made must be at least a population of 250,000 to
through a general apportionment law, with a review create a legislative district. COMELEC argued
of all the legislative districts allotted to each LGU that the mentioned requirement does not apply
nationwide, would create an inequitable situation to provinces. Is the 250,000-population
where a new city or province created by Congress standard an indispensable requirement for the
will be denied legislative representation for an creation of a legislative district in provinces?
indeterminate period of time. Thus, a law
converting a municipality into a highly-urbanized A: NO. Sec. 5(3), Art. VI of the 1987 Constitution
city (HUC) automatically creates a new legislative which requires 250,000 minimum population apply
district and, consequently, increases the only for a city to be entitled to a representative but
membership of the HoR. (Mariano, Jr. v. COMELEC, not for a province.
G.R. No. 118577, 07 Mar. 1995)
The provision draws a plain and clear distinction
NOTE: The Constitution does not require a between the entitlement of a city to a district, on one
plebiscite for the creation of a new legislative hand, and the entitlement of a province to a district
district by a legislative reapportionment. It is on the other. For while a province is entitled to at
required only for the creation of new LGUs. least a representative, with nothing mentioned
(Bagabuyo v. COMELEC, 2008, G.R. No. 176970, 08 about population, a city must first meet a population
Dec. 2008) (2015 BAR) minimum of 250,000 in order to be similarly
entitled. (Aquino III v. COMELEC, G.R. No. 189793, 07
Gerrymandering (2014 BAR) Apr. 2010)
Formation of one legislative district out of separate Q: Congress passed a law providing for the
territories for the purpose of favoring a candidate or apportionment of a new legislative district in
a party. It is not allowed because Sec. 5(3), Art. VI, Cagayan de Oro (CDO) City. COMELEC
1987 Constitution provides that each district shall subsequently issued a resolution implementing
comprise, as far as practicable, contiguous, compact, said law. Jovi now assails the resolution,
and adjacent territory. (Bernas, ibid.) contending that rules for the conduct of a
plebiscite must first be laid down, in compliance
Q: Congress enacted a law creating the with the requirements under the Constitution.
legislative district of Malolos based on a According to Jovi, the apportionment is a
certification of the demographic projection conversion and division of CDO City, falling
from the National Statistics Office (NSO) stating under Sec. 10, Art. X of the Constitution, which
that by 2010, Malolos is expected to reach the provides for the rule on creation, division,
merger, and abolition of LGUs. Decide.
53
A: There is no need for a plebiscite. CDO City Different Parties Under the Party-list System
politically remains a single unit and its
administration is not divided along territorial lines. No votes cast in favor of political party, organization
Its territory remains whole and intact. Thus Sec. 10, or coalition shall be valid except for those registered
Art. X of the Constitution does not come into play. under the party-list system. (Sec. 7, Art. IX-C, 1987
Constitution) (Pol-Nat-Re-Se2-Coal)
No plebiscite is required for the apportionment or
reapportionment of legislative districts. A 1. Political party – Refers to an organized group
legislative district is not a political subdivision of citizens advocating ideology or platform,
through which functions of government are carried principles and policies for the general conduct
out. It can more appropriately be described as a of government and which, as the most
representative unit that merely delineates the areas immediate means of securing their adoption,
occupied by the people who will choose a regularly nominates and supports certain of its
representative in their national affairs. A plebiscite leaders and members as candidate for public
is required only for the creation, division, merger, or office;
abolition of LGUs. (Bagabuyo v. COMELEC, G.R. No.
176970, 08 Dec. 2008) 2. National party – Its constituency is spread
over the geographical territory of at least a
b) PARTY-LIST SYSTEM majority of the regions;
Party-list System 3. Regional party – Its constituency is spread

over the geographical territory of at least a
A mechanism of proportional representation in the majority of the cities and provinces comprising
election of representatives to the HoR from national, the region;
regional, and sectoral parties or organizations or
coalitions thereof registered with the COMELEC. 4. Sectoral party – Refers to an organized group
(Sec. 3(a), R.A. No. 7941) of citizens belonging to any of the following
sectors: labor, peasant, fisherfolk, urban poor,
NOTE: Party-list representatives shall constitute indigenous, cultural communities, elderly,
20% of the total number of representatives in the handicapped, women, youth, veterans,
HoR including those under the party list. (Sec. 5(2), overseas workers and professionals, whose
Art. VI, 1987 Constitution) (2007 BAR) principal advocacy pertains to the special
interest and concerns of their sectors.;
Purpose of the Party-list System
5. Sectoral Organization – Refers to a group of
To make the marginalized and the citizens who share similar physical attributes
underrepresented not merely passive recipients of or characteristics, employment, interest or
the State’s benevolence, but active participants in concerns; and
the mainstream of representative democracy. (Ang
Bagong Bayani v. COMELEC, G.R. No. 147589, 26 June 6. Coalition – Refers to an aggregation of duly
2001) registered national, regional, sectoral parties,
or organizations for political and/or election
To democratize political power by giving political purposes. (Sec. 3, R.A. No. 7941)
parties that cannot win in legislative district
elections a chance to win seats in the HoR. (Atong Composition of the Party-list System
Paglaum, Inc. v. COMELEC, G.R. 203766, 02 Apr. 2013)
1. National parties or organizations;
2. Regional parties or organizations; and
54
2023 GOLDEN NOTES
3. Sectoral parties or organizations. Limitations
NOTE: National and regional parties or 1. A person may be nominated in one (1) list only;
organizations are different from sectoral parties or
organizations. National and regional parties or 2. Only persons who have given their consent in
organizations need not be organized along sectoral writing may be named in the list;
lines and need not represent any particular sector.
(Atong Paglaum, Inc. v. COMELEC, ibid.) 3. The list shall not include:
National and Regional Parties Need Not a. any candidate for any elective office; or
Represent the “Marginalized and b. a person who has lost his bid for elective
Underrepresented” Sectors office in the immediately preceding
election.
To require all national and regional parties under
the party-list system to represent the “marginalized 4. No change shall be allowed after the list shall
and underrepresented” is to deprive and exclude, by have been submitted to COMELEC.
judicial fiat, ideology-based and cause-oriented
parties from the party-list system. To exclude them XPN: Change may be allowed in cases
from the party-list system is to prevent them from where:
joining the parliamentary struggle, leaving as their a. nominee dies;
only option armed struggle. To exclude them from b. withdraws in writing his nomination;
the party-list system is, apart from being obviously or
senseless, patently contrary to the clear intent and c. becomes incapacitated.
express wording of the 1987 Constitution and R.A.
No. 7941. (Atong Paglaum v. COMELEC, ibid.) NOTE: Incumbent sectoral representatives in the
HoR who are nominated in the party-list system
NOTE: Major political parties cannot participate in shall not be considered resigned.
the party-list elections since they neither lack “well-
defined political constituencies” nor represent Qualifications of a Party-list Nominee (Nat-Re3-
“marginalized and underrepresented” sectors. 90-25)
(Atong Paglaum v. COMELEC, ibid.)
1. Natural- born citizen of the Philippines;
However, the participation of major political parties
may be through their sectoral wings, a majority of 2. Registered voter;
whose members are “marginalized and
underrepresented” or lacking in “well-defined 3. Resident of the Philippines for at least one (1)
political constituencies.” (Atong Paglaum v. year immediately preceding the day of the
COMELEC, ibid.) election;
Nomination of Party-list Representatives 4. Able to Read and write;
Each registered party, organization or coalition 5. Bona fide member of the party or organization
shall submit to the COMELEC not later than 45 days which he seeks to represent for at least 90 days
before the election a list of names, not less than five preceding election day; and
(5), from which party-list representative shall be
chosen in case it obtains the required number of NOTE: In the case of sectoral parties, to be a
votes. (Sec. 8, R.A. No. 7941) bona fide party-list nominee, one must either
belong to the sector represented, or have a
55
track record of advocacy for such sector. (Atong Vacancy in the seat reserved for Party-list
Paglaum v. COMELEC, ibid.) Representatives
6. At least 25 years of age on the day of the It shall be automatically occupied by the next
election. representative from the list of nominees in the order
submitted by the same party to the COMELEC and
NOTE: For youth sector nominees, he must be such representative shall serve for the unexpired
at least 25 years and not more than thirty 30 term. If the list is exhausted, the party, organization,
years of age. or coalition concerned shall submit additional
nominees. (Sec. 16, R.A. No. 7941)
Any youth representative who attains the age of
30 during his term shall be allowed to continue Formula mandated by the Constitution in
in office until the expiration of his term. determining the number of Party-list
Representatives
Disclosure of Names of Party-List Nominees
The number of seats available to party-list
The COMELEC has a constitutional duty to disclose representatives is based on the ratio of party-list
and release the names of the nominees of the party- representatives to the total number of
list groups, in accordance Sec. 7, Art. III of the 1987 representatives. Accordingly, we compute the
Constitution on the right of the people to number of seats available to party-list
information on matters of public concern as representatives from the number of legislative
complemented by the policy of full disclosure and districts.
transparency in Government. (Bantay R.A. No. 7941
v. COMELEC, G.R. No. 177271, G.R. No. 177314, 04 May Number of
seats available
2007) to legislative
⎛ districts ⎞
⎜ ⎟ × 0.20 = Number of seats available
0.8
NOTE: It is the party-list organization that is voted
⎝ ⎠
for, not their candidates. However, it is the party-list
representatives who are seated or elected into
Simpler formula: No. of seats available to
office, not their parties or organizations. (Abayon v.
legislative districts divided by 4
HRET, G.R. No. 189466, 11 Feb. 2010)
Number of
Effect of the change in affiliation of any Party-list seats available
Representative ⎛ to legislative ⎞
⎜ districts ⎟
⎜ 4 ⎟
Any elected party-list representative who changes ⎜ ⎟
his party-list group or sectoral affiliation during his
term of office shall forfeit his seat. (Amores v. HRET, ⎝ ⎠
G.R. No. 189600, 29 June 201)
The above formula allows the corresponding
NOTE: If he changes his political party or sectoral increase in the number of seats available for party-
affiliation within 6 months before an election, he list representatives whenever a legislative district is
shall not be eligible for nomination as party-list created by law.
representative under his new party or organization.
(Amores v. HRET, Ibid.) After prescribing the ratio of the number of party-
list representatives to the total number of
representatives, the Constitution left the manner of
allocating the seats available to party-list
56
2023 GOLDEN NOTES
representatives to the wisdom of the legislature. Representatives.” (BANAT v. COMELEC, G.R. No.
(BANAT v. COMELEC, G.R. No. 179271, 21 Apr. 2009) 179271, 21 Apr. 2009)
Guidelines in the allocation of seats for Party-list NOTE: The 2% threshold is constitutional only
Representatives under Sec. 11 of R.A. No. 7941 insofar as the determination of the guaranteed seat
(2014 BAR) is concerned.
1. The parties, organizations, and coalitions shall Refusal and/or Cancellation of Registration
be ranked from the highest to the lowest based
on the number of votes they garnered during The COMELEC may, motu proprio or upon a verified
the elections; complaint of any interested party, refuse or cancel,
after due notice and hearing, the registration of any
2. The parties, organizations, and coalitions national, regional or sectoral party, organization or
receiving at least 2% of the total votes cast for coalition or any of the following grounds:
the party-list system shall be entitled to one
guaranteed seat each; 1. It is a religious sect or denomination,
organization or association organized for
3. Those garnering sufficient number of votes, religious purposes;
according to the ranking in paragraph 1, shall
be entitled to additional seats in proportion to 2. It advocates violence or unlawful means to
their total number of votes until all the seek its goals;
additional seats are allocated; and
3. It is a foreign party or organization;
4. Each party, organization, or coalition shall be
entitled to not more than three (3) seats. 4. It is receiving support from any foreign
government, foreign political party,
NOTE: In computing the additional seats, the foundation, organization, whether directly or
guaranteed seats shall no longer be included through any of its officers or members, or
because they have already been allocated at one seat indirectly through third parties, for partisan
each to every two-percenter. Thus, the remaining election purposes;
available seats for allocation as “additional
seats” are the maximum seats reserved under the 5. It violates or fails to comply with laws, rules or
party-list system less the guaranteed regulations relating to elections
seats. Fractional seats are disregarded in the
absence of a provision in R.A. No. 7941 allowing for 6. It declares untruthful statements in its
a rounding off of fractional seats. (BANAT v. petition;
COMELEC, G.R. No. 179271, 21 Apr. 2009)
7. It has ceased to exist for at least one (1) year;
2% Threshold as Regards the Allocation of
Additional Seats is No Longer Valid 8. It fails to participate in the last two (2)
preceding elections; or
The Court struck down the 2% threshold only in
relation to the distribution of the additional seats as 9. It fails to obtain at least 2% of the votes cast
found in the second clause of Sec. 11(b) of R.A. No. under the party-list system in the two (2)
7941. The 2% threshold presents an unwarranted preceding elections for the constituency in
obstacle to the full implementation of Sec. 5(2), Art. which it has registered. (Sec. 6, R.A. No. 7941)
VI of the Constitution and prevents the attainment of
the “broadest possible representation of party,
sectoral or group interests in the House of
57
The Banat Ruling Purpose of Parliamentary Immunities
NOTE: Sec. 6(8) of R.A. 7941 provides for two It is not for the benefit of the officials; rather, it is to
separate grounds for delisting. These grounds protect and support the rights of the people by
cannot be mixed or combined to support delisting. ensuring that their representatives are doing their
jobs according to the dictates of their conscience
The disqualification for failure to garner 2% party- and to ensure the attendance of Congressman.
list votes in two preceding elections should now be (Pobre v. Sen. Santiago, A.C. No. 7399, 25 Aug. 2009)
understood, in light of the Banat ruling, to mean
failure to qualify for a party-list seat in two Requirements for the privilege of speech and
preceding elections for the constituency in which it debate to operate
has registered. (PGBI v. COMELEC, G.R. No. 190529,
29 Apr. 2010) 1. Remarks or comments are made while in
session; and
2. Must be made in connection with the discharge
C. LEGISLATIVE PRIVILEGES, DISCLOSURE OF of official duties. (Cruz, 2014)
FINANCIAL AND BUSINESS AFFAIRS,
PROHIBITIONS, INHIBITIONS, AND Coverage of speech or debate
DISQUALIFICATIONS
It includes utterances made by Congressmen in the
performance of their official functions, such as
speeches delivered, statements made, or votes cast
Legislative Privileges or Parliamentary
in the halls of Congress, while it is in session. It
Immunities
further includes bills introduced in Congress,
whether the same is in session or not, and other acts
1. Immunity from Arrest
performed by Congressmen, either in Congress or
outside the premises housing its offices, in the
This grants the legislators the privilege from arrest
official discharge of their duties as members of
while Congress is “in session”, whether regular or
Congress and of Congressional Committees duly
special, with respect to offenses that are punishable
authorized to perform its functions as such, at the
by imprisonment for not more than 6 years. (Sec. 11,
time of the performance of the acts in question.
Art. VI, 1987 Constitution) This applies regardless of
(Jimenez v. Cabangbang, G.R. No. L-15905, 03 Aug.
whether or not he is attending the session. (People
1966)
v. Jalosjos, G.R. Nos. 132875-76, 03 Feb. 2000)
Limitations on Legislative Privilege

NOTE: Session covers the entire period from its
initial convening until its final adjournment.
1. Protection is only against the forum other than
the Congress itself. Thus, for defamatory
2. Legislative Privilege Speech
remarks, which are otherwise privileged, a
member may be sanctioned by either the
No member shall be questioned or held liable in any
Senate or the HoR, as the case may be; and
forum other than his respective Congressional body
for any debate or speech in Congress or in any
2. The “speech or debate” must be made in
committee thereof. (Sec. 11, Art. VI, 1987
performance of their duties as members of
Constitution; Pobre v. Sen. Santiago, A.C. No. 7399, 25
Congress.
Aug. 2009)
Q: The Senate Committee on Accountability of

Public Officials and Investigation conducted an
58
2023 GOLDEN NOTES
investigation, in aid of legislation, regarding the Congress “in recess”
alleged P1.601 billion overpricing of the new 11-
storey Makati City Hall II Parking Building. If the recess was called for in between a regular or
During media interviews in the Senate, special session, the Congress is still considered in
particularly during gaps and breaks in the session. But if the recess was the 30-day
plenary hearings, Sen. Trillanes expressed his compulsory recess, Congress is not in session. (Sec.
opinion that Antonio Tiu appears to be a “front” 15, Art. VI, 1987 Constitution)
or “nominee” or is acting as a “dummy” of the
actual and beneficial owner of the Hacienda Prohibitions attached to a legislator during his
Binay. As such, Tiu filed a complaint for damages term
against Sen. Trillanes. Consequently, Sen.
Trillanes asked for the dismissal of the case INCOMPATIBLE
FORBIDDEN OFFICE
claiming he enjoys parliamentary immunity. Is OFFICE
Sen. Trillanes correct? 1st sentence of Sec. 13, 2nd sentence of Sec.
Art.VI 13, Art. VI
A: NO. The remarks of Sen. Trillanes fall outside the Senator or any member of HoR
privilege of speech or debate under Sec. 11, Art. VI of Cannot be appointed
the 1987 Constitution. The statements were clearly to any office which
not part of any speech delivered in the Senate or any have been created, or
of its committees. They were not also spoken during the emoluments
any debate. It cannot likewise be successfully thereof increased
contended that they were made in the official May not hold any
during the term for
discharge or performance of Sen. Trillanes’ duties as other office or
which he was elected.
a Senator, as the remarks were not part of or employment in the
integral to the legislative process. To participate in Government, during
NOTE: After such
or respond to media interviews is not an official his term without
term, and even if he is
function of any lawmaker; it is not demanded by his forfeiting his seat.
re-elected, the
sworn duty nor is it a component of the process of disqualification no
enacting laws. longer applies and he
may therefore be
A lawmaker may well be able to discharge his duties appointed to the office.
and legislate without having to communicate with Automatically forfeits
the press. A lawmaker’s participation in media seat upon the
interviews is not a legislative act, but is “political in member’s assumption
nature,” outside of the ambit of the immunity of such other office.
conferred under the Speech or Debate Clause in the
1987 Constitution. The privilege arises not because Even if he is willing to
XPN: holds other office
of the statement made by a lawmaker, but because forfeit his seat, he may
in ex-officio capacity.
it is uttered in furtherance of legislation. (Sen. not be appointed to
Antonio Trillanes vs. Hon. Evangeline Castillo- said office.
Purpose: to prevent
Marigomen, G.R. No. 223451, 14 Mar. 2018) him from owing loyalty
Purpose: to prevent
to another branch of
The purpose of the privilege is to ensure the trafficking in public
government, to the
effective discharge of functions of Congress. The office.
detriment of the
privilege may be abused but it is said that such is not independence of
so damaging or detrimental as compared to the legislature and the
denial or withdrawal of such privilege. (Pobre v. Sen. doctrine of separation
Defensor-Santiago, A.C. No. 7399, 25 Aug. 2009) of powers. (Cruz, 2014)
59
Disqualifications attached to Senators and
More of an inhibition. More of a prohibition.
Representatives and their applications (2004
BAR)
Rule on increase in salaries of members of
Congress WHEN
DISQUALIFICATION
APPLICABLE
Increase in the salaries shall take effect after the During his term
expiration of the full term of all the members of the
Senate and the House of Representatives approving If he does so, he
such increase. (Sec. 10, Art. VI, 1987 Constitution) Incompatible Office forfeits his seat.
(Sec. 13(1), Art.
Particular inhibitions attached to the respective VI, 1987
offices of Senators and Representatives Constitution)
If the office was
1. Personally appearing as counsel before any created or the
court of justice or before the Electoral emoluments
Tribunals, or quasi-judicial or other thereof
administrative bodies is prohibited; and (Sec. increased
14, Art. VI, 1987 Constitution) (2004 BAR) Forbidden Office during the term
for which he
NOTE: Since the practice of law covers a wide was elected.
range of legislative activities (Cayetano v. (Sec. 13(2), Art.
Monsod, G.R. No. 100113, 03 Sept. 1991) the VI, 1987
Senator or member of HoR is allowed to engage Constitution)
in other aspects of the law practice such as the
giving of legal advice to clients, negotiating Cannot personally appear
During his term
contracts on behalf of clients which necessitates as counsel before any court
of office. (Sec.
legal knowledge, preparation of documents and of justice, electoral tribunal,
14, Art. VI, 1987
similar others. (Pineda, 2009) quasi-judicial and
Constitution)
administrative bodies.
2. Upon assumption of office, all members of the
Senate and HoR shall make a full disclosure of Cannot be financially
their financial and business interests. They shall interested, directly or During his term
notify the House concerned of a potential indirectly, in any contract of office. (Sec.
conflict of interest that may arise from the filing with or in any franchise, or 14, Art. VI, 1987
of a proposed legislation of which they are special privilege granted by Constitution)
authors. (Sec. 12, Art. VI, 1987 Constitution) the Government.
(2010, 2004 BAR) Cannot intervene in any
matter before any office of During his term
the government for his of office (Sec.
pecuniary benefit or where 14, Art. VI, 1987
he may be called upon to act Constitution)
on account of his office.
60
2023 GOLDEN NOTES
Voting Separately vs. Voting Jointly
D. QUORUM AND VOTING MAJORITIES
SEPARATELY JOINTLY
Quorum
The required amount
of votes must be
Under the Constitution, the quorum is the majority
obtained in each
of each house. This number enables a body to
House. i.e., if 2/3 vote is The vote requirement
transact its business and gives such body the power
required with the is determined based on
to pass a law or ordinance or any valid act that is
Houses voting the total number of the
binding.
separately, 2/3 of the Members of the
Senators must vote for Congress (Senators
NOTE: In computing quorum, members who are
it AND 2/3 of the and Representatives
outside the country and, thus, outside of each
representatives must combined)
House’s jurisdiction are not included. The basis for
vote for in favor of the
determining the existence of a quorum in the Senate
act for it to be
shall be the total number of Senators who are within
approved.
the coercive jurisdiction of the Senate. (Avelino v.
Cuenco, G.R. No. L-2821, 04 Mar. 1949)
Effect if there is no quorum
Each House may adjourn from day to day and may

compel the attendance of absent members in such
manner and under such penalties as each House
may provide. (Sec. 16(2), Art. VI, 1987 Constitution)
NOTE: The members of the Congress cannot compel

absent members to attend sessions if the reason for
the absence is a legitimate one. The confinement of
a congressman charged with a non-bailable offense
is certainly authorized by law and has constitutional
foundations. (People v. Jalosjos, G.R. No. 132875-76,
03 Feb. 2000)
Instances when the Constitution requires that

the yeas and nays of the Members be taken every
time a House has to vote
1. Upon the last and third readings of a bill (Sec.

26(2), Art. VI, 1987 Constitution);
2. At the request of 1/5 of the members present
(Sec. 16(4), Art. VI, 1987 Constitution); and
3. In repassing a bill over the veto of the
President. (Sec. 27, Art. VI, 1987 Constitution)
61
Instances when Congress is Voting Separately Instances when Congress Votes by Majority
and Voting Jointly
INSTANCES WHEN NUMBER OF VOTES
SEPARATE JOINT CONGRESS VOTES REQUIRED
Elect the Senate Majority vote of all its
President or House respective members
of Representatives (Sec. 16(1), Art. VI, 1987
Speaker. Constitution)
Commission on Majority vote of all the
(V-I-P-A-S) Appointments members. (Sec. 18, Art.
ruling. VI, 1987 Constitution)
1. Confirming Majority of all the
nomination of Vice- Passing a law
members of Congress.
President; (Sec. 9, granting any tax
(Sec. 28(4), Art. VI, 1987
Art. VII, 1987 exemption.
Constitution)
Constitution)
Instances when Congress Votes other than by
2. Determining (H-M) Majority
President’s Inability
to discharge the 1. When revoking or INSTANCES WHEN NUMBER OF VOTES
powers and duties extending the CONGRESS VOTES REQUIRED
of his office; (Sec. 11, proclamation
To suspend or expel
Art. VII, 1987 suspending the
a member in 2/3 of all its members.
Constitution) privilege of writ of
accordance with its (Sec. 16(3), Art.VI,
Habeas corpus; and
rules and 1987 Constitution)
3. Choosing the (Sec. 18, Art. VII,
proceedings
President in case of 1987 Constitution)
1/5 of the members
a tie; (Sec. 4, Art. VII, To enter the Yeas
present. (Sec. 16(4),
1987 Constitution) 2. When revoking or and Nays in the
Art. VI, 1987
extending the Journal
Constitution)
4. Proposing declaration of
2/3 of both houses in
Constitutional Martial law. (Sec. To declare the
joint session voting
Amendments; (Sec. 18, Art. VII, 1987 existence of a state
separately. (Sec. 4, Art.
1, Art. XVII, 1987 Constitution) of war
VII, 1987 Constitution)
Constitution) and
5. Declaring the Non-intervention of courts in the

existence of a State implementation of the internal rules of Congress
of war in joint
session. (Sec. 23, Art. As part of their inherent power, Congress can
VI, 1987 determine their own rules. Hence, the courts cannot
Constitution) intervene in the implementation of these rules
insofar as they affect the members of Congress.
(Osmeña v. Pendatun G.R. No L-17144, 28 Oct. 1960)
Elected officers of Congress
1. Senate President;
2. Speaker of the House; and
62
2023 GOLDEN NOTES
3. Such officers as deemed by each house to be 7. During impeachment proceedings. (Sec. 3(4
necessary. (Sec. 16(1), Art. VI, 1987 and 6), Art. XI, 1987 Constitution)
Constitution)
NOTE: In a special session, the Congress may
Vote required in election of officers consider “general legislation or only such subjects
as the President may designate”. In a regular
Majority vote of all its respective members. (Sec. session, “the power of the Congress is not
16(1), Art. VI, 1987 Constitution) circumscribed except by limitations imposed by
Regular session of Congress (1996 BAR) organic law.” (Cruz, 2014)
Congress convenes once every year on the 4th Adjournment sine die
Monday of July, unless otherwise provided for by
law. It continues in session for as long as it sees fit, An interval between the session of one Congress and
until 30 days before the opening of the next regular that of another. When a committee adjourns sine die,
session, excluding Saturdays, Sundays, and legal it adjourns without appointing a day on which to
holidays. (Sec. 15, Art. VI, 1987 Constitution) meet or assemble again. (Tabucanon, 2018)
Instances when there are special sessions

E. DISCIPLINE OF MEMBERS
1. Due to vacancies in the offices of the President
and Vice President at 10 o’clock A.M. on the
third day after the vacancies; (Sec. 10, Art. VII, Disciplinary power of Congress (2002, 1993
1987 Constitution) BAR)
2. To decide on the disability of the President Each house may punish its members for disorderly
because a majority of all the members of the behavior and, with concurrence of 2/3 of all its
cabinet have “disputed” his assertion that he is members, suspend, for not more than 60 days, or
able to discharge the powers and duties of his expel a member. (Sec. 16(3), Art. VI, 1987
office; (Sec. 11, Art. VII, 1987 Constitution) Constitution)
3. To revoke or extend the Presidential Determination of disorderly behavior

Proclamation of Martial Law or suspension of
the privilege of the writ of habeas corpus; (Sec. The House of Representatives is the judge of what
18, Art. VII, 1987 Constitution) constitutes disorderly behavior. The courts will not
assume jurisdiction in any case which will amount
4. Called by the President at any time when to an interference by the judicial department with
Congress is not in session; (Sec. 15, Art. VI, 1987 the legislature. (Osmeña v. Pendatun, G.R. No. L-
Constitution) 17144, 28 Oct. 1960)
5. To declare the existence of a state of war in a NOTE: Members of Congress may also be suspended
joint session, by vote of 2/3 of both Houses; by the Sandiganbayan or by the Office of the
(Sec. 23(1), Art. VI, 1987 Constitution) Ombudsman. The suspension in the Constitution is
different from the suspension prescribed in R.A. No.
6. When the Congress acts as the Board of 3019 (Anti-Graft and Corrupt Practices Act). The
Canvassers for the Presidential and Vice- latter is not a penalty but a preliminary preventive
Presidential elections; and (Sec. 4, Art. VII, 1987 measure and is not imposed upon the petitioner for
Constitution) misbehavior as a member of Congress. (Santiago v.
Sandiganbayan, G.R. No. 128055, 18 Apr. 2001)
63
Preventive suspension is not a penalty (2015 XPN: The certification of the President, due to the
BAR) necessity of its immediate enactment to meet a
public calamity or emergency, dispenses with the
A court-ordered preventive suspension is a reading on separate days and the printing of the bill
preventive measure that is different and distinct in the final form before its final approval. (Sec. 26(2)
from the suspension ordered by the HoR for Art. VI, 1987 Constitution; Tolentino v. Secretary of
disorderly behavior which is a penalty. Such House- Finance, G.R. No. 115455, 30 Oct. 1995)
imposed sanction is intended to enforce discipline Instances when a bill becomes a law (1996,
among its members. (Paredes, Jr. v. Sandiganbayan, 1993, 1991 BAR) (AS-O-Fa-SE)
G.R. No. 118364, 08 Aug. 1995)
1. Approved and Signed by the President;
NOTE: The suspension under the Anti-Graft Law is
mandatory. It is imposed not as a penalty but as a 2. Presidential veto Overridden by 2/3 vote of all
precautionary measure to prevent the accused members of both Houses;
public officer from frustrating his prosecution. It is
incidental to the criminal proceedings before the 3. Failure of the President to veto the bill and to
court. return it with his objections to the House
where it originated, within 30 days after the
The House-imposed sanction on the other hand, is a date of receipt; and
penalty for disorderly behavior.
4. A bill calling a Special Election for President
Thus, the order of suspension in the Anti-Graft Law and Vice-President under Sec. 10. Art. VII
is distinct from the power of the Congress under the becomes a law upon its approval on the third
Constitution to discipline its own ranks. (De Venecia reading and final reading.
Jr., v. Sandiganbayan, G.R. No. 130240, 05 Feb. 2002)
One Bill-One Subject Rule
F. PROCESS OF LAW-MAKING Every bill passed by the Congress shall embrace

only one subject. The subject shall be expressed in
the title of the bill. This rule is mandatory. (Sec.
Rules regarding the passage of bills
Number of readings before becoming a law

1. No bill passed by either House shall become a
(1996 BAR)
law unless it has passed three (3) readings on
separate days;
STAGE WHAT IS DONE
Only the title of the bill is
2. Printed copies of the bill in its final form should
First Reading read, then it is passed to the
be distributed to the members three (3) days
proper committee for study.
before its passage;
The entire text is read, and
3. Upon the last reading of a bill, no amendment Second Reading debates and amendments are
held.
thereto shall be allowed;
Only the title is read, and
4. The vote on the bill shall be taken immediately Third Reading votes are taken immediately
after the last reading of a bill; and thereafter.
5. The yeas and the nays shall be entered in the

Journal.
64
2023 GOLDEN NOTES
NOTE: Each bill must pass three (3) readings each Constitution requires on the passage of bills and is
in both Houses. In other words, there must be a total constitutionally obnoxious because it significantly
of six (6) readings. constricts the future legislators’ room for action and
flexibility. (Abas Kida v. Senate, G.R. No. 196271, 18
GR: Each reading shall be held on separate days and Oct. 2011)
printed copies thereof in its final form shall be
distributed to its Members, 3 days before its NOTE: Every legislative body may modify or abolish
passage. the acts passed by itself or its predecessors. The
legislature cannot bind a future legislature to a
XPN: If a bill is certified as urgent by the President particular mode of repeal. It cannot declare in
as to the necessity of its immediate enactment to advance the intent of subsequent legislatures or the
meet a public calamity or emergency, the three- effect of subsequent legislation upon existing
reading requirement can be held on the same day. statutes. (Abas Kida v. Senate, G.R. Nos. 196271,
(Sec. 26(2), Art. VI, 1987 Constitution) 196305, 197221, 197280, 197282, 197392, 197454,
28 Feb. 2012)
Q: Is the supermajority vote requirement under
R.A. No. 9054, the second Organic Act of ARMM 1. FUNCTION OF THE BICAMERAL CONFERENCE
which reset the regular elections for the ARMM COMMITTEE
regional officials to the second Monday of
September 2001 unconstitutional by giving it a
The Bicameral Conference Committee
character of an irrepealable law?
In a bicameral system, bills are independently

A: YES. The supermajority (2/3) voting
processed by both Houses of Congress. It is not
requirement required under Sec. 1, Art. XVII of R.A.
unusual that the final version approved by one
No. 9054 (second Organic Act of ARMM) must be
House differs from what has been approved by the
struck down for giving said law the character of an
other.
irrepealable law by requiring more than what the
Constitution demands.
The “conference committee,” consisting of members
nominated from both Houses, is an extra-
Sec. 16(2), Art. VI of the Constitution provides that a
constitutional creation of Congress whose function
“majority of each House shall constitute a quorum to
is to propose to Congress ways of reconciling
do business.” In other words, if majority of the
conflicting provisions found in the Senate version
members of the House of Representatives or the
and in the House version of a bill. (Bernas, 2009)
Senate are present, these bodies have the quorum
needed to conduct business and hold session.
Extent of the Power of the Committee
Within a quorum, a vote of majority is generally
sufficient to enact laws or approve acts.
The conferees are not limited to reconciling the
differences in the bill but may introduce new
In contrast, Sec. 1, Art. XVII of R.A. No. 9054 requires
provisions germane to the subject matter or may
a vote of no less than 2/3 of the Members of the
report out an entirely new bill on the subject.
House of Representatives and of the Senate, voting
(Tolentino v. Sec. of Finance, G.R. No, 115455, 30 Oct.
separately, in order to effectively amend R.A. No.
1995 citing The Philippine Judges Association v.
9054. Clearly, this requirement is higher than what
Prado, G.R. No. 105371, 11 Nov. 1993)
the Constitution requires for the passage of bills and
served to restrain the plenary powers of Congress to
Scope of the Powers of the Committee
amend, revise or repeal the laws it had passed.
(Ad-A-R-New)
While a supermajority is not a total ban against

1. Adopt the bill entirely;
repeal, it is a limitation in excess of what the
65
2. Amend or revise; 2. LIMITATIONS ON LEGISLATIVE POWER
3. Reconcile the House and Senate Bills; and
4. Propose entirely New provisions not found in
See page 45 for discussion on Limitations on
either the Senate or House bills.
Legislative Powers.
Reconcile or harmonize disagreeing provisions

a) LIMITATIONS ON REVENUE,
APPROPRIATIONS, AND TARIFF
The changes introduced by the Bicameral
Conference Committee are meant only to reconcile
Substantive Limitations (2017 BAR)
and harmonize the disagreeing provisions for it
does not inject any idea or intent that is wholly
1. All appropriation, revenue, or tariff bills,
foreign to the subject embraced by the original
bills authorizing increase of the public debt,
provisions.
bills of local application, and private bills,
shall originate exclusively in the House of
To reconcile or harmonize disagreeing provisions,
Representatives, but the Senate may
the Bicameral Conference Committee may then:
propose or concur with amendments; (Sec.
(A-N-C)
24, Art. VI, 1987 Constitution)
1. Adopt the specific provisions of either the

2. The Congress may not increase the
House bill or Senate bill;
appropriations recommended by the
President for the operation of the
2. Decide that Neither provisions in the House bill
Government as specified in the budget;
or the provisions in the Senate bill would be
(Sec. 25(1), Art. VI, 1987 Constitution)
carried into the final form of the bill; and/or
3. No provision or enactment shall be

3. Try to arrive at a Compromise between the
embraced in the general appropriations bill
disagreeing provisions.
unless it relates specifically to some
particular appropriation therein. Any such
Thus, the changes made by the Bicameral
provision or enactment shall be limited in
Conference Committee in the versions passed by the
its operation to the appropriation to which
Senate and the House of the Representatives
it relates; (Sec. 25 (2), Art. VI, 1987
regarding the VAT Law such as the inclusion of the
Constitution)
stand-by authority of the President, the omission of
the no pass-on provision included in both Senate and
4. The procedure in approving appropriations
House versions, and the inclusion of provisions on
for the Congress shall strictly follow the
other kinds of taxes and VAT only found in the
procedure for approving appropriations
Senate bill are valid. (Escudero v. Purisima, G.R. No.
for other departments and agencies; (Sec.
168463, 01 Sept. 2005; ABAKADA v. Ermita, GR
25 (3), Art. VI, 1987 Constitution)
168056, 01 Sept. 2005)
5. A special appropriations bill shall specify
the purpose for which it is intended and
shall be supported by funds actually
available as certified by the National
Treasurer, or to be raised by a
corresponding revenue proposed therein;
(Sec. 25 (4), Art. VI, 1987 Constitution)
66
2023 GOLDEN NOTES
6. No law shall be passed authorizing any thereof all male college students shall be
transfer of appropriations; however, the required to plant 10 trees every year for two (2)
President, the President of the Senate, the years in areas to be designated by the DENR in
Speaker of the House of Representatives, coordination with the Department of Education,
the Chief Justice of the Supreme Court, and Culture and Sports (DECS) and the LGU
the heads of Constitutional Commissions concerned. It further provides that the same
may, by law, be authorized to augment any provision shall be incorporated in future
item in the general appropriations law for General Appropriations Acts. There is no
their respective offices from savings in specific item of appropriation of funds for the
other items of their respective purpose. Comment on the constitutionality of
appropriations; (Sec. 25(5), Art. VI, 1987 said provision. (2001 BAR)
Constitution)
A: The provision is unconstitutional because it is a
7. Discretionary funds appropriated for rider. No provision or enactment shall be embraced
particular officials shall be disbursed only in the general appropriations bill unless it relates
for public purposes to be supported by specifically to some particular appropriation
appropriate vouchers and subject to such therein. (Sec. 25(2), Article VI, 1987 Constitution)
guidelines as may be prescribed by law; The abolition of the ROTC involves a policy matter.
(Sec. 25(6), Art. VI, 1987 Constitution) As held in Philippine Constitution Association v.
Enriquez (G.R. No. 113105, 19 Aug. 1994), this cannot
8. If, by the end of any fiscal year, the Congress be incorporated in the General Appropriations Act
shall have failed to pass the general but must be embodied in a separate law.
appropriations bill for the ensuing fiscal
year, the general appropriations law for the Q: What are the limitations/restrictions
preceding fiscal year shall be deemed provided by the Constitution on the power of
reenacted and shall remain in force and Congress to authorize the President to fix tariff
effect until the general appropriations bill rates, import and export quotas, tonnage and
is passed by the Congress; (Sec. 25(7), Art. wharfage dues. Explain. (1999 BAR)
VI, 1987 Constitution)
A: Congress may, by law, authorize the President to
Procedural Limitation (2017 BAR) fix within specified limits, and subject to such
limitations and restrictions it may impose, tariff
The following shall originate exclusively in the rates, import and export quotas, tonnage and
House of Representatives: wharfage dues and other duties or imposts within
the framework of the national development
1. Appropriation bills; program of the Government. (Sec. 28(2), Art. VI,
2. Revenue bills, 1987 Constitution)
3. Tariff bills,
4. Bills authorizing the increase of public debt, b) PRESIDENTIAL VETO AND
5. Bills of local application and CONGRESSIONAL OVERRIDE
6. Private bills.
Rule on Presentment
Q: Suppose that the forthcoming General
Appropriations Law for Year 2002, in the Every bill passed by Congress must be presented to
portion pertaining to the Department of the President for approval or veto. In the absence of
Education, Culture and Sports, will contain a presentment to the President, no bill passed by
provision to the effect that the Reserve Officers Congress can become a law. (Abakada Guro Partylist
Training Course (ROTC) in all colleges and v Purisima, G.R. No. 166715, 14 Aug. 2008)
universities is hereby abolished, and in lieu
67
Rule on Presidential Veto (2010, 1991 BAR) appropriations bill must contain "specific
appropriations of money" and not only "general
GR: If the President disapproves a bill enacted by provisions" which provide for parameters of
Congress, he should veto the entire bill. He is not appropriation. (Belgica v. Ochoa, Jr, ibid.)
allowed to veto separate items of a bill. (Sec. 27(1),
Art. VI, 1987 Constitution) Instances of Pocket Veto
XPN: Item-veto is allowed in case of Appropriation, 1. When the President fails to act on a bill; and
Revenue, and Tariff bills (Sec. 27(2), Art. VI, 1987 2. When the reason he does not return the bill
Constitution) to Congress is that Congress is not in
session. (Sec.7, Art. 1, U.S. Constitution)
XPNs to the XPN:
Pocket Veto is NOT applicable in the Philippines
1. Doctrine of inappropriate provisions – A
provision that is constitutionally inappropriate Inaction by the President for 30 days never
for an appropriation bill may be singled out for produces a veto even if Congress is in recess. The
veto even if it is not an appropriation or revenue President must still act to veto the bill and
item; (Gonzales v. Macaraig, G.R. No. 87636, 19 communicate his veto to Congress without need of
Nov. 1990) and returning the vetoed bill with his veto message.
Otherwise, the bill shall become a law as if he had
2. Executive impoundment – Refusal of the signed it. (Sec. 27(1), Art. VI, 1987 Constitution)
President to spend funds already allocated by
Congress for specific purpose. It is the failure to Rider
spend or obligate budget authority of any type.
(Philconsa v. Enriquez, G.R. No. 113105, 19 Aug. A provision in a bill which does not relate to a
1994) particular appropriation stated in the bill. Since it is
an invalid provision under Sec. 25(2), Art. VI of the
Appropriation Item or Line-item 1987 Constitution, the President may veto it as an
item.
An indivisible sum of money dedicated to a stated
purpose. It is indivisible because the amount cannot Congressional Override
be divided for any purpose other than the specific
purpose stated in the item. It is an item, which, in If, after reconsideration, 2/3 of all members of such
itself, is a specific appropriation of money, not some House agree to pass the bill, it shall be sent to the
general provision of law, which happens to be put other House by which it shall likewise be
into an appropriation bill. (Gonzales v. Macaraig, G.R. reconsidered and if approved by 2/3 of all members
No. 87636, 19 Nov. 1990) of that House, it shall become a law without the need
of presidential approval.
An item of appropriation must be an item
characterized by singular correspondence –
meaning an allocation of a specified singular G. RULES ON APPROPRIATION AND
amount for a specified singular purpose, otherwise RE-ALIGNMENT
known as a "line-item." (Belgica v. Ochoa, Jr., G.R. No.
208566, 19 Nov. 2013)
Appropriation means to allot, assign, set apart or

NOTE: For the President to exercise his item-veto
apply to a particular use or purpose. An
power, it is necessary that there exists a proper
appropriation in the sense of the Constitution
"item" which may be the object of the veto. The
means the setting apart a portion of public funds for
68
2023 GOLDEN NOTES
a purpose. (Belgica vs Ochoa, G.R. No. 208566, 19
Nov. 2013) H. ELECTORAL TRIBUNALS AND
COMMISSION ON APPOINTMENTS
The power of the purse belongs to Congress, subject
only to the veto power of the President. The
President may propose the budget, but still the final
say on the matter of appropriations is lodged in the 1. COMPOSITION
Congress.
Composition of the Electoral Tribunal
The power of appropriation carries with it the
power to specify the project or activity to be funded 1. 3 Supreme Court Justices designated by the
under the appropriation law. It can be as detailed Chief Justice; and
and as broad as Congress wants it to be. (Philippine
Constitution Association vs Hon. Salvador Enriquez, 2. 6 members of the Senate or the House of
G.R. No. 113105, 19 Aug. 1994) Representatives, as the case may be, chosen
on the basis of proportional representation
NOTE: Public funds may only be appropriated by from the political parties and from those
law. (Sec. 29(1), Art VI, 1987 Constitution) registered under the party-list system
represented therein. (Sec. 17, Art. VI, 1987
GR: Transfer of items of appropriation cannot be Constitution.)
inserted as provisions in appropriation laws.
NOTE: The senior Justice in the Electoral Tribunal
XPN: Appropriations Law may authorize the shall be its Chairman.
following officials to augment any item for their
offices from savings in other items of their Composition of the Commission on
appropriations: Appointments
1. President; 1. Senate President as ex-officio chairman;

2. Senate President; 2. 12 Senators; and
3. Speaker of the House; 3. 12 members of the HoR. (Sec.18, Art. VI,
4. Chief Justice; and 1987 Constitution)
5. Heads of Constitutional Commission. (Sec.
24(5), Art. VI, 1987 Constitution) Presidential Appointments Subject to
Confirmation by the Commission (Ex-A-CC-O-Co-
Requisites for Transfer of Appropriation to be Ju-Co)
Legally Effected
1. Heads of the Executive departments;
1. There must be savings in the programmed
appropriation of the transferring agency; and XPN: Vice-President who is appointed to the
post;
2. There must be an existing item, project or
activity with an appropriation in the receiving 2. Ambassadors, other public ministers, or
agency to which the savings will be consuls;
transferred. (Sanchez VS COA, G.R. No. 127545,
23 Apr. 2008) 3. Officers of the AFP from the rank of Colonel or
naval Captain; and
4. Other Officers whose appointments are vested

in him by the Constitution:
69
a. Chairman and members of 3 vested with rule-making power. (Lazatin v. HRET,
Constitutional Commissions; G.R. No. L-84297, 08 Dec. 1988)
b. Regular members of the Judicial and
Bar Council; and NOTE: It is independent of the Houses of Congress
c. Members of the Regional Consultative and its decisions may be reviewed by the Supreme
Council. Court only upon showing of grave abuse of
discretion.
NOTE: The enumeration is exclusive.
When the winning candidate is considered as
Guidelines in the Meetings of the Commission member of the Senate or HoR
1. The Commission shall meet only while Congress Once he has: (P-O-A)
is in session, at the call of its Chairman or a
majority of all its members; and 1. been Proclaimed;
2. taken his Oath; and
2. Since the Commission is also an independent
constitutional body, its rules of procedure are NOTE: The oath must be made:
also outside the scope of congressional powers
as well as that of the judiciary. (Bondoc v. a. Before the Senate President or Speaker of
Pineda, G.R. No. 97710, 26 Sept. 1991) the House, as the case may be; and
b. In open session. (Reyes v. COMELEC, G.R. No.
Appointments made by the President while the 207264, 25 June 2013)
Congress is not in session
3. Assumed office.
Ad interim appointments are those made by the
president while the congress is NOT in session. It NOTE: Once a winning candidate has been
shall be terminated by the disapproval of the proclaimed, taken his oath, and assumed office as
appointment by the CA or the adjournment of the Member of the House of Representatives (or of the
Congress without the CA acting on the appointment. Senate), the COMELEC’s jurisdiction over the
election contest relating to his election, returns and
NOTE: The Electoral Tribunals and the Commission qualifications ends, and the HRET’s (or SET’s) own
on Appointments shall be constituted within 30 jurisdiction begins. (Vinzons-Chato v. COMELEC, G.R.
days after the Senate and the HoR shall have been No. 172131, 02 Apr. 2007)
organized with the election of the Senate President
and the Speaker of the House. (Matibag v Benipayo, By analogy with the cases of district
G.R. No. 149036, 02, Apr. 2002) representatives, once the party or organization of
the party-list nominee becomes a member of the
2. POWERS AND JURISDICTION HoR, HRET has authority to pass upon election
contests relating to his qualifications. (Abayon v.
Jurisdiction of the Electoral Tribunals HRET, G.R. No. 189466, 11 Feb., 2010)
Each electoral tribunal shall be the sole judge of all Q: Wigberto and Angelina and Alvin were
contests relating to the election, returns, and contenders for the position of Member of the
qualifications of their respective members (Sec. 17, House of Representatives for the 4th District of
Art.VI, 1987 Constitution). This includes determining Quezon Province on the 13 May 2013 National
the validity or invalidity of a proclamation declaring Elections. Wigberto filed before the COMELEC
a particular candidate as the winner. Each ET is also two separate petitions: to cancel Alvin’s CoC and
to declare him as a nuisance candidate. The
70
2023 GOLDEN NOTES
COMELEC cancelled Alvin’s CoC but did not arguing that COMELEC has lost jurisdiction over
declare him to be a nuisance candidate. Despite the case and it is the HRET that has jurisdiction
the cancellation of Alvin’s CoC due to his as she is already declared a winner. Is Gemma’s
material misrepresentations therein, his name contention tenable?
was not deleted from the ballot. Subsequently,
Angelina was proclaimed as the winning A: NO. Gemma cannot be considered a Member of
candidate. It appears that Wigberto had filed the House of Representatives because, primarily,
with the COMELEC a Petition to Annul the she has not yet assumed office. The jurisdiction of
Proclamation of Angelina and while such the HRET begins only after the candidate is
petition was pending, Wigberto initiated the considered a Member of the House of
instant certiorari case against the COMELEC En Representatives, as stated in Sec. 17, Art. VI of the
Banc Resolution declaring Alvin not a nuisance 1987 Constitution. To be considered a Member of the
candidate. Is the petition tenable? House of Representatives, there must be a
concurrence of the following requisites: (1) a valid
A: NO. The petition must fail Sec. 17, Art. VI of the proclamation; (2) a proper oath; and (3)
1987 Philippine Constitution provides that the HRET assumption of office.
is the sole judge of all contests relating to the
election, returns, and qualifications of its respective The term of office of a Member of the House of
members. Case law states that the proclamation of a Representatives begins only “at noon on the thirtieth
congressional candidate following the election day of June next following their election.” Thus, until
divests the COMELEC of jurisdiction over disputes such time, the COMELEC retains jurisdiction.
relating to the election, returns, and qualifications of Consequently, before there is a valid or official
the proclaimed representative in favor of the HRET. taking of the oath it must be made (1) before the
Considering that Angelina had already been Speaker of the House of Representatives; and (2) in
proclaimed as Member of the House of open session. Here, although she made the oath
Representatives for the 4th District of Quezon before Speaker Belmonte, there is no indication that
Province on 16 May 2013, as she has in fact taken it was made during plenary or in open session and,
her oath and assumed office past noon time of 30 thus, it remains unclear whether the required oath
June 2013, the Court is now without jurisdiction to of office was indeed complied with. (Reyes v.
resolve the case at bar. As they stand, the issues COMELEC, G.R. No. 207264, 25 June 2013)
concerning the conduct of the canvass and the
resulting proclamation of Angelina as herein Q: Ating Koop party-list expelled its first
discussed are matters which fall under the scope of nominee/representative Lico for refusing to
the terms election and return and hence, properly honor the term-sharing agreement. A petition
fall under the HRET’s sole jurisdiction. (Wigberto was filed with the COMELEC which sought his
Tañada, Jr. vs. COMELEC, G.R. Nos. 207199-200, 22 removal from being Ating Koop’s representative.
Oct. 2013) COMELEC 2nd Division expelled Lico. COMELEC
En Banc, however, dismissed the petition on the
Q: Gemma ran for Congresswoman of
ground that it had no jurisdiction to expel Lico
Muntinlupa in the May 2013 elections. However,
from the HoR, considering that his expulsion
before the elections, the COMELEC cancelled her
from Ating Koop affected his qualifications as
CoC after hearing a complaint filed against her.
member of the House, and therefore it was the
Later, she was declared winner as
HRET that had jurisdiction over the Petition.
Congresswoman of Muntinlupa. The decision
Notwithstanding, COMELEC En Banc still
said she took her oath already and had not
affirmed the validity of Lico’s expulsion from
assumed her office as Congresswoman.
Ating Koop. Is COMELEC En Banc’s decision
Subsequently, COMELEC issued a certificate of
correct?
finality on its earlier resolution cancelling
Gemma’s COC. Gemma comes before the Court
71
A: NO. A party-list nominee must have been, among 3. Resignation from the political party he
others, a bona fide member of the party or represents in the tribunal;
organization for at least ninety (90) days preceding 4. Formal affiliation with another political
the day of the election. Needless to say, bona fide party; and
membership in the party-list group is a continuing 5. Removal from office for other valid
qualification x x x. Under Sec. 17, Art. VI of the reasons. (Bondoc v. Pineda, G.R. No.
Constitution, the HRET is the sole judge of all 97710, Sept. 26, 1991)
contests when it comes to qualifications of the
members of the House of Representatives. NOTE: Unlike the Commission on Appointments,
the Electoral Tribunal shall meet in accordance with
Our ruling here must be distinguished from Regina their rules, regardless of whether Congress is in
Ongsiako Reyes v. Commission on Elections. In Reyes. session or not.
Here, the Court ruled on her qualifications since she
was not yet a member of the House of Q: Can the Senators-members of the Senate
Representatives: petitioner Reyes had yet to assume Electoral Tribunal be disqualified because an
office, the term of which would officially start at election contest is filed against them?
noon of 30 June 2013, when she filed a Petition for
Certiorari dated 7 June 2013 assailing the A: NO. The Supreme Court held that it cannot order
Resolutions ordering the cancellation of her CoC. In the disqualification of the Senators-members of the
the present case, all three requirements of Electoral Tribunal simply because they were
proclamation, oath of office, and assumption of themselves respondents in the electoral protest,
office were satisfied. Moreover, in Reyes, there was considering the specific mandate of the Constitution
no longer any pending case on the qualifications of and inasmuch as all the elected Senators were
petitioner Reyes to speak of. Here, the question of actually named as respondents. (Abbas v. SET, G.R.
whether petitioner Lico remains a member of the No. 83767, 22 Oct. 1988)
House of Representatives in view of his expulsion
from Ating Koop is a subsisting issue. Finally, in Decisions of Electoral Tribunals are not
Reyes, the question of jurisdiction of the HRET is a appealable
non-issue, since the recourse of the petitioner to the
Court appeared to be a mere attempt to prevent the Sec. 17, Art. VI of the 1987 Constitution provides that
COMELEC from implementing a final and executory the SET/HRET is the sole judge of all contests.
judgment. In this case, the question on the validity Hence, from its decision, there is no appeal. Appeal
of petitioner Lico's expulsion from Ating Koop is a is not a constitutional right but merely a statutory
genuine issue that falls within the jurisdiction of the right.
HRET, as it unmistakably affects his qualifications as
party-list representative. (Lico v COMELEC, G.R. No. Remedy from an Adverse Decision of the
205505, 29 Sept. 2015) Electoral Tribunal
Valid Grounds or Just Causes for Termination of A special civil action for certiorari (Rule 65 of the
Membership to the Tribunal Rules of Court) may be filed. This is based on grave
abuse of discretion amounting to lack or excess of
Members of the Electoral Tribunal enjoy the jurisdiction. This shall be filed before the Supreme
security of tenure. However, they may be Court.
terminated for a just cause such as:
NOTE: Under the doctrine of primary
1. Expiration of Congressional term of administrative jurisdiction, prior recourse to the
office; House is necessary before the petitioners may bring
2. Death or permanent disability; the case to the Supreme Court. (Pimentel vs. House of
72
2023 GOLDEN NOTES
Representative Electoral Tribunal, G.R. No. 141489, Limitations on legislative investigation
29 Nov. 2002)
1. The persons appearing in or affected by such
Functions of the Commission on Appointments legislative inquiries shall be respected.;
The commission shall confirm or approve 2. The Rules of procedures to be followed in such
nominations made by the President of certain public inquiries shall be published for the guidance of
officers named by the Constitution or by law. (Sec. those who will be summoned. This must be
16, Art. VII, 1987 Constitution) strictly followed so that the inquiries are
confined only to the legislative purpose and to
avoid abuses;
I. POWERS OF CONGRESS
NOTE: It is incumbent upon the Senate, HOR,
or any of its respective committee to publish
the rules for its legislative inquiries in each
1. LEGISLATIVE INQUIRIES AND THE Congress or otherwise make the published
OVERSIGHT FUNCTIONS rules clearly state that the same shall be
effective in subsequent Congresses or until
Legislative Inquiries/Inquiries in Aid of they are amended or repealed to sufficiently
Legislation put the public on notice. Publication of said
rules on the internet cannot be considered as
The Senate or the House of Representatives or any compliance with this constitutional
of its respective committees may conduct inquiries requirement. (Neri vs Senate, G.R. No. 180643,
in aid of legislation in accordance with its duly 04 Sept. 2008)
published rules of procedure. The rights of persons
appearing in, or affected by, such inquiries shall be 3. The investigation must be in aid of legislation.;
respected. (Sec. 21, Art. VI, 1987 Constitution)
4. Congress may not summon the President as
Matters that can be the subject of inquiries in aid witness or investigate the latter in view of the
of legislation doctrine of separation of powers except in
impeachment cases; (Senate vs Ermita, G.R. No.
Indefinite. The field of legislation is very wide, and 169777, 20 Apr. 2006)
because of such, the field of inquiry is also very
broad and may cover administrative, social, NOTE: It is the President’s prerogative under
economic, political inquiries, discipline of members the power of Executive Privilege, whether to
etc. The matters which may be a proper subject of divulge or not the information, which he
legislation and those which may be a proper subject deems confidential or prudent in the public
of investigation are one. Suffice it to say that it is interest. (Senate vs Ermita, ibid.)
“intrinsic” in and co-extensive with legislative
power. (Arnault v. Nazareno, G.R. No. L-3820, 18 July 5. Congress may no longer punish the witness in
1950) contempt after its final adjournment. The basis
of the power to impose such penalty is the
NOTE: If the stated purpose of the investigation is to right to self-preservation. And such right is
determine the existence of violations of the law, the enforceable only during the existence of the
investigation is no longer “in aid of legislation” but legislature; and (Lopez v. Delos Reyes, G.R. No.
“in aid of prosecution.” This violates the principle of L-34361, 05 Nov. 1930)
separation of powers and is beyond the scope of
Congressional powers. (Bengzon vs Senate Blue 6. Inquiry must be related to and furtherance of
Ribbon Committee, G.R. No. 89914, 20 Nov. 1991) legislative task. Congress may no longer
73
inquire into the same justiciable controversy Vice Chairman of SCB is not correct in refusing to
already before the court. (Bengzon v. Senate attend the investigation proceeding on the ground
Blue Ribbon Committee, G.R. No. 89914, 20 Nov. that criminal and civil cases involving the same
1991) issues are pending in courts. (Standard Chartered
Bank v. Senate, G.R. No. 167173, 27 Dec. 2007)
Q: Senator Miriam Defensor Santiago
introduced Proposed Senate Resolution (PSR) Distinction between the cases Standard
No. 455 directing the conduct of an inquiry, in Chartered Bank v. Senate and Bengzon v. Senate
aid of legislation, on the anomalous losses Blue Ribbon Committee
incurred by POTC, PHILCOMSAT and PHC and
the mismanagement committed by their In Bengzon (G.R. No. 89914, 20 Nov. 1991), the Court
respective board of directors. Can the persons declared that the issue to be investigated was one
involved in the legislative inquiry question the over which jurisdiction had already been acquired
haste with which the Senate approved their by the Sandiganbayan, and to allow the Senate Blue
Committee Report? Can said persons invoke Ribbon Committee to investigate the matter would
their basic right to counsel? create the possibility of conflicting judgments; and
that the inquiry into the same justiciable
A: NO. The Senate or the House of Representatives controversy would be an encroachment on the
or any of its respective committees may conduct exclusive domain of judicial jurisdiction that had set
inquiries in aid of legislation in accordance with its in much earlier.
duly published rules of procedure. The wide latitude
given to Congress with respect to these legislative There are a number of cases already pending in
inquiries has long been settled, otherwise, Sec. 21, various courts and administrative bodies involving
Art. VI of the 1987 Constitution would be rendered Standard Chartered Bank, relative to the alleged sale
pointless. The right to be assisted by counsel can of unregistered foreign securities. There is a
only be invoked by a person under custodial resemblance between this case and Bengzon.
investigation suspected for the commission of a However, the similarity ends there.
crime, and therefore attaches only during such
custodial investigation. (Philcomsat Holdings Corp. Central to the Court’s ruling in Bengzon – that the
vs. Senate, G.R. No. 180308, 19 June 2012) Senate Blue Ribbon Committee was without any
constitutional mooring to conduct the legislative
Q: Sen. Rodolfo Diaz accused the Vice Chairman investigation – was the Court’s determination that
of the Standard Chartered Bank (SCB) of the intended inquiry was not in aid of legislation.
violating the Securities Regulation Code for The Court found that the speech of Senator Enrile,
selling unregistered foreign securities. This has which sought such investigation, contained no
led the Senate to conduct investigation in aid of suggestion of any contemplated legislation; it
legislation. SCB refused to attend the merely called upon the Senate to look into possible
investigation proceedings claiming criminal and violations of Sec. 5, R.A. No. 3019. Thus, the Court
civil cases involving the same issues were held that the requested probe failed to comply with
pending in courts. Decide. a fundamental requirement of Sec. 21, Art. VI of the
Constitution.
A: The mere filing of a criminal or administrative
complaint before a court or a quasi-judicial body Unfortunately for SCB, this distinguishing factual
should not automatically bar the conduct of milieu in Bengzon does not obtain in the instant
legislative investigation. Otherwise, it would be case. The unmistakable objective of the
extremely easy to subvert any intended inquiry by investigation exposes the error in SCB’s allegation
Congress through the convenient ploy of instituting that the inquiry, as initiated in a privilege speech by
a criminal or an administrative complaint. Thus, the the very same Senator Enrile, was simply “to
74
2023 GOLDEN NOTES
denounce the illegal practice committed by a foreign
bank in selling unregistered foreign securities.” This Second, the legislative inquiry of the Senate also
fallacy is made more glaring when we consider that, terminates upon the expiration of one (1) Congress.
at the conclusion of his privilege speech, Senator As stated in Neri (G.R. No. 180643 04 Sept. 2008), all
urged the Senate “to immediately conduct an pending matters and proceedings, such as unpassed
inquiry, in aid of legislation, so as to prevent the bills and even legislative investigations, of the
occurrence of a similar fraudulent activity in the Senate are considered terminated upon the
future.” (Standard Chartered Bank v. Senate, G.R. No. expiration of that Congress and it is merely optional
167173, 27 Dec. 2007) on the Senate of the succeeding Congress to take up
such unfinished matters, not in the same status, but
Contempt powers of Congress as if presented for the first time. Again, while the
Senate is a continuing institution, its proceedings
Even if the Constitution only provides that Congress are terminated upon the expiration of that Congress
may punish its members for disorderly behavior or at the final adjournment of its last session. Hence, as
expel the same, it is not an exclusion of power to the legislative inquiry ends upon that expiration, the
hold other persons in contempt. imprisonment of the detained witnesses likewise
ends. (Balag vs. Senate, G.R. No. 234608, 03 July
Q: In the exercise of its power to investigate in 2018)
aid of legislation, can Congress cite a person in
contempt and detain him indefinitely? Q: Can Congress issue a subpoena to compel
attendance of Justices of the Court of Appeals in
A: NO. The Court finds that the period of its investigation in-aid of legislation, and cite
imprisonment under the inherent power of them in contempt should they refuse to appear?
contempt by the Senate during inquiries in aid of
legislation should only last until the termination of A: NO. Congressional powers cannot be used to
the legislative inquiry under which the said power deprive the Supreme Court of its Constitutional duty
is invoked or when Congress adjourns sine die. If to supervise judges of lower courts in the
Congress decides to extend the period of performance of their official duties. The fact
imprisonment for the contempt committed by a remains that the CA Justices are non-impeachable
witness beyond the duration of the legislative officers. As such, authority over them primarily
inquiry or after it has already adjourned, then it may belongs to the Supreme Court and to no other. The
file a criminal case under the existing statute or principle of separation of powers also serves as one
enact a new law to increase the definite period of of the basic postulates for exempting the Justices,
imprisonment. officials and employees of the Judiciary and for
excluding the Judiciary's privileged and confidential
The legislative inquiry of the Senate terminates documents and information from any compulsory
on two instances: processes which very well includes the Congress'
power of inquiry in aid of legislation. Such
First, upon the approval or disapproval of the exemption has been jurisprudentially referred to as
Committee Report. Evidently, the Committee Report judicial privilege as implied from the exercise of
is the culmination of the legislative inquiry. Its judicial power expressly vested in one Supreme
approval or disapproval signifies the end of such Court and lower courts created by law. (Agcaoli v.
legislative inquiry, and it is now up to the Senate Farinas, GR No. 232395, 03 July 2017)
whether or not to act upon the said Committee
Report in the succeeding order of business. At that
point, the power of contempt simultaneously
ceases, and the detained witness should be released.
As the legislative inquiry ends, the basis for the
detention of the recalcitrant witness likewise ends.
75
Legislative Contempt vis-à-vis Pardoning Power Bases of Oversight Power of Congress
of the President
1. Intrinsic in the grant of legislative power
Legislative contempt is a limitation on the itself;
President’s power to pardon by virtue of the 2. Integral to the system of checks and
doctrine of separation of powers. balances; and
3. Inherent in a democratic system of
Question hour vs. Legislative investigation government.
LEGISLATIVE Categories of Congressional Oversight Functions

QUESTION HOUR
INVESTIGATION
(SEC. 22, ART. VI)
(SEC. 21, ART. VI) 1. Scrutiny — to determine economy and
As to persons who may appear efficiency of the operation of government
Only a department activities.
Any person
head
As to who conducts the investigation a. Congress may request information and
Committees/Entire report from the other branches of
Entire body government and give recommendations
Body
As to subject matter or pass resolutions for consideration of
Matters related to the Any matter for the the agency involved through:
department only purpose of legislation
As to attendance/compliance i. Power of appropriation and budget
Discretionary Compulsory/mandatory hearing (Sec. 22, Art. VII, 1987
Constitution)
Oversight Power of Congress ii. Question Hour (Sec. 22, Art. VI, 1987
Constitution)
iii. Power of Confirmation (Sec. 18, Art.
Embraces all activities undertaken by Congress to
enhance its understanding of and influence over the
implementation of legislation it has enacted. It
NOTE: Legislative scrutiny does not end in
concerns post-enactment measures undertaken by
budget hearings. Congress can ask the heads of
Congress. (ABAKADA Guro Party List vs Purisima,
departments to appear before and be heard by
G.R. No. 166715, 14 Aug. 2008 citing the opinion of J.
either the House on any matter pertaining to
Puno in Macalintal v. COMELEC, G.R. No. 157013, July
their department.
10, 2003)
Likewise, Congress exercises legislative

Scope of the Power of Oversight of Congress
scrutiny thru its power of confirmation to find
out whether the nominee possesses the
1. Monitor bureaucratic compliance with
necessary qualifications, integrity and probity
program objectives;
required of all public servants. (Abakada Guro
2. Determine whether agencies are properly
Partylist v. Purisima, G.R. No. 166715, 14 Aug.
administered;
2008)
3. Eliminate executive waste and dishonesty;
4. Prevent executive usurpation of
2. Congressional Investigation — involves a
legislative authority; and
more intense digging of facts through inquiries
5. Assess executive conformity with the
in aid of legislation. (Sec. 21, Art. VI, 1987
congressional perception of public
Constitution)
interest. (ABAKADA Guro Party List vs
Purisima, G.R. No. 166715, 14 Aug. 2008)
76
2023 GOLDEN NOTES
3. Legislative Supervision — most one before it or after it. (Garcillano v. HoR Committee
encompassing form; connotes a continuing on Public Information, G.R. No. 170338, 23 Dec. 2008)
and informed awareness on the part of
congressional committee regarding executive Invalidity of Publication on the Internet
operations in a given administrative area. It
allows Congress to scrutinize the exercise of The Electronic Commerce Act of 2000 merely
delegated law-making authority and permits recognizes the admissibility in evidence of
Congress to retain part of that delegated electronic data messages and/or documents. It does
authority through its veto power. (G.R. No. not make the internet a medium for publishing laws,
166715, 14 Aug. 2008) rules and regulations. (Garcillano v. HoR Committee
on Public Information, G.R. No. 170338, 23 Dec. 2008)
Legislative Veto
Senate is no longer a continuing legislative body
Congress retains a “right” or “power” to approve or
disapprove any regulation enacted by The present Senate under the 1987 Constitution is
administrative body before it takes effect. It is in the no longer a continuing legislative body. It has 24
form of an inward-turning delegation designed to members, 12 of whom are elected every three (3)
attach a congressional leash to an agency to which years for a term of six (6) years each. Thus, the term
Congress has by law initially delegated broad of 12 Senators expires every three (3) years, leaving
powers. (Abakada Guro Partylist v. Purisima, G.R. No. less than a majority of Senators to continue into the
166715, 14 Aug. 2008) next Congress since the Rules of Procedure must be
republished by the Senate after every expiry of the
Legislative Veto violates the Doctrine of term of the 12 Senators. (Garcillano v. HoR
Separation of Powers, thus, unconstitutional Committee on Public Information, G.R. No. 170338, 23
Dec. 2008)
In exercising discretion to approve or disapprove
the IRR based on a determination of whether or not Senate as an Institution is Continuing (2014
it conformed to the law, Congress arrogated judicial BAR)
power unto itself, a power exclusively vested in the
Supreme Court by the Constitution. Thus, violating There is no debate that the Senate as an institution
the doctrine of separation of powers. is "continuing", as it is not dissolved as an entity
with each national election or change in the
From the moment the law becomes effective, any composition of its members. However, in the
provision of law that empowers Congress or any of conduct of its day-to-day business, the Senate of
its members to play any role in the implementation each Congress acts separately and independently of
or enforcement of the law violates the principle of the Senate of the Congress before it.
separation of powers and is thus unconstitutional.
(Abakada Guro Partylist v. Purisima, G.R. No. 166715, Undeniably, all pending matters and proceedings,
14 Aug. 2008) i.e., unpassed bills and even legislative
investigations, of the Senate of a particular Congress
Senate is not allowed to continue the conduct of are considered terminated upon the expiration of
legislative inquiry without duly published rules that Congress and it is merely optional on the Senate
of procedure of the succeeding Congress to take up such
unfinished matters, not in the same status, but as if
The phrase “duly published rules of procedure” presented for the first time. The logic and
requires the Senate of every Congress to publish its practicality of such a rule is readily apparent
rules of procedure governing inquiries in aid of considering that the Senate of the succeeding
legislation because every Senate is distinct from the Congress (which will typically have a different
composition as that of the previous Congress)
77
should not be bound by the acts and deliberations of 1. Initiating impeachment cases
the Senate of which they had no part. (Neri v. Senate
Committee, GR. No. 180643, 04 Sept. 2008) a. Verified complaint filed by any member of
the House of Representatives or any citizen
2. NON-LEGISLATIVE upon resolution of endorsement by any
member thereof;
a) INFORMING FUNCTION
NOTE: If the verified complaint is filed by at
least 1/3 of all its members of the House of
Equally important and fundamental power and duty
Representatives, the same shall constitute
of Congress and that is its informing function by way
the Articles of Impeachment, and trial by
of investigating for the purpose of enlightening the
the Senate shall forthwith proceed. (Sec.
electorate.
3(4), Art. XI, 1987 Constitution)
Arthur M. Schlesinger, in The Imperial Presidency,

b. Inclusion in the order of business within 10
aptly quotes Wilson on congressional government
session days;
on this power:
c. Referred to the proper committee within 3

Congress's "only whip", Wilson said, "is
session days from its inclusion;
investigation", and that "the chief purpose of
investigation, even more than the direction of
d. The committee, after hearing, and by
affairs, was the enlightenment of the electorate. The
majority vote of all its members, shall
inquisitiveness of such bodies as Congress is the
submit its report to the House of
best conceivable source of information. The
Representatives together with the
informing function of Congress should be preferred
corresponding resolution;
even to its legislative function." For "the only really
self-governing people is that people which discusses
e. Placing on calendar the Committee
and interrogates its administration." (Dissenting
resolution within 10 days from submission;
Opinion of J. Azcuna, Akbayan Citizens Action Party v.
Aquino, G.R. No. 170516, 16 July 2008)
f. Discussion on the floor of the report; and
b) POWER OF IMPEACHMENT
g. A vote of at least 1/3 of all the members of
the House of Representatives shall be
Impeachable Officers (2019 BAR) (Pre-Vi-M2-O)
necessary either to affirm a favorable
resolution with the Articles of
1. President;
Impeachment of the committee or override
2. Vice-President;
its contrary resolution. (Sec. 3(2-3), Art. XI,
3. Members of the Supreme Court;
1987 Constitution)
4. Members of the Constitutional
Commissions; and
2. Impeachment Proceedings
5. the Ombudsman. (Sec. 2, Art. XI, 1987
Constitution)
a. The Senators take an oath or affirmation;
and
Steps in the impeachment process (2019, 2012
BAR)
NOTE: When the President of the
Philippines shall be impeached, the Chief
The House of Representatives shall have the
Justice of the Supreme Court shall preside
exclusive power to initiate all cases of impeachment.
but shall not vote, otherwise the Senate
(Sec. 3(1), Art XI, 1987 Constitution)
78
2023 GOLDEN NOTES
President shall preside in all other cases of Limitations imposed by the Constitution upon
impeachment. the initiation of impeachment proceedings: E1
(Sec. 3(6), Art. XI, 1987 Constitution) (exclusive power, 1-year bar rule)
b. A decision of conviction must be concurred 1. The House of Representatives shall have

in by at least 2/3 of all the members of the exclusive power to initiate all cases of
Senate. impeachment; and
NOTE: The power to impeach is essentially a non- 2. Not more than one impeachment
legislative prerogative and can be exercised by proceeding shall be initiated against the
Congress only within the limits of the authority same official within a period of one year
conferred upon it by the Constitution. (Gutierrez v. (One-year bar rule).
House of Representatives Committee on Justice, G.R.
No. 193459, 15 Feb. 2011) NOTE: An impeachment case is the legal
controversy that must be decided by the
The Senate has the sole power to try and decide all Senate while an impeachment proceeding is
cases of impeachment (Sec. 3(6), Art. XI, 1987 one that is initiated in the HoR. A
Constitution). Hence, judgment in an impeachment proceeding is initiated or begins when a
proceeding is normally not subject to judicial verified complaint is filed and referred to
review. the Committee on Justice for action. The
one-year bar rule applies when there are
XPN: Courts may annul the proceedings if there is a two or more filings of impeachment
showing of a grave abuse of discretion or non- complaint against the same impeachable
compliance with the procedural requirements of the officer within a one-year period. (Francisco
Constitution. v. House of Representatives, et. al., G.R. No.
160261, 10 Nov. 2003)
Power of the HoR to determine the sufficiency of
form and substance of an impeachment It is, by its nature, a sui generis politico-legal
complaint process. (Gonzales III v. Office of the
President, G.R. No. 196231, 28 Jan. 2014)
It is an exponent of the express constitutional grant
of rulemaking powers of the HoR. In the discharge NOTE: The limitation refers to the element of time,
of that power and in the exercise of its discretion, and not the number of complaints. The impeachable
the House has formulated determinable standards officer should defend himself in only one
as to form and substance of an impeachment impeachment proceeding, so that he will not be
complaint. Furthermore, the impeachment rules are precluded from performing his official functions
clear in echoing the constitutional requirements in and duties. Similarly, Congress should run only one
providing that there must be a “verified complaint impeachment proceeding so as not to leave it with
or resolution” and that the substance requirement is little time to attend to its main work of law-making.
met if there is “a recital of facts constituting the
offense charged and determinative of the The purpose of the rule is to prevent undue or too
jurisdiction of the committee.” (Gutierrez v. House of frequent harassment, and to allow the legislature to
Representatives Committee on Justice, G.R. No. do its principal task of legislation. Congress may
193459, 15 Feb. 2011) look into separate complaints against an
impeachable officer and consider the inclusion of
matters raised therein, in the adoption of the
Articles of Impeachment. (Gutierrez v. House of
Representatives Committee on Justice, G.R. No.
193459, 15 Feb. 2011)
79
powers shall cease upon the next adjournment
III. EXECUTIVE DEPARTMENT thereof. (Sec. 23(2), Art. VI, 1987 Constitution)
Reason: There may be occasions wherein the

President would be in a better position to
The President is both the head of State and head of
respond in a timely manner to emergencies
government; hence, executive power is exclusively
and fast changing developments that are
vested on him. (Sec. 1, Art. VII, 1987 Constitution)
critical to the welfare, safety, or security of the
nation. Subject to restrictions prescribed by
Congress.
A. NATURE OF EXECUTIVE POWER
In times of national emergency, when the
public interest so requires, the State may,
1. IN RELATION TO THE IMPLEMENTATION OF during the emergency and under reasonable
LAWS (INCLUDING DELEGATED POWERS) terms prescribed by it, temporarily take over
or direct the operation of any privately-owned
public utility or business affected with public
Delegated Powers of the President
interest. (Sec.17, Art. XII, 1987 Constitution)
Congress can delegate the following powers to the
President: 2. EXPRESS OR IMPLIED
(INCLUDING THE FAITHFUL EXECUTION OF
1. Tariff Powers LAWS AND RESIDUAL POWERS)
The Congress may by law authorize the Residual Powers of the President
President to fix within specified limits, and
subject to such limitations and restrictions as it Those “unstated powers” of the President which are
may impose, tariff rates, import and export implicit in and correlative to the paramount duty
quotas, tonnage and wharfage dues, and other residing in that office to safeguard and protect
duties or imposts, within the framework of the general welfare. (E.O. No. 292)
national development program of the
Government. (Sec. 28(2), Art. VI, 1987 GR: Exists only when there are plainly ambiguous
Constitution) statements in the Constitution.
Reason: The necessity, not to say expediency, Although the 1987 Constitution imposes limitations
of giving the chief executive the authority to act on the exercise of specific powers of the President, it
immediately on certain matters affecting the maintains intact with what is traditionally
national economy lest delay result in hardship considered as within the scope of ‘executive power.’
to the people. Corollarily, the powers of the President cannot be
said to be limited only to the specific powers
2. Emergency Powers enumerated in the Constitution. In other words,
executive power is more than the sum of specific
In times of war or other national emergency, powers so enumerated. (Marcos v. Manglapus, G.R.
the Congress may, by law, authorize the No. 88211, 27 Oct. 1989)
President, for a limited period and subject to
such restrictions as it may prescribe, to
exercise powers necessary and proper to carry
out a declared national policy. Unless sooner
withdrawn by resolution of the Congress, such
80
2023 GOLDEN NOTES
Once out of office, even before the end of the 6-
B. CONCEPT OF PRESIDENTIAL IMMUNITY year term, immunity for non-official acts is lost.
Immunity cannot be claimed to shield a non-
sitting President from prosecution for alleged
criminal acts done while sitting in office.
Doctrine of Executive Immunity
(Estrada v. Desierto, G.R. Nos. 146710-15, 02
March 2001)
The President is immune from suit or from being
brought to court during the period of his
When a non-sitting President is not immune
incumbency and tenure.
from suit for acts committed during his tenure
Reason: Assures that the President is free to

A non-sitting President does not enjoy immunity
exercise his Presidential duties and responsibilities
from suit, even though the acts were done during
without any hindrance or distraction.
her tenure. The intent of the framers of the
Constitution is clear that the immunity of the
GR: The privilege of immunity can only be invoked
president from suit is concurrent only with his
by the President by virtue of the office, not by any
tenure and not his term. (Rodriguez v. GMA, G.R. Nos.
other person on behalf of the President. (De Lima vs
191805 & 193160, 15 Nov. 2011)
Duterte, G.R. No. 227635, 15 Oct. 2019)
When a former President cannot be impleaded

1. CONDUCT COVERED
Impleading the former President as an unwilling co-
Rules on Executive Immunity petitioner, for an act she made in the performance
of the functions of her office, is contrary to the public
A. Rules on immunity during tenure policy against embroiling the President in suits, “to
assure the exercise of Presidential duties and
1. The President is immune from suit during his functions free from any hindrance or distraction,
tenure; (In re: Bermudez, G.R. No. 76180, 24 Oct. considering that being the Chief Executive of the
1986) Government is a job that, aside from requiring all of
the office holder’s time, also demands undivided
2. An impeachment complaint may be filed attention. (Resident Marine Mammals v. Reyes, G.R.
against him during his tenure; (Art. XI, 1987 No. 180771, 21 Apr. 2015)
Constitution)
Purpose of Presidential Immunity
3. The President may not be prevented from
instituting suit; (Soliven v. Makasiar, G.R. No. 1. Separation of powers – viewed as demanding
82585, 14 Nov. 1988) the executive’s independence from the
judiciary, so that the President should not be
4. There is nothing in our laws that would subject to the judiciary’s whim.; and (Almonte,
prevent the President from waiving the v. Vasquez, G.R. No. 95367, 23 May 1995)
privilege. He may shed the protection afforded
by the privilege; and (Soliven v. Makasiar, ibid.) 2. Public convenience – The grant is to assure
the exercise of presidential duties and
5. Heads of departments cannot invoke the functions free from any hindrance or
President’s immunity. (Gloria v. CA, G.R. No. distraction, considering that the presidency is
119903, 15 Aug. 2000) a job that, aside from requiring all of the
officeholders’ time, demands undivided
B. Rule on immunity after tenure attention. (Soliven v. Makasiar, G.R. No. 82585,
14 Nov. 1988)
81
NOTE: The immunity of the President from suit is enable him to fully attend to the performance of his
personal to the President. It may be invoked only by official duties and functions. Unlike the legislative
the President and not by any other person. Such and judicial branch, only one constitutes the
privilege pertains to the President by the virtue of executive branch and anything which impairs his
the office and may be invoked only by the holder of usefulness in the discharge of the many great and
that office, and not by any other person in his behalf. important duties imposed upon him by the
(Soliven v. Makasiar, ibid.) Constitution necessarily impairs the operation of
the Government. However, this does not mean that
Q: Sen. de Lima delivered a privilege speech on the President is not accountable to anyone. Like any
the floor of the Senate calling a stop to the other official, he remains accountable to the people,
alleged extrajudicial killings committed in the but he may be removed from office only in the mode
course of the crackdown on drugs, and urging provided by law and that is by impeachment. (De
her colleagues in the Senate to conduct Lima vs. Duterte, G.R. No. 227635, 15 Oct. 2019)
investigations of the alleged victims.
Principle of Command Responsibility
In response, President Duterte issued a number
of public statements against Sen. De Lima, It is “an omission mode of individual criminal
including denunciations of her corruption and liability,” whereby the superior is made responsible
immorality. The statements prompted her to for crimes committed by his subordinates for failing
initiate a petition for the issuance of a writ of to prevent or punish the perpetrators (as opposed
habeas data against President Duterte. May the to crimes he ordered). (Rubrico v. GMA, G.R. No.
incumbent President be haled to court even for 183871, 18 Feb. 2010)
the limited purpose under the Rules on the Writ
of Habeas Data? Elements of Command Responsibility
A: NO. Sen. De Lima argues that the rationale for 1. The existence of a superior-subordinate
Presidential immunity does not apply in her case relationship between the accused as
because the proceedings for the writ of habeas data superior and the perpetrator of the crime
do not involve the determination of administrative, as his subordinate;
civil, or criminal liabilities. Again, we remind that
immunity does not hinge on the nature of the suit. In 2. The superior knew or had reason to know
short, presidential immunity is not intended to that the crime was about to be or had been
immunize the President from liability or committed;
accountability.
3. The superior failed to take the necessary
The rationale for the grant of immunity from suit is and reasonable measures to prevent the
to assure the exercise of Presidential duties and criminal acts or punish the perpetrators
functions free from any hindrance of distraction, thereof. (Rodriguez v. GMA, G.R. Nos. 191805
considering that being the Chief Executive of the & 193160, 15 Nov. 2011)
Government is a job that aside from requiring all the
office-holder's time, also demands undivided Application of the Doctrine of Command
attention. Responsibility in Amparo Proceedings
Further, a suit will degrade the dignity of the high It should, at most, be only to determine the author
office of the President, the Head of State, if he can be who, at the first instance, is accountable for, and has
dragged into court litigations while serving as such. the duty to address, the disappearance and
Furthermore, it is important that he be freed from harassments complained of, so as to enable the
any form of harassment, hindrance, or distraction to Court to devise remedial measures that may be
82
2023 GOLDEN NOTES
appropriate under the premises to protect rights 2. WAIVER AND EXCEPTIONS
covered by the writ of amparo. (Rubrico v. GMA, G.R.
No. 183871, 18 Feb. 2010)
Waiver and Exceptions to Presidential
Immunity
President may be held liable for extrajudicial
killings and enforced disappearances as
1. The President may shed the protection
Commander-in-Chief
afforded by the privilege and submit to the
court's jurisdiction. The choice of whether
The President may be held accountable under the
to exercise the privilege or to waive it is
principle of command responsibility. Being the
solely the President's prerogative. It is a
commander-in-chief of all armed forces, he
decision that cannot be assumed and
necessarily possesses control over the military that
imposed by any other person; and (Soliven
qualifies him as a superior within the purview of the
v. Makasiar, supra.)
command responsibility doctrine.
2. After his tenure, the Chief Executive cannot
On the issue of knowledge, it must be pointed out
invoke immunity from suit for civil
that although international tribunals apply a strict
damages arising out of acts done by him
standard of knowledge, i.e., actual knowledge, the
while he was President which were not
same may nonetheless be established through
performed in the exercise of official duties.
circumstantial evidence. In the Philippines, a more
(Estrada v. Desierto, supra.)
liberal view is adopted, and superiors may be
charged with constructive knowledge. (In the
Matter of the Petition for the Writ of Amparo and
Habeas Data in favor of Noriel H. Rodriguez v. Gloria C. CONCEPT OF EXECUTIVE PRIVILEGES
Macapagal - Arroyo, G.R. No. 191805 & G.R. No.
193160, 15 Nov. 2011)
Presidential Privilege (2015, 2010, 2009 BAR)
Knowledge of the commission of irregularities,
crimes or offenses is presumed when: It is the power of the President and high-level
executive branch officers to withhold certain types
1. The acts are widespread within the of information from Congress, the courts, and
government official’s area of jurisdiction; ultimately the public.
2. The acts have been repeatedly or regularly
committed within his area of responsibility; 1. TYPES
or
3. Members of his immediate staff or office
Kinds of Executive Privilege
personnel are involved.
1. Informer’s Privilege – privilege of the
As to the issue of failure to prevent or punish, it is
government not to disclose the identity of a
important to note that as the commander-in-chief of
person or persons who furnish information on
the armed forces, the President has the power to
violations of law to offices charged with the
effectively command, control and discipline the
enforcement of that law;
military. (Rodriguez v. GMA, G.R. Nos. 191805 &
193160, 15 Nov. 2011)
NOTE: The suspect involved need not be so
notorious as to be a threat to national security
for the privilege to apply in any given instance.
Otherwise, the privilege would be inapplicable
in all but the most high-profile cases, in which
83
case not only would this be contrary to long- materials that reflect deliberations
standing practice, it would also be highly presidential decision- comprising part of a
prejudicial to law enforcement efforts in making and process by which
general. deliberations that the governmental
President believes decisions and policies
2. State Secret Privilege - Information is of such should remain are formulated
nature that its disclosure would subvert confidential
crucial military or diplomatic objectives; As to whom applicable
Applies to decision- Applies to decision-
3. Generic Privilege - Internal deliberations making of the making of executive
involving the process of governmental President officials
decisions and policies; As to foundation
Rooted in the
4. Presidential Communications Privilege – constitutional
decision-making of the President; principle of separation Rooted in common law
of powers and the privileges
5. Deliberative Process Privilege – decision- President’s unique
making of executive officials (advisory constitutional role.
opinions, recommendations); and (In Re:
Sealed Case No. 96-3124, 17 June 1997) Elements of Presidential Communications
Privilege
6. Diplomatic negotiations privilege – seeks to
protect the independence in decision-making 1. The protected communication must relate to a
of the President, particularly in its capacity as “quintessential and non-delegable presidential
"the sole organ of the nation in its external power;”
relations, and its sole representative with
foreign nations." (Akbayan v. Aquino, G.R. 2. The communication must be authored or
170516, 16 July 2008) “solicited and received” by a close advisor of the
President or the President himself. The judicial
Test to Determine the Validity of a Claim of test is that an advisor must be in “operational
Privilege proximity” with the President; and
Whether the requested information falls within one 3. The presidential communications privilege
of the traditional privileges and whether that remains a qualified privilege that may be
privilege should be honored in a given procedural overcome by a showing of adequate need, such
setting. (Senate v. Ermita, G.R. No. 169777, 20 Apr. that the information sought “likely contains
2006) important evidence” and by the unavailability
of the information elsewhere by an appropriate
Presidential Communications Privilege vs. investigating authority. (Neri v. Senate, ibid.)
Deliberative Process Privilege
Presumed Privilege Status of Presidential
PRESIDENTIAL Communications
DELIBERATIVE
COMMUNICATIONS
PROCESS PRIVILEGE
PRIVILEGE The presumption is based on the President’s
As to scope of the privilege generalized interest in confidentiality. It can be
Pertains to Includes advisory overcome only by mere showing of public need by
communications, opinions, the branch seeking access to conversations.
documents or other recommendations and
84
2023 GOLDEN NOTES
Matters involving diplomatic negotiations are 6. Shall avoid conflict of interest in conduct of
covered by executive privilege. However, such office; and
privilege is only presumptive. Recognizing a type of
information as privileged does not mean that it will 7. Shall avoid nepotism. (Sec. 13, Art. VII, 1987
be considered privileged in all instances. Only after Constitution)
a consideration of the context in which the claim is
made may it be determined if there is a public 2. WHO MAY INVOKE
interest that calls for the disclosure of the desired
information, strong enough to overcome its
Invocation of the Privilege
traditionally privileged status. (AKBAYAN v. Aquino,
G.R. No. 170516, 16 July 2008). It must be invoked in relation to specific categories
of information and not to categories of persons.
Prohibitions attached to the President, Vice-
President, Cabinet Members, and their deputies NOTE: A claim of the executive privilege may be
or assistants, unless otherwise provided in the valid or not depending on the ground invoked to
Constitution (2004, 2002, 1998, 1996 BAR) justify it and the context in which it is made.
Noticeably absent is any recognition that executive
1. Shall not receive any other emolument from the officials are exempt from the duty to disclose
government or any other source (Sec. 6, Art. VII, information by the mere fact of being executive
1987 Constitution); officials. (Senate v. Ermita, G.R. No. 169777, 20 Apr.
2006)
NOTE: Emolument refers to any compensation
received for services rendered or from Consequently, in case where the privilege is invoked
possession of an office. through EOs prohibiting executive officials from
participating in legislative inquiries, the Court held
2. Shall not hold any other office or employment that “to the extent that investigations in aid of
during their tenure unless: legislation are generally conducted in public, any
executive issuance tending to unduly limit
a. Otherwise provided in the Constitution disclosures of information in such investigations
(e.g., VP can be appointed as a Cabinet necessarily deprives the people of information
Member without the need of confirmation which, being presumed to be in aid of legislation, is
by Commission on Appointments; Sec. of presumed to be a matter of public concern.” (Senate
Justice sits in the Judicial and Bar Council) v. Ermita, G.R. No. 169777, 20 Apr. 2006)
b. The positions are ex-officio and they do not Persons who can Invoke Executive Privilege
receive any salary or other emoluments
therefore (e.g., Sec. of Finance as head of the 1. President - Being an extraordinary power, the
Monetary Board); privilege must be wielded only by the highest
official in the executive department. Thus, the
3. Shall not practice, directly or indirectly, any President may not authorize her subordinates
other profession during their tenure; to exercise such power.
4. Shall not participate in any business; 2. Executive Secretary - upon proper

authorization from the President, it must be
5. Shall not be financially interested in any stated that the authority is “by order of the
contract with, or in any franchise, or special President,” which means he personally
privilege granted by the Government, including consulted with the President.
GOCCs;
85
Requirement if an official is summoned by the interest of national security, should not
Congress on a matter which in his own judgment be divulged;
might be covered by executive privilege
3. It includes information between inter-
He must be afforded reasonable time to inform the government agencies prior to the
President or the Executive Secretary of the possible conclusion of treaties and executive
need for invoking the privilege, in order to provide agreements, discussions in closed-door
the same with fair opportunity to consider whether Cabinet meetings, and matters affecting
the matter indeed calls for a claim of executive national security and public order.
privilege. If, after the lapse of that reasonable time,
neither the President nor the Executive Secretary Limitation on Executive Privilege
invokes the privilege, Congress is no longer bound
to respect the failure of the official to appear before Claim of executive privilege is subject to balancing
Congress and may then opt to avail of the necessary against other interest. Simply put, confidentiality in
legal means to compel his appearance. (Senate v. executive privilege is not absolutely protected by
Ermita, supra.) the Constitution. Neither the doctrine of separation
of powers nor the need for confidentiality of high-
Requirements in Invoking the Privilege level communications can sustain an absolute,
unqualified Presidential privilege of immunity from
1. There must be a formal claim of the judicial process under all circumstances. (Neri v.
privilege; and Senate, G.R. No. 180643, 25 Mar. 2008)
2. The claim has specific designation and
description of the documents within its
scope and with the precise and certain D. QUALIFICATIONS, ELECTIONS, TERM OF THE
reasons for preserving their confidentiality. PRESIDENT AND VICE-PRESIDENT, AND
RULES ON SUCCESSION
Reason: Without this specificity, it is impossible for
a court to analyze the claim short of disclosure of the
very thing sought to be protected.
Qualifications of the President and the Vice-
President (Nat-Re2-40-10)
NOTE: Congress, however, must not require the
Executive to state the reasons for the claim with
1. Natural-born citizen of the Philippines;
such particularity as to compel disclosure of the
2. A Registered voter;
information, which the privilege is meant to protect
3. Able to Read and write;
(Senate v. Ermita, G.R. No. 169777, 20 Apr. 2006)
4. At least 40 years of age on the day of the
election; and
Scope of Executive Privilege
5. A resident of the Philippines for at least 10
years immediately preceding such election.
1. Conversations and correspondences to
(Sec. 2, Art. VII, 1987 Constitution)
enable the President and those who assist
him to freely “explore alternatives in the
process of shaping policies and making
decisions and to do so in a way many would
Election of the President and Vice-President
be unwilling to express except privately;”
The President and the Vice-President shall be

2. It likewise covers military, diplomatic and
elected by direct vote of the people. (Sec. 4, Art. VII,
other national security matters which, in
1987 Constitution)
86
2023 GOLDEN NOTES
Term of Office of the President qualified, or where both Speaker of the HoR
shall have died or shall act as President
1. The President a shall have a term of 6 years become permanently until a President or a
which shall begin at noon on the 30th day of disabled. Vice-President shall
June next following the day of the election and have been chosen
shall end at noon of the same date, 6 years and qualified.
thereafter;
Congress shall by
2. The President shall not be eligible for any re- law provide for the
election; and manner in which
one who is to act as
3. No person who has succeeded as President President shall be
and has served as such for more than four (4) selected until a
years shall be qualified for election to the same President or a Vice-
office at any time. (Sec. 4, Art. VII, 1987 President shall have
Constitution) qualified, in case of
death, permanent
Term of Office of the Vice-President (VP) disability or inability
of the officials.
1. The Vice President shall have a term of 6 years (Sec. 7, Art. VII, 1987 Constitution)
which shall begin at noon on the 30th day of
June next following the day of the election and Rules to be Applied if the Vacancy Occurs During
shall end at noon of the same date, 6 years the Incumbency of the President
thereafter; and
CAUSE OF VACANCY CONSEQUENCE
2. The Vice-President cannot serve for more than In case of: (D-P-R-R)
2 successive terms. a. Death;
b. Permanent The Vice President
NOTE: The Vice-President may be removed from Disability; shall become the
office in the same manner as the President. (Sec. 3, c. Removal from office; President to serve
Art. VII, 1987 Constitution) or the unexpired term.
d. Resignation of the
Rules to be Applied if There is Vacancy Before President
the Term of the President In case of : The Senate
a. Death; President, or in case
CAUSE OF VACANCY EFFECT b. Permanent of his inability, the
In case of death or The Vice-President Disability; Speaker of the HoR,
permanent disability of elect shall become c. Removal from office; shall act as President
the President-elect. President. or until the President or
In case of failure to elect d. Resignation of both Vice President shall
The Vice-President
the President (i.e., the President and the have ben elected and
shall act as the
Presidential elections Vice-President qualified.
President until the
have not been held or
President shall have
non-completion of the Rules and procedure to be followed if a vacancy
been chosen and
canvass of the occurs in the offices of the President and Vice-
qualified.
Presidential elections) President
In case no President and The Senate
Vice-President shall President, or in case 1. At 10:00 A.M. of the third day after said
have been chosen and of his inability, the vacancy occurs – Congress shall convene in
87
accordance with its rules without need of When a majority of all the
call; members of the Cabinet The Vice-
transmit to the Senate President shall
2. Within 7 days — Congress shall enact a law President and to the immediately
calling for a special election to elect a Speaker of the HoR their assume the powers
President and a Vice President; written declaration that and duties of the
the President is unable to office as Acting
3. Said special election shall be held — Not discharge the powers and President.
earlier than 45 days nor later than 60 days duties of his office.
from the time of such call; (Sec. 11, Art. VII, 1987 Constitution)
4. The bill calling such special election — NOTE: The President can reassume power and
Shall be deemed certified under Sec. 26(2), duties of his office once he transmits to the Senate
Art. VI of the Constitution and shall become President and to the Speaker of the HoR his written
law upon its approval on third reading by declaration that no inability exists. (Sec. 11(3), Art.
Congress; VII, 1987 Constitution)
5. Appropriations for said special election —

Shall be charged against any current E. OTHER PRIVILEGES, INHIBITIONS, AND
appropriations and shall be exempt from DISQUALIFICATIONS
the requirements of, Sec. 25(4), Art. VI of
the Constitution;
Privileges of the President and Vice-President

6. The convening of Congress and the
special election — cannot be suspended or
PRESIDENT VICE-PRESIDENT
postponed; and
1. Salary is
7. No special election shall be called — If the determined by law
vacancy occurs within 18 months before 1. Official residence; and shall not to be
the date of the next presidential elections. decreased during
(Sec. 10, Art. VII, 1987 Constitution) 2. Salary is his tenure (Sec. 6,
determined by law Art. VII, 1987
Instances when there is presidential inability to and shall not to be Constitution); and
discharge powers and duties of his office decreased during
his tenure; (Sec. 6, 2. If appointed to a
INSTANCE EFFECT Art. VII, 1987 Cabinet post, no
Constitution) and need for
When the President
Commission on
transmits to the Senate The powers and
3. Immunity from suit Appointments’
President and to the duties of his office
for official acts. confirmation. (Sec. 3,
Speaker of the HoR his shall be discharged
Art. VII, 1987
written declaration that by the Vice-
Constitution)
he is unable to discharge President as
the powers and duties of Acting President.
Reason for prohibition against the change of
his office.
their salary
It is meant to prevent the legislature from

“weakening their fortitude by appealing to their
88
2023 GOLDEN NOTES
avarice or corrupting their integrity by operating on 7. Budgetary power; (Sec. 22, Art. VII, 1987
the necessities. (Sec. 6, Art VII, 1987 Constitution) Constitution)
8. Informing power; (Sec.23, Art. VII, 1987
Constitution)
F. POWERS OF THE PRESIDENT 9. Veto power; (Sec. 27, Art. VI, 1987 Constitution)
10. Power of general supervision over local
governments; and (Sec. 4, Art. X, 1987
Constitution)
1. EXECUTIVE AND ADMINISTRATIVE POWERS 11. Power to call special session (Sec. 15, Art. VI,
1987 Constitution)
General Executive Power
Administrative Powers
This is the power vested in the President of the
Philippines. (Sec. 1, Art. VII, 1987 Constitution) Power concerned with the work of applying policies
and enforcing orders as determined by proper
Faithful Execution Clause or “Take-Care” Clause governmental organs. It enables the President to fix
a uniform standard of administrative efficiency and
The power to take care that the laws be faithfully check the official conduct of his agents. To this end,
executed. (Sec. 17, Art. VII, 1987 Constitution) he can issue administrative orders, rules and
regulations. (Ople v. Torres, G.R. No. 127685, 23 July
The law he is supposed to enforce includes the 1998)
Constitution, statutes, judicial decisions,
administrative rules and regulations and municipal Power of administrative reorganization
ordinances, as well as treaties entered into by the
government. The President has the power to reorganize the
offices and agencies in the executive department in
Specific Powers of the President line with his constitutionally granted power of
control over executive offices and by virtue of a
1. Appointing power; (Sec. 16, Art. VII, 1987 previous delegation of the legislative power to
Constitution) reorganize executive offices under existing statutes.
(Banda v. Ermita, G.R. No. 166620, 20 Apr. 2010)
2. Power of control over all executive
departments, bureaus, and offices; (Sec. 17, Art. 2. POWER OF APPOINTMENT
VII, 1987 Constitution)
The selection of an individual who is to exercise the

3. Commander-in-Chief powers; (Ca-Ma-Ha)
functions of a given office. It may be made verbally
a. Calling-out power;
but it is usually done in writing through what is
b. Power to place the Philippines under
called the commission.
Martial law; and
c. Power to suspend the privilege of the writ
NOTE: The appointing power of the President is
of Habeas corpus. (Sec. 18, Art. VII, 1987
executive in nature. While Congress and the
Constitution)
Constitution in certain cases may prescribe the
4. Pardoning power; (Sec. 19, Art. VII, 1987 qualifications for particular offices, the
Constitution) determination of who among those who are
5. Borrowing power; (Sec. 20, Art. VII, 1987 qualified will be appointed is the President’s
Constitution) prerogative. (Pimentel v. Ermita, G.R. No. 164978, 13
6. Diplomatic/Treaty-making power; (Sec. 21, Oct. 2005)
Art. VII, 1987 Constitution)
89
Elements in Making a Valid, Complete, and NOTE: The President has the power to temporarily
Effective Presidential Appointment: (T-A-V-Acc) designate an officer already in the government
service or any other competent person to perform
1. Authority to appoint and evidence of the the functions of an office in the executive branch.
exercise of the authority; Temporary designation cannot exceed one year.
2. Transmittal of the appointment paper signed
by the President and evidence of the Presidential appointments that need prior
transmittal; recommendation or nomination by the Judicial
3. A Vacant position at the time of appointment; and Bar Council
and
4. Receipt of the appointment paper and 1. Members of the Supreme Court and all lower
Acceptance of the appointment by the courts; and
appointee who possesses all the qualifications 2. Ombudsman and his 5 deputies. (Sec. 9, Art.
and none of the disqualifications VIII, 1987 Constitution)
NOTE: At any time, before all four steps have been Limitations on the Power of Appointment
complied with, the President can withdraw the
nomination and appointment. (Lacson v. Romero, The spouse and relatives by consanguinity or
G.R. No. L-3081, 14 Oct. 1949) affinity within the 4th civil degree of the President
shall not, during his tenure, be appointed as:
Non-Justiciability of Appointments
a. Members of the Constitutional
Appointment is a political question. So long as the Commissions;
appointee satisfies the minimum requirements b. Office of the Ombudsman;
prescribed by law for the position, the appointment c. Secretaries;
may not be subject to judicial review. d. Undersecretaries; and
e. Chairmen or heads of bureaus or offices,
Appointments made solely by the President including GOCCs and their subsidiaries.
1. Those vested by the Constitution on the
President alone; NOTE: If the spouse, etc., was already in any of the
2. Those whose appointments are not otherwise above offices at the time before his/her spouse
provided by law; became President, he/she may continue in office.
3. Those whom he may be authorized by law to What is prohibited is appointment and
appoint; and reappointment, not continuation in office. They can
4. Those other officers lower in rank whose also be appointed to the judiciary and as
appointment is vested by law in the President ambassadors and consuls. (Bernas, 2009)
alone. (Sec. 16, Art. VII, 1987 Constitution)
a) PROCESS OF CONFIRMATION BY THE
Designation COMMISSION
The imposition of additional duties on a person Appointments where confirmation of the

already in the public service. It is considered only as Commission on Appointments is required
an acting or temporary appointment, which does (Ex-A-CoCa-O)
not confer security of tenure on the person named.
It is said that appointment is essentially executive 1. Heads of Executive departments (Cabinet
while designation is legislative in nature. (Binamira Secretaries);
v. Garrucho, G.R. No. 92008, 30 July 1990)
90
2023 GOLDEN NOTES
XPN: Vice-president may be appointed as a authorized by law to appoint; and
member of the Cabinet and such appointment 3. Officers lower in rank whose appointments
requires no confirmation. (Sec. 3(2), Art. VII, the Congress may by law vest in the
1987 Constitution) President alone. (Manalo v. Sistoza, G.R. No.
107369, 11 Aug. 1999)
2. Ambassadors, other public ministers and
consuls– Those connected with the diplomatic Procedure for those that do not need the
and consular services of the country; Commission’s confirmation
3. Officers of AFP from the rank of Colonel or 1. Appointment; and

naval Captain; and 2. Acceptance.
b) BY-PASSED APPOINTMENTS AND

NOTE: PNP of equivalent ranks and the
THEIR EFFECTS
Philippine Coast Guard is not included.
By-Passed Appointment
4. Other officers of the government whose
appointments are vested in the President in
One that has not been finally acted upon on the
the Constitution (Sec. 16, Art. VII, 1987
merits by the Commission on Appointments at the
Constitution) such as:
close of the session of the Congress. (Matibag v.
Benipayo, G.R. No. 149036, 02 Apr. 2002)
a. Chairmen and members of the CSC,
COMELEC and COA (Constitutional
Limitation as to the Number of Times the
Commissions) (Sec. 1(2), Art. IX-B, C, D,
Commission on Appointments Can Review the
1987 Constitution)
President’s Re-Appointment of By-Passed
b. Regular members of the JBC (Sec. 8(2),
Appointee
Art. VIII, 1987 Constitution)
A nomination or appointment which has been by-

NOTE: The enumeration is exclusive. It cannot be
passed three (3) times shall be reported out by the
expanded by ordinary legislation; to do so would
standing committee concerned to the commission
mean legislative constitutional amendment.
for its appropriate action in the next plenary
(Calderon v. Carale, G.R. No. 91636, 23 Apr. 1992)
session, provided that no member shall be allowed
to invoke the suspension of the consideration of the
Appointing procedure for those that need
appointment in this regard. (Sec. 25, The New Rules
Commission’s confirmation
of the Commission on Appointments)
1. Nomination by the President;
c) APPOINTMENTS BY AN ACTING PRESIDENT
2. Confirmation by the CA;
3. Issuance of commission; and
Appointments extended by an Acting President
4. Acceptance by the appointee (Lacson vs
shall remain effective, unless revoked by the elected
Romero, G.R. No. L-3081, 14 Oct. 1949)
President, within 90 days from his assumption or
re-assumption of office. (Sec. 15, Art. VII, 1987
Appointments where confirmation of the
Constitution)
Commission on Appointments is NOT required:
d) SCOPE OF MIDNIGHT APPOINTMENTS

1. All other officers of the Government whose
appointments are not otherwise provided
Midnight Appointments
for by law;
2. Those whom the President may be
GR: Midnight Appointments are prohibited.
91
NOTE: The purpose of the prohibition on midnight Cabinet, their deputies and assistants may do so
appointments is to prevent a President, whose term only when expressly authorized by the Constitution
is about to end, from preempting his successor by itself. In other words, Sec. 7, Art. IX-B, 1987
appointing his own people to sensitive positions. Constitution is meant to lay down the general rule
(Velicaria-Garafil v. Office of the President, G.R. No. applicable to all elective and appointive public
203372, 16 June 2015) officials and employees, while Sec. 13, Art. VII, 1987
Constitution is meant to be the exception applicable
XPN: The President may appoint to fill vacancies in only to the President, the Vice-President, and
the Supreme Court even during appointment ban, as Members of the Cabinet, their deputies and
he is mandated to fill such vacancy within 90 days assistants.
from the occurrence. For the lower courts, the
President shall issue the appointments within 90 The phrase "unless otherwise provided in this
days from the submission of the list. (De Castro vs Constitution" must be given a literal interpretation
JBC, G.R. No. 191002, 17 Mar. 2010) to refer only to those instances cited in the
Constitution itself, to wit:
Q: The President appointed Kimberly as the
Acting Secretary of Justice. After a couple of 1. The Vice-President being appointed as a
days, the President designated her as the Acting member of the Cabinet under Sec. 3(2), Art.
Solicitor General in a concurrent capacity. Julie VII, 1987 Constitution; or acting as
contested the appointment of Kimberly on the President in those instances provided
ground that the appointment violated Sec. 13 of under Sec. 7(2) & (3), Art. VII, 1987
Art. VII, 1987 Constitution which expressly Constitution; and
prohibits the President, Vice-President, the
Members of the Cabinet, and their deputies or 2. The Secretary of Justice being ex-officio
assistants from holding any other office or member of the Judicial and Bar Council by
employment during their tenure unless virtue of Sec. 8(1), Art. VIII, 1987
otherwise provided in the Constitution. On the Constitution. (Funa v. Agra, G.R. No. 191644,
other hand, Kimberly claims that according to 19 Feb. 2013)
Sec. 7(2), Art. IX-B, 1987 Constitution, her
appointment to such positions is outside the Sec. 13, Art. VII, 1987 Constitution undoubtedly
coverage of the prohibition under Sec. 13 of Art. proscribes the Acting Secretary of Justice as being
VII, 1987 Constitution as it falls into one of the concurrently designated as Acting Solicitor General;
exceptions as being allowed by law or by the therefore, he could not validly hold any other office
primary functions of her position. Does the or employment during his tenure as the Acting
designation of Kimberly as the Acting Secretary Solicitor General, because the Constitution has not
of Justice, concurrently with his position as otherwise so provided. (Funa v. Agra, G.R. No.
Acting Solicitor General, violate the 191644, 19 Feb. 2013)
constitutional prohibition against dual or
multiple offices for the Members of the Cabinet GR: Two months immediately before the next
and their deputies and assistants? presidential elections and up to the end of his term,
a President or Acting President shall not make
A: YES. There is violation of the Constitution in case appointments.
an Acting Secretary of Justice is designated as Acting
Solicitor General because while all other appointive XPN: Temporary appointments to executive
officials in the civil service are allowed to hold other positions when continued vacancies therein will
office or employment in the government during prejudice public service or endanger public safety.
their tenure when such is allowed by law or by the (Sec. 15, Art. VII, 1987 Constitution)
primary functions of their positions, members of the
92
2023 GOLDEN NOTES
e) RECESS OF AD-INTERIM APPOINTMENTS session or not.
As to confirmation of the Commission
Ad-Interim Appointments Does not require
Requires confirmation
confirmation of the
of the Commission.
Power of the President to make appointments Commission.
during the recess of Congress, but such Nature
appointments shall be effective only until Permanent in nature. Temporary in nature.
disapproval by the Commission on Appointments or As to security of tenure
until the next adjournment of the Congress. Appointee does not
(Matibag v. Benipayo, G.R. No. 149036, 02 Apr. 2002) Appointee enjoys
enjoy security of
security of tenure.
tenure.
NOTE: The ET and the Commission on
Appointments shall be constituted within 30 days Permanent Appointment vs. Temporary
after the Senate and the HoR shall have been Appointment
organized with the election of the Senate President
and the Speaker of the House. (Matibag v. Benipayo, PERMANENT TEMPORARY
ibid.) APPOINTMENT APPOINTMENT
As to persons appointed
Purpose of Ad- Interim Appointment
Extended to persons Given to persons
possessing the without such
Ad interim appointments are intended to prevent a
requisite eligibility eligibility;
hiatus in the discharge of official duties. Obviously,
As to acts of the appointee
the public office would be immobilized to the
Revocable at will
prejudice of the people if the President had to wait
without the necessity
for Congress and the Commission of Appointments
of just cause or a valid
to reconvene before he could fill a vacancy occurring
Not revocable at will investigation;
during the recess. (Guevara v. Inocentes, G.R. No. L-
appointing power has
25577, 15 Mar. 1966)
full discretion to
change
Nature of Ad-Interim Appointment (2019 BAR)
President may Appoint Acting Secretaries

Ad interim appointments are permanent
without the Consent of the Commission while
appointments. It is permanent because it takes
the Congress is in Session
effect immediately and can no longer be withdrawn
by the President once the appointee qualified into
Congress, through a law, cannot impose on the
office. The fact that it is subject to confirmation by
President the obligation to appoint automatically
the CA does not alter its permanent character.
the Undersecretary as her temporary alter ego. An
(Matibag v. Benipayo, ibid.)
alter ego, whether temporary or permanent, holds a
position of great trust and confidence. The Office of
Ad- interim Appointment vs. Appointment in an
a Department Secretary may become vacant while
Acting Capacity
Congress is in session. Since a Department Secretary
APPOINTMENT IN is the alter ego of the President, the acting appointee
AD-INTERIM to the office must necessarily have the President’s
AN ACTING
APPOINTMENT confidence. (Pimentel v. Ermita, G.R. No. 164978, 13
CAPACITY
As to When made Oct. 2005)
Made at any time there
Made during the NOTE: Acting appointments cannot exceed one (1)
is vacancy, i.e.,
recess of Congress. year. (Sec. 17(3), E.O. 292)
whether Congress is in
93
f) POWER OF REMOVAL a) DOCTRINE OF QUALIFIED
POLITICAL AGENCY
Power of Removal
“Doctrine of Qualified Political Agency” or “Alter
GR: From the express power of appointment, the Ego Principle” (2015, 2014 BAR)
President derives the implied power of removal.
The acts of the secretaries of the Executive
XPN: Not all officials appointed by the President are departments performed and promulgated in the
also removable by him since the Constitution regular course of business are presumptively the
prescribes certain methods for the separation from acts of the Chief Executive. (Villena v. Sec. of the
the public service of such officers. (e.g., those that Interior, G.R. No. L-46570, 21 Apr. 1939)
can only be removed by impeachment)
XPNs to the Alter Ego doctrine
NOTE: The President is without any power to
remove elected local officials since the power is 1. If the acts are disapproved or reprobated by the
exclusively provided in the last paragraph of Sec. 60, President; and
LGC. 2. If the President is required to act in person by
law or by the Constitution. e.g. executive
3. POWER OF CONTROL AND SUPERVISION clemency
NOTE: It would appear though that doctrine of

The President shall have control of all executive
qualified political agency would not be applicable to
departments, bureaus, and offices. (Sec. 17, Art. VII,
acts of cabinet secretaries done in their capacity as
1987 Constitution)
ex-officio board directors of a GOCC of which they
become a member not by appointment of the
Power of Control
President but by authority of law. (Trade and
Investment Development Corporation of the
The power of an officer to alter or modify or nullify
Philippines v. Manalang-Demigillo, G.R. Nos. 168613
or to set aside what a subordinate has done in the
& 185571, 05 Mar. 2013)
performance of his duties and to substitute one’s
own judgment for that of a subordinate.
Essence of the Alter Ego Doctrine
Such "Executive Control" is not absolute. The
Since the President is a busy man, he is not expected
definition of the structure of the executive branch of
to exercise the totality of his power of control all the
government, and the corresponding degrees of
time. He is not expected to exercise all his powers in
administrative control and supervision is not the
person. He is expected to delegate some of them to
exclusive preserve of the executive. It may be
men of his confidence, particularly to members of
effectively limited by the Constitution, by law, or by
his Cabinet.
judicial decisions. (Moran v. Office of the President,
G.R. No. 192957, 29 Sept. 2014)
NOTE: Applying this doctrine, the power of the
President to reorganize the National Government
NOTE: The President’s power over GOCCs comes
may be validly delegated to his Cabinet Members
from statute, not from the Constitution, hence, it
exercising control over a particular executive
may be taken away by statute.
department. (DENR v. DENR Region XII Employees,
G.R. No. 149724, 19 Aug. 2003)
NOTE: Such control is exercisable by the President
only over the acts of his subordinates and not
The Doctrine of Qualified Political Agency declares
necessarily over the subordinate himself. (Ang-
that, save in matters on which the Constitution or
Angco v. Castillo, G.R. No. L-17169, 30 Nov. 1963)
94
2023 GOLDEN NOTES
the circumstances require the President to act the affairs and activities of a LGU if he finds that the
personally, executive and administrative functions latter acted contrary to law.
are exercised through executive departments
headed by cabinet secretaries, whose acts are The President or any of his alter egos cannot
presumptively the acts of the President unless interfere in local affairs as long as the concerned
disapproved by the latter. There can be no question LGU acts within the parameters of the law and the
that the act of the secretary is the act of the Constitution. Any directive, therefore, by the
President, unless repudiated by the latter. President or any of his alter egos seeking to alter the
(Hontiveros-Baraquel v. Toll Regulatory Board, G.R. wisdom of a law-conforming judgment on local
No. 181293, 23 Feb. 2015) affairs of a LGU is a patent nullity, because it violates
the principle of local autonomy, as well as the
NOTE: As a rule, an aggrieved party need not appeal doctrine of separation of powers of the executive and
to the Office of the President the decision of a the legislative departments in governing municipal
cabinet secretary and may file a petition for corporations. (Dadole v. COA, G.R. No. 125350, 03
certiorari directly with the court assailing the act of Dec. 2002)
the said secretary. His acts are presumed to be of
the President’s unless disapproved or reprobated Control vs. Supervision
by him. (Manubay v. Garilao, G.R. No. 140717, 16 Apr.
2009) CONTROL SUPERVISION
Nature
b) EXECUTIVE DEPARTMENTS AND OFFICES The supervisor or
superintendent
Department Heads may Exercise Power of merely sees to it that
An officer in control
Control on behalf of the President including the the rules are
lays down the rules in
Power to Reverse the Judgment of an Inferior followed, but he
the doing of an act.
Officer himself does not lay
down such rules.
For instance, the Sec. of Justice may reverse the
judgment of a prosecutor and direct him to As to discretion of the officer
withdraw information already filed. One, who The supervisor does
disagrees, however, may appeal to the Office of the not have the
President in order to exhaust administrative discretion to modify
remedies prior filing to the court. If the rules are not
or replace them. If the
followed, the officer in
rules are not
Also, the Executive Secretary when acting “by control may, in his
observed, he may
authority of the President” may reverse the decision discretion, order the
order the work done
of another department secretary. (Lacson- act undone or re-done
or re-done but only to
Magallanes v. Paño, G.R. No. L-27811, 17 Nov. 1967) by his subordinate or
conform to the
he may even decide to
prescribed rules.
c) LOCAL GOVERNMENT UNITS do it himself.
(Drilon v. Lim, G.R. No.
112497, 04 Aug. 1994)
Power of General Supervision
NOTE: The power of supervision does not include
The power of a superior officer to ensure that the the power of control, but the power of control
laws are faithfully executed by subordinates. necessarily includes the power of supervision.
The power of the President over LGUs is only of

general supervision. Thus, he can only interfere in
95
4. EMERGENCY POWERS of the State under Sec. 17, Art. XII in the absence of
an emergency powers act passed by Congress.”
(David v. GMA, G.R. No. 171409, 03 May 2006)
In times of war or other national emergency, the
Congress may by law authorize the President, for a
NOTE: The declaration of a state of emergency is
limited period and subject to such restrictions as it
merely a description of a situation which authorizes
may prescribe, to exercise powers necessary and
her to call out the Armed Forces to help the police
proper to carry out a declared national policy.
maintain law and order. It gives no new power to
Unless sooner withdrawn by resolution of the
her, nor to the police. Certainly, it does not authorize
Congress, such powers shall cease upon its next
warrantless arrests or control of media. (David v.
adjournment. (Sec. 23(2), Art. VI, 1987 Constitution)
GMA, G.R. No. 171409, 03 May 2006) (2015 BAR)
Conditions for the vesture of emergency powers

in the President: 5. COMMANDER-IN-CHIEF POWERS
1. There must be war or national emergency; Scope of the President’s Commander-in-Chief

Powers
2. The delegation must be for a limited period
only; Absolute authority over the persons and actions of
the members of the armed forces.
3. The delegation must be subject to such
restrictions as the Congress may prescribe; The President as Commander-in-Chief can prevent
and the Army General from appearing in a legislative
investigation and, if disobeyed, can subject him to
4. The emergency powers must be exercised court martial. (Gudani v. Senga, G.R. No. 170165, 15
to carry out a national policy declared by Aug. 2006)
Congress.
a) CALLING OUT POWERS
NOTE: Conferment of emergency powers on the
President is not mandatory on the Congress. Calling Out Power of the President (2015 BAR)
In times of national emergency, when the public Call the armed forces to prevent or suppress lawless
interest so requires, the State may, during the violence, invasion, or rebellion. The only criterion
emergency and under reasonable terms prescribed for the exercise of this power is that whenever it
by it, temporarily take over or direct the operation becomes necessary.
of any privately-owned public utility or business
affected with public interest. (Sec. 17, Art. VII, 1987 The Constitution does not require the President to
Constitution) declare a state of rebellion to exercise her calling out
power. Sec. 18, Art. VII grants the President, as
While the President alone can declare a state of Commander-in-Chief a “sequence” of “graduated
national emergency, he may not invoke his powers.” (Sanlakas v. Executive Secretary, G.R. No.
provision to authorize him during the emergency 159085, 03 Feb. 2004)
“to temporarily take over or direct the operation of
any privately owned utility or business affected Calling Out Power Does Not Need Congressional
with public interest without authority from Authority
Congress... without legislation, he has no power to
take over privately-owned public utility or business There is no need for congressional authority to
affected with public interest. In short, the President exercise the calling out power of the President since
has no absolute authority to exercise all the powers such power to call out the armed forces to prevent
96
2023 GOLDEN NOTES
or suppress lawless violence springs from the 3. Duration: Not more than 60 days following
power vested in the President under Sec. 18, Art. VII which it shall be automatically lifted unless
of the Constitution. As in the case where the extended by Congress;
President did not proclaim a national emergency
but only a state of emergency in 3 places in 4. Duty of the President to report to Congress:
Mindanao and she did not act pursuant to any law within 48 hours personally or in writing;
enacted by Congress that authorized her to exercise
extraordinary powers. (Ampatuan v. Hon. Puno, G.R. 5. Authority of Congress to affirm or revoke or
No. 190259, 07 June 2011) allow the lapse or extend the effectivity of
proclamation: by majority vote of all its
b) DECLARATION OF MARTIAL LAW AND THE members voting Jointly; and
SUSPENSION OF THE PRIVILEGE OF THE WRIT
OF HABEAS CORPUS 6. Judicial Review application: The present
(INCLUDING EXTENSION OF PERIOD) constitution recognizes the authority of
citizens to question the factual basis for the
Nature of Martial Law declaration of martial law, vesting the SC
with the authority to decide on the case
Martial law is a joint power of the President and the within 30 days of its filing.
Congress. Thus: (60-48-24-jointly)
NOTE: Once revoked by Congress, the President
1. The President’s proclamation or cannot set aside the revocation.
suspension is temporary, good for only 60
days; Limitations on the Declaration of Martial Law
2. He must, within 48 hours of the 1. It does not suspend the operation of the
proclamation or suspension, report on the Constitution;
reason for his action in person or in writing
to Congress; 2. It does not supplant the functioning of the civil
courts or legislative assemblies;
3. Both houses of Congress, if not in session
must jointly convene within 24 hours of 3. It does not authorize conferment of
the proclamation or suspension for the jurisdiction over civilians where civil courts
purpose of reviewing its validity; and are able to function;
4. The Congress, voting jointly, may revoke or NOTE: Civilians cannot be tried by military courts if
affirm the President’s proclamation or the civil courts are open and functioning. (Open
suspension, allow their limited effectivity Court Doctrine) (Olaguer v. Military Commission No.
to lapse, or extend the same if Congress 34, G.R. No. L-54558, 22 May 1987).
deems warranted.
4. It does not automatically suspend the privilege
Guidelines in the Declaration of Martial Law of the writ of habeas corpus; and (Sec. 18(4),
(IR-PS-60-48-Jointly-30) Art. VII, 1987 Constitution)
1. There must be an Invasion or Rebellion; 5. The right to bail shall not be impaired even
when the privilege of the writ of habeas corpus
2. Public Safety requires the proclamation of is suspended. (Sec. 13, Art. III, 1987
martial law all over the Philippines or any Constitution)
part thereof;
97
NOTE: When martial law is declared, no new habeas corpus, namely (1) actual invasion or
powers are given to the President; no extension of rebellion, and (2) public safety requires the exercise
arbitrary authority is recognized; no civil rights of of such power. Without the concurrence of the two
individuals are suspended. The relation of the conditions, the President's declaration of martial
citizens to their State is unchanged. The Supreme law and/or suspension of the privilege of the writ of
Court cannot rule upon the correctness of the habeas corpus must be struck down.
President’s actions but only upon its arbitrariness.
(Cruz, 2014) A review of the aforesaid facts similarly leads the
Court to conclude that the President, in issuing
Ways to Lift the Proclamation of Martial Law Proclamation No. 216, had sufficient factual bases
tending to show that actual rebellion exists. The
1. Lifting by the President himself; President's conclusion, that there was an armed
2. Revocation by Congress; public uprising, the culpable purpose of which was
3. Nullification by the SC; or the removal from the allegiance of the Philippine
4. By operation of law after 60 days Government a portion of its territory and the
deprivation of the President from performing his
Q: In light of recent attacks in Marawi City by the powers and prerogatives, was reached after a
Maute group and other terrorist organizations, tactical consideration of the facts. In fine, the
President Duterte declared a state of martial law President satisfactorily discharged his burden of
and suspended the privilege of the writ of proof. After all, what the President needs to satisfy
habeas corpus in the whole of Mindanao, is only the standard of probable cause for a valid
invoking as factual basis a written report declaration of martial law and suspension of the
pointing out that for decades, Mindanao has privilege of the writ of habeas corpus. (Lagman v.
been plagued with rebellion and lawless Medialdea, G.R. No. 231658, 04 July 2017).
violence which only escalated and worsened
with the passing of time and the strategic Q: Does Congress have the mandatory duty to
location of Marawi City and its crucial role in convene and meet in joint session upon the
Mindanao and the Philippines as a whole. Is the President's proclamation of martial law or the
factual basis for the proclamation enough, and suspension of the privilege of the writ of habeas
therefore constitutional? corpus?
A: YES. The President deduced from the facts A: NO. Congress is not constitutionally mandated to
available to him that there was an armed public convene in joint session except to vote jointly to
uprising, the culpable purpose of which was to revoke the President's declaration or suspension.
remove from the allegiance to the Philippine By the language of Sec. 18, Art. VII, 1987 Constitution,
Government a portion of its territory and to deprive the Congress is only required to vote jointly to
the Chief Executive of any of his powers and revoke the President's proclamation of martial law
prerogative, leading the President to believe that and/or suspension of the privilege of the writ of
there was probable cause that the crime of rebellion habeas corpus. If Congress does not want to revoke
was and is being committed and that public safety or lift the declaration of martial law, then there is no
requires the imposition of martial law and need for them to meet in joint session. It is worthy
suspension of the privilege of the writ of habeas to stress that the provision does not actually refer to
corpus. a "joint session.” The requirement of voting jointly
explicitly applies only to the situation when the
Sec. 18, Art. VII, 1987 Constitution itself sets the Congress revokes the President's proclamation of
parameters for determining the sufficiency of the martial law. (Padilla v. Congress, G.R. No. 231671, 25
factual basis for the declaration of martial law July 2017)
and/or the suspension of the privilege of the writ of
98
2023 GOLDEN NOTES
Role of the Supreme Court in inquiring into the passive – only initiated automatic in the sense
factual bases of the President’s Declaration by the filing of a that it may be activated
Martial Law petition “in an by Congress itself at
appropriate any time after the
The power of the Court to review the sufficiency of proceeding” by a proclamation of
the factual basis under Sec. 18, Art. VII, 1987 citizen. suspension was made.
Constitution is independent of the actions taken by
Congress. The Court can simultaneously exercise its Power of Judicial Review vis-à-vis Military
power of review with, and independently from the Powers of the President
power to revoke by Congress. Corollary, any
perceived inaction or default on the part of Congress The power of judicial review does NOT extend to
does not deprive or deny the Court its power to calibrating the President’s decision pertaining to
review. (Lagman v. Medialdea, G.R. No. 231658, 04 which extraordinary power to avail given a set of
July 2017) facts or conditions.
Judicial Power to Review vs. Congressional Writ of Habeas Corpus vs. Privilege of the Writ
Power to Revoke
WRIT OF HABEAS PRIVILEGE OF THE
JUDICIAL POWER TO CONGRESSIONAL CORPUS WRIT
REVIEW POWER TO REVOKE An order from the
As to definition court commanding a
That portion of the writ
Court may strike down detaining officer to
requiring the detaining
the presidential Congress may revoke inform the court if he
officer to show cause
proclamation in an the proclamation or has the person in
why he should not be
appropriate suspension, which custody, and what his
tested.
proceeding filed by any revocation shall not be basis is in detaining
citizen on the ground set aside by the that person.
of lack of sufficient President.
factual basis. NOTE: What is permitted to be suspended by the
As to what is taken into consideration President is not the writ itself but its privilege.
Court considers only
the information and Requisites for the suspension of the privilege of
data available to the May take into the writ of habeas corpus
President prior to or at consideration not only
the time of the data available prior to, 1. There must be an invasion or rebellion; and
declaration; it is not but likewise events 2. Public safety requires the suspension.
allowed to undertake supervening the
an independent declaration. NOTE: The invasion and rebellion must be actual
investigation beyond and not merely imminent.
the pleadings.
As to the factual basis Limitations on the Suspension of the Privilege of
Could probe deeper Writ of Habeas Corpus
Does not look into the and further; it can
absolute correctness of delve into the accuracy 1. Applies only to persons judicially charged for
the factual basis. of the facts presented rebellion or offenses inherent in or directly
before it. connected with invasion; and
As to review mechanism
Review power is Review mechanism is
99
2. Anyone arrested or detained during Limitation
suspension must be charged within 3 days. President
Otherwise, he should be released. must act
1. Time limit 1. Time limit
within
of 60 days; of 60 days;
Role of the Supreme Court in reviewing the permissible
factual bases of the promulgation of the constitutional
2. Review and 2. Review and
suspension of the privilege of the writ of habeas boundaries or
possible possible
corpus in a manner
revocation by revocation by
not
Congress; Congress;
Although the Constitution reserves to the Supreme constituting
Court the power to review the sufficiency of the grave abuse of
Review and Review and
factual basis of the proclamation or suspension in a discretion.
possible possible
proper suit, it is implicit that the Court must allow
nullification nullification
Congress to exercise its own review powers, which But generally,
by the SC by the SC
is automatic rather than initiated. Only when president has
Congress defaults in its express duty to defend the full discretion.
Constitution through such review should the As to whether subject to judicial review
Supreme Court step in as its final rampart. The Actual use to
constitutional validity of the President’s YES. Limited YES. Limited
which
proclamation of martial law or suspension of the to the to the
President puts
writ of habeas corpus is first a political question in determination determination
the armed
the hands of Congress before it becomes a of whether the of whether the
forced NOT
justiciable one in the hands of the Court. (Fortun v. President had President had
subject to
GMA, G.R. No. 190293, 20 Mar. 2012) sufficient sufficient
judicial
factual basis. factual basis.
review
SUSPENSION
CALLING MARTIAL
OF THE Limitations on the Military Powers
OUT LAW
PRIVILEGE
Character 1. He may call out the armed forces when it
Involve Involve becomes necessary to prevent or suppress
curtailment curtailment lawless violence, invasion or rebellion only;
Most benign
and suppress- and
and involves
ion of civil suppression of 2. The grounds for the suspension of the
ordinary
rights and civil rights and privilege of the writ of habeas corpus and
police action
individual individual the proclamation of martial law are now
freedom. freedom. limited only to invasion or rebellion, when
When may the President resort to this power? the public safety requires it;
Whenever it 3. The duration of such suspension or

becomes proclamation shall not exceed 60 days,
Only when Only when
necessary to following which it shall be automatically
there is actual there is actual
prevent or lifted;
invasion, invasion,
suppress
rebellion, and rebellion, and
lawless 4. Within 48 hours after such suspension or
public safety public safety
violence, proclamation, the President shall
requires it. requires it.
invasion, or personally or in writing report his action to
rebellion. the Congress. If not in session, Congress
100
2023 GOLDEN NOTES
must convene within 24 hours without consequence, pardon granted after conviction frees
need of a call; the individual from all the penalties and legal
5. The Congress may then, by a majority vote disabilities and restores him to all his civil rights.
of all its members voting jointly, revoke his But unless expressly grounded on the person’s
action; innocence (which is rare), it cannot bring back lost
reputation for honesty, integrity and fair dealing.
6. The revocation may not be set aside by the (Monsanto v. Factoran, G.R. No. 78239, 09 Feb. 1989)
President;
Purpose of Pardon
7. By the same vote and in the same manner,
the Congress may, upon initiative of the To relieve the harshness of the law or correcting
President, extend his suspension or mistakes in the administration of justice. The power
proclamation for a period to be determined of executive clemency is a non-delegable power and
by the Congress if the invasion or rebellion must be exercised by the President personally.
shall continue and the public safety
requires the extension; and Pardon does not ipso facto restore Former Office
and his Rights and Privileges
8. The action of the President and the
Congress shall be subject to review by the Pardon does not ipso facto restore a convicted felon
Supreme Court which shall have the neither to his former public office nor to his rights
authority to determine the sufficiency of and privileges, which were necessarily relinquished
the factual basis of such action. This matter or forfeited by reason of the conviction although
is no longer considered a political question such pardon undoubtedly restores his eligibility to
and may be raised in an appropriate that office (Monsanto v. Factoran, G.R. No. 78239, 09
proceeding by any citizen. Moreover, the Feb. 1989).
Supreme Court must decide the challenge
within 30 days from the time it is filed. (Sec. The pardoning power of the President cannot be
18, Art. VII, 1987 Constitution) limited by legislative action. It is a presidential
prerogative, which may not be interfered with by
6. PARDONING POWERS Congress or the Court, except when it exceeds the
limits provided by the Constitution. Arts. 36 and 41
of the RPC should thus be construed in a way that
As an executive function, the grant of clemency is
will give full effect to the executive clemency instead
discretionary, and may not be controlled by the
of indulging in an overly strict interpretation that
legislature as to limit the effects of the President’s
may serve to impair or diminish the import of the
pardon, or to exclude from its scope any class of
pardon which emanated from the Office of the
offenders. Also, the Courts may not inquire into the
President, and duly signed by the Chief Executive
wisdom or reasonableness of any pardon granted by
herself. (Risos-Vidal v. Estrada, G.R. No. 206666, 21
the President, or have it reversed, save only when it
Jan. 2015)
contravenes its limitations. It includes both criminal
and administrative cases. (Cruz, 2014)
Reprieve
a) SCOPE AND LIMITATIONS

The postponement of sentence to a date certain or
stay of execution. (People v Vera, G.R. No. L-45685, 16
Pardon
Nov. 1937)
An act of grace, which exempts the individual on
whom it is bestowed from punishment, which the
law inflicts for a crime he has committed. As a
101
Commutation Parole
The reduction or mitigation of the penalty, from Release from imprisonment but without full
death penalty to life imprisonment, remittances, restoration of liberty, as a parolee is still in the
and fines. Commutation is a pardon in form but not custody of the law although not in confinement.
in substance, because it does not affect his guilt; it (Nachura, 2014)
merely reduces the penalty for reasons of public
interest rather than for the sole benefit of the Parole vs. Pardon
offender. (ibid.)
PAROLE PARDON
Judicial power to pass upon the Validity of the As to effect on the convict
Actions of the President in granting Executive Release of a convict
Clemency from imprisonment Release of convict from
and is not a restoration conviction.
What it is deciding is whether or not the President of his liberty.
has the power to commute the penalty of the said As to nature
clerk of court. As stated in Daza v. Singson (G.R. No. Sentence is condoned,
86344, 21 Dec. 1989), it is within the scope of judicial subject to
power to pass upon the validity of the actions of the In custody of the law reinstatement in case
other departments of the Government. but no longer under of violation of the
confinement. condition that may
Remission of fines and forfeitures have been attached to
the pardon.
Merely prevents the collection of fines or the
confiscation of forfeited property. It cannot have the Amnesty
effect of returning property which has been vested
in third parties or money already in the public Act of grace, concurred by the legislature, usually
treasury. (Bernas, 2009) extended to groups of persons who committed
political offenses, which puts into oblivion the
NOTE: The power of the President to remit fines and offense itself. (Nachura, 2014)
forfeitures may not be limited by any act of
Congress. But a statute may validly authorize other This is usually addressed to crimes against the
officers, such as department heads or bureau chiefs, sovereignty of the State, to political offences, for
to remit administrative fines and forfeitures. (ibid.) forgiveness being deemed more expedient for the
public welfare than prosecution and punishment.
Probation vs. Pardon This is usually generally addressed to classes or
even communities of persons either after conviction
PROBATION PARDON or before a charge is filed. Under the Constitution,
As to nature this may be granted by the President only with the
Judicial in nature Executive in nature concurrence by a majority of all the members of
As to when applicable Congress. (Cruz, 2014)
May be granted after
Requires conviction by
actual service of Requisites of amnesty
final judgment.
sentence.
1. Concurrence of a majority of all the members
of Congress (1987 Constitution, Art. VII, Sec.
19); and
Patacsil, Jerwin Dave V.
102
2023 GOLDEN NOTES
2. A previous admission of guilt (Vera v. People, As to acceptance
G.R. No. L-18184, 31 Jan. 1963) Need not be accepted. Must be accepted.
Effects of the grant of amnesty NOTE: The right to the benefits of amnesty, once
established by the evidence presented either by the
The total extinguishment of the criminal liability complainant or prosecution, or by the defense,
and of the penalty and all its effects. Amnesty cannot be waived, because it is of public interest
reaches back to the past and erases whatever shade that a person who is regarded by the Amnesty
of guilt there was. In the eyes of the law, a person Proclamation which has the force of a law, not only
granted amnesty is considered a new-born child. as innocent, for he stands in the eyes of the law as if
(People v. Patriarca, G.R. No. 135457, 29 Sept. 2000) he had never committed any punishable offense.
(Barrioquinto v. Fernandez, G.R. No. L-1278, 21 Jan.
NOTE: However, amnesty does not excuse the 1949)
accused from paying the civil indemnity. It subsists
notwithstanding service of sentence, or for any Executive Clemencies Requirement:
reason the sentence is not served by pardon,
amnesty or commutation of sentence. (Monsanto v. EXECUTIVE CLEMENCY REQUIREMENT
Factoran, G.R. No. 78239, 09 Feb. 1989) Conviction by final
Pardon
judgment
Amnesty vs. Pardon Conviction by final
Revives
judgment
AMNESTY PARDON Conviction by final
Nature of the offense Commutations
judgment
Addressed to political Addressed to ordinary Remission of Fines and Conviction by final
offenses. offenses. Forfeitures judgment
As to whom granted Concurrence of
Amnesty
Granted to a class of Congress
Granted to individuals.
persons.
As to concurrence of Congress Limitations on Executive Clemency (2015 BAR)
Requires concurrence Does not require (Can-F, Cannot-CLIEP)
of majority of all concurrence of
members of Congress. Congress. 1. Can be granted only after conviction by Final
Nature of the act judgment;
Public act which the Private act which must XPN: Amnesty
court may take judicial be pleaded and
notice of. proved. 2. Cannot be granted in cases of civil or
As to perspective legislative Contempt;
Looks backward and Looks forward and 3. Cannot absolve convict of Civil Liability;
puts to oblivion the relieves the offender of 4. Cannot be granted in cases of Impeachment;
offense itself. the consequence of the and (Sec. 19, Art. VII, 1987 Constitution)
(Stands before the law offense 5. Cannot be granted for violations of Election
as if there is no offense (Abolishes / Forgives laws without favorable recommendations of
committed) the offense) the COMELEC; and
When granted NOTE: The reason for the limitation is that the
Only granted after COMELEC is an independent body.
May be granted before
conviction by final
or after conviction.
judgment. 6. Cannot restore Public offices forfeited.
103
b) FORMS OF EXECUTIVE CLEMENCY Q: Mateo was convicted of Homicide but was
later on granted conditional pardon by the
Kinds of pardon and Options of the Convict president. When Mateo was filling up his
When Granted Pardon (A-C-P-P) personal data sheet for employment in public
office, he did not disclose the existence of a prior
As to presence of condition criminal conviction for homicide. Can Mateo be
One extended employed as a public employee?
without any The offender has
conditions; no option at all A: NO. The pardon granted to Mateo is one of
Absolute
totally and must accept Conditional Pardon, the pardon did not expressly
pardon
extinguishes it whether he remit the accessory penalty of Homicide which is
criminal likes it or not. perpetual absolute disqualification from holding
liability; and public office or employment (Mateo v. Executive
The offender has Secretary, G.R. No. 177875, 08 Aug. 2016).
One under the right to reject
which the it since he may Effects of the grant of pardon
convict is feel that the
Conditional
required to condition 1. Frees the individual from all the penalties and
pardon
comply with imposed is more legal disabilities imposed upon him by the
certain onerous than the sentence; and
requirements. penalty sought
to be remitted NOTE: Art. 36, RPC. Pardon; its effect: A
pardon shall in no case exempt the culprit from
As to effect
the payment of the civil indemnity
Extinguishes
all the
2. Restores to him all his civil and political rights.
penalties
imposed upon NOTE: A pardon does not automatically
Plenary
the offender, -- restore the right to hold public office, or the
pardon
including right of suffrage. Such rights must be expressly
accessory restored by the terms of the pardon. (Art. 36,
disabilities; RPC)
and
Does not Options of the convict when granted pardon
extinguish all
the penalties; 1. Conditional Pardon– The offender has the
Partial
partially -- right to reject it since he may feel that the
pardon
extinguishes condition imposed is more onerous than the
criminal penalty sought to be remitted; and
liability..
(Art. 89(4), RPC; Art. 94(1), RPC) 2. Absolute Pardon– The offender has no option
at all and must accept it whether he likes it or
NOTE: A judicial pronouncement that a convict who not.
was granted a pardon subject to the condition that
he should not again violate any penal law is not NOTE: In this sense, an absolute pardon is similar to
necessary before he can be declared to have violated commutation, which is also not subject to
the condition of her pardon (Torres v. Gonzales, G.R. acceptance by the offender.
No. L-76872, 23 July 1987)
104
2023 GOLDEN NOTES
7. FOREIGN RELATIONS POWERS 5. Deport aliens.

a. This power is vested in the President by
virtue of his office, subject only to
a) IN GENERAL
restrictions as may be provided by
legislation as regards to the grounds for
Sources of the President’s Diplomatic Powers
deportation. (Sec. 69, Revised
Administrative Code)
1. The Constitution; and
b. In the absence of any legislative restriction
2. The status of sovereignty and independence
to authority, the President may still
exercise this power.
Scope of the Foreign Relations Powers of the
President (N-A-R-C-D-P-Reco)
c. The power to deport aliens is limited by the
requirements of due process, which entitles
1. Negotiate treaties and other international
the alien to a full and fair hearing.
agreements. However, such treaty or
international agreement requires the
NOTE: Summary deportation shall be
concurrence of the Senate, (Sec. 21, Art. VII)
observed in cases where the charge against
which may opt to do the following:
the alien is overstaying or expiration of his
passport. (Board of Commissioners v. Jong
a. Approve with 2/3 majority;
Keun Park, G.R. No. 159835, 21 Jan. 2010)
b. Disapprove outright; or
c. Approve conditionally, with suggested
d. An alien has the right to apply for bail
amendments which if re-negotiated and the
provided certain standard for the grant is
Senate’s suggestions are incorporated, the
necessarily met (Government of Hong Kong
treaty will go into effect without need of
v. Olalia, G.R. No. 153675, 19 Apr. 2007)
further Senate approval.
NOTE: The adjudication of facts upon

NOTE: In case of a treaty or international
which the deportation is predicated
agreement, the president, or those acting under
devolved on the President whose decision
their authority, negotiates its terms. The Senate may
is final and executory (Tan Tong v.
either agree or disagree to the entirety of the treaty
Deportation Board, G.R. No. L-7680, 30 Apr.
or international agreement. It cannot refine or
1955)
modify the terms. (Pangilinan v. Cayetano, G.R. Nos.
238875, 239483, 240954, 16 Mar. 2021)
6. Decide that a diplomatic officer who has
become Persona non grata be recalled.
2. Appoint ambassadors, other public ministers,
and consuls.
7. Recognize governments and withdraw
recognition.
3. Receive ambassadors and other public
ministers accredited to the Philippines.
Executive Agreement (2015 BAR)
4. Contract and guarantee foreign loans on behalf
An executive agreement is a “treaty” within the
of RP. (Sec. 20, Art. VII, 1987 Constitution)
meaning of that word in international law and
(1999, 1994 BAR)
constitutes enforceable domestic law. (Nicolas v.
Romulo, G.R. No. 175888, 11 Feb. 2009)
NOTE: With the prior concurrence of the
Monetary Board, and subject to such limitations
Executive agreements do not require legislative
as may be provided by law. (Sec. 20, Art. VII,
concurrence. (Bayan Muna v. Romulo, G.R. No.
1987 Constitution)
159618, 01 Feb. 2011)
105
a) Approve with 2/3 majority;
Requisites of Executive Agreement under the b) Disapprove outright; or
Vienna Convention c) Approve conditionally, with suggested
amendments which if re-negotiated and the
1. The agreement must be between states; Senate’s suggestions are incorporated, the
2. It must be written; and treaty will go into effect without need of
3. It must be governed by international law. further Senate approval.
(China National Machinery and Equipment
Corporation v. Sta. Maria, G.R. No. 185572, NOTE: In case of a treaty or international
07 Feb. 2012) agreement, the president, or those acting under
their authority, negotiates its terms. The Senate may
Hence, it is within the authority of the President to either agree or disagree to the entirety of the treaty
refuse to submit a treaty to the Senate or, having or international agreement. It cannot refine or
secured its consent for its ratification, refuse to modify the terms. (Pangilinan v. Cayetano, G.R. Nos.
ratify it. Although the refusal of a state to ratify a 238875, 239483, 240954, 16 Mar. 2021)
treaty which has been signed in its behalf is a
serious step that should not be taken lightly, such 8. POWERS RELATIVE TO APPROPRIATION
decision is within the competence of the President MEASURES
alone. (Pimentel v. Exec. Sec., G.R. No. 158088, 06 July
2005) The President shall submit to the Congress within
thirty (30) days from the opening of every regular
b) TO CONTRACT OR GUARANTEE FOREIGN session, as the basis of the general appropriations
LOANS bill, a budget of expenditures and sources of
financing, including receipts from existing and
The President may contract and guarantee foreign proposed revenue measures. (Sec. 22, Art. VII, 1987
loans on behalf of RP. (1999, 1994 BAR) Constitution)
NOTE: With the prior concurrence of the Monetary Reason: The President is in the best position to
Board, and subject to such limitations as may be determine the needs of the government and
provided by law. propose the corresponding appropriations therefor
on the basis of existing or expected sources of
The Monetary Board shall, within thirty (30) days revenue.
from the end of every quarter of the calendar year,
submit to the Congress a complete report of its NOTE: The Congress may not increase the
decision on applications for loans to be contracted appropriations recommended by the President for
or guaranteed by the Government or government- the operation of the Government as specified in the
owned and controlled corporations which would budget. (Sec. 25(1), Art. VI, 1987 Constitution)
have the effect of increasing the foreign debt, and
containing other matters as may be provided by law.
9. VETO POWERS
c) ENTRY INTO TREATIES OR Veto Powers of the President

INTERNATIONAL AGREEMENTS
The President may disapprove or veto a measure
Negotiate treaties and other international upon any ground sufficient for him, as where he
agreements. However, such treaty or international considers it unconstitutional or merely inefficacious
agreement requires the concurrence of the Senate, or unwise.
(Sec. 21, Art. VII) which may opt to do the following:
106
2023 GOLDEN NOTES
In every case, he should, in returning the measure to
the House of origin, indicate his objections thereto
in what is known as a “veto message” so that the
same can be studied by the members for possible
overriding of his veto. Two-thirds of each House will
be sufficient to invalidate the veto and convert the
bill into law over the President’s objections. (Sec.
GR: The President must approve entirely or

disapprove in toto.
XPN: Line or Item Veto
Applies to appropriation, revenue and tariff bills,

any particular item or items of which may be
disapproved without affecting the item or items to
which he does not object. (Sec. 27(2), Art. VI, 1987
Constitution)
Line-items are appropriations which state a

specified amount for a specific purpose and are
rightfully subject to item veto. Likewise, an
appropriation may be validly apportioned into
component percentages or values; however, it is
crucial that each percentage or value must be
allocated for its own corresponding purpose for
such component to be considered as a proper line-
item. (Belgica v. Executive Secretary, G.R. No. 210503,
08 Oct. 2019)
The President's line-item veto in appropriation laws

is intended to eliminate "wasteful parochial
spending," primarily the pork-barrel. (Belgica v.
Executive Secretary, G.R. No. 210503, 08 Oct. 2019)
107
Ombudsman Act is similarly unconstitutional and
IV. JUDICIAL DEPARTMENT invalid. (Carpio-Morales v. Court of Appeals, G.R. No.
217126-27, 10 Nov. 2015)
It is the duty of the courts of justice to settle actual

controversies involving rights, which are legally B. JUDICIAL REVIEW
demandable and enforceable and to determine
whether or not there has been a grave abuse of
discretion amounting to lack or excess of The power of the SC to determine the
jurisdiction on the part of any branch or constitutionality of a law, treaty, ordinance,
instrumentality of the Government. (Sec. 1(2), Art. presidential issuance, and other governmental acts.
VIII, 1987 Constitution)
NOTE: When the judiciary mediates to allocate
constitutional boundaries, it does not assert any
A. CONCEPT OF JUDICIAL POWER superiority over other departments; it does not in
reality nullify or invalidate an act of the legislature,
but only asserts the solemn and sacred obligation
assigned to it by the Constitution to determine
Body vested with judicial power
conflicting claims of authority under the
Constitution and to establish for the parties in an
It is vested in one Supreme Court and such lower
actual controversy the rights which that instrument
courts as may be established by law. (Sec. 1, Art. VIII,
secures and guarantees to them. This is in truth all
1987 Constitution)
that is involved in what is termed as ‘Judicial
Supremacy’, which properly is the power of judicial
Judicial Power
review under the Constitution. (Angara v. The
Electoral Commission, G.R. No. L-45081, 15 July 1936)
Judicial power includes the duty of the courts of
justice to settle actual controversies involving rights
Scope of Judicial Review
which are legally demandable and enforceable, and
to determine whether or not there has been grave
The courts have the power to pass upon the validity
abuse of discretion amounting to lack or excess of
and the constitutionality of laws enacted by the
jurisdiction on the part of any branch or
legislature, and other bodies of the government.
instrumentality of the government. (Sec. 1(2), Art.
(Nachura, 2006)
Functions of Judicial Review: (C-L-S)

Q: Sec. 14(2) of the Ombudsman Act (R.A. No.
6770) provides: “No court shall hear any appeal
1. Checking – Invalidating a law or executive act
or application for remedy against the decision
that is found to be contrary to the Constitution;
or findings of the Ombudsman, except the
Supreme Court, on pure question of law.” Decide
2. Legitimizing – Upholding the validity of the law
on the constitutionality of this provision.
that results from a mere dismissal of a case
challenging the validity of the law; and
A: Sec. 14(2) of the Ombudsman Act is
unconstitutional. This provision limits the remedy
3. Symbolic – To educate the bench and bar as to
against “decision or findings” of the Ombudsman to
the controlling principles and concepts on
a Rule 45 appeal. This is similar to Sec. 27(4), R.A. No.
matters of grave public importance for the
6770 which attempts to effectively increase the
guidance of, and restraint upon the future.
Supreme Court’s appellate jurisdiction without its
advice and concurrence. Therefore, Sec. 14(2),
108
2023 GOLDEN NOTES
(Dumlao v. COMELEC, G.R. No. L-52245, 22 Jan. 1. He has suffered some actual or threatened
1980) Injury as a result of the allegedly illegal conduct
of the government;
NOTE: The power of judicial review in
impeachment proceedings includes the power of 2. The injury is fairly Traceable to the challenged
review over justiciable issues in impeachment action; and
proceedings. (Francisco v. HoR, G.R. No. 160261, 10
Nov. 2003 3. The injury is likely to be Redressed by a
favorable action. (Francisco, Jr. & Hizon v. Toll
1. REQUISITES Regulatory Board, G.R. Nos. 166910, 19 Oct.
2010)
(A-Lo-E-Mota) Legal Personality
1. Actual case or controversy; GR: If there is no actual or potential injury,

2. Locus Standi; complainant has no legal personality to raise
3. The question of constitutionality must be constitutional questions.
raised at the Earliest opportunity; and
4. The question of constitutionality must be the XPN: If the question is of transcendental
lis Mota of the case. importance.
Q: Angelo Raphael petitions the SC to nullify

Principle of Transcendental Importance is
House Bill No. 4738 which abolishes the Judicial
determined by: (C-D-O)
Development Fund (JDF) and replaces it with the
Judiciary Support Fund (JSF). The funds from JSF
1. The Character of the funds or other assets
shall be remitted to the national treasury and
involved in the case;
Congress shall determine how the funds will be
used; unlike the JDF, the spending of which is
2. The presence of a clear case of Disregard of a
exclusively determined by the SC. Rolly argues
constitutional or statutory prohibition by the
that House Bill No. 4738 infringes SC’s fiscal
public respondent agency or instrumentality of
autonomy. Is the petition meritorious?
the government; and
A: NO. There is no actual case or controversy. The
3. The lack of any Other party with a more direct
Court cannot speculate on the constitutionality or
and specific interest in raising the questions
unconstitutionality of a bill that Congress may or
being raised. (Francisco, et al., v. House of
may not pass. It cannot rule on mere speculations or
Representatives. Ibid.)
issues that are not ripe for judicial determination.
Filing of bills is within the legislative power of
NOTE: “An interest in the execution of the laws”
Congress and is "not subject to judicial restraint" (In
and the “constitutional right to due process”
the Matter of Save the Supreme Court v. Abolition of
considering the “transcendental and paramount
JDF, UDK-15143, 21 Jan. 2015)
importance not only to the public but also to the
Bench and the Bar, and should be resolved for the
Locus Standi
guidance of all.” (Garcillano v. HoR, G.R. No. 170338,
10 Dec. 2008)
One who has sustained or is in immediate danger of
sustaining an injury as a result of the act complained
The proceeding involves the assertion of a public
of. (People v. Vera, G.R. No. 45685, 16 Nov. 1937)
right. (Francisco Jr. v. HoR, G.R. No. 160261, 10 Nov.
To have standing, one must show that: (I-T-R) 2003)
109
The Question of Constitutionality is the Lis Mota 2. The Court will not “anticipate a question of
of the Case constitutional law in advance of the necessity
of deciding it”;
Lis mota means "the cause of the suit or action."
Given the presumed validity of an executive act, the 3. The Court will not “formulate a rule of
petitioner who claims otherwise has the burden of constitutional law broader than is required by
showing first that the case cannot be resolved the precise facts as to which it is to be applied”;
unless the constitutional question he raised is
determined by the Court. (General v. Urro, G.R. No. 4. The Court will not pass upon a constitutional
191560, 29 Mar. 2011) question although properly presented by the
record, if there is also present some other
As long as there are other bases which courts can ground upon which the case may be disposed
use for decision, constitutionality of the law will not of;
be touched, thus, courts should refrain from
resolving any constitutional issue "unless the NOTE: If a case can be decided on either of two
constitutional question is the lis mota of the case." grounds, one involving a constitutional
question, the other a question of statutory
Reason why Courts will as much as possible construction or general law, the Court will
Avoid the Decision of a Constitutional Question decide only the latter.
This can be traced to the Doctrine of Separation of 5. The Court will not pass upon the validity of a
Powers which enjoins upon each department a statute upon complaint of one who fails to show
proper respect for the acts of the other department. that he is injured by its operation; and
Every law has in its favor the presumption of
validity. Unless and until a specific provision of the 6. The Court will not pass upon the
law is declared invalid and unconstitutional, the constitutionality of a statute at the instance of
same is valid and binding for all intents and one who has availed himself of its benefits.
purposes. (SEC v. Interport Resources Corporation,
G.R. No. 135808, 06 Oct. 2008) When the validity of an act of the Congress is drawn
in question, and even if a serious doubt of
NOTE: Courts indulge the presumption of constitutionality is raised, it is a cardinal principle
constitutionality and go by the maxim that “to doubt that this Court will first ascertain whether a
is to sustain.” construction of the statute is fairly possible by
which the question may be avoided.
Limitations of Judicial Review
2. POLITICAL QUESTIONS DOCTRINE
The following are the “Seven Pillars” of limitations
to the power of judicial review: (Demetria v. Alba, These are questions which, under the Constitution,
G.R. No. 71977, 27 Feb. 1987) are to be decided by the people in their sovereign
capacity, or in regard to which full discretionary
1. The Court will not pass upon the authority has been delegated to the legislative or
constitutionality of legislation in a friendly, executive branch of the government. (Tañada v.
non-adversary proceeding, declining because Cuenco, G.R. No. L-10520, 28 Feb. 1957)
to decide such questions “is legitimate only in
the last resort, and as a necessity in the NOTE: The doctrine that the Power of Judicial
determination of real, earnest and vital Review cannot be exercised when the issue is a
controversy between individuals; political question. It constitutes another limitation
110
2023 GOLDEN NOTES
on such power of the judiciary. (Francisco v. House been given to the SC. When political questions are
of Representatives, G.R. No. 160261, 10 Nov. 2003) involved, the Constitution limits the delimitation as
to whether or not there has been a grave abuse of
Justiciable Questions vs. Political Questions discretion amounting to lack or excess of
jurisdiction on the part of the official whose action
JUSTICIABLE POLITICAL is being questioned. (Integrated Bar of the
QUESTIONS QUESTIONS Philippines v. Zamora, G.R. No. 141284, 15 Aug. 2000)
Definition
Questions which 3. MOOT QUESTIONS
involve the policy or
the wisdom of the law
A case becomes moot and academic when, by virtue
or act, or the morality of supervening events, the conflicting issue that may
or efficacy of the same.
be resolved by the court ceases to exist. There is no
Generally, it cannot be
longer any justiciable controversy that may be
inquired by the courts. resolved by the court. This court refuses to render
Further, these are
advisory opinions and resolve issues that would
Imply a given right questions which
provide no practical use or value. This court
legally demandable under the generally “declines jurisdiction over such case or
and enforceable, an Constitution:
dismiss it on the ground of “mootness.” (Republic of
act or omission
the Philippines vs. Moldex Realty, Inc. et al. G.R. No.
violative of such a. are decided by the 171041, 10 Feb. 2016)
right, and a remedy people in their
granted and sovereign capacity;
GR: The judiciary cannot resolve moot cases and
sanctioned by law for and
should dismiss it on the ground of mootness.
said breach of right.
b. where full XPNs:
discretionary 1. There is grave violation of the Constitution;
authority has been
delegated by the 2. The exceptional character of the situation
Constitution either and the paramount public interest is
to the executive or involved;
legislative
department. 3. When the constitutional issue raised
requires formulation of controlling
Effect of the Expanded Definition of Judicial principles to guide the bench, the bar, and
Power on the Political Question Doctrine (2004, the public; and
1997, 1995 BAR)
4. The case is capable of repetition yet
The 1987 Constitution expands the concept of evading review. (David v Arroyo, G.R. No.
judicial review. Under the expanded definition, the 171396, 03 May 2006)
Court cannot agree that the issue involved is a
political question beyond the jurisdiction of the Q. Does a supervening termination of a Build-
court to review. When the grant of power is Operate-Transfer Agreement makes an instant
qualified, conditional or subject to limitations, the petition which seeks to nullify the same moot
issue of whether the prescribed qualifications or and academic?
conditions have been met or the limitations
respected is justiciable—the problem being one of A. YES. In the case at bar, there is no dispute that
legality or validity, not its wisdom. Moreover, the the action for certiorari and prohibition filed by
jurisdiction to delimit constitutional boundaries has
111
petitioners has been mooted by the termination of 3. The doctrine does not apply when no
the BOT Agreement of private respondents. A case inequity or injustice would arise.
or issue is considered moot and academic when it (Municipality of Tupi v. Faustino, G.R. No.
ceases to present a justiciable controversy by virtue 231896, 20 Aug. 2019)
of supervening events, so that an adjudication of the
case or a declaration on the issue would be of no Doctrine of Partial Unconstitutionality
practical value or use. In such instance, there is no
actual substantial relief which a petitioner would be In deference to the Doctrine of Separation of
entitled to, and which would be negated by the Powers, courts hesitate to declare a law totally
dismissal of the petition. Courts generally decline unconstitutional and, as long as it is possible, will
jurisdiction over such case or dismiss it on the salvage the valid portions thereof in order to give
ground of mootness. This is because the judgment effect to the legislative will.
will not serve any useful purpose or have any
practical legal effect because, in the nature of things, Requisites for a valid declaration of Partial
it cannot be enforced. (Cervantes v. Aquino III, G.R. Unconstitutionality:
No. 210805, 11 May 2021)
1. The legislature is willing to retain the valid
portions even if the rest of the statute is
4. OPERATIVE FACT DOCTRINE
declared illegal; and
GR: An unconstitutional law produces no effects. Example: The clause, “or for three (3) months
for every year of the unexpired term,
XPN: Operative Fact Doctrine - while the whichever is less” in Sec. 10(5) of R.A. No.
unconstitutional law remains unconstitutional, but 8042, which was reinstated in Sec. 7 of R.A. No.
the effects of the unconstitutional law, prior to its 10022 was declared unconstitutional.
judicial declaration of nullity, may be left (Serrano v. Gallant Maritime Services, Inc., G.R.
undisturbed as a matter of equity and fair play. No. 167614, 24 Mar. 2009; Sameer Overseas
(League of Cities v. COMELEC, G.R. No. 176951, 18 Placement Agency, Inc. v. Cabiles, G.R. No.
Nov. 2008) 170139, 05 Aug. 2014)
NOTE: The invocation of this doctrine is an 2. That the valid portions can stand
admission that the law is unconstitutional. independently as a separate statute.
Application of the Doctrine of Operative Fact
C. JUDICIAL INDEPENDENCE AND FISCAL

1. In the higher interest of justice, equity and
AUTONOMY
fairness, the doctrine applies to acts and
consequences that resulted from the
reliance not only on a law or executive act
which is quasi-legislative in nature but also Constitutional Safeguards that Guarantee the
on decisions or orders of the executive Independence of the Judiciary
branch which were later nullified; (Araullo
v. Aquino, G.R. No.209287, 01 July 2014) 1. The SC is a constitutional body. It cannot be
abolished nor may its membership or the
2. It does not apply when there is no reliance manner of its meetings be changed by mere
by the public in good faith upon the invalid legislation; (Sec. 4(1), Art. VIII, 1987
law; and (Gorospe, 2016) Constitution)
112
2023 GOLDEN NOTES
2. Members of the SC may not be removed except 11. The SC alone may initiate the promulgation of
by impeachment; (Sec. 2, Art. XI, 1987 the Rules of Court; (Sec. 5(5), Art. VIII, 1987
Constitution) Constitution)
3. The SC may not be deprived of its minimum 12. The SC alone may order temporary detail of
original and appellate jurisdiction as judges; and (Sec. 5(3), Art. VIII, 1987
prescribed in Art. VIII, Sec. 5, of the Constitution)
Constitution; (Sec. 2, Art. VIII, 1987
Constitution) 13. The SC can appoint all officials and employees
of the Judiciary. (Sec. 5(6), Art. VIII, 1987
NOTE: The Congress shall have the power to Constitution)
define, prescribe, and apportion the
jurisdiction of the various courts (all courts Judicial Privilege (Deliberative Process
below the SC). Privilege or DPP)
4. The appellate jurisdiction of the SC may not be The privilege against disclosure of information or
increased by law without its advice and communications that formed the process of judicial
concurrence; (Sec. 30, Art. VI, 1987 decisions.
Constitution)
This applies to confidential matters, which refer to
5. Appointees to the judiciary are now information not yet publicized by the Court like:
nominated by the JBC and no longer subject to (D-A-R)
confirmation by the Commission on
Appointments; (Sec. 9, Art. VIII, 1987 1. raffle of cases;
Constitution) 2. actions taken in each case in the Court’s
agenda; and
6. The SC has administrative supervision over all 3. deliberations of the Members in court
inferior courts and personnel; (Sec. 6, Art. VIII, sessions on case matters pending before it.
1987 Constitution)
NOTE: This privilege, however, is not exclusive to
7. The SC has exclusive power to discipline the Judiciary and it extends to the other branches of
judges/justices of inferior courts; (Sec. 11, Art. government due to our adherence to the principle of
VIII, 1987 Constitution) separation of powers. (In Re: Production of Court
Records and Documents and the Attendance of Court
8. The members of the judiciary enjoy security of Officials and Employees as Witnesses under the
tenure, which cannot be undermined by a law Subpoenas of Feb. 10 2012 and the Various Letters of
reorganizing the judiciary; (Sec. 2(2), Art. VIII, Impeachment Prosecution Panel dated Jan. 19 and
1987 Constitution) 25, 2012, 14 Feb. 2012)
9. The members of the judiciary may not be Purpose of Judicial Privilege

designated to any agency performing quasi-
judicial or administrative functions; (Sec. 12, To prevent the “chilling” of deliberative
Art. VIII, 1987 Constitution) communications. It insulates the Judiciary from an
improper intrusion into the functions of the judicial
10. The salaries of judges may not be reduced branch and shields judges, justices, and court
during their continuance in office; the officials and employees from public scrutiny or the
judiciary enjoys fiscal autonomy; (Sec. 3, Art. pressure of public opinion that would impair their
VIII, 1987 Constitution) ability to render impartial decisions. (In Re:
Production of Court Records and Documents and the
113
Attendance of Court Officials and Employees as NOTE: Members of the Court may not be compelled
Witnesses under the Subpoenas of 10 Feb. 2012 and to testify in the impeachment proceedings against
the Various Letters of Impeachment Prosecution the Chief Justice or other Members of the Court
Panel date 19 & 25 Jan. 2012, 14 Feb. 2012) about information acquired in the performance of
their official adjudicatory functions and duties;
Q: Does the participation of Associate Justices in otherwise, their disclosure of confidential matters
the hearings of the House Committee on Justice learned in their official capacity violates judicial
determining probable cause for the privilege as it pertains to the exercise of the
impeachment of an impeachable officer make constitutional mandate of adjudication. (ibid.)
them disqualified to hear a petition for quo
warranto against said officer? XPN: If the only intent is for them to identify or
certify the genuineness of documents within their
A: NO. Their appearance thereat is in deference to control that are not confidential and privileged,
the House of Representatives whose constitutional their presence in the Impeachment Court may be
duty to investigate the impeachment complaint filed permitted. (ibid.)
against an impeachable officer could not be
doubted. The same is not a ground for inhibition Waiver of Privilege
provided that their appearance is with the prior
consent of the Supreme Court en Banc and they This privilege, incidentally, belongs to the Judiciary
faithfully observe the parameters that the Court set and is for the SC (as the representative and entity
for the purpose. (Republic vs. Sereno G.R. No. 237428, speaking for the Judiciary), and not for the
11 May 2018) individual justice, judge, or court official or
employees to waive. Thus, every proposed waiver
Requisites for a document to be protected by must be referred to the SC for its consideration and
DPP approval. (ibid.)
It must be shown that the document is both: Constitutional Guarantee of Fiscal Autonomy
1. Pre-decisional – If they were made in the Fiscal autonomy contemplates a guarantee of full
attempt to reach a final decision; and flexibility to allocate and utilize resources with the
wisdom and dispatch that the needs require.
2. Deliberative – If it reflects the give-and-take of (Bengzon v. Drilon, G.R. No. 103524, 15 Apr. 1992)
the consultative process such as the disclosure
of the information would discourage open It recognizes the power and authority to deny,
discussion within the agency. (In Re: assess and collect fees, fix rates of compensation not
Production of Court Records and Documents exceeding the highest rates authorized by law for
and the Attendance of Court Officials and compensation and pay plans of the government and
Employees as Witnesses under the Subpoenas of allocate and disburse such sums as may be provided
Feb. 10, 2012, and the Various Letters of by law or prescribed by it in the course of the
Impeachment Prosecution Panel dated Jan. 19 discharge of its functions.
and 25, 2012, 14 Feb. 2012)
Q: The Court received two letters requesting for
NOTE: Court records which are pre-decisional and copies of Statement of Assets, Liabilities, and Net
deliberative in nature are thus protected and cannot worth (SALN) and the Personal Data Sheet (PDS)
be the subject of subpoena if judicial privilege is to or the Curriculum Vitae (CV) of its justices for
be preserved. (ibid.) the year 2008 for the purposes of updating their
database of information on government
officials. Other requests for copies of SALN and
114
2023 GOLDEN NOTES
other personal documents of the Justices of the Rules on vacancies in the Judiciary
Court, Court of Appeals (CA), and Sandiganbayan
(SB) were filed. Can the Court allow the release 1. Vacancies in the SC should be filled within 90
of copies of SALN and other personal documents days from the occurrence of the vacancy; and
of the incumbent Justices? (Sec. 4(1), Art. VIII, 1987 Constitution)
A: The Court may deny request for certified copies 2. Vacancies in lower courts should be filled
of Statements of Assets, Liabilities and Net Worth within 90 days from submission to the
(SALNs) of all incumbent justices of the SC and Court President of the JBC list.
of Tax Appeals if it is lacking sufficient basis. It
should not be forgotten that invoking one’s Tenure of the members of the SC and judges
constitutional right to information must not set (1993, 1996, 2000 BAR)
aside the need to preserve the integrity and
independence of the judiciary. It must be invoked if Members of the SC and judges of lower courts can
under the circumstances it would not result in hold office during good behavior until:
endangering, diminishing or destroying the
independence and security of the members of the 1. The age of seventy (70) years old; or
judiciary in the performance of their judicial 2. They become incapacitated to discharge their
functions or expose them to revenge for adverse duties. (Sec. 11, Art. VIII, 1987 Constitution)
decisions. (RE: Request for Copies of the SALN and 3. In the case of Supreme Court Justices, by way
Personal Data Sheet or Curriculum Vitae of the of impeachment. (Sec. 2, Art. XI, 1987
Justices of the Supreme Court and Officers and Constitution)
Employees of the Judiciary, A.M. No. 09-8-6-SC, 13
June 2012) 1. QUALIFICATIONS OF MEMBERS
Members of the Supreme Court (Nat-40-15-CIPI)

D. APPOINTMENTS TO THE JUDICIARY
Members of the Judiciary are Appointed by the 2. At least 40 years of age;

President
3. Must have been for 15 years or more, a judge of
The members of the judiciary are appointed by the a lower court or engaged in the practice of law
President of the Philippines from among a list of at in the Philippines; and
least three (3) nominees prepared by the Judicial
and Bar Council (JBC) for every vacancy. 4. Has proven competence, integrity, probity, and
independence. (C-I-P-I) (Sec. 7, Art. VIII, 1987
NOTE: the appointment shall need no confirmation Constitution)
from the commission on appointments. (Sec. 9, Art.
VIII, 1987 Constitution) Members of the Court of Appeals (Nat-40-15-
CIPI)
A Member of the Judiciary must be a person of
proven competence, integrity, probity and 1. Natural-born citizen of the Philippines;
independence. (Sec. 7(3), Art. VIII, 1987
Constitution) 2. At least 40 years of age;
115
3. Must have been for 15 years or more, a judge of requirement under said constitutional provision of
a lower court or engaged in the practice of law three nominees per vacancy, there should at least be
in the Philippines; and 18 nominees from the JBC for the six vacancies for
Sandiganbayan Associate Justice; but the minimum
4. Has proven competence, integrity, probity, and requirement was even exceeded herein because the
independence. (C-I-P-I) JBC submitted for the President's consideration a
total of 37 qualified nominees. (Aguinaldo v. Aquino,
Q: By virtue of R.A. No. 10660, two new divisions G.R. No. 224302, 29 Nov. 2016)
of the Sandiganbayan were created with three
members each, and there were six simultaneous 2. JUDICIAL AND BAR COUNCIL
vacancies for Associate Justice of said collegiate
court. The JBC then submitted six separate
a) COMPOSITION
shortlists for the vacancies for the 16th to the
21st Sandiganbayan Associate Justices.
Ex-officio members
Petitioners assert that President Aquino's
power to appoint is limited to each shortlist
1. Chief Justice, as ex-officio chairman;
submitted by the JBC, President Aquino should
2. Secretary of Justice, as an ex-officio
have appointed the 16th Sandiganbayan
member; and
Associate Justice from the nominees in the
3. Representative of Congress, as an ex-officio
shortlist for the 16th Sandiganbayan Associate
member
Justice, the 17th Sandiganbayan Associate
Justice from the nominees in the shortlist for the
Regular members
17th Sandiganbayan Associate Justice, and so on
and so forth. By totally overlooking the
1. Representative of the Integrated Bar;
nominees for the 16th Sandiganbayan Associate
2. A Professor of law;
Justice and appointing respondents Musngi and
3. A Retired member of the SC; and
Econg, who were both nominees for the 21st
4. Private sector representative
Sandiganbayan Associate Justice, as the 16th
and 18th Sandiganbayan Associate Justices,
NOTE: The regular members of the JBC shall be
respectively, President Aquino violated the Sec.
appointed by the President for a term of four years
9, Art. VIII, 1987 Constitution, which requires the
with the consent of the Commission on
President to appoint from a list of at least three
Appointments. (Sec. 8(2), Art. VIII, 1987
nominees submitted by the JBC for every
Constitution)
vacancy. Are the petitioners correct?
Only one (1) Representative of Congress in the

A: NO. Nomination by the JBC shall be a qualification
JBC
for appointment to the Judiciary, but this only
means that the President cannot appoint an
The JBC does not fall within the scope of a tribunal,
individual who is not nominated by the JBC. It
board, or officer exercising judicial or quasi-judicial
should be stressed that the power to recommend of
functions. Neither did it act in any judicial or quasi-
the JBC cannot be used to restrict or limit the
judicial capacity, nor did it assume any performance
President's power to appoint as the latter's
of judicial or quasi-judicial prerogative in adopting
prerogative to choose someone whom he/she
the rotational scheme of Congress, which was the
considers worth appointing to the vacancy in the
reason for not counting the votes of the petitioner in
Judiciary is still paramount. As long as in the end, the
its En Banc deliberations last December 2 and 9,
President appoints someone nominated by the JBC,
2016. But, despite this, its act is still not beyond this
the appointment is valid. This does not violate Sec.
Court's reach as the same is correctible by certiorari
9, Art. VIII, 1987 Constitution. To meet the minimum
if it is tainted with grave abuse of discretion even if
116
2023 GOLDEN NOTES
it is not exercising judicial and quasi-judicial Q: May the Supreme Court assume jurisdiction
functions. The JBC did not abuse its discretion in and give due course to a petition for quo
adopting the six-month rotational arrangement and warranto against an impeachable officer and
in not counting the votes of the petitioner. It merely against whom an impeachment complaint has
acted pursuant to the Constitution and the Chavez already been filed with the House of
ruling, which both require only one representative Representatives?
from Congress in the JBC. It cannot, therefore, be
faulted for simply complying with the Constitution A: YES. The language of Sec. 2, Art. XI, 1987
and jurisprudence. Moreover, the said arrangement Constitution does not foreclose a quo warranto
was crafted by both Houses of Congress and the JBC action against impeachable officers. The provision
merely adopted the same. By no stretch of reads:
imagination can it be regarded as grave abuse of
discretion on the part of the JBC. (Umali v. JBC, G.R. The Members of the Supreme Court may be
No. 228628, 25 July 2017) removed from office on impeachment for, and
conviction of, culpable violation of the Constitution,
b) POWERS treason, bribery, graft and corruption, other high
crimes, or betrayal of public trust.
Powers and Functions of the JBC (2000 Bar)
While both impeachment and quo warranto may
The principal function of the JBC is to recommend result in the ouster of the public official, the two
appointees to the judiciary. It may, however, proceedings materially differ. Thus, they are not
exercise such functions as the SC may assign to it. mutually exclusive remedies and may proceed
(Sec. 8(5), Art. VIII, 1987 Constitution) simultaneously. At its most basic, impeachment
proceedings are political in nature, while an action
NOTE: The duty of the JBC to submit a list of for quo warranto is judicial or a proceeding
nominees before the start of the President’s traditionally lodged in the courts. Aside from the
mandatory 90-day period to appoint is ministerial, difference in their origin and nature, quo warranto
but its selection of the candidates whose names will and impeachment may proceed independently of
be in the list to be submitted to the President lies each other as these remedies are distinct as to
within the discretion of the JBC. (De Castro v. JBC, jurisdiction, grounds, applicable rules pertaining to
G.R. No. 191002, 17 Mar. 2010) initiation, filing and dismissal, and limitations.
(Republic v. Sereno, G.R. No. 237428, 11 May 2018)
E. THE SUPREME COURT Scope of the Procedural Rule-Making Power

(1991, 2000, 2008, 2009, 2013, 2014, 2015 BAR)
1. The protection and enforcement of

1. COMPOSITION, POWERS, AND FUNCTIONS constitutional rights;
2. Pleadings, practice and procedure in all
1. Chief Justice; and courts;
2. 14 Associate Justices (Sec. 4 (1), Art. VIII, 1987 3. Admission to the practice of law;
Constitution) 4. The Integrated Bar; and
5. Legal assistance to the underprivileged.
Divisions of the SC
Limitations on its Rule-making Power
It may sit en banc or in its discretion, in divisions of
three, five, or seven members. (Sec. 4(1), Art. VIII, 1. It should provide a simplified and
1987 Constitution) inexpensive procedure for the speedy
disposition of cases;
117
2. It should be uniform for all courts of the Requirements for the decisions of the SC
same grade; and (Con-Cert-C-R)
3. It should not diminish, increase, or modify
substantive rights. 1. The Conclusions of the Supreme Court in any
case submitted to it for decision en banc or in
2. EN BANC AND DIVISION CASES division shall be reached in consultation
before the case is assigned to a Member for the
writing of the opinion of the Court.
En Banc Decisions; Cases that should be heard by
2. A Certification to this effect signed by the Chief
the SC en banc (T-Ru-P-Di-Pre-J-E)
Justice shall be issued.
1. All cases involving the constitutionality of a

3. A Copy thereof shall be attached to the record
Treaty, international or executive agreement,
of the case and served upon the parties.
or law;
4. Any Member who took no part, or dissented, or

2. All cases which under the Rules of Court may
abstained from a decision or resolution, must
be required to be heard en banc;
state the Reason thereof. (Sec. 13, Art. VIII,
1987 Constitution)
3. All cases involving the constitutionality,
application or operation of Presidential
NOTE: No decision shall be rendered by any court
decrees, proclamations, orders, instructions,
without expressing therein clearly and distinctly the
ordinances, and other regulations;
facts and the law on which it is based. (Sec. 13, Art.
4. Cases heard by a Division when the required
majority in the division is not obtained;
3. ADMINISTRATIVE SUPERVISION OVER
5. Cases where the SC modifies or reverses a LOWER COURTS
doctrine or principle of law Previously laid
either en banc or in division; The Supreme Court exercises administrative
supervision over all lower courts. (Sec. 6, Art. VIII,
6. Administrative cases involving the discipline 1987 Constitution)
or dismissal of Judges of lower courts;
The SC is assisted by the Court Administrator and
7. Election contests for president or vice- the Deputy Court Administrators in exercising the
president. administrative function.
Cases that may be heard by division Matters to be attended by the Court En Banc: (Di-
De-T-A-P)
Other cases or matters may be heard in division, and
decided or resolved with the concurrence of a 1. Disciplinary Matters involving justices and
majority of the members who actually took part in judges of all lower courts and lower court
the deliberations on the issues and voted thereon, personnel;
but in no case without the concurrence of at least
three such members. (Sec. 4(3), Art. VIII, 1987 2. Designation of Judges;
Constitution)
3. Request for Transfer of cases from one court,
administrative area or judicial region to
another and/or transfer of venue of cases to
118
2023 GOLDEN NOTES
avoid miscarriage of justice as provided for in
Sec. 5(4), Art. VIII, 1987 Constitution;
4. Amendment, modification and/or revocation of

Administrative Orders and Circulars issued by
the Supreme Court; and
5. Matters for Policy determination.
4. ORIGINAL AND APPELLATE JURISDICTION
Original and Appellate Jurisdiction of the

Supreme Court (2006, 2004, 2000, 1996, 1995,
1994 BAR)
The Supreme Court has the power to review, revise,

reverse, or affirm on appeal or certiorari, as the law
or the Rules of Court may provide, final judgments
and orders of lower courts in:
1. All cases in which the constitutionality or

validity of any treaty, international or
executive agreement, law, presidential decree,
proclamation, order, instruction, ordinance, or
regulation is in question.
2. All cases involving the legality of any tax,

impost, assessment, or toll, or any penalty
imposed in relation thereto.
3. All cases in which the jurisdiction of any lower

court is in issue.
4. All criminal cases in which the penalty

imposed is reclusion perpetua or higher.
5. All cases in which only an error or question of

law is involved. (Sec. 5(2), Art. VIII, 1987
Constitution)
NOTE: The appellate jurisdiction of the Court

cannot be reduced by Congress except with the
advice and consent of the Supreme Court
119
8. Commissions enjoy fiscal autonomy. (Sec. 5,
V. CONSTITUTIONAL COMMISSIONS Art. IX-A, 1987 Constitution)
(COMELEC, COA, CSC)
9. Each commission may promulgate its own
procedural rules, provided they do not
diminish, increase, or modify substantive
rights (though subject to disapproval by the
A. CONSTITUTIONAL SAFEGUARDS TO ENSURE Supreme Court). (Sec. 7, Art. IX-A, 1987
INDEPENDENCE OF COMMISSIONS Constitution)
10. Chairmen and members are subject to certain

1. They are constitutionally created; may not be disqualifications and inhibitions calculated to
abolished by statute of its judicial functions. strengthen their integrity. (Sec. 2, Art. IX-A,
(Sec. 1, Art. IX-A, 1987 Constitution) 1987 Constitution)
2. Each is conferred certain powers and functions 11. Commissions may appoint their own officials
which cannot be reduced by statute. (Art. IX-B, and employees in accordance with Civil
C, and D, 1987 Constitution) Service Law. (Sec. 4, Art. IX-A, 1987
Constitution)
3. Each is expressly described as independent.
(Sec. 1, Art. IX-A, 1987 Constitution) 12. The Commissions follow the rotational scheme
or staggered appointments and terms of office.
4. Chairmen and members are given long terms
of office for seven (7) years. (Sec. 1(2), Art. IX- NOTE: The Supreme Court held that the “no report,
B, C, and D, 1987 Constitution) no release” policy may not be validly enforced
against offices vested with fiscal autonomy, without
5. Chairmen and members cannot be removed violating Sec. 5, Art. IX-A. The “automatic release” of
except by impeachment. (Sec. 2, Art. XI, 1987 approved annual appropriations to a Constitutional
Constitution) Commission vested with fiscal autonomy should
thus be construed to mean that no condition to fund
6. Chairmen and members may not be releases may be imposed. (CSC v. DBM, G.R. No.
reappointed or appointed in an acting capacity. 158791, 22 Jul. 2005)
(Sec. 1(2), Art. IX-B, C and D, 1987 Constitution)
NOTE: When an ad interim appointment is not B. COMMON PROVISIONS

confirmed (as it was by-passed or that there
was no ample time for Commission on
Appointments to pass upon the same), another
Independent Constitutional Commissions:
ad interim appointment may be extended to
the appointee without violating the
1. Civil Service Commission (CSC);
Constitution. (Matibag v. Benipayo, G.R. No.
2. Commission on Elections (COMELEC); and
149036, 02 Apr. 2002)
3. Commission on Audit (COA)
7. Salaries of chairmen and members are
NOTE: The CSC, COMELEC, and COA are equally pre-
relatively high and may not be decreased
eminent in their respective spheres. Neither one
during continuance in office. (Sec. 17, Art. XVIII,
may claim dominance over the others. In case of
1987 Constitution; Sec. 3, Art. IX-A, 1987
conflicting rulings, it is the judiciary, which
Constitution)
interprets the meaning of the law and ascertains
120
2023 GOLDEN NOTES
which view shall prevail. (CSC v. Pobre, G.R. No. such term. (Republic v. Imperial, G.R. No. L-
160508, 15 Sept. 2004) 8684, 31 Mar. 1995)
NOTE: Functions are executive in nature, but are NOTE: The members of the Constitutional
not under the jurisdiction of the Philippine Commissions have staggered terms:
President.
1. To minimize the opportunity of the
Salary President to appoint during his own term
more than one member or group of
Salaries may be increased by a statute but may not members in the Constitutional
be decreased during incumbent’s term of office. Commissions; and
(Cruz, 2014)
2. To ensure continuity of the body and its
NOTE: The decrease is prohibited to prevent the policies. (ibid.)
legislature from exerting pressure upon the
Commissions by “operating on their necessities.”
Salaries may be increased, as a realistic recognition C. POWERS, FUNCTIONS, AND JURISDICTION
of the need that may arise to adjust the
compensation to any increase in the cost of living.
(ibid.)
Decision-making Process in these Commissions
Term (2005, 1997 BAR)

1. The CSC, COMELEC, and CoA shall decide matter
or cases by a majority vote of all the members
Seven (7) years without reappointment.
within 60 days from submission. (Sec. 7 Art. IX-A,
1987 Constitution)
NOTE: Appointment to any vacancy shall be only for
the unexpired term of the predecessor. In no case
a. COMELEC may sit en banc or in two (2)
shall any Member be appointed or designated in a
divisions.
temporary or acting capacity. (Sec. 1(2), Art. IX-C,
1987 Constitution)
b. Election cases, including pre-proclamation
controversies are decided in division, with
NOTE: Once the Chairman or Commissioner shall
motions for reconsideration filed with the
have served the full term of seven years, then he can
COMELEC en banc.
no longer be reappointed to either the position of
Chairman or Commissioner. The obvious intent of
c. The SC has held that a majority decision
the framers is to prevent the president from
decided by a division of the COMELEC is a
"dominating" the Commission by allowing him to
valid decision.
appoint an additional or two more commissioners.
(Funa v. Villar, G.R. No. 192791, 24 Apr. 2012)
NOTE: Pursuant to COMELEC Rules of
Procedure, when the COMELEC en banc is
Requisites for the Effective Operation of the
equally divided in an opinion and cannot have
Rotational Scheme of Terms of Constitutional
the required majority, rehearing shall be done. If
Bodies
rehearing is originally commenced in the
Commission and no majority decision is reached,
1. The original members of the Commission shall
rehearing shall be dismissed. In appealed cases,
begin their terms on a common date;
the judgment or order appealed from shall stand
2. Any vacancy occurring before the expiration of
affirmed and the petition or motion on all
the term shall be filled only for the balance of
incidental matters shall be denied. (Mamerto
121
Sevilla v. COMELEC, G.R. No. 202833, 19 Mar. NOTE: Any decision, order or ruling of the
2013) COMELEC in the exercise of its quasi-judicial
functions may be brought to the SC on certiorari
2. As collegial bodies, each Commission must act as under Rules 64 and 65, Revised Rules of Court within
one, and no one member can decide a case for the 30 days from receipt of a copy thereof.
entire commission.
These decisions or rulings refer to the decision or
3. Any decision, order or ruling of each Commission final order of the COMELEC en banc and not of any
may be brought to the SC on certiorari by the division thereof.
aggrieved party within 30 days from receipt of a
copy thereof. Acts that fall under the COMELEC’s Power to
Supervise or Regulate
CIVIL SERVICE COMMISSION (CSC)
1. The enjoyment or utilization of all
Scope of the Civil Service (2003, 1999 BAR) franchises or permits for the operation of
transportation and other public utilities,
The Civil Service embraces all branches, media of communication or information.
subdivisions, instrumentalities, and agencies of the
Government, including government-owned or 2. Grants, special privileges or concessions
controlled corporations with original charters. (Sec. granted by the government or any
2(1), Art. IX-B, 1987 Constitution) subdivision, agency or instrumentality
thereof, including any GOCC or its
See further discussion under L. The Civil Service – subsidiary. (Sec. 4, Art. IX-C, 1987
page 302. Constitution)
COMMISSION ON ELECTIONS (COMELEC) Instances when COMELEC can exercise its

Constitutional Powers and Functions
Cases that fall under the Jurisdiction of
COMELEC by Division 1. During election period –90 days before the day
of the election and 30 days thereafter. In special
Election cases should be heard and decided by a cases, COMELEC can fix a period.
division. If a division dismisses a case for failure of
counsel to appear, the MR may be heard by the 2. Applies not only to elections but also to
division. plebiscites and referenda.
NOTE: According to the case of Balajonda v. Jurisdiction of the COMELEC Before the
COMELEC, the COMELEC can order immediate Proclamation vs. its Jurisdiction After
execution of its own judgments. (Balajonda v Proclamation
COMELEC, G.R. No. 166032, 28 Feb. 2005)
JURISDICTION OVER JURISDICTION OVER
Cases that fall under the Jurisdiction of PRE-PROCLAMATION CONTESTS (AFTER
COMELEC EN BANC CONTROVERSY PROCLAMATION)
As to due process implications
Motion for Reconsideration of decisions may be COMELEC’s COMELEC’s
decided by COMELEC en Banc. It may also directly jurisdiction is jurisdiction is judicial
assume jurisdiction over a petition to correct administrative or and is governed by the
manifest errors in the tallying of results by Board of quasi-judicial and is requirements of
Canvassers. governed by the less judicial process.
122
2023 GOLDEN NOTES
stringent Extent of COA’s audit jurisdiction over Manila
requirements of Economic and Cultural Office (MECO)
administrative due
process (although the MECO is a sui generis private entity and not a GOCC
SC has insisted that or government instrumentality. The Government
questions on entrusted with the facilitation of unofficial relations
“qualifications” should with the people in Taiwan without jeopardizing the
be decided only after a country’s faithful commitment to the One China
full-blown hearing). policy of the PROC. However, despite its non-
governmental character, the MECO handles
NOTE: Hence, even in the case of regional or government funds in the form of the "verification
provincial or city offices, it does make a difference fees" it collects on behalf of the DOLE and the
whether the COMELEC will treat it as a pre- "consular fees" it collects under Sec. 2(6), E.O. No. 15,
proclamation controversy or as a contest. (Bernas, s. 2001. Hence, accounts of the MECO pertaining to
2009) its collection of such "verification fees" and
"consular fees" should be audited by the COA. (Funa
COMMISSION ON AUDIT (COA) v. MECO and COA, G.R. No. 193462, 04 Feb. 2014)
The COA cannot be divested of its power to

examine and audit government agencies. D. COMPOSITION AND QUALIFICATIONS OF
MEMBERS
No law shall be passed exempting any entity of the
Government or its subsidiary in any guise, or any
investment of public funds, from the jurisdiction of
Composition of the COMELEC
the Commission on Audit. (Sec. 3, Art. IX-D, 1987
Constitution)
1. Chairman; and
2. Six (6) Commissioners
The mere fact that private auditors may audit
government agencies does not divest the COA of its
Term
power to examine and audit the same government
agencies. (Development Bank of the Philippines v.
Seven (7) years without reappointment.
COA, G.R. No. 88435, 16 Jan. 2002)
NOTE: If the appointment was ad interim, a
In Commission on Audit v. Hon. Pampilo (G.R. Nos.
subsequent renewal of the appointment does not
188760, 189660, and 189333, 30 June 2020, J.
violate the prohibition on reappointments because
Hernando) the Court ruled that it is the DOE-DOJ
no previous appointment was confirmed by the
Joint Task Force that has the sole power and
Commission on Appointments. The total term of
authority to monitor, investigate, and endorse the
both appointments must not exceed the 7-year limit.
filing of complaints, if necessary, against oil
(Matibag v. Benipayo, G.R. No. 149036, 02 Apr. 2002)
companies. And considering that the remedy
against cartelization is already provided by law, the
The Constitution expressly describes all the
public respondent trial court exceeded its
Constitutional Commissions as independent.
jurisdiction and gravely abused its discretion when
Although essentially executive in nature, they are
it ordered the COA, the BIR, and the BOC to open and
not under the control of the President of the
examine the books of account of the Big 3 and
Philippines in the discharge of their respective
allowed private respondent Cabigao, a certified
functions. Each of these Commissions conducts its
public accountant, to become part of the panel of
own proceedings under the applicable laws and its
examiners. Clearly, the RTC not only failed to uphold
own rules and in the exercise of its own discretion.
the law but worse, he contravened the law.
123
The choice of a temporary chairman in the absence NOTE: The grant of exclusive power to
of the regular chairman comes under that investigate and prosecute cases of election
discretion. That discretion cannot be exercised for offenses to the COMELEC was not by virtue of
it, even with its consent, by the President of the the Constitution but by the OEC which was
Philippines. (Brillantes, Jr. v. Yorac, G.R. No. 93867. eventually amended by Sec. 43, R.A. 9369. Thus,
18 Dec. 1990) the DOJ now conducts preliminary investigation
of election offenses concurrently with the
Qualifications COMELEC and no longer as mere deputies. (Jose
Miguel T. Arroyo v. DOJ, et al., G.R. No. 199082, 18
1. Natural-born citizen; Sept. 2012)
2. At least thirty-five (35) years old at the time of
appointment; 4. Exercise:
3. College degree holder; and
4. Not a candidate in any election immediately a. Exclusive original jurisdiction over all
preceding the appointment. contests relating to the election, returns
and qualifications of all elective:
NOTE: Majority of the members, including the i. Regional
Chairman, shall be members of the Philippine Bar ii. Provincial
who have been engaged in the practice of law for at iii. City officials
least ten years. (Sec. 1(1), Art. IX-C, 1987
Constitution) b. Exclusive appellate jurisdiction over all
contests involving:
Constitutional powers and functions of the i. Elective municipal officials
COMELEC (2001, 1996, 1991 BAR) decided by trial courts of general
(Reg-En-F-Ex-De-Cong-De-Pres-S) jurisdiction.
ii. Elective barangay officials decided
1. Registration of political parties, organizations, by courts of limited jurisdiction.
or coalitions and accreditation of citizens’ arms
of the COMELEC. c. Contempt powers
i. COMELEC can exercise this power
2. Enforce and administer all laws and regulations only in relation to its adjudicatory
relative to the conduct of an election, plebiscite, or quasi-judicial functions. It
initiative, referendum, and recall. cannot exercise this in connection
with its purely executive or
Note: COMELEC may order the correction of ministerial functions.
manifest errors in the tabulation or tallying ii. If it is a pre-proclamation
results during the canvassing and petitions for controversy, the COMELEC
this purpose may be filed directly with the exercises quasi-
Commission even after the proclamation of the judicial/administrative powers.
winning candidates. iii. Its jurisdiction over contests (after
proclamation), is in exercise of its
3. File, upon a verified complaint, or on its own judicial functions.
initiative, petitions in court for inclusion or
NOTE: The COMELEC may issue writs of
exclusion of voters; investigate and, where
certiorari, prohibition, and mandamus in
appropriate, prosecute cases of violations of
exercise of its appellate functions.
election laws, including acts or omissions
constituting election frauds, offenses, and
5. Decide, except those involving the right to vote,
malpractices.
all questions affecting elections, including
124
2023 GOLDEN NOTES
determination of the number and location of 3. Certified Public Accountant with not less than
polling places, appointment of election officials ten years of auditing experience, or member of
and inspectors, and registration of voters. the Philippine Bar who has been engaged in
the practice of law; and
NOTE: Questions involving the right to vote fall
within the jurisdiction of ordinary courts. 4. Not a candidate in any election immediately
preceding the appointment.
6. Deputize, with the concurrence of the
President, law enforcement agencies and NOTE: At no time shall all Members of the
instrumentalities of the government, including Commission belong to the same profession. (Sec.
the AFP, for the exclusive purpose of ensuring 1(1), Art. IX-D, 1987 Constitution)
free, orderly, honest, peaceful and credible
elections. Powers and duties of COA (Exa-K-A-P)
7. Recommend to the Congress effective 1. Examine, audit and settle all accounts
measures to minimize election spending, pertaining to revenue and receipts of, and
including limitation of places where expenditures or uses of funds and property
propaganda materials shall be posted, and to owned or held in trust or pertaining to
prevent and penalize all forms of election government.
frauds, offenses, malpractices, and nuisance
candidacies. 2. Keep general accounts of government and
preserve vouchers and supporting papers.
8. Recommend to the President the removal of 3. Authority to define the scope of its audit and
any officer or employee it has deputized, or the examination, establish techniques and methods
imposition of any other disciplinary action, for required therein.
violation or disregard of, or disobedience to its
directive, order, or decision. NOTE: The power of the Commission to define
the scope of its audit and to promulgate
9. Submit to the President and the Congress a auditing rules and regulations and the power to
comprehensive report on the conduct of each disallow unnecessary expenditures is exclusive
election, plebiscite, initiative, referendum, or but its power to examine and audit is not
recall. exclusive. (Development Bank of the Philippines
v. Commission on Audit, G.R. No. 88435, 16 Jan.
Composition of the COA 2002)
1. Chairman; and 4. Promulgate accounting and auditing rules and

2. Two (2) Commissioners. regulations, including those for prevention and
disallowance. (Sec. 2, Art. IX-D, 1987
Term Constitution)
Seven (7) years without reappointment. The power of the Commission en banc to
promulgate the Resolution is santioned by the
Qualifications 1987 Constitution. Sec. 6, Art. IX-A thereof
expressly grants each Constitutional
1. Natural-born citizen; Commission en banc to promulgate its own
rules concerning pleadings and practice before
2. At least 35 years old at the time of it or before any of its offices. The Constitution
appointment; adds, however, that such rules shall not
125
diminish, increase, or modify substantive 9. Unless otherwise allowed by law or by the
rights. (DFA v. COA, G.R. No. 194530, 7 July 2020) primary functions of his position, no
appointive official shall hold any other office or
employment in the Government or any
E. PROHIBITED OFFICES AND INTERESTS subdivision, agency, or instrumentality
thereof, including Government-owned or
controlled corporations or their subsidiaries;
and (Sec. 7(2), Art. XI-B, 1987 Constitution)
No member of a Constitutional Commission shall,
during his tenure:
10. No elective or appointive public officer or
employee shall receive additional, double, or
1. Hold any other office or employment;
indirect compensation unless specifically
authorized by law, nor accept without the
2. Engage in the practice of any profession;
consent of Congress, any present, emolument,
office, or title of any kind from any foreign
3. Engage in the active management and control
government. (Sec. 8, Art. XI-B, 1987
of any business which in any way may be
Constitution)
affected by the function of his office;
Purpose
4. Be financially interested, directly or indirectly,
in any contract with, or in any franchise or
1. To compel the chairmen and members of the
privilege granted by the Government, any of its
Constitutional Commissions to devote their full
subdivisions, agencies or instrumentalities,
attention to the discharge of their duties; and
including GOCCs or their subsidiaries; (Sec. 2,
Art. IX-A, 1987 Constitution) (2015, 1998
2. To remove from them any temptation to take
BAR)
advantage of their official positions for selfish
purposes.
5. No officer or employee of the civil service shall
be removed or suspended except for cause
provided by law; (Sec. 2(3), Art. XI-B, 1987
Constitution) F. JUDICIAL REVIEW OF FINAL ORDERS,
RESOLUTIONS, AND DECISIONS
6. No officer or employee in the civil service shall
engage, directly or indirectly, in any
electioneering or partisan political activity; 1. RENDERED IN THE EXERCISE OF QUASI-
(Sec. 2(4), Art. XI-B, 1987 Constitution) JUDICIAL FUNCTIONS
7. No candidate who has lost in any election shall,

SC’s jurisdiction over decisions of the
within one year after such election, be
Commissions
appointed to any office in the Government or
any Government-owned or controlled
1. COA: Judgments or final orders of the
corporation or in any of their subsidiaries; (Sec.
Commission on Audit may be brought by an
6, Art. IX-B, 1987 Constitution)
aggrieved party to the Supreme Court on
certiorari under Rule 65, Rules of Court. Only
8. No elective official shall be eligible for
when COA acts without or in excess of
appointment or designation in any capacity to
jurisdiction, or with grave abuse of discretion
any public office or position during his tenure;
amounting to lack or excess of jurisdiction, may
(Sec. 7(1), Art. XI-B, 1987 Constitution)
126
2023 GOLDEN NOTES
the SC entertain a petition for certiorari under instituted before it directly or on appeal, including
Rule 65, Rules of Court. contested appointments.
2. CSC: Administrative Circular 1-95538, which The CSC has the jurisdiction on personnel
took effect on 01 June 1995, provides that final actions, covered by the Civil Service
resolutions of the CSC shall be appealable by
certiorari to the CA within 15 days from receipt It is the intent of the Civil Service Law, in requiring
of a copy thereof. From the decision of the CA, the establishment of a grievance procedure, that
the party adversely affected thereby shall file a decisions of lower officials (in cases involving
petition for review on certiorari under Rule 45, personnel actions) be appealed to the agency head,
Rules of Court. then to the CSC. The RTC does not have jurisdiction
over personnel actions. (Olanda v. Bugayong, G.R.
3. COMELEC: Only decisions of COMELEC en banc No. 140917, 10 Oct. 2003)
may be brought to the Court by certiorari since
Art. IX-C, 1987 Constitution provides that Certiorari jurisdiction of the SC over these
motions for reconsideration of decisions shall Commissions
be decided by the Commission en banc. (Reyes v.
Mindoro, G.R. No. 108886, 05 May 1995) Proceedings are limited to issues involving grave
abuse of discretion resulting in lack or excess of
Procedural requisite before certiorari to the jurisdiction and do not ordinarily empower the
Supreme Court may be availed of Court to review the factual findings of the
Commissions. (Aratuc v. COMELEC, G.R. No. L-49705-
Sec. 1, Rule 65, Rules of Court provides that certiorari 09, 08 Feb. 1979)
may be resorted to when there is no other plain or
speedy and adequate remedy. But reconsideration Decisions rendered in proceedings or actions
is a speedy and adequate remedy. Hence, a case may recognized by the Commissions in the exercise of
be brought to the Supreme Court only after adjudicatory and quasi-judicial power are limited
reconsideration. but not to purely executive powers. Hence,
questions based on award of a contract for
Rule on Appeal construction of voting booths can be brought before
the trial court. (Ambil v. Comelec, G.R. No. 143398, 05
1. Decisions, orders, or rulings of the Oct. 2000).
COMELEC/COA may be brought on certiorari to
the SC under Rule 65, Rules of Court. Q: The CSC Regional Office No. 6 of Iloilo City
charged petitioner San Felix with dishonesty for
2. Decisions, orders, or rulings of the CSC should allegedly conspiring with and allowing another
be appealed to the CA under Rule 43, Rules of person to take, in his behalf, the Police Officer I
Court Examination held on 29 Mar. 1998. San Felix
however filed a Motion to Dismiss asserting that
2. RENDERED IN THE EXERCISE OF by virtue of the ruling in Civil Service
ADMINISTRATIVE FUNCTIONS Commission v. Court of Appeals, the CSC has
been divested of its authority and jurisdiction to
conduct entrance examination or promotional
Power of the CSC to Hear and Decide
examination to the members of the Philippine
Administrative Cases
National Police (PNP). Does the CSC still have
jurisdiction to conduct investigations and
Under the Administrative Code of 1987, the CSC has
render administrative decisions based on
the power to hear and decide administrative cases
alleged anomalies in police entrance and
127
promotional examinations when it no longer commission reflects the person's character. It
had any authority after the creation of the NPC? involves moral turpitude as settled in
jurisprudence. This is not reflective of what a public
A: YES. The CSC has the authority and jurisdiction to servant should be. Petitioner's invocation of first
investigate anomalies and irregularities in the civil offense and outstanding performance in service fails
service examinations and to impose the necessary to convince. First, the Uniform Rules on
and appropriate sanctions. The Constitution grants Administrative Cases in the Civil Service (URACCS)
to the CSC administration over the entire civil clearly state that the offense of Conviction of a Crime
service. As defined, the civil service embraces every Involving Moral Turpitude is punishable with
branch, agency, subdivision, and instrumentality of dismissal from service upon first commission. The
the government, including every government- Court thus cannot consider this as the Rules are
owned or controlled corporation. clear in stating that a first-time offender shall be
dismissed from service. Second, first offense and
The lack of authority of the CSC to conduct the outstanding performance are not provided in
examinations for Police Officer I on March 29, 1998, Section 53 of the URACCS as circumstances that may
by virtue of RA 8551, should not be used as a shield be appreciated. Her invocation of these has no basis
to petitioner's wrongdoing as he was not in good under the Rules. (Gonzalbo-Macatangay v. Civil
faith. To rule otherwise would be tantamount to Service Commission, G.R. No. 239995, 15 June 2022, J.
condoning petitioner's dishonesty during the March Hernando)
29, 1998 Police Officer I Examination and allowing
him to continue benefiting from the eligibility he
acquired fraudulently. (Melvin G. San Felix vs. Civil
Service Commission, G.R. No. 198404, 14 Oct. 2019, J.
Hernando)
NOTE: R.A. No. 8551, which amended R.A. No. 6975

became effective on March 06, 1998. The
amendment transferred the power to administer
and conduct entrance and promotional
examinations of police officers from the CSC to the
NPC on the basis of the standards set by the latter.
(Ibid.)
Q: X with position as Secretary in the Passport

Division of the Department of National Defense
is found guilty of the administrative offense of
Conviction of a Crime Involving Moral Turpitude
where the imposable penalty is dismissal from
service. X petitions that provided her length of
service, first commission, and outstanding
performance, the penalty imposed must be
mitigated. Will X’s contention prosper?
A: NO. The Court affirms that petitioner's length of

service cannot be applied as a mitigating
circumstance. The administrative offense of
Conviction of a Crime Involving Moral Turpitude is
a grave offense, punishable by dismissal from
service. This cannot be taken lightly as its
128
2023 GOLDEN NOTES
and by R.A. No. 530. (Bengson III v. HRET, G.R.
No. 142840, 07 May 2001)
In So v. Republic (G.R. No. 170603, 29 Jan. 2007), the
Court cited R.A. No. 9139 as a way by which aliens
may acquire Philippine citizenship if they were born
in the Philippines and have resided in the country
I. CITIZENSHIP
since birth.
The Congress through a legislative act may also

Citizenship vs. Nationality (2019 BAR) grant Philippine citizenship.
CITIZENSHIP NATIONALITY R.A. No. 9225 is also an administrative way of

A term denoting It has a broader acquiring Philippine citizenship. R.A. No. 9225
membership of a meaning, embracing all allows dual citizenship to natural-born Filipino
citizen in a political who owe allegiance to citizens who have lost Philippine citizenship by
society, which a state, whether reason of their naturalization as citizens of a foreign
membership implies, democratic or not, country. On its face, it does not recognize dual
reciprocally, a duty of without thereby allegiance. By swearing to the supreme authority of
allegiance on the part becoming citizens. the Republic, the person implicitly renounces his
of the member and Because they owe foreign citizenship. (Calilung v. Sec. Datumanong,
duty of protection on allegiance to it, they are G.R. No. 160869, 11 May 2007)
the part of the state. not regarded as aliens.
Government Officials Required to be Natural-
Kind of Citizenship Born Filipino Citizens
1. Natural-born Citizens – Those who are citizens 1. President;

of the Philippines from birth without having to 2. Vice-President;
perform any act to acquire or perfect their 3. Members of Congress;
Philippine citizenship. (Sec. 2, Art. IV, 1987 4. Justices of Supreme Court and lower
Constitution) collegiate courts;
5. Ombudsman and his deputies;
The following are natural-born Filipino citizens: 6. Members of Constitutional Commissions;
7. Members of the Central Monetary
a. Those who are citizens of the Philippines Authority;
from birth without having to perform any 8. Members of the Commission on Human
act to acquire or perfect their Philippine Rights.
citizenship;
Jus Sanguinis vs. Jus Soli
b. Those who elect Philippine citizenship in
accordance with Sec. 1(3), Art. IV of the JUS SANGUINIS JUS SOLI
1987 Constitution. On the basis of the
On the basis of blood
place of birth. (Roa v.
2. Naturalized Citizens – Those who have become relationship. (Sec. 1,
Insular Collector of
Filipino citizens through naturalization, Art. IV, 1987
Customs, G.R. L-7011,
generally under C.A. 473, otherwise known as Constitution)
30 Oct. 1912)
the Revised Naturalization Law, which repealed
the former Naturalization Law (Act No. 2927),
129
NOTE: The Philippines follows the jus sanguinis 5. Must be Able to speak and write English or
principle. Aliens born in the Philippines do not Spanish and any one of the principal
automatically become Filipino citizens. Philippine languages; and
6. Must have enrolled his Minor children of

A. WHO ARE FILIPINOS school age, in any of the public schools or
recognized private schools where the
Philippine history, government and civics
are taught or prescribed as part of the
The following are citizens of the Philippines:
school curriculum, during the entire period
of the residence in the Philippines required
1. Those who are Filipino citizens at the time
of him prior to the hearing of his petition
of the adoption of the 1987 Constitution;
for naturalization as Philippine citizen.
(Sec, 2, C.A. 473)
2. Those whose fathers or mothers are
citizens of the Philippines;
NOTE: These qualifications must be possessed by
him at the time he applies for naturalization and not
3. Those born before 17 Jan. 1973, of Filipino
subsequently. (Ibid)
mothers, who elect Philippine citizenship
upon reaching the age of majority; and
4. Those who are naturalized in accordance B. MODES OF ACQUIRING CITIZENSHIP

with law. (Sec. 1, Art. IV, 1987 Constitution)
Any person having the following qualifications 1. By birth;

may become a Naturalized Citizen of the 2. By naturalization; and
Philippines (G-R-A-M-A-RLu) 3. By marriage.
1. Must not be less than 21 years of Age on the NOTE: Under C.A. 473, an alien female spouse
day of the hearing of the petition; may apply for Philippine citizen by virtue of her
marriage to a male Filipino spouse. This is also
2. Must have Resided in the Philippines for a known as derivative process of acquiring
continuous period of not less than 10 years; Philippine citizenship.
3. Must be of Good moral character and Q: Sps. Ben and Liong were Chinese nationals
believes in the principles underlying the and had three children. While the children were
Philippine Constitution, and must have still minors, the spouses were naturalized as
conducted himself in a proper and Filipino Citizens pursuant to Letter of
irreproachable manner during the entire Instruction (LOI) 270 and Philippine Citizenship
period of his residence in the Philippines in was conferred by virtue of PD 923.
his relation with the constituted
government as well as with the community a.) Will the naturalization extend to the
in which he is living; minor children of Sps. Ben and Liong?
4. Must own Real estate in the Philippines A: YES. The Court ruled that LOI 270 and C.A. 473
worth not less than P5,000.00, or must have were in pateri materia, and absent any express
some known Lucrative trade, profession, or repeal, the two laws must be read with one another.
lawful occupation; Although LOI 270 does not expressly provide that
the father’s naturalization automatically extended
130
2023 GOLDEN NOTES
to his wife and children, Sec. 15 of C.A. 473 provides the evidence of the appellee has not
for the extension of the naturalization of the father satisfactorily and conclusively established that
to his wife and minor children as long as there is no her mother Adelaida is a Filipino citizen so as to
disqualification, and the wife sufficiently shows that warrant the petition to change the entry in her
she and her minor children permanently resides in birth records.
the Philippines at the time of the naturalization of
the husband. Thus, it must also apply to those who Did the CA commit a grave error when it ruled
naturalize by virtue of LOI 270. (Republic v. Winston that the pieces of evidence presented were
Brian Chia Lao, G.R. No. 205218, 28 Aug. 2020) insufficient to support the correction of
Adelaide's citizenship from "Chinese" to
b.) Later on, Winston, Christopher and Jon "Filipino"?
filed before the Manila Trial Court, a
petition to change the nationality of A: YES. The requirement of electing Filipino
their parents as reflected in their birth citizenship when a child reached the age of majority
certificate. Will their petitions prosper? under Art. IV Sec. 1 of the 1935 Constitution, the
governing law when Adelaida was born on 24 Nov.
A: YES. Rule 108 of the ROC allows both the 1942, and Sec. 1 of C.A. No. 625, applied only to
correction of clerical errors and substantial errors legitimate children. These would not apply in the
reflected in the documents kept by the civil registry. case of Adelaida who is an illegitimate child,
The nationality of Ben and Liong in Winston, considering that her Chinese father and Filipino
Christopher, and Jon’s birth certificates, indicating mother were never married. As such, she was not
that they are Chinese, is no longer true after the required to comply with said constitutional and
naturalization of the former. Hence the nationality statutory requirements to become a Filipino citizen.
of Ben and Liong in their children’s birth certificates By being an illegitimate child of a Filipino mother,
should be amended to indicate “Filipino.” (Republic Adelaida automatically became a Filipino upon
v. Winston Brian Chia Lao, G.R. No. 205218, 28 Aug. birth. Stated differently, she is a Filipino since birth
2020) without having to elect Filipino citizenship when
she reached the age of majority. (Sheila Marie G. Uy-
Q: Sheila filed a Petition for Correction of Entry Belleza v. The Civil Registrar of Tacloban City, G.R. No.
before the RTC seeking for the correction of the 218354, 15 Sept. 2021, J. Hernando)
entry in her birth certificate stating that the
nationality of her mother Adelaida is "Chinese"
instead of "Filipino". In support of the petition, C. LOSS AND RE-ACQUISITION OF PHILIPPINE
Sheila submitted the following: (1) Certificate of CITIZENSHIP
Live Birth (NSO); (2) Certificate of Birth (Local
Civil Registrar); (3) Marriage Contract of her
parents issued by the NSO showing that Adelaida
Philippine citizenship may be lost or reacquired in
is a Filipino citizen; (4) Adelaida's Certificate of
the manner provided by law. (Sec. 3, Art. IV, 1987
Registration as a Voter; (5) Certificate of Live
Constitution)
Birth of Jerome Uy, her brother, reflecting the
citizenship of their mother Adelaida as "Fil"; and
Grounds for Losing Philippine Citizenship:
(6) Adelaida's Expired Philippine Passport.
(C-Re-M-De-N-SA-E)
Aside from her documentary evidence, Sheila
also took the stand to attest to the Filipino
1. Naturalization in a foreign country;
citizenship of her mother, Adelaida. The RTC
granted the petition. The OSG filed a Motion for
2. Express renunciation of citizenship
Reconsideration which was denied. An appeal
(Expatriation); or
was filed before the CA. The CA granted the
appeal and reversed the RTC ruling finding that
131
3. Subscribing to an oath of Allegiance to the former status as a natural-born Filipino. (Bengson III
constitution or laws of a foreign country upon v. HRET and Cruz, G.R. No. 142840, 07 May 2001)
attaining 21 years of age; or
How Repatriation is effected
4. Rendering service to or accepting commission
in the armed forces of a foreign country; 1. Taking the necessary oath of allegiance to
the Republic of the Philippines; and
XPNs: unless: 2. Registration in the proper civil registry and
a. The Philippines has a defensive and/or in the Bureau of Immigration.
offensive pact of alliance with the said
foreign country; or The Bureau of Immigration shall thereupon cancel
the pertinent alien certificate of registration and
b. The said foreign country maintains armed issue the certificate of identification as Filipino
forces in the Philippine territory with its citizen to the repatriated citizen. (Sec. 2, R.A. No.
consent provided that at the time of 8171)
rendering said service, or acceptance of
said commission, and taking the oath of R.A. No. 9225 “Citizenship Retention and Re-
allegiance incident thereto, states that he acquisition Act of 2003”
does so only in connection with its service
to said foreign country. The intent of the legislature in drafting R.A. 9225 is
to do away with the provision in C.A. No. 635 which
5. Cancellation of certificate of naturalization takes away Philippine citizenship from natural-born
(Denaturalization); or Filipinos who become naturalized citizens of other
countries. It allows dual citizenship to natural-born
6. Having been declared by final judgment a Filipino citizens who have lost Philippine
Deserter of the armed forces of the citizenship by reason of their naturalization as
Philippines in times of war; or citizens of a foreign country. On its face, it does not
recognize dual allegiance. By swearing to the
7. In case of a woman, upon her Marriage, to a supreme authority of the Republic, the person
foreigner if, by virtue of the laws in force in implicitly renounces his foreign citizenship. Plainly,
her husband’s country, she acquires his from Sec. 3, R.A. No. 9225 stayed clear out of the
nationality. (Cruz, 2015) problem of dual allegiance and shifted the burden of
confronting the issue of whether or not there is dual
Ways to Reacquire Citizenship allegiance to the concerned foreign country. What
happens to the other citizenship was not made a
1. Naturalization; (C.A. 473) concern of R.A. No. 9225. (Calilung v. Sec.
2. Repatriation; and (P.D. 725) Datumanong, G.R. No. 160869, 11 May 2007)
3. Direct act of Congress. (C.A. 63)
Sec. 5, Art. IV of the Constitution is a declaration of a
Repatriation policy, and it is not a self-executing provision. The
legislature still has to enact the law on dual
The recovery of the original nationality. This means allegiance. Congress was given a mandate to draft a
that a naturalized Filipino who lost his citizenship law that would set specific parameters of what
will be restored to his prior status as a naturalized really constitutes dual allegiance. Until this is done,
Filipino citizen. On the other hand, if he was it would be premature for the judicial department,
originally a natural-born citizen before he lost his including the Court, to rule on issues pertaining to
Philippine citizenship, he will be restored to his dual allegiance. (Supra.)
132
2023 GOLDEN NOTES
Running for Elective Posts; Oath of Allegiance and perpetual renunciation of the foreign
and Renunciation of Foreign Citizenship citizenship and a full divestment of all civil and
political rights granted by the foreign country which
R.A. No. 9225 requires Filipinos availing themselves granted the citizenship. (Maquiling v. COMELEC, G.R.
of the benefits under the said Act to: No. 195649, 16 Apr. 2013)
1. Take their oath of allegiance to the Republic Strict adherence to Maquiling Doctrine
of the Philippines; and
2. Explicitly renounce their foreign Matters dealing with qualifications for public
citizenship if they wish to run for elective elective office must be strictly complied with. The
posts in the Philippines. novelty of the issue is not an excuse from strictly
complying with the eligibility requirements to run
The oath of allegiance is a general requirement for for public office or to simply allow a candidate to
all those who wish to run as candidates in Philippine correct the deficiency in his qualification by
elections. While the renunciation of foreign submitting another oath of renunciation. It is with
citizenship is an additional requisite only for those more reason that we should similarly require strict
who have retained or reacquired Philippine compliance with the qualifications to run for local
citizenship under R.A. No. 9225 and who seek elective office. (Arnado v. COMELEC, G.R. No. 210164,
elective public posts, considering their special 18 Aug. 2015)
circumstance of having more than one citizenship.
To qualify as a candidate in Philippine elections,
Filipinos must only have one citizenship, namely, D. DUAL CITIZENSHIP AND DUAL ALLEGIANCE
Philippine citizenship. (Jacot v. Dal, G.R. No. 179848,
27 Nov. 2008)
Dual Citizenship vs. Dual Allegiance

By renouncing foreign citizenship, one is deemed to
be solely a Filipino citizen, regardless of the effect of
DUAL CITIZENSHIP DUAL ALLEGIANCE
such renunciation under the laws of the foreign
As to whether voluntary or involuntary
country. (Maquiling v. COMELEC, G.R. No. 195649, 16
Involuntary Voluntary
Apr. 2013)
As to definition
Filing of a Certificate of Candidacy does not ipso It arises when, as a
facto amount to a Renunciation of Foreign result of concurrent This refers to the
Citizenship application of the situation where a
different laws of two or person simultaneously
R.A. No. 9225 requires the twin requirements of more States, a person is owes, by some positive
simultaneously act, loyalty to two or
1. Swearing to an Oath of Allegiance and considered a citizen of more States.
2. Executing a Renunciation of Foreign both said states.
Citizenship. (Roseller De Guzman v. As to whether authorized or prohibited
COMELEC, G.R. No. 180048, 19 June 2009) It is allowed
considering that their
It is prohibited by the
Maquiling Doctrine condition is merely an
Constitution because it
unavoidable
is inimical to the
Use of a foreign passport amounts to repudiation or consequence of
national interest.
recantation of the oath of renunciation. The conflicting laws of
renunciation of foreign citizenship is not a hollow different states.
oath that can simply be professed at any time, only
to be violated the next day. It requires an absolute
133
Q: Is dual citizenship allowed? If yes, can Foundlings are likewise citizens under international
persons with dual citizenship run for public law. The common thread of the Universal
office? Declaration of Human Rights (UDHR), United
Nations Convention on the Rights of the Child and
A: YES. The concern of the Constitutional the International Covenant on Civil and Political
Commission was not with dual citizens per se but Rights obligates the Philippines to grant nationality
with naturalized citizens who maintain their from birth and ensure that no child is stateless. This
allegiance to their countries of origin even after grant of nationality must be at the time of birth, and
their naturalization. Consequently, persons with it cannot be accomplished by the application of our
mere dual citizenship are not disqualified present naturalization laws.
considering that their condition is the unavoidable
consequence of conflicting laws of different states. Furthermore, the principles stated in Art. 14 of the
Unlike those with dual allegiance, who must, 1930 Hague Convention on Certain Questions
therefore, be subject to strict process with respect Relating to the Conflict of Nationality Laws under
to the termination of their status. The fact that a which a foundling is presumed to have the
person has dual citizenship does not disqualify him nationality of the country of birth. While the
from running for public office. (Cordora v. COMELEC, Philippines is not a party to the Hague Convention,
G.R. No. 176947, 19 Feb. 2009) it is a signatory to the Universal Declaration on
Human Rights, which effectively affirms Art. 14 of
Candidates with dual citizenship can run for public the 1930 Hague Convention. (Poe-Llamanzares v.
office provided that upon the filing of their COMELEC, G.R. No. 221697, 08 Mar. 2016)
certificates of candidacy, they elect Philippine
citizenship to terminate their status as persons with 1. FOUNDLING RECOGNITION AND PROTECTION
dual citizenship. (Mercado v. Manzano, G.R. No. ACT (R.A. NO. 11767)
135083, 26 May 1999)
Foundling
E. FOUNDLINGS A foundling refers to a deserted or abandoned child

or infant or person with unknown facts of birth and
parentage. This also includes those who have been
Status of Foundlings Under Philippine laws duly registered as a foundling during his or her
infancy or childhood but have reached the age of
As a matter of law, foundlings are as a class, natural- majority without benefiting from adoption
born citizens. While the 1935 Constitution's procedures upon the passage of R.A. No. 111767.
enumeration is silent as to foundlings, there is no (Sec. 4(i), R.A. No. 11767)
restrictive language which would definitely exclude
foundlings either. NOTE: Foundling shall also be used interchangeably
with a person with no known parents. (ibid.)
The deliberations of the 1934 Constitutional
Convention show that the framers intended A child whose parents are both unknown shall have
foundlings to be covered by the enumeration, the nationality of the country of birth. If the child’s
pursuant to the amendment proposed by Sr. Rafols. parentage is established, its nationality shall be
Though the Rafols amendment was not carried out, determined by the rules applicable in cases where
it was not because there was any objection to the the parentage is known. (Art. 14, 1930 Hague
notion that persons of “unknown parentage” are not Convention)
citizens but only because their number was not
enough to merit specific mention.
134
2023 GOLDEN NOTES
Status and Legitimacy of Foundlings
A foundling is presumed a natural-born Filipino

citizen if found in
1. The Philippines; and/or

2. Philippine embassies, consulates, offices,
and territories abroad. (Sec. 5, R.A. No.
11767)
As a natural-born citizen of the Philippines, a

foundling is accorded with rights and protections at
the moment of birth equivalent to those belonging
to such a class of citizens whose citizenship does not
need perfection or any further act. (Ibid.)
Presumption of Natural-Born Status
The presumption of the natural-born status of a

foundling may not be impugned in any proceeding
unless substantial proof of foreign parentage is
shown, and that the foreign citizenship may be
transmitted from the parent/s to the foundling. (Sec.
12, R.A. No. 11767)
The natural-born status of a foundling shall also not

be affected by the fact that the birth certificate was
simulated, or the person was legally adopted or that
there was an absence of a legal adoption process, or
that there was inaction or delay in reporting,
documenting, or registering of a foundling. (ibid.)
A foundling, in the absence of proof to the contrary,

is considered to have been born in the territory of
the State in which it was found. (Art. 14, 1930 Hague
Convention)
135
POLITICAL LAW AND INTERNATIONAL LAW
sphere inaccessible to any power holder. (People v.
II. BILL OF RIGHTS Marti, G.R. No. 81561, 18 Jan. 1991)
Private Acts
Privacy and Autonomy

GR: The Bill of Rights is not meant to be invoked
against acts of private individuals. (Yrasuegui v. PAL,
The Bill of Rights cannot be invoked against acts of
G.R. No. 168081, 17 Oct. 2008)
private individuals. In the absence of governmental
interference, the liberties guaranteed by the
XPN: If there is a lawful order from a court or when
Constitution cannot be invoked. The equal
public safety or order requires otherwise, as
protection erects no shield against private conduct,
prescribed by law. (Zulueta v. CA, G.R. No. 107383, 20
however discriminatory or wrongful. (Yrasuegui v.
Feb. 1996)
PAL, G.R. No. 168081, 17 Oct. 2008)
Q: The husband invoked his right to privacy of

XPN: However, where the husband invoked his
communication and correspondence against his
right to privacy of communication and
wife, a private individual, who had forcibly
correspondence against a private individual, his
taken documents and private correspondences
wife, who had forcibly taken from his cabinet
from his cabinet and presented the same as
documents and private correspondence, and
evidence against him. Are the documents and
presented as evidence against him, the Supreme
private correspondences in question admissible
Court held these papers are inadmissible in
in evidence?
evidence, upholding the husband’s right to privacy.
(Zulueta v. CA, G.R. No. 107383, 20 Feb. 1996)
A: NO. The Supreme Court upheld the husband’s
right to privacy and ruled that a person, by
Relation to Human Rights
contracting marriage, does not shed his integrity
nor his right to privacy as an individual and the
The Philippine Bill of Rights “establishes the
constitutional protection is ever available to him or
relationship of the individual to the State and
her.
defines the rights of the individual by limiting the
lawful powers of the State.” (Smith, 1945)
The constitutional injunction declaring "the privacy
of communication and correspondence to be
The Universal Declaration of Human Rights (UDHR)
inviolable" is no less applicable simply because it is
inspired a number of Constitutions of different
the wife (who thinks herself aggrieved by her
states. In the Philippines, Arts. III and XIII of the
husband's infidelity) who is the party against whom
1987 Constitution safeguard the rights of the people
the constitutional provision is to be enforced. The
within the State. While the Commission on Human
only exception to the prohibition in the Constitution
Rights (CHR) ensures the protection of human
is if there is a "lawful order from a court or when
rights as guaranteed by the Bill of Rights. (Sec. 17,
public safety or order requires otherwise, as
Art. XIII, 1987 Constitution)
prescribed by law." Any violation of this provision
renders the evidence obtained inadmissible "for any
purpose in any proceeding. (Zulueta v. CA, G.R. No.
A. PRIVATE ACTS AND THE BILL OF RIGHTS 107383, 20 Feb. 1996)
The Bill of Rights governs the relationship between

the individual and the State. Its concern is not the
relation between private individuals. What it does is
to declare some forbidden zones in the private
136
2023 GOLDEN NOTES
1. Prevent undue encroachment against the life,
B. DUE PROCESS liberty, and property of individuals.
2. Secure the individual from the arbitrary

exercise of powers of the government,
Meaning of Due Process
unrestrained by the established principles of
private rights and distributive justice.
1. There shall be a law prescribed in harmony
with the general powers of the legislature;
3. Protect property from confiscation by
2. It shall be reasonable in its operation;
legislative enactments from seizure, forfeiture,
3. It shall be enforced according to the regular
and destruction without a trial and conviction
methods of procedure prescribed; and
by the ordinary modes of judicial procedures.
4. It shall be applicable alike to all citizens of
(Suarez, 2016)
the State or to all of the class. (People v.
Cayat, G.R. No. L-45987, 05 May 1939)
The guarantee of due process of law is a
constitutional safeguard against any arbitrariness
Due Process Clause (2009, 2007, 1999, 1992
on the part of the Government, whether committed
BAR)
by the Legislature, the Executive, or the Judiciary.
While due process has no exact definition, the
No person shall be deprived of life, liberty, or
standard in determining whether a person was
property without due process of law, nor shall any
accorded due process is whether the restriction on
person be denied the equal protection of the laws.
the person's life, liberty, or property is consistent
(Sec. 2, Art. III, 1987 Constitution)
with fairness, reason, and justice, and free from
caprice and arbitrariness. This standard applies
Due process is a guaranty against any arbitrariness
both to procedural and substantive due process.
on the part of the government, whether committed
by the legislature, the executive, or the judiciary.
As applied to procedural due process, the question
Any government act that militates against the
to be asked is whether the person was given
ordinary norms of justice or fair play is considered
sufficient notice and opportunity to be heard. As
an infraction of the great guaranty of due process;
applied to substantive due process, the question is
and this is true whether the denial involves violation
whether such deprivation or restriction is necessary
merely of the procedure prescribed by the law or
and fair to the affected parties. (Manila International
affects the validity of the law itself. (Cruz, 2015)
Ports Terminal Inc., v. Philippine Ports Authority, G.R.
No. 196199, 07 Dec. 2021, J. Hernando)
NOTE: Due process of law has two aspects:
substantive and procedural. In order that a
Right to Life
particular act may not be impugned as violative of
the due process clause, there must be compliance
The right to life is not merely a right to the
with both the substantive and the procedural
preservation of life but also to the security of the
requirements thereof. (Alliance for the Family
limbs and organs of the human body against any
Foundation v. Garin, G.R. No. 217872, 24 Aug. 2016)
unlawful harm. (Cruz, 2015)
Purpose
This constitutional guarantee includes the right of
an individual to pursue a lawful calling or
The due process clause is a guaranty against any
occupation; to express, write or even paint his ideas
kind of abuse and arbitrariness, by anyone in any of
for as long as he does not unlawfully transgress the
the branches of government. More specifically, the
rights of others; to exercise his freedom of choice—
purpose of the due process clause is to:
whether this is in the area of politics, religion,
marriage, philosophy and employment, or even in
137
the planning of his family; and in general, to do and As to Purpose
perform any lawful act or activity which, in his Serves as a restriction
Serves as a restriction
judgment, will make his life worth living. (Suarez, on actions of judicial
on the government’s
2016) and quasi-judicial
law and rule-making
agencies of the
powers.
The right to life commences upon “conception,” that government.
is, upon fertilization. Hence, the obligation upon the As to Requisites
State to “equally protect the life of the mother and 1. Impartial court or
the life of the unborn from conception” and “to tribunal clothed with
prevent the Legislature from enacting a measure judicial power to
legalizing abortion.” (Sec. 12, Art. II, 1987 1. The interests of the
hear and determine
Constitution; Imbong v. Ochoa, G.R. No. 204819, 08 public in general, as
the matters before it.
Apr. 2014) distinguished from
those of a particular
2. Jurisdiction properly
Right to Liberty class, require the
acquired over the
intervention of the
person of the
It is not only the right of a citizen to be free from the state.
defendant and over
mere physical restraint of his person, as by the property which
incarceration, but the term is deemed to embrace 2. The means employed
is the subject matter
the right of the citizen to be free in the engagement are reasonably
of the proceeding.
of all his faculties; to be free to use them in all lawful necessary for the
ways. (Allegeyer v. Louisiana, 165 U.S. 578, 06 Jan. accomplishment of
3. Opportunity to be
1897) the purpose and not
heard. Judgment
unduly oppressive
rendered upon
Right to Property upon individuals
lawful hearing and
based on evidence
Property refers to things which are susceptible of adduced.
appropriation, and which are already possessed and
found in the possession of man. (Suarez, 2016) Procedural Due Process
1. PROCEDURAL AND SUBSTANTIVE It refers to the method and manner by which a law
is enforced. (Bernas, 2016)
Kinds of Due Process

The Fundamental Elements of Procedural Due
1. Substantive Due Process; and Process (N-O-J)
2. Procedural Due Process.
1. Notice (to be meaningful, must be as to time
PROCEDURAL SUBSTANTIVE and place); (Secretary of Justice v. Lantion,
DUE PROCESS DUE PROCESS G.R. No. 139465, 18 Jan. 2000)
As to Definition
2. Opportunity to be heard; and (Secretary of
It requires the intrinsic Justice v. Lantion, G.R. No. 139465, 18 Jan.
validity of the law in It refers to the method 2000)
interfering with the and manner by which a
rights of the person to law is enforced. 3. Court/tribunal must have Jurisdiction.
his life, liberty, or (Bernas, 2016) (Secretary of Justice v. Lantion, G.R. No.
property. (Cruz, 2015) 139465, 18 Jan. 2000)
138
2023 GOLDEN NOTES
Q: When Administrative Officer II Mag-abo the Honor Code. When the members of the HC
encashed the salaries of the Bukidnon State casted their votes through secret balloting, the
University (BSU) employees, such was stolen result was 8-1 in favor of a guilty verdict. After
from him on his way back to BSU. The further deliberation, the Presiding Officer
Commission on Audit (COA) Legal Adjudication announced the 9-0 guilty verdict. Cudia
Office and COA Commission Proper both held contested the dismissal as being violative of his
that Mag-abo will be liable for the money stolen. right to due process.
On its motion for reconsideration, COA Proper
held that Mag-abo is solidarily liable with Was the dismissal of Cudia a denial of his right to
Barroso for the stolen amount. Barroso was due process?
surprised considering he was never a party to
the case. He was constrained to limit the A: NO. Due process in disciplinary cases involving
discussion in his motion for reconsideration to students does not entail proceedings and hearings
the issue of due process. Can Barroso be held similar to those prescribed for actions and
solidarily liable with Mag-Abo? proceedings in courts of justice; that the
proceedings may be summary; that cross-
A: NO. Barroso never had the opportunity to examination is not an essential part of the
thoroughly argue the merits of his case precisely investigation or hearing; and that the required proof
because he was not properly informed of what he in a student disciplinary action, which is an
was supposed to argue against (i.e., the accusations administrative case, is neither proof beyond
and statements against him in Mag-abo's reasonable doubt nor preponderance of evidence
submissions). Thus, Barroso was constrained to but only substantial evidence or “such relevant
limit the discussion in his motion for evidence as a reasonable mind might accept as
reconsideration to the issue of due process. Surely, adequate to support a conclusion.”
this cannot be considered the opportunity to be
heard within the concept of administrative due What is crucial is that official action must meet
process. minimum standards of fairness to the individual,
which generally encompass the right of adequate
The mere filing of a motion for reconsideration does notice and a meaningful opportunity to be heard. It
not cure due process defects, especially if the said is not required that procedural due process be
motion was filed precisely to raise the issue of afforded at every stage of developing disciplinary
violation of the right to due process and the lack of action. What is required is that an adequate hearing
opportunity to be heard on the merits. (Barroso v. be held before the final act of dismissal. (Cudia v.
COA, G.R. No. 253253, 27 Apr. 2021) Superintendent of the PMA, G.R. No. 211362, 24 Feb.
2015)
Q: Cadet 1CL Cudia was a member of Siklab Diwa
Class of 2014 of the PMA. Prof. Berong issued a Q: Seven (7) disciplinary actions were filed by
Delinquency Report (DR) against Cadet 1CL UP before the Student Disciplinary Tribunal
Cudia because he was late for two minutes in his (SDT) against A over the alleged hazing
class. Cudia reasoned out that: “I came directly activities/initiation rites conducted by the
from OR432 Class. We were dismissed a bit late Sigma Rho Fraternity, that led to the death of B.
by our instructor Sir.” A moved for the quashal of the formal charges
against him on the ground that a valid
The Company Tactical Officer (CTO) of Cadet 1CL preliminary inquiry must first be conducted to
Cudia penalized him with demerits. Cudia determine whether a formal charge against any
addressed his Request for Reconsideration to member or officer of a fraternity, sorority, or
his Senior Tactical Officer (STO), but the STO other student organization is warranted. This is
sustained the penalty. The CTO reported him to in accordance with Sec. 1, Rule III of the Rules
the PMA Honors Committee (HC) for violation of Governing Fraternities, which states: “[n]o
139
member or officer of a fraternity, sorority or It requires the intrinsic validity of the law in
student organization shall be formally charged interfering with the rights of the person to his life,
before the SDT unless a preliminary inquiry has liberty, or property. (Cruz, 2015)
been conducted by any member of the SDT, If a law is invoked to take away one’s life, liberty or
which must be finished not later than five (5) property, the more specific concern of substantive
working days from the date of filing of the due process is not to find out whether said law is
complaint.” being enforced in accordance with procedural
formalities but whether the said law is a proper
Since it is undisputed that the University exercise of legislative power. (Cruz, 2015)
Prosecutor performed the preliminary inquiry,
B theorizes that this is in violation of the NOTE: Publication of laws is part of substantive due
provision, by making a distinction between the process. It is a rule of law that before a person may
terms "by" and "before"; he argues that the be bound by law, he must be officially and
preliminary inquiry was done by the University specifically informed of its contents. For the
Prosecutor, and not by SDT, although before it. publication requirement, “laws” refer to all statutes,
On the other hand, SDT, citing Black's Law including those of local application and private laws.
Dictionary, contends that the phrase should be This does not cover internal regulations issued by
construed as "through the means, act, agency or administrative agencies, which are governed by the
instrumentality" of "any member of the SDT," LGC. Publication must be full, or there is none at all.
thus making the preliminary inquiry compliant (Tañada v. Tuvera, G.R. No. L-63915, 29 Dec. 1986)
with the provision and therefore, valid. Is A's
contention correct? Constitutional vs. Statutory Due Process
A: NO. Simply because SDT stated in the formal CONSTITUTIONAL STATUTORY

charges that the preliminary inquiries were DUE PROCESS DUE PROCESS
conducted "before" them, does not mean that they While found in the
themselves did not conduct nor participate in the Protects the individual Labor Code and
same. The term "inquiry," which means "to request from the government Implementing Rules, it
for information" in its ordinary sense, necessarily and assures him of his protects employees
implies that SDT took part in the conduct of such. rights in criminal, civil from being unjustly
This alone, satisfies the requirement that the or administrative terminated without
preliminary inquiry be conducted "by a member of proceedings. just cause after notice
the SDT." It would be bordering absurdity if the and hearing.
statement be interpreted to mean that SDT "merely (Agabon v. NLRC, G.R. No. 158693, 17 Nov. 2004)
served as observers of the University Prosecutor,
with themselves physically present thereat but Effect when Due Process is not observed
meaning nothing at all." Thus, contrary to A's
assertion, to split hairs between the phrases "by the The cardinal precept is that where there is a
Student Disciplinary Tribunal" and "before the violation of basic constitutional rights, courts are
Student Disciplinary Tribunal" is actually a trifling ousted from their jurisdiction. The violation of a
matter. (Ariel Paolo A. Ante v. University of the party's right to due process raises a serious
Philippines Student Disciplinary Tribunal And jurisdictional issue which cannot be glossed over or
University Of The Philippines, G.R. No. 227911. 14 disregarded at will.
Mar. 2022, J. Hernando)
Where the denial of the fundamental right to due
Substantive Due Process process is apparent, a decision rendered in
disregard of that right is void for lack of jurisdiction.
This rule is equally true in quasi-judicial and
140
2023 GOLDEN NOTES
administrative proceedings, for the constitutional governmental action must be considered in
guarantee that no man shall be deprived of life, determining the application of the rules of
liberty, or property without due process is procedure. (Cafeteria & Restaurant Workers Union v.
unqualified by the type of proceedings (whether McElroy, 367 U.S. 886, 19 June 1961)
judicial or administrative) where he stands to lose
the same. (Garcia v. Molina and Velasco, G.R. Nos. To say that the concept of due process is flexible
157383 and 174137, 10 Aug. 2010) does not mean that judges are at large to apply it to
any and all relationships. Its flexibility is in its scope
Effect of Waiver or Estoppel once it has been determined that some process is
due; it is a recognition that not all situations calling
Due process is satisfied when the parties are for procedural safeguards for the same kind of
afforded a fair and reasonable opportunity to procedure. (Morrisey v. Brewer, 408 U.S. 471, 29 June
explain their respective sides of the controversy. 1972)
(National Semiconductor HK Distribution, Ltd. v.
NLRC, G.R. No. 123520, 26 June 1998) 2. VOID-FOR-VAGUENESS
Thus, when the party seeking due process was in

When a Law is Vague
fact given several opportunities to be heard and air
his side, but it is by his own fault or choice he
As a rule, a statute or act may be said to be vague
squanders these chances, then his cry for due
when it lacks comprehensible standards that men of
process must fail. (Labay v. Sandiganbayan, G.R. Nos.
common intelligence must necessarily guess at its
235937-40, 23 July 2018)
meaning and differ as to its application. (Lagman v.
Medialdea, G.R. Nos. 231658, 231771 & 231774, 04
Relativity of Due Process
July 2017; People v. dela Piedra, G.R. No. 121777, 24
Jan 2001)
Relativity of due process arises when the definition
of due process has been left to the best judgment of
A Vague Law is Repugnant to the Constitution
our judiciary considering the peculiarity and the
circumstances of each case.
In such instance, the statute is repugnant to the
Constitution because:
In a litany of cases that have been decided in this
jurisdiction, the common requirement to be able to
1. It violates due process for failure to accord
conform to due process is fair play, respect for
persons, especially the parties targeted by it,
justice and respect for the better rights of others.
fair notice of what conduct to avoid; and
In accordance with the standards of due process,

2. It leaves law enforcers an unbridled discretion
any court at any particular time, will be well guided,
in carrying out its provisions. (People v. De la
instead of being merely confined strictly to a precise
Piedra, G.R. No. 128777, 25 Jan. 2001)
definition which may or may not apply in every case.
NOTE: The doctrine can only be invoked against

The relativity of due process requires a reasonable
that species of legislation that is utterly vague on its
degree of flexibility in applying procedural due
face, i.e., that which cannot be clarified either by a
process. Thus, not all situations calling for
saving clause or by construction. (Estrada v.
procedural safeguards call for the same kind of
Sandiganbayan, G.R. No. 148560, 19 Nov. 2001)
procedure.
A determination of the precise nature of the

government function involved as well as of the
private interest that has been affected by
141
3. JUDICIAL AND ADMINISTRATIVE DUE reconsideration of the action or ruling complained

PROCESS of (De la Cruz v. Abille, G.R. No. 130196, 26 Feb. 2001),
or an opportunity to explain one’s side (Pilipinas
Loan Company v. Securities and Exchange
Judicial Due Process
Commission, G.R. No. 104720, 04 Apr. 2001)
Whether in civil or criminal judicial proceedings,

See page 353 for further discussion on
due process requires that there be:
Administrative Due Process.
1. An impartial and disinterested court clothed by

Requisites of Administrative Due Process
law with authority to hear and determine the
matter before it;
1. The right to a hearing,
2. Tribunal must consider the evidence
NOTE: The test of impartiality is whether the
presented;
judge’s intervention tends to prevent the
3. The decision must have something to
proper presentation of the case or the
support itself;
ascertainment of the truth.
4. The evidence must be substantial;
2. Jurisdiction lawfully acquired over the
5. Decision must be based on the evidence
defendant or the property which is the subject
adduced at the hearing, or at least
matter of the proceeding;
contained in the record and disclosed to the
parties;
3. Notice and opportunity to be heard be given to
the defendant; and
6. The Board or its judges must act on its or
their independent consideration of the
4. Judgment to be rendered after lawful hearing,
facts and the law of the case, and not simply
clearly explained as to the factual and legal
accept the views of a subordinate in
bases. (Sec. 14, Art. VII, 1987 Constitution)
arriving at a decision; and
Administrative Due Process

7. Decision must be rendered in such a
manner that the parties to the controversy
It does not necessarily require the assistance of
can know the various issues involved and
counsel. (Lumiqued v. Exenea, G.R. No. 117565, 18
the reasons for the decision rendered. (G.R.
Nov. 1997 as cited in Nachura, 2014)
No. L-46496, 27 Feb. 1940)
It cannot be fully equated to due process in the strict

Judicial vs. Administrative Due Process
judicial sense. (Ocampo v. Office of the Ombudsman,
G.R. No. 114683, 18 Jan. 2000). The standard of due
JUDICIAL DUE ADMINISTRATIVE
process that must be met in administrative
PROCESS DUE PROCESS
tribunals allows a certain latitude as long as the
As to the Essence
element of fairness is not ignored; even in the
absence of previous notice, there is no denial of due Opportunity to explain
A day in court.
one’s side.
process as long as the parties are given the
opportunity to be heard. (Adamson v. Amores, G.R. As to the Means
No. L-58292, 26 July 1987) Usually through
Submission of
seeking a
pleadings and oral
The essence of due process is simply an opportunity reconsideration of the
arguments
to be heard or, as applied to administrative ruling or the action
proceedings, an opportunity to seek
142
2023 GOLDEN NOTES
taken, or appeal to a a new passport to the respondent; on the
superior authority. warrant of arrest issued by the District Court of
As to the Notice and Hearing Requirement Germany against the respondent for insurance
Required when the fraud; and on the alleged illegal activities of the
administrative body is respondent in Palawan. The BOC concluded that
Both are essential.
exercising quasi- the respondent was not only an undocumented
judicial function. but an undesirable alien as well. Is the Summary
(PhilCom-Sat v. Alcuaz, G.R. No. 84818, Dec. 18, 1989) Deportation Order valid?
Due Process in Academic and Disciplinary A: NO. Sec. 37(c) of C.A. 613, as amended, provides
Proceedings that no alien shall be deported without being
informed of the specific grounds for deportation or
Parties are bound by the rules governing academic without being given a hearing under rules of
requirements and standards of behavior prescribed procedure to be prescribed by the Commissioner of
by the educational institutions. Resort to courts is Immigration.
available to parties. (Vivares v. St. Theresa’s College,
G.R. No. 202666, 29 Sept. 2014) Under Office Memorandum Order No. 34(4) and (5),
an alien cannot be deported unless he is given a
In Gonzales v. NLRC and Ateneo de Davao University chance to be heard in a full deportation hearing,
(G.R. No. 125735, 26 Aug. 1999), the Court held that with the right to adduce evidence in his behalf.
there was a violation of administrative due process
where the teacher was dismissed by the university The respondent was not afforded any hearing at all.
without having been given full opportunity to The BOC simply concluded that the respondent
confront the “witnesses” against her. (Nachura, committed insurance fraud and illegal activities in
2014) Palawan without any evidence. The respondent was
not afforded a chance to refute the charges. He
Due Process in Deportation Proceedings cannot, thus, be arrested and deported without due
process of law as required by the Bill of Rights of the
Although a deportation proceeding does not Constitution. (Domingo v. Scheer, G.R. No. 154745, 29
partake of the nature of a criminal action, however, Jan. 2004)
considering that it is a harsh and extraordinary
administrative proceeding affecting the freedom Instances when hearings are not necessary:
and liberty of a person, the constitutional right of
such person to due process should not be denied. 1. When administrative agencies are exercising
Thus, the provisions of the ROC of the Philippines, their quasi-legislative functions; (Holy Spirit
particularly on criminal procedure are applicable to Homeowners Association v. Secretary Defensor,
deportation proceedings. (Lao Gi v. CA, G.R. No. G.R. No. 163980, 03 Aug. 2006)
81789, 29 Dec. 1989)
2. Abatement of nuisance per se; (Art. 704, Civil
Q: Scheer, a German, was granted permanent Code)
resident status in the country. In a letter, Vice
Consul Hippelein informed the Philippine 3. Granting by courts of provisional remedies; (Co
Ambassador to Germany that the respondent v. Barbers, G.R. No. 129952, 16 June 1998)
had police records and financial liabilities in
Germany. The Board of Commissioners (BOC) 4. Cases of preventive suspension; (Sec.51, Book V,
thereafter issued a Summary Deportation 1987 Administrative Code)
Order. It relied on the correspondence from the
German Vice Consul on its speculation that it
was unlikely that the German Embassy will issue
143
5. Removal of temporary employees in the Q: E.O. No. 1 was issued by Pres. Aquino to
government service; (Co v. Barbers, G.R. No. investigate reported cases of graft and
129952, 16 June 1998) corruption of the Arroyo administration. Is such
action valid?
6. Issuance of warrants of distraint and/or levy by
the BIR Commissioner; (Nachura, 2014) A: NO. It must be borne in mind that the Arroyo
administration is but just a member of a class, that
7. Cancellation of the passport of a person charged is, a class of past administrations. It is not a class of
with a crime; and (Suntay v. People, G.R. No. L- its own. Not including past administrations
9430, 29 June 1957) similarly situated constitutes arbitrariness which
the equal protection clause cannot sanction. Such
8. Suspension of a bank’s operations by the discriminating differentiation clearly reverberates
Monetary Board upon a prima facie finding of to label the commission as a vehicle for
liquidity problems in such bank. (Busuego v. CA, vindictiveness and selective retribution. (Biraogo v.
G.R. No. 95326, 11 Mar. 1999) Philippine Truth Commission of 2010, G.R. No.
192935, 07 Dec. 2010)
Nature of Due Process in Administrative
Proceedings Q: Are aliens entitled to the protection of equal
protection clause?
Actual hearing or conference is not a condition sine
qua non for procedural due process in labor cases A: GR: It applies to all persons, both citizens and
because the provisions of the Labor Code prevail aliens. The Constitution places the civil rights of
over its implementing rules. (University of the aliens on equal footing with those of the citizens.
Cordilleras v. Lacanaria, G.R. No. 223665 27 Sept. (Ichong v. Hernandez, G.R. No. L-7995, 31 May 1957)
2021, J. Hernando)
XPN: Statutes may validly limit exclusively to
citizens the enjoyment of rights or privileges
C. EQUAL PROTECTION connected with public domain, the public works, or
the natural resources of the State. (Ichong v.
Hernandez, G.R. No. L-7995, 31 May 1957)
Concept of Equal Protection of Laws

NOTE: The rights and interests of the State in these
things are not simply political but also proprietary
All persons or things similarly situated should be
in nature and so citizens may lawfully be given
treated alike, both as to rights conferred and
preference over aliens in their use or enjoyment.
responsibilities imposed. It guarantees equality, not
(Ichong v. Hernandez, G.R. No. L-7995, 31 May 1957)
identity of rights. It does not forbid discrimination
as to persons and things that are different. What it
Rationale for allowing, in exceptional cases,
forbids are distinctions based on impermissible
valid classification based on citizenship
criteria unrelated to a proper legislative purpose, or
class or discriminatory legislation, which
Aliens do not naturally possess the sympathetic
discriminates against some and favors others when
consideration and regard for customers with whom
both are similarly situated.
they come in daily contact, nor the patriotic desire
to help bolster the nation’s economy, except insofar
NOTE: Classification has been defined as the
as it enhances their profit, nor the loyalty and
grouping of persons or things similar to each other
allegiance which the national owes to the land.
in certain particulars and different from all others in
These limitations on the qualifications of aliens have
these same particulars. (International Harvester Co.
been shown on many occasions and instances,
v. Missouri, 234 U.S. 199, 08 June 1914)
144
2023 GOLDEN NOTES
especially in times of crisis and emergency. (Ichong be related or connected to the victim by marriage,
v. Hernandez, G.R. No. L-7995, 31 May 1957) former marriage, or a sexual or dating relationship,
it does not preclude the application of the principle
1. REQUISITES FOR VALID CLASSIFICATION of conspiracy under the Revised Penal Code. (Garcia
v. Drilon, G.R. No. 179267, 25 June 2013)
The classification must:

Q: Sec. 5.23 of the Reproductive Health Law-IRR
provides that skilled health professional such as
1. Rest on substantial distinctions;
provincial, city or municipal health officers,
2. Be germane to the purpose of the law;
chiefs of hospital, head nurses, supervising
3. Not be limited to existing conditions only; and
midwives cannot be considered as conscientious
4. Apply equally to all members of the same class.
objectors. Is this provision unconstitutional?
(People v. Cayat, GR. No. L-45987, 05 May 1939)
A: YES. This is discriminatory and violative of the

Q: Rosalie Garcia filed a case against her
equal protection clause. The conscientious objection
husband, Jesus Garcia, for violation of R.A. No.
clause should be equally protective of the religious
9262. The RTC then issued a Temporary
belief of public health officers. There is no
Protection Order. Jesus argues that R.A. No. 9262
perceptible distinction why they should not be
violates the guarantee of equal protection
considered exempt from the mandates of the law.
because the remedies against personal violence
The protection accorded to other conscientious
that it provides may be invoked only by the
objectors should equally apply to all medical
wives or women partners but not by the
practitioners without distinction whether they
husbands or male partners even if the latter
belong to the public or private sector. After all, the
could possibly be victims of violence by their
freedom to believe is intrinsic in every individual
women partners. Does R.A. No. 9262 (VAWC)
and the protective robe that guarantees its free
violate the equal the protection clause of the
exercise is not taken off even if one acquires
Constitution?
employment in the government. (Imbong v. Ochoa,
G.R. No. 204819, 08 Apr. 2014)
A: NO. R.A. No. 9262 rests on substantial distinction.
There is an unequal power relationship between
Q: The New Central Bank Act created two
women and men and the fact that women are more
categories of employees: (1) Bangko Sentral ng
likely than men to be victims of violence and the
Pilipinas officers who are exempt from the
widespread gender bias and prejudice against
Salary Standardization Law (SSL) and (2) rank-
women all make for real differences justifying the
and-file employees with salary grade 19 and
classification under the law. The classification is
below who are not exempt from the SSL.
germane to the purpose of the law. The distinction
Subsequent to the enactment of the Act, the
between men and women is germane to the purpose
charters of the Land Bank of the Philippines and
of R.A. No. 9262, which is to address violence
all other Government Financial Institutions
committed against women and children.
(GFIs) were amended exempting all their
personnel, including the rank-and-file
There is likewise no merit to the contention that R.A.
employees, from the coverage of the SSL. BSP
No. 9262 singles out the husband or father as the
Employees Association filed a petition to
culprit. As defined above, VAWC may likewise be
prohibit the BSP from implementing the
committed "against a woman with whom the person
provision of the Act for they were illegally
has or had a sexual or dating relationship." Clearly,
discriminated against when they were placed
the use of the gender-neutral word "person" who
within the coverage of the SSL. Was there a
has or had a sexual or dating relationship with the
violation of the equal protection clause of the
woman encompasses even lesbian relationships.
Constitution?
Moreover, while the law provides that the offender
145
A: YES. In the field of equal protection, the statute must fall unless the government can show
guarantee that “no person shall be denied the equal that the classification serves a compelling
protection of the laws” includes the prohibition governmental interest.
against enacting laws that allow invidious
discrimination, directly or indirectly. If a law has the Second, the intermediate scrutiny test, when the
effect of denying the equal protection of the law, or classification, while not facially invidious, gives rise
permits such denial, it is unconstitutional. It is to recurring constitutional difficulties or
against this standard that the disparate treatment of disadvantages a quasi-suspect class. The law must
the BSP rank-and-file from the other GFIs cannot not only further an important government interest
stand judicial scrutiny. For, as regards the and be related to that interest. The justification
exemption from the coverage of the SSL, there exists must be genuine and must not depend on broad
no substantial distinction so as to differentiate the generalizations.
BSP rank-and-file from the other rank-and-file of
other GFIs. The challenged provision of the New Lastly, the rationality test, if neither the strict nor
Central Bank Act was facially neutral insofar as it did the intermediate scrutiny is appropriate, the statute
not differentiate between the rank-and-file will be tested for mere rationality. The presumption
employees of the BSP and the rank-and-file is in favor of the classification, the reasonableness
employees of other GFIs, and yet its effects, when and fairness of state action and of legitimate
taken in light of the exemption of the latter grounds of distinction. (UPLC Suggested Answers)
employees from the SSL, were discriminatory.
(Central Bank Employees Association, Inc., v. BSP, G.R. a) RATIONAL BASIS TEST
No. 148208, 15 Dec. 2004)
Rational Basis Test (Differential Review)
2. STANDARDS OF JUDICIAL REVIEW
The traditional test, which requires "only that
government must not impose differences in
Levels of Scrutiny (2015 BAR)
treatment except upon some reasonable
differentiation fairly related to the object of
Q: The Gay, Bisexual and Transgender Youth
regulation." Simply put, it merely demands that the
Association (GBTYA), an organization of gay,
classification in the statute reasonably relates to the
bisexual, and transgender persons, filed for
legislative purpose. (Garcia v. Drilon, G.R. No.
accreditation with the COMELEC to join the
179267, 25 June 2013)
forthcoming party-list elections. The COMELEC
denied the application for accreditation on the
b) STRICT SCRUTINITY TEST
ground that GBTY A espouses immorality which
offends religious dogmas. GBTY A challenges the
Strict Scrutiny Test
denial of its application based on moral grounds
because it violates its right to equal protection
This refers to the standard for determining the
of the law. (2015 BAR)
quality and the amount of governmental interest
brought to justify the regulation of fundamental
What are the three (3) levels of test that are
freedoms. Strict scrutiny is used today to test the
applied in equal protection cases? Explain.
validity of laws dealing with the regulation of
speech, gender, or race as well as other fundamental
A: The three levels of test applied in equal
rights as expansion from its earlier applications to
protection cases are as follows:
equal protection. (White Light Corporation v. City of
Manila, G.R. No. 122846, 20 Jan. 2009)
First, the strict scrutiny test which is applied when
the legislative classification disadvantages a subject
class or impinges upon a fundamental right, the
146
2023 GOLDEN NOTES
Applicability review. (Garcia v. Drilon, G.R. No. 179267, 25 June
2013)
It is applied when the challenged statute either:
a. Classifies on the basis of an inherently D. ARRESTS, SEARCHES, AND SEIZURES

suspect characteristic; or
b. Infringes fundamental constitutional rights;

Constitutional Requirements of a Valid Search
that all legal restrictions which curtail the
Warrant or Warrant of Arrest (J-P-O-P)
civil rights of a single racial group are
immediately suspect. (Central Bank
1. It must be issued upon determination of
Employees Association Inc. v. BSP, G.R. No.
Probable cause;
148208, 15 Dec. 2004)
2. The probable cause must be determined by

NOTE: That is not to say that all such
the Judge himself and not by the applicant
restrictions are unconstitutional. It is to say
or any other person;
that courts must subject them to the most
rigid scrutiny. The presumption of
3. In the determination of probable cause, the
constitutionality is reversed; that is, such
judge must examine, under Oath or
legislation is assumed to be unconstitutional
affirmation, the complainant and such
until the government demonstrates
witnesses as the latter may produce; and
otherwise. (Ibid.)
4. The warrant issued must Particularly

RATIONAL BASIS STRICT SCRUTINY
describe the place to be searched and
As to application
persons and things to be seized. (HPS
Applies to legislative Software and Communication Corporation
classifications in
and Yap v. PLDT, G.R. Nos. 170217 and
general, such as those
170694, 10 Dec. 2012)
pertaining to economic Applies to legislative
or social legislation, classifications affecting
NOTE: The right against unreasonable searches and
which do not affect fundamental rights or
seizures is personal and may be invoked only by the
fundamental rights of suspect classes. person entitled to it. Therefore, one who is not the
suspect classes; or is
owner or lessee of the premises searched, or who is
not based on gender or
not an officer of a corporation whose papers are
illegitimacy. seized, cannot challenge the validity of the search or
As to legislative purpose seizure. (Stonehill v. Diokno, G.R. No. L-19550, 19
Legislative purpose Legislative purpose June 1967)
must be legitimate. must be compelling.
As such, the right may be waived, either expressly or
c) INTERMEDIATE SCRUTINITY TEST impliedly, but the waiver must be made by the
person whose right is invaded, not by one who is not
Intermediate Scrutiny Test duly authorized to effect such waiver. (Lopez v.
Commissioner of Customs, 68 SCRA 320; People v.
It requires that the classification (means) must Malasugui; People v. Damaso, 212 SCRA 457) (People
serve an important governmental objective (ends) v. Damaso, 212 SCRA 457 as cited in Nachura, 2014)
and is substantially related to the achievement of
such objective. A classification based on sex is the
best-established example of an intermediate level of
147
Search Warrant vs. Warrant of Arrest b) SEARCH WARRANT
SEARCH WARRANT OF Search Warrant

WARRANT ARREST
As to personal examination by the Judge A search warrant is an order in writing issued in the
It is not necessary that name of the People of the Philippines, signed by a
The Judge must
the Judge should Judge and directed to a peace officer, commanding
personally examine in
personally examine the him to search for personal property described
the form of searching
complainant and his therein and bring it before the court. (Sec. 1, Rule
questions and answers,
witnesses; the judge 126, ROC)
in writing and under
would simply
oath, the complainant
personally review the A search may be conducted by law enforcers only on
and the witnesses he
initial determination of the strength of a search warrant validly issued by a
may produce on facts
the prosecutor to see if Judge. Articles which are the product of
personally known to
it is supported by unreasonable searches and seizures are
them.
substantial evidence. inadmissible as evidence. Search warrants to be
As to what is determined valid must particularly describe the place to be
The determination of searched and the persons or things to be seized.
probable cause (People v. Aruta, G.R. No. 120915, 03 Apr. 1998)
He merely determines
depends to a large
the probability, not the The right to be secure from unreasonable search
extent upon the finding
certainty of guilt of the may, like every right, be waived, and such waiver
or opinion of the judge
accused and, in so may be made either expressly or impliedly. (People
who conducted the
doing, he need not v. Malasugui, G.R. No. L-44335, 30 July 1936)
required examination
conduct a new hearing.
of the applicant and the
witnesses. General Warrants
These are warrants of broad and general

1. REQUISITES OF A VALID WARRANT
characterization or sweeping descriptions which
will authorize police officers to undertake a fishing
a) ARREST WARRANT expedition to seize and confiscate any and all kinds
of evidence or articles relating to an offense. (People
Arrest Warrant v. Modesto Tee, G.R. Nos. 140546-47, 20 Jan. 2003).
A warrant of arrest is issued by a judge after he had NOTE: General warrant is not allowed. It must be
determined the existence of a probable cause for the issued pursuant to a specific offense. (Stonehill v.
arrest of the accused, and to subsequently place the Diokno, G.R. No. L-19550, 19 June 1967)
accused in immediate custody so as not to frustrate
the ends of justice. In other words, a warrant is Purpose of Particularity of Description in Search
issued once the judge had determined that the Warrants
accused might have indeed committed the crime, is
not falsely charged therewith, and deserves to 1. Readily identify the properties to be seized and
undergo the tribulations, expenses, and anxiety of a thus prevent the peace officers from seizing
public trial. (Viudez II v. CA, G.R. No. 152889, 05 June the wrong items; and
2009)
2. Leave peace officers with no discretion
regarding the articles to be seized and thus
prevent unreasonable searches and seizures.
148
2023 GOLDEN NOTES
(Bache and Co. v. Ruiz, G.R. No. L-32409, 27 Feb. acquitted. (Nogales v. People, G.R. No. 191080, 21
1971) Nov. 2011)
Instances When the Particular Description Q: Judge Moira issued a search warrant against
Requirement is Complied With the home of Jason upon finding probable cause
to believe that the latter is in possession of
1. The description therein is as specific as the shabu. Upon conduct of the search, police
circumstances will ordinarily allow; (People v. officers found 9 grams of shabu and Jason was
Ely Policarpio y Natividad, G.R. No. 227868, 20 promptly arrested. Jason filed a motion to quash
Jan. 2021) the search warrant, on the ground that it was in
the nature of a general warrant. According to
2. The description expresses a conclusion of fact, him, the exact house number did not appear in
not of law, by which the warrant officer may be the warrant; and the warrant failed to
guided in making the search and seizure; distinguish his specific unit from the other units
(People v. Ely Policarpio y Natividad, G.R. No. or rooms representing the four other
227868, 20 Jan. 2021) or households inside the house, occupied by his
siblings. Is Jason correct?
3. The things described are limited to those
which bear direct relation to the offense for A: NO. The omission of the warrant to confine the
which the warrant is being issued. (People v. search to petitioner's unit is inconsequential and,
Ely Policarpio y Natividad, G.R. No. 227868, 20 therefore, does not affect the warrant's validity. The
Jan. 2021) units or rooms where Jason and his siblings lived all
form an integral part of the house, which was
Properties Subject to Seizure sufficiently described with particularity under the
warrant. The rooms inside the house, which were in
1. Property subject of the offense; (Sec. 3, Rule 126, fact occupied by family members of Jason, cannot be
ROC) treated separately as they form part of the house
where Jason actually resided. (Diaz v. People, G.R. No.
2. Stolen or embezzled property and other 213875, 15 July 2020, J. Hernando)
proceeds or fruits of the offense; or (Sec. 3, Rule
126, ROC) Nature of Search Warrant Proceedings
3. Property used or intended to be used as means The proceeding is not one against any person, but is
for the commission of an offense. (Sec. 3, Rule solely for the discovery and to get possession of
126, ROC) personal property. It is a special and peculiar
remedy, drastic in nature, and made necessary
NOTE: It is not necessary that the person named in because of public necessity. It resembles in some
the search warrant be the owner of the things respect with what is commonly known as John Doe
seized. Ownership is of no consequence. What is proceedings. (United Laboratories, Inc. v. Isip, G.R.
relevant is that the property is connected to an No. 163858, 28 June 2005)
offense. (Sec. 4, Rule 126, ROC)
Probable Cause
Seized items in violation of Art. 201 of the RPC, such
as immoral doctrines, obscene publications, and It requires facts and circumstances that would lead
indecent shows, can be destroyed even if the a reasonably prudent man to believe that an offense
accused was acquitted. P.D. 969 or An Act amending has been committed and that the objects sought in
Art. 201 mandates the forfeiture and destruction of connection with that offense are in the place to be
pornographic materials involved in the violation of searched. (HPS Software and Communications Corp.
Art. 201 of the RPC even if the accused was v. PLDT, G.R. Nos. 170217 and 170694, 10 Dec. 2012)
149
Such facts and circumstances antecedent to the conducted a preliminary examination to PO1
issuance of a warrant that in themselves are Geverola. Judge Balagot, then, issued Search
sufficient to induce a cautious man to rely on them Warrant after finding a probable cause for such
and act in pursuance thereof. (People v. Sy Juco, G.R. issuance. Thereafter, the aforementioned
No. 41957, 28 Aug. 1937) search warrant was served against petitioner.
Q: LPG Dealers Association and Total Gaz LPG Gabiosa filed a Motion to Quash Search Warrant
Dealers Association filed a letter-complaint and Suppression of Evidence claiming that the
before the NBI-IRO, requesting assistance in the issuance of the search warrant is grossly
surveillance, investigation, apprehension and violative of his fundamental constitutional and
prosecution of respondents for alleged illegal human right. The RTC denied the Motion to
trading of LPG products and/or underfilling, Quash Search Warrant and Suppression of
possession and/or sale of underfilled LPG Evidence. Gabiosa filed a Petition for Certiorari
products. The NBI-IRO - through its agent De with the CA, alleging that the RTC gravely abused
Jamil and undercover NBI asset Antonio its discretion in denying his motion to quash.
conducted surveillance and test-buy operations The CA granted Gabiosa's Petition for Certiorari.
and thereafter they filed two (2) applications for
Search Warrant to conduct a search of the Is the CA correct?
Magsingal LPG refilling plant. Can the personal
knowledge of the witnesses of the commission of A: NO. A warrant that justifies the intrusion, to be
the illegal trading and underfilling of LPG valid, must satisfy the following requirements:
products be a basis for determining probable 1. It must be issued upon “probable cause;”
cause in search warrant applications? 2. Probable cause must be determined
personally by the judge;
A: YES. A finding of probable cause needs only to 3. Such judge must examine under oath or
rest on evidence showing that, more likely than not, affirmation the complainant and the
a crime has been committed and that it was witnesses he may produce; and
committed by the accused. Probable cause demands 4. The warrant must particularly describe the
more than bare suspicion; it requires less than place to be searched and the persons or
evidence which would justify conviction. The judge, things to be seized.
in determining probable cause, is to consider the
totality of the circumstances made known to him NOTE: As to (3), the Court ruled that the word “and”
and not by a fixed and rigid formula, and must should not be strictly applied but must be in the
employ a flexible, totality of the circumstances context of “and/or.”
standard. Facts discovered during surveillance - on
the basis of information and evidence provided by At the heart of these requisites, however, is that the
petitioners - constitute personal knowledge which intrusion on a citizen's privacy — whether it be in
could form the basis for the issuance of a search his own person or in his house — must be based on
warrant. (Petron LPG Dealers Association v. Ang, G.R. probable cause determined personally by the judge.
No. 199371, 03 Feb. 2016) In other words, the magistrate authorizing the
State-sanctioned intrusion must therefore himself
Q: Police Superintendent Ajero applied for the or herself be personally satisfied that there is
issuance of a search warrant against Roberto probable cause to disturb the person's privacy.
Gabiosa, Sr. before the Executive Judge Balagot.
In support of his application, P/Supt. Ajero The purpose of the examination is to satisfy the
attached the Affidavit of his witness, Police judge that probable cause exists. Hence, it is
Officer 1 Rodolfo M. Geverola. On the basis of the immaterial in the grander scheme of things whether
above-quoted Affidavit, Judge Balagot the judge examined the complainant only, or the
150
2023 GOLDEN NOTES
witness only, and not both the complainant and the Tipped Information is Not Sufficient to
witness/es. The primordial consideration here is Constitute Probable Cause
that the judge is convinced that there is probable
cause to disturb the individual’s privacy. (People v. In People v. Sapla (G.R. No. 244045, 16 June 2020) the
Gabiosa, G.R. No. 248395, 29 Jan. 2020) Court held that probable cause justifying an
intrusive warrantless search and seizure cannot
Personal knowledge possibly arise from double hearsay evidence and
from an irregularly-received tipped information. A
1. The person to be arrested must execute an reasonably discreet and prudent man will surely not
overt act indicating that he had just believe that an offense has been committed and that
committed, is actually committing, or is the item sought in connection with said offense are
attempting to commit a crime; and (Sec. 5, in the place to be searched based solely on the say-
Rule 113, ROC) so of an unknown duty guard that a random,
unverified text message was sent to an unofficial
2. Such overt act is done in the presence or mobile phone by a complete stranger. Therefore,
within the view of the arresting officer. (Sec. with the glaring absence of probable cause that
5, Rule 113, ROC) justifies an intrusive warrantless search,
considering that the police officers failed to rely on
NOTE: Initial hearsay information or tips from their personal knowledge and depended solely on
confidential informants could very well serve as an unverified and anonymous tip, the warrantless
basis for the issuance of a search warrant, if search conducted on accused-appellant Sapla was
followed up personally by the recipient and an invalid and unlawful search of a moving vehicle.
validated. Looking at the records, it is clear that
Padilla and his companions were able to personally Q: An officer on duty received a call from a
verify the tip of their informant. The evidence on concerned citizen, who informed them that one
record clearly shows that the applicant and male individual would be transpiring marijuana
witnesses were able to verify the information from Kalinga into Isabela. Their hotline received
obtained from their confidential source. The a text message, stating that the subject male
evidence likewise shows that there was probable person was wearing a collared white shirt with
cause for the issuance of a search warrant. Thus, the green stripes, red ball cap, and was carrying a
requirement of personal knowledge of the applicant blue sack on board a passenger jeepney, with
and witnesses was clearly satisfied in this case. plate number AYA 270 bound for Roxas, Isabela.
(Microsoft Corp. v. Farajallah, G.R. No. 205800, 10 A joint checkpoint was organized.
Sept. 2014)
When the passenger jeepney arrived, the police
Mere “Reliable Information” Alone Will Not officers flagged it down. The officers approached
Satisfy the “Personal Knowledge” Requirement the jeepney and saw Mr. S. They asked him if he
was the owner of the blue sack in front of him,
The long-standing rule in this jurisdiction, applied which he answered in the affirmative. Said
with a great degree of consistency, is that “reliable officers then requested for him to open it. Upon
information” alone is not sufficient to justify a complying, they saw four (4) bricks of suspected
warrantless arrest under Sec. 5(a), Rule 113. The dried marijuana leaves. Mr. S was arrested. The
rule requires, in addition, that the accused perform laboratory examination later revealed that it
some overt act that would indicate that he “has was indeed marijuana, a dangerous drug. Mr. S
committed, is actually committing, or is attempting was then charged with a violation of Sec. 5 of R.A.
to commit an offense.” (People v. Tudtud, G.R. No. 9165.
144037, 26 Sept. 2003)
Was there a valid warrantless search of a
moving vehicle?
151
A: NO. Peace officers in warrantless search and determining the validity of a search is the place
seizure of moving vehicles are limited to routine stated in the warrant itself, not what applicants had
checks where the examination of the vehicle is in their thoughts, or had represented in the proofs
limited to visual inspection. Extensive search of a they submitted to the court issuing the warrant.
vehicle is permissible only when the officers made it (People v. CA, 291 SCRA 400, 26 June 1998)
upon probable cause.
Time of Making Arrest
In this case, the singular circumstance that
engendered probable cause on the part of the police An arrest may be made on any day and at any time
officers was the information received through the of the day or night. (Sec. 6, Rule 113, ROC) Thus, in a
RPSB Hotline from an anonymous person. This does case where a respondent judge was accused for
not suffice to create probable cause that enables the grave abuse of authority for the issuance of warrant
authorities to conduct an extensive and intrusive of arrest on a Friday to ensure complainant’s
search without a search warrant. incarceration for two days, the Supreme Court
stated that the said judge cannot be held liable
In situations involving warrantless searches and because nowhere in the Rules or in our
seizures, "law enforcers cannot act solely on the jurisprudence can we find that a warrant of arrest
basis of confidential or tipped information. A tip is issued on a Friday is prohibited. (Colorado v.
still hearsay no matter how reliable it may be. It is Agapito, A.M. No. MTJ-06-1658, 03 July 2007)
not sufficient to constitute probable cause in the
absence of any other circumstance that will arouse In Uy v. People (G.R. No. 217097, 23 Feb. 2022, J.
suspicion. (People of the Philippines v. Jerry Sapla, Hernando) the Court held that while it is true that
G.R. No. 244045, 16 June 2020) the root of the encounter of the police officers and
the petitioner was due to the mobile check point in
A police officer cannot amplify or modify what implementation of the COMELEC gun ban, the arrest
has been set out in the warrant was not made by reason of the COMELEC gun ban or
any traffic violation. Instead, it was in light of
Such a change is proscribed by the Constitution petitioner's failure to present his OR/CR, which
which requires a search warrant to particularly raised suspicions on the part of the police officers,
describe the place to be searched; otherwise, it prompting them to inquire further and look into the
would open the door to abuse of the search process, motor vehicle, on the theory that petitioner might
and grant to officers executing the search that be committing a crime or the motor vehicle itself is
discretion which the Constitution has precisely the subject of the crime already committed. The
removed from them. consequent search conducted by the police officers
led to the confiscation of marijuana from petitioner.
The particularization of the description of the place Although as a general rule, motorists as well as
to be searched may properly be done only by the pedestrians passing through checkpoints may only
judge, and only in the warrant itself; it cannot be left be subjected to a routine inspection, vehicles may
to the discretion of the police officers conducting the also be stopped to allow authorized personnel to
search. conduct an extensive search when there is probable
cause which justifies a reasonable belief on the part
It is neither fair nor licit to allow police officers to of the law enforcers that either the motorist is a law
search a place different from that stated in the offender, or that the contents of the vehicle are, or
warrant on the claim that the place actually have been, instruments of some offense.
searched — although not that specified in the
warrant — is exactly what they had in view when
they applied for the warrant and had demarcated in
their supporting evidence. What is material in
152
2023 GOLDEN NOTES
2. WARRANTLESS ARRESTS AND DETENTION a. from a penal establishment or place

where he is serving final judgment or is
temporarily confined while his case is
Valid Warrantless Arrest
pending; or
An arrest can be made by a peace officer or a private

b. While being transferred from one
person without a warrant in the following instances:
confinement to another. (Sec. 5, Rule 113,
ROC)
1. “In flagrante delicto” arrest: when
a. The person to be arrested must execute
NOTE: Should an arrest be made not in accordance
an overt act indicating he has just
with the above rules, or otherwise put, if the arrest
committed, is actually committing, or is
is not lawfully warranted, such apprehension will be
attempting to commit a crime; and
declared illegal, and the arresting officers may be
prosecuted for the crime of Arbitrary Detention
b. Such overt act is done in the presence or
under Art. 124 of the RPC, which penalizes any
within the view of the arresting officer.
public officer or employee who, without legal
(Valdez v. People, G.R. No. 170180, 23 Nov.
grounds, detains a person. This is in addition to such
2007)
other crimes or offenses that may be committed in
the course of the illegal apprehension and
2. “Hot pursuit” arrest: when
detention. (Art. 124, RPC)
a. An offense has just been committed; and
b. The arresting officer has probable cause
In cases falling under pars. (1) and (2) justifying
to believe based on personal knowledge
warrantless arrests, the person arrested without a
of facts or circumstances that the person
warrant shall be delivered to the nearest police
to be arrested has committed it. (Pestilos v
station for the conduct of inquest proceedings.
Generoso, G.R. No. 182601, 10 Nov. 2014)
When a person is lawfully arrested without a
and
warrant involving an offense which requires a
preliminary investigation, inquest by the public
NOTE: That a crime was in fact committed does
prosecutor will follow instead of a regular
not automatically bring the case under “hot
preliminary investigation. (Sec. 7, Rule 112, ROC)
pursuit” arrests. There must be “probable
cause” and there must be “immediacy” in the
Waiver of Right Against Unlawful Arrests and
time frame from the commission of the crime.
Illegal Searches
(Verdiano v. People, G.R. No. 200370, 07 June
2017)
A waiver of the rights against illegal arrest, however,
is not a waiver of an illegal search. Records have
The existence of “probable cause” is the
established that both the arrest and the search were
“objectifier” or the determinant on how the
made without a warrant. While the accused has
arresting officer shall proceed on the facts and
already waived his right to contest the legality of his
circumstances, within his personal knowledge,
arrest, he is not deemed to have equally waived his
for purposes of determining whether the
right to contest the legality of the search. (Alcaraz v.
person to be arrested has committed the crime.
People, G.R. No. 199042, 17 Nov. 2014)
The “probable cause” for arresting officers is
distinct from the “probable cause” for public
Detention
prosecutors and judges. (Pestilos v. Generoso,
G.R. No. 182601, 10 Nov. 2014)
It is the actual confinement of a person in an
enclosure, or in any manner detaining and depriving
3. Escaped prisoner – When the person to be
him of his liberty. (People v. Gungon, G.R. No. 119574,
arrested is a prisoner who has escaped
19 Mar. 1998)
153
A person is detained when he is in confinement or duress or coercion. (Caballes v. CA, G.R. No.
there is a restraint in his person. (Reyes, 2017) 136292, 15, Jan. 2002) (2015 BAR)
3. WARRANTLESS SEARCHES 7. Customs search;
8. Searches of vessels and aircraft for violation of

Valid Warrantless Searches (2015, 2009, 2000
immigration and drug laws;
BAR)
9. Searches of buildings and premises to enforce

1. Visual search is made of moving vehicles at
fire, sanitary, and building regulations; and
checkpoints; (People v. Sapla, G.R. No. 244045,
16 June 2020)
10. Exigent and emergency circumstances. (People
v. De Gracia, G.R. Nos. 102009-19, 06 July 1994)
2. Search is an incident to a valid arrest; (Ibid.)
MOVING VEHICLES AT CHECKPOINTS

NOTE: An officer making an arrest may take
from the person: (F-UC-M-E)
Motorists and Their Vehicles Passing Through
Checkpoints May Also be Stopped and
a. Any money or property found upon his
Extensively Searched
person which was Used in the Commission
of the offense;
While, as a rule, motorists and their vehicles passing
through checkpoints may only be subjected to a
b. Was the Fruit thereof;
routine inspection, vehicles may be stopped and
extensively searched when there is probable cause
c. Which might furnish the prisoner with the
which justifies a reasonable belief among those at
Means of committing violence or escaping;
the checkpoints that either the motorist is a law
and
offender, or the contents of the vehicle are or have
been instruments of some offense. (People v.
d. Which might be used as Evidence in the
Vinecario, G.R. No. 141137, 20 Jan. 2004)
trial of the case. (Moreno v. Ago Chi, G.R. No.
4680, 09 Jan. 1909)
Requisites For a Valid Searches in Checkpoints
3. Search of passengers made in airports; (People

Searches conducted in checkpoints are lawful,
v. O’Cochlain, G.R. No. 229071, 10 Dec. 2018)
provided the checkpoint complies with the
following requisites: (Pro-S-Vi)
4. When things seized are within plain view of a
searching party (Plain View Doctrine); (Ibid.)
1. The establishment of checkpoint must be
Pronounced;
5. Stop and frisk (Terry search); (Ibid.)
2. It must be Stationary, not roaming; and

6. When there is a valid express waiver made
voluntarily and intelligently. (Ibid.)
3. The search must be limited to Visual search
and must not be an intrusive search. (Virgilio
NOTE: Consent to a search is not to be lightly
Evardo y Lopena v. People, G.R. No. 234317,
inferred but shown by clear and convincing
10 May 2021)
evidence. Consent must also be voluntary to
validate an otherwise illegal search; that is, the
NOTE: Not all searches and seizures are prohibited.
consent must be unequivocal, specific,
Between the inherent right of the State to protect its
intelligently given, and uncontaminated by any
154
2023 GOLDEN NOTES
existence and promote public welfare and an of a motorist detained pursuant to a routine
individual’s right against warrantless search which traffic stop be considered a formal arrest?
is however reasonably conducted, the former
should prevail. A: NO. The time he was waiting for Alteza to write
his citation ticket may be characterized as waiting
A checkpoint is akin to a stop-and-frisk situation time. Luz could not be said to have been under
whose object is either to determine the identity of arrest. There was no intention on the part of Alteza
suspicious individuals or to maintain the status quo to arrest him, deprive him of his liberty, or take him
momentarily while the police officers seek to obtain into custody. In fact, Alteza himself testified that it
more information. (Valmonte v. De Villa, G.R. No. was only for the sake of convenience that they were
83988, 29 Sept. 1989) waiting at the sub-station. (Luz v. People of the
Philippines, G.R. No. 197788, 29 Feb. 2012)
Checkpoint Rules Under LTO Code (R.A. No.
4136) INCIDENT TO A VALID ARREST
There is nothing in LTO Code that authorized Q: While sleeping in his room, Kel was arrested
checkpoint-manning policemen to order a driver by virtue of a warrant of arrest and he was
and his companions to get out of the vehicle for a dragged out of the room. Thereafter, some
vehicle and body search. It bears to emphasize that police officers ransacked the locked cabinet
there was no reasonable suspicion of the occurrence inside the room where they found a firearm and
of a crime that would allow what jurisprudence ammunition. Are the warrantless search and
refers to as a “stop and frisk” action. seizure of the firearm and ammunition justified
as an incident to a lawful arrest?
In one case, the police officers asked the petitioner
to get out of the vehicle not because he has A: NO. The scope of the warrantless search is not
committed a crime, but because of their intention to without limitations. A valid arrest allows the seizure
invite him to the police station so he could rest of evidence or dangerous weapons either on the
before he resumes driving. But instead of a tactful person of the one arrested or within the area of his
invitation, the apprehending officers, in an act immediate control. The purpose of the exception is
indicative of overstepping of their duties, dragged to protect the arresting officer from being harmed
the petitioner out of the vehicle and, in the process by the person arrested, who might be armed with a
of subduing him, pointed a gun and punched him on concealed weapon, and to prevent the latter from
the face. destroying evidence within reach. In this case,
search was made in the locked cabinet which cannot
The policemen claimed that they did that to subdue be said to have been within Kel's immediate control.
the 55 year-old petitioner. It was ruled that the Thus, the search exceeded the bounds of what may
actions of the police officers were done in excess of be considered as an incident to a lawful arrest.
their authority granted under R.A. No. 4136. (Sydeco (Valeroso v. CA, G.R. No. 164815, 03 Sept. 2009)
v. People, G.R. No. 202692, 12 Nov. 2014)
Q: A buy-bust operation was conducted in DM’s
Q: Luz was flagged down by PO3 Alteza for store. Police Officer CA Tandoc posed as a buyer
driving a motorcycle without a helmet. Alteza and bought marijuana from DM. After the
invited Luz to their substation and while issuing exchange of marked money and marijuana,
a citation ticket for violation of municipal Tandoc arrested DM without a warrant. The
ordinance, Alteza was alerted by the latter’s other police officer searched the store and
uneasy movement and asked him to put out the seized a plastic container containing six
contents of the pocket of his jacket. It was marijuana stocks. Thereafter, DM was charged
revealed that Luz was in possession of with selling marijuana. Is the warrantless
prohibited drugs. Can the roadside questioning seizure of marijuana legal?
155
A: YES. The search being an incident to a lawful that he or she may be bound to answer for the
arrest, it needed no warrant for its validity. The commission of an offense. It is effected by an actual
accused having been caught in flagrante delicto, the restraint of the person to be arrested or by that
arresting officers were duty bound to apprehend person’s voluntary submission to the custody of the
her immediately. The warrantless search and one making the arrest. Neither the application of
seizure, as an incident to a lawful arrest, may extend actual force, manual touching of the body, or
to include the premises under the immediate physical restraint, nor a formal declaration of arrest,
control of the accused. The accused may not is required. It is enough that there be an intention
successfully invoke the right against a warrantless on the part of one of the parties to arrest the other,
search, even as regards the plastic container with and that there be an intent on the part of the other
dried marijuana leaves found on the table in his to submit, under the belief and impression that
store. (People v. Salazar, G.R. No. 98060, 27 Jan. 1997) submission is necessary.
Q: A police officer flagged down a rider for At the time that he was waiting for the police officer
driving without a helmet. The police officer to write his citation ticket, appellant could not be
invited the rider to come inside their sub-station said to have been under arrest. There was no
located near the area. While issuing a citation intention on the part of the former to arrest him,
ticket for violation of a municipal ordinance, the deprive him of his liberty, or take him into custody.
police officer noticed that the accused was Prior to the issuance of the ticket, the period during
uneasy and kept on reaching something from his which appellant was at the police station may be
jacket. He then asked the rider to take out the characterized merely as waiting time. In fact, as
contents of his jacket’s pocket. It turned out, the found by the trial court, the only reason they went
rider has in his possession two plastic sachets of to the police sub-station was that appellant had
suspected shabu. The RTC convicted him of been flagged down almost in front of that place.
illegal possession of dangerous drugs since he Hence, it was only for the sake of convenience that
had been lawfully arrested for a traffic violation they were waiting there. There was no intention to
and then subjected to a valid search, which led take him into custody.
to the discovery on his person of two (2) plastic
sachets of shabu. On appeal, the CA affirmed the It also appears that, according to City Ordinance No.
RTC’s Decision. 98-012, which was violated by appellant, the failure
to wear a helmet while riding a motorcycle is
In his appeal to the SC, the rider claims that penalized by a fine only. Under the ROC, a warrant
there was no lawful search and seizure, because of arrest need not be issued if the information or
there was no lawful arrest since he was not even charge was filed for an offense penalized by a fine
issued a citation ticket or charged with violation only. It may be stated as a corollary that neither can
of the city ordinance. Even assuming that there a warrantless arrest be made for such an offense.
was a valid arrest, he claims that he had never
consented to the search conducted upon him. There being no valid arrest, the warrantless search
that resulted from it was likewise illegal. (Rodel Luz
Should the rider-appellant’s contention be v. People, G. R. No. 197788, 29 Feb. 2012)
upheld?
SEARCH OF PASSENGERS MADE IN AIRPORTS
A: YES. There was no valid arrest of appellant. When
he was flagged down for committing a traffic Q: Star was a lady frisker whose duty is to frisk
violation, he was not, ipso facto and solely for this departing passengers, employees, and crew and
reason, arrested. check for weapons, bombs, prohibited drugs,
contraband goods, and explosives. When she
Arrest is the taking of a person into custody in order frisked Rochelle, a boarding passenger, she felt
156
2023 GOLDEN NOTES
something hard on Rochelle’s abdominal area to eye and hand, and its discovery inadvertent.
which was later found to be three packs of (Fajardo v. People, G.R. No. 190889, 10 Jan. 2011)
shabu. Can Rochelle invoke a violation of the
search and seizure clause? NOTE: Plain View Doctrine cannot be applied where
there was no evidence in plain view of law enforcers
A: NO. Persons may lose the protection of the search serving the search warrant. (United Laboratories,
and seizure clause by exposure of their persons or Inc. v. Isip, G.R. No. 163858, 28 June 2005)
property to the public in a manner reflecting a lack
of subjective expectation of privacy, which Q: Kwino, a drug pusher was entrapped in a buy-
expectation society is prepared to recognize as bust operation. He led the police officers to the
reasonable. Such recognition is implicit in airport house of Carlo Ray, his supposed associate and
security procedures. With increased concern over his house was searched. A cardboard box with
airplane hijacking and terrorism has come bricks of marijuana inside was found in her
increased security at the nation’s airport. (People v. residence. However, Carlo Ray’s warrantless
Johnson, G.R. No. 138881, 18 Dec. 2000) arrest was declared illegal by the court. It
follows that the search of his person and home
PLAIN VIEW and the subsequent seizure of the marked bills
and marijuana cannot be deemed legal as an
Plain View Doctrine (2012 BAR) incident to her arrest. Was the marijuana in the
cardboard box in plain view during the search,
Under the plain view doctrine, objects falling in the making the warrantless seizure valid and
"plain view" of an officer, who has a right to be in the acceptable in evidence?
position to have that view, are subject to seizure and
may be presented as evidence. (Abraham Miclat v. A: NO. The law enforcement officer must lawfully
People, G.R. No. 176077, 31 Aug. 2011) make an initial intrusion or properly be in a position
from which he can particularly view the area. In the
Plain View Doctrine Requisites (J-I-A) course of such lawful intrusion, he came
inadvertently across a piece of evidence
1. The law enforcement officer in search of the incriminating the accused. The object must be open
evidence has a prior Justification for an to eye and hand and its discovery inadvertent.
intrusion or is in a position from which he
can view a particular area; It is clear that an object is in plain view if the object
itself is plainly exposed to sight. The difficulty arises
2. The discovery of the evidence in plain view when the object is inside a closed container. Where
is Inadvertent; and the object seized was inside a closed package, the
object itself is not in plain view and therefore cannot
3. It is immediately Apparent to the officer be seized without a warrant. However, if the
that the item he observes may be evidence package proclaims its contents, whether by its
of a crime, contraband, or otherwise distinctive configuration, its transparency, or if its
subject to seizure. (Dominguez v. People, contents are obvious to an observer, then the
G.R. No. 235898, 13 Mar. 2019) contents are in plain view and may be seized.
(People v. Doria, G.R. No. 125299, 22 Jan. 1999)
The law enforcement officer must lawfully make an
initial intrusion or properly be in a position from Q: Sgt. Victorino Noceja and Sgt. Alex de Castro,
which he can particularly view the area. In the while on a routine patrol in Pagsanjan, Laguna,
course of such lawful intrusion, he came spotted a passenger jeep unusually covered with
inadvertently across a piece of evidence "kakawati" leaves. Suspecting that the jeep was
incriminating the accused. The object must be open loaded with smuggled goods, the two police
officers flagged down the vehicle driven by
157
Rudy. The police officers then checked the cargo weapons concealed. (Malacat v. CA, G.R. No. 123595,
and they discovered bundles of 3.08 mm 12 Dec. 1997)
aluminum/galvanized conductor wires
exclusively owned by National Power NOTE: “Stop and frisk” searches (sometimes
Corporation (NPC). Police officers took Rudy referred to as Terry searches) are necessary for law
into custody and seized the conductor wires. enforcement. That is, law enforcers should be given
Was Rudy’s right against unreasonable searches the legal arsenal to prevent the commission of
and seizures violated when the police officers offenses. However, this should be balanced with the
searched his vehicle and seized the wires found need to protect the privacy of citizens in accordance
therein without a search warrant? with Sec. 2, Art. III of the 1987 Constitution. (People
v. Cogaed, G.R. No. 200334, 30 July 2014)
A: YES. When a vehicle is stopped and subjected to
an extensive search, such a warrantless search The balance lies in the concept of “suspiciousness”
would be constitutionally permissible only if the present in the situation where the police officer
officers conducting the search have reasonable or finds himself or herself in. This may be undoubtedly
probable cause to believe, before the search, that based on the experience of the police officer.
either the motorist is a law-offender, or they will Experienced police officers have personal
find the instrumentality or evidence pertaining to a experience dealing with criminals and criminal
crime in the vehicle to be searched. behavior. Hence, they should have the ability to
discern — based on facts that they themselves
However, the fact that the vehicle looked suspicious observe — whether an individual is acting in a
simply because it is not common for such to be suspicious manner. Clearly, a basic criterion would
covered with kakawati leaves does not constitute be that the police officer, with his or her personal
"probable cause" as would justify the conduct of a knowledge, must observe the facts leading to the
search without a warrant. Furthermore, the police suspicion of an illicit act. (People v. Cogaed, G.R. No.
authorities did not claim to have received any 200334, 30 July 2014)
confidential report or tipped information that Rudy
was carrying stolen cable wires in his vehicle which In Manalili v. CA, (G.R. No. 113447, 09 Dec. 1997), the
could otherwise have sustained their suspicion. police officers were initially informed about a place
frequented by people abusing drugs. When they
It cannot likewise be said that the cable wires found arrived, one of the police officers saw a man with
in Rudy's vehicle were in plain view, making its “reddish eyes and who was walking in a swaying
warrantless seizure valid. The cable wires were not manner.” The suspicion increased when the man
exposed to sight because they were placed in sacks avoided the police officers. These observations led
and covered with leaves. The articles were neither the police officers to conclude that the man was high
transparent nor immediately apparent to the police on drugs. These were sufficient facts observed by
authorities. (Caballes v. CA, G.R. No. 136292, 15 Jan. the police officers “to stop the petitioner and
2002) investigate.”
STOP AND FRISK In People v. Solayao, (G.R. No. 119220, 20 Sept. 1996),
police officers noticed a man who appeared drunk.
Stop-and-Frisk Search (2012, 2009 BAR) This man was also "wearing a camouflage uniform
or a jungle suit." Upon seeing the police, the man
Limited protective search of outer clothing for fled. His flight added to the suspicion. After stopping
weapons. Probable cause is not required but a him, the police officers found an unlicensed
genuine reason must exist in light of a police homemade firearm in his possession. Under the
officer’s experience and surrounding conditions to circumstances, the government agents could not
warrant the belief that the person detained has
158
2023 GOLDEN NOTES
possibly have procured a search warrant first. This A: The contention of Ernesto’s lawyer is correct. The
was also considered a valid search. warrantless search of motor vehicles at checkpoints
should be limited to a visual search. Its occupants
Q: Ernesto, a minor, while driving a motor should not be subjected to a body search (Aniag, Jr.
vehicle, was stopped at a mobile checkpoint. v. COMELEC, G.R. No. 104961, 07 Oct. 1994)
Noticing that Ernesto is a minor, SPOl Jojo asked
Ernesto to exhibit his driver's license but The “stop and frisk rule” applies when a police
Ernesto failed to produce it. SPOI Jojo requested officer observes suspicious activity or unusual
Ernesto to alight from the vehicle and the latter activity which may lead him to believe that a
acceded. Upon observing a bulge in the pants of criminal activity may be afoot. The “stop and frisk”
Ernesto, the policeman frisked him and found an is merely a limited protective search for outer
unlicensed .22-caliber pistol inside Ernesto's clothing for weapons
right pocket. Ernesto was arrested, detained and
charged. At the trial, Ernesto, through his b) The arrest made as a consequence of the
lawyer, argued that, policemen at mobile invalid search was likewise illegal,
checkpoints are empowered to conduct nothing because an unlawful act (the search)
more than a ''visual search". They cannot order cannot be made the basis of a lawful
the persons riding the vehicle to alight. They arrest.
cannot frisk or conduct a body search of the
driver or the passengers of the vehicle. A: Since there was no valid warrantless arrest, the
warrantless search was also illegal. The unlicensed
Ernesto's lawyer thus posited that: .22 caliber pistol is inadmissible in evidence. (Luz v.
People, G.R. No. 197788, 29 Feb. 2012)
a) The search conducted in violation of the
Constitution and established CUSTOMS SEARCH
jurisprudence was an illegal search;
thus, the gun which was seized in the Q: Five (5) foreign nationals arrived at the NAIA
course of an illegal search is the "fruit of from Hong Kong. After retrieving their checked-
the poisonous tree" and is inadmissible in luggage, they placed all their bags in one
in evidence. pushcart and proceeded to Express Lane 5. They
were instructed to place their luggage on the
b) The arrest made as a consequence of the examiner's table for inspection.
invalid search was likewise illegal,
because an unlawful act (the search) The examiner found brown-colored boxes,
cannot be made the basis of a lawful similar in size to powdered milk boxes,
arrest. underneath the clothes inside the foreigners'
bags. The examiner discovered white crystalline
Rule on the correctness of the foregoing substances inside the boxes that he inspected
arguments, with reasons (2016 BAR) and proceeded to bundle all of the boxes by
putting masking tape around them. He
a) The search conducted in violation of the thereafter handed the boxes over to Bureau of
Constitution and established Customs agents. The agents called out the names
jurisprudence was an illegal search; of the foreigners one by one and ordered them
thus, the gun which was seized in the to sign their names on the masking tape placed
course of an illegal search is the "fruit of on the boxes recovered from their respective
the poisonous tree" and is inadmissible bags. The contents of the boxes were thereafter
in evidence. subjected to tests which confirmed that the
substance was shabu.
159
Can the shabu found inside the boxes be
admitted in evidence against the five foreigners The random drug testing
for the charge of illegal possession of drugs in would be undertaken in such a
violation of the Comprehensive Dangerous manner as to protect the
Drugs Act of 2002? (2018 BAR) privacy of the employees
involved. Also, the privacy
A: YES, shabu obtained in ordinary customs interest in an office is
searches such as those done in airport, which is a circumscribed by the
valid warrantless search, are admissible in company’s work policies,
evidence. (Dela Cruz v. People G.R. 209387, 11 Jan. CBAs, and the right of the
2016) employer to maintain
discipline and efficiency in the
EXIGENT AND EMERGENCY CIRCUMSTANCES workplace. The right to
privacy must yield to the
In People v. de Gracia (G. R. Nos. 102009-10, 06 July necessary and reasonable
1994), the raid of, and the consequent seizure of requirements of police power.
firearms and ammunition in, the Eurocar Sales Constitutional
Office at the height of the December 1989 coup
d’etat was held valid, considering the exigent and It is within the prerogative of
emergency situation obtaining. The military schools to require compliance
operatives had reasonable ground to believe that a with reasonable school
crime was being committed, and they had no regulations, as a condition for
opportunity to apply for a search warrant from the admission or enrollment. The
courts because the latter were closed. Under such court found: a. Schools and
urgency and exigency, a search warrant could be their administrators stand in
validly dispensed with. loco parentis with respect to
their students; b. Minor
4. ADMINISTRATIVE ARRESTS students have contextually
fewer rights than an adult, and
Students are subject to the custody and
Mandatory Drug Test
supervision of their parents,
guardians, and schools; c.
Sec. 36, R.A. No. 9165 requires mandatory drug
Schools, acting in loco parentis,
testing of candidates for public office, students of
have a duty to safeguard the
secondary and tertiary schools, officers and
health and well-being of their
employees of public and private offices, and persons
students and may adopt such
charged before the prosecutor’s office with certain
measures as may reasonably
offenses.
be necessary to discharge such
duty; and d. Schools have the
The right to privacy has been accorded as a facet of
right to impose conditions on
the right to unreasonable searches and seizures.
applicants for admission that
are fair, just, and non-
Unconstitutional
discriminatory.
Candidates for Constitutional
A law cannot provide Persons
Constitutional
additional qualifications other charged
Offices Defendants in a criminal
than those outlined in the before the
complaint are not randomly
Constitution. public
picked; neither are they
Employees Constitutional
160
2023 GOLDEN NOTES
prosecutor's beyond suspicion. Certain omission constituted a waiver of protection. (People
office persons are singled out and v. Exala, G.R. No. 76005, 23 Apr. 1993)
are impleaded against their
will, making a medical test a Effects of Unreasonable Searches and Seizures
tool for criminal prosecution.
(Social Justice Society v. Dangerous Drugs Board, G.R. Any evidence obtained in violation of the right
Nos. 157870, 158633, 161658, 03 Nov. 2008; citing against unreasonable searches and seizures shall be
Vernonia School District v. Acton, 515 U.S. 64, 26 June inadmissible for any purpose in any proceeding.
1995) (Sec. 3 (2), Art. III, 1987 Constitution)
5. EXCLUSIONARY RULE NOTE: If the illegally seized object is a subject of

litigation, it will remain in custodia legis until the
case is terminated. (Bagalihog v. Fernandez, G.R. No.
Exclusionary Rule (“The Fruit of the Poisonous
96356, 27 June 1991)
Tree Doctrine”)
Q: Can the exclusionary rule be applied as
This rule prohibits the issuance of general warrants
against private individuals who violate the right
that encourage law enforcers to go on fishing
to privacy?
expeditions. Evidence obtained through unlawful
seizures should be excluded as evidence because it
A: YES. Although generally, the Bill of Rights can
is "the only practical means of enforcing the
only be invoked against violations of the
constitutional injunction against unreasonable
government, the Court has recognized an instance
searches and seizures." It ensures that the
where it may also be applied as against a private
fundamental rights to one’s person, houses, papers,
individual. Letters of a husband’s paramour kept
and effects are not lightly infringed upon and are
inside the husband’s drawer, presented by the wife
upheld. (People v. Romana, G.R. No. 200334, 30 July
in the proceeding for legal separation, is not
2014)
admissible in evidence The reason is that marriage
does not divest one of his/her right to privacy of
GR: Any evidence obtained in violation of the
communication. (Zulueta v. CA, G.R. No. 107383, 20
Constitution shall be inadmissible for any purpose
Feb. 1996)
in any proceeding. (Sec. 3(2), Art. III, 1987
Constitution)
Q: Police officers responded to a shooting
incident involving an alias “Apaw.” When they
XPNs:
went to Apaw’s residence they saw Guico rode
1. In the absence of any governmental
his motorcycle out of the surrounded area and
interference, the protection guaranteed by the
despite being accosted by the police, just sped
Constitution cannot be invoked against the
on. The police chased and eventually caught
State; (People v. Marti, G.R. No. 81561, 18 Jan.
Guico. A packet of what turned out to be shabu
1991)
was found in his possession. Guico tested
positive for drug use and was charged with
2. It may be used in judicial or administrative
illegal possession of dangerous drugs. The RTC
action that may be filed against the erring
convicted him of the crime but the CA acquitted
officer; or (Cruz and Cruz, 2015)
him, holding that the shabu seized from him was
inadmissible in evidence as he was
3. There is an express or implied waiver. (People v.
apprehended and searched without a warrant
Malasugui, G.R. No. 44335. 30 July 1936)
for either intrusion. Despite Guico’s acquittal
occasioned by the inadmissibility of evidence
NOTE: If the accused did not raise the issue of
against him, OCA wanted to hold him liable for
admissibility against him before arraignment, such
161
grave misconduct and have him dismissed from The private home is enclosed by a gate and is
service. Is the OCA correct? equipped with security cameras.
A: NO. The exclusionary rule in Sec. 3 (2), Art. III of In the private home's garage, the police officers
the 1987 Constitution is not only limited to evidence found the driver's car, along with two other cars
directly obtained in violation of the right against which matched police records of previously
unreasonable searches and seizures and the privacy stolen motor vehicles. The officers seized and
of communication or correspondence. So long as the impounded all three cars. Right then and there,
evidence sought to be presented is fairly traceable they also arrested the owner of the private
to the illegal search or seizure or the intrusion into home, who was subsequently charged with
privacy, then the same must be excluded. Here, carnapping.
Guico’s positive result for drug use may not be used Are the seized cars admissible in evidence?
against him as it is a fruit of the poisonous tree, the Explain briefly. (2020-21 BAR)
tree being the shabu illegally seized from him.
Hence, he shall be absolved of any administrative A: NO. The warrantless search was invalid. The act
liability. (OCA v. Guico, Jr., A.M. No. P-12-3049, 29 June of the police officers barging into or, with force,
2021) entering the private home where the cars were
found based purely on the information obtained
Q: As a car driver was getting into their car from the subject app but only with respect to the
inside the parking area of a mall in Makati, two owner's car, and after six (6) hours from the
individuals suddenly came from behind them. commission of the alleged crime, cannot be
One pointed a gun to the car driver's head while considered as falling within the coverage of any of
the other grabbed the car keys in the driver's the permissible warrantless searches, which include
hand. The two then sped away with the car. searches incidental to a lawful arrest. (People v.
Alberto II, G.R. No. 247906, 10 Feb. 2021; Pagigan v.
After recovering from the initial shock, the People, G.R. No. 252003, 10 Feb. 2021; Liwanag v.
driver took their smartphone and opened the People, G.R. No. 249125, 26 Apr. 2021)
app "Find My Car." "Find My Car" is an app that
tracks in real time the movement and location of The subject warrantless search preceded the
a car through a Global Positioning System (GPS) warrantless arrest. This is not allowed. It is
device installed in the car. established that, although a warrantless search and
seizure may be allowed as an incident to a valid
The driver then went to the nearest police warrantless arrest, the latter must precede the
station and showed the officers the current search and seizure. The process cannot be reversed.
location of the car as shown on their (People v. Chua Ho San, G.R. No. 128222, 17 June
smartphone. The car appeared to stop at a spot 1999; People v. Aruta, G.R. No. 120915, 03 Apr. 1998;
in Novaliches, Quezon City. Dionisio v. People, G.R. No. 249880, 17 Feb. 2021)
Six (6) hours after the car had been stolen, a Moreover, it cannot be said that said warrantless
combined team of elite police officers from the arrest was valid, not being either an in flagrante
Highway Patrol Group and the Criminal delicto arrest or an arrest based on a hot pursuit.
Investigation Detection Group, by force and (Sec. 5, Rule 113, ROC) The information that was
without a warrant, searched a private home in relayed to the police officers by the owner of the car
Novaliches, Quezon City. The private home was based on the aforecited app cannot be considered
pinpointed by the car's GPS tracker as displayed under the rules as probable cause for either type of
on the driver's phone. warrantless arrests. This constitutes additional
reason for the invalidity of the subject warrantless
search and seizure, which, to reiterate, could or may
162
2023 GOLDEN NOTES
have been allowed under the circumstances only if
there had been a prior lawful warrantless arrest. 3. Decisional Privacy – The right of individuals to
make certain kinds of fundamental choices with
Accordingly, their seizure was unlawful. respect to their personal and reproductive
autonomy. (Vivares v. St. Theresa’s College, G.R.
They are therefore inadmissible in evidence, No. 202666, 29 Sept. 2014)
following the rule in the Constitution to the effect
that any evidence obtained in violation of the rules Communication
against unreasonable searches and seizures shall be
inadmissible for any purpose in any proceeding. Communication is an essential outcome of
(Sec. 3(2), Art. III, in relation to Sec. 2) (Central protected speech. Communication exists when:
Suggested Answers, 2022)
1. A speaker, seeking to signal others, uses
conventional actions because he or she
E. PRIVACY OF COMMUNICATIONS AND reasonably believes that such actions will
CORRESPONDENCE be taken by the audience in the manner
intended; and
2. The audience so takes the actions. In

The right to privacy is to be free from unwarranted
communicative action, the hearer may
publicity, or to live without unwarranted
respond to the claims by either accepting
interference by the public in matters in which the
the speech act’s claims or opposing them
public is not necessarily concerned. To simply put, it
with criticism or requests for justification.
is the right to be let alone. (Sps. Hing v. Choachuy, G.R.
(Diocese of Bacolod v COMELEC, G.R. No.
No. 179736, 26 June 2013)
205728, 21 Jan. 2015)
GR: Right to privacy is inviolable. (Sec. 3 (1), Art. III,
Information and Communication System
1987 Constitution)
This refers to a system of generating, sending,

XPNs:
receiving, storing, or otherwise processing
1. By lawful order of the court; and
electronic data messages or electronic documents
2. Public safety or public order as prescribed by
and includes the computer system or other similar
law. (Ibid.)
devices by or in which data are recorded or stored.
(Sec. 1, Rule 2, Electronic Rules on Evidence)
NOTE: Any evidence in violation of this right or the
right against unreasonable searches and seizures
Correspondence
shall be inadmissible for any purpose in any
proceedings. (Sec. 3(2), Ibid.)
It is a communication by means of letters; or it may
refer to the letters which pass between those who
Three (3) Strands of the Right to Privacy
have friendly or business relations. (Reyes, 2017)
1. Locational or Situational Privacy – Privacy

Forms of Correspondence Covered
felt in physical space, such as that which may be
violated by trespass and unwarranted search
1. Letters;
and seizure.
2. Messages;
3. Telephone calls; and
2. Informational Privacy – Defined as the right of
4. Telegrams and the like. (Bernas, 2016)
individuals to control information about
themselves; and
163
1. PRIVATE AND PUBLIC COMMUNICATIONS date of this Act in the manner prohibited by this
law;
Anti-Wire Tapping Act (R.A. No. 4200)

3. To Replay the same for any other person or
persons;
A special law prohibiting and penalizing secret
recording of conversations either through wire-
4. To Communicate the contents thereof, either
tapping or tape recorders. It provides penalties for
verbally or in writing; or
specific violations of private communication.
5. To furnish Transcriptions thereof, whether

In Ramirez v. Court of Appeals (G.R. No. 93833, 28
complete or partial to any other person. (Sec. 1,
Sept. 1995), it was held that R.A. No. 4200 clearly
R.A. No. 4200)
and unequivocally makes it illegal for any person,
not authorized by all the parties to any private
Exceptions under the Anti-Wire Tapping Law
communication, to secretly record such
communications by means of a tape recorder.
Under Sec. 3 of R.A. No. 4200, a peace officer, who is
authorized by a written order of the Court, may
NOTE: A telephone extension was not among the
execute any of the acts declared to be unlawful in
devices covered by this law. (Gaanan v. Intermediate
Sec. 1 and Sec. 2 of the said law in cases involving
Appellate Court, G.R. No. L-69809, 16 Oct. 1986)
the crimes of:
Both Parties and a Third Person Cold be Held

1. Treason;
Liable
2. Espionage;
3. Provoking war and disloyalty in case of
The law does not distinguish between a party to the
war;
private communication or a third person. Hence,
4. Piracy and mutiny in the high seas;
both a party and a third person could be held liable
5. Rebellion (conspiracy and proposal and
under R.A. No. 4200 if they commit any of the
inciting to commit included);
prohibited acts under R.A. No. 4200. (Ramirez v. CA,
6. Sedition (conspiracy, inciting included);
G.R. No. 93833, 28 Sept. 1995)
7. Kidnapping; and
8. Violations of C.A. 616 (punishing espionage
Prohibited Acts under R.A. No. 4200 (2009 BAR):
and other offenses against national
(Tap-Pos-Replay-Co-Trans)
security). (Sec. 3, R.A. No. 4200)
1. To Tap any wire or cable, or by using any other

NOTE: Anti-Wiretapping Act only protects letters,
device or arrangement, to secretly overhear,
messages, telephone calls, telegrams and the like.
intercept, or record such communication or
The substance of the conversation need not be
spoken word by using a device commonly
specifically alleged in the information. The mere
known as a dictaphone or dictagraph or
allegation that an individual made a secret
detectaphone or walkie-talkie or tape recorder,
recording of a private communication by means of a
or however otherwise described by any person,
tape recorder would suffice to constitute an offense
not being authorized by all the parties to any
under the Anti-Wiretapping Act.
private communication or spoken word;
Q: A has a telephone line with an extension. One

2. To knowingly Possess any tape record, wire
day, A was talking to B over the telephone. A
record, disc record, or any other such record, or
conspired with his friend C, who was at the end
copies thereof, of any communication or spoken
of the extension line listening to A's telephone
word secured either before or after the effective
conversation with B to overhear and tape-
164
2023 GOLDEN NOTES
record the conversation wherein B civil case for damages against Garcia. In support
confidentially admitted that with evident of her claim, Ramirez produced a verbatim
premeditation, he (B) killed D for having transcript of the event. The transcript on which
cheated him in their business partnership. the civil case was based was culled from a tape
recording of the confrontation.
B was not aware that the telephone
conversation was being tape-recorded. As a result of Ramirez’s recording of the event,
Garcia filed a criminal case for violation of R.A.
In the criminal case against B for murder, is the No. 4200, alleging that the act of secretly taping
tape-recorded conversation containing his the confrontation was illegal. Ramirez contends
admission admissible in evidence? that the facts charged do not constitute an
offense. Was there a violation of R.A. No. 4200?
A: NO. R.A. No. 4200 expressly makes such tape A: YES. The law is unambiguous in seeking to
recordings inadmissible in evidence. The relevant penalize even those privies to the private
provisions of R.A No. 4200 are as follows: communications. Where the law makes no
distinctions, one does not distinguish.
Sec. 1. It shall be unlawful for any person, not being
authorized by all the parties to any private The nature of the conversations is immaterial to a
communication or spoken word, to tap any wire or violation of the statute. The substance of the same
cable, or by using any other device or arrangement, need not be specifically alleged in the information.
to secretly overhear, intercept, or record such The mere allegation that an individual made a secret
communication or spoken word by using a device recording of a private communication by means of a
commonly known as a Dictaphone or dictagraph or tape recorder would suffice to constitute an offense
detectaphone or walkie-talkie or tape-recorder, or under Sec. 1 of R.A. No. 4200.
however otherwise described.
The phrase private communication in Sec. 1 of R.A.
Sec. 4. Any communication or spoken word, or the No. 4200 is broad enough to include verbal or non-
existence, contents, substance, purport, or meaning verbal, written or expressive communications of
of the same or any part thereof, or any information meanings or thoughts which are likely to include the
therein contained, obtained, or secured by any emotionally charged exchange between petitioner
person in violation of the preceding sections of this and private respondent, in the privacy of the latter's
Act shall not be admissible in evidence in any office. (Ramirez v. CA, G.R. No. 93833, 28 Sept. 1995)
judicial, quasi-judicial, legislative or administrative
hearing or investigation. (Salcedo- Ortanez v. CA, G.R. Q: In a criminal prosecution for murder, the
No. 110662, 4 Aug. 1994) prosecution presented, as witness, an employee
of the Manila Hotel who produced in court a
NOTE: R.A. No. 4200 makes the tape-recording of a videotape recording showing the heated
telephone conversation done without the exchange between the accused and the victim
authorization of all the parties to the conversation, that took place at the lobby of the hotel barely 30
inadmissible in evidence. In addition, the taping of minutes before the killing.
the conversation violated the guarantee of privacy
of communications enunciated in Sec. 3, Article III of The accused objects to the admission of the
the Constitution. (Sec. 4, R.A. No. 4200) videotape recording on the ground that it was
taken without his knowledge or consent, in
Q: Ester S. Garcia, in a confrontation with violation of his right to privacy and the Anti-
Socorro Ramirez, allegedly vexed, insulted, and Wire Tapping law. Resolve the objection with
humiliated Ramirez in a "hostile and furious reasons. (2010 BAR)
mood" and in a manner offensive to Ramirez’s
dignity and personality. Ramirez then filed a
165
A: OVERRULED. What the law prohibits is the needed for written correspondence, but if the
overhearing, intercepting, and recording of private intrusion is done through wiretaps and the like,
communications. Since the exchange of heated there is no need to describe the content. However,
words was not private, its videotape recording is identity of the person or persons whose
not prohibited (Navarro v. CA, G.R. No. 121087, 26 communication is to be intercepted, and the offense
Aug. 1999) or offenses sought to be prevented, and the period
of the authorization given should be specified. (Sec.
Q: Are letters of a husband’s paramour kept 3, R.A. No. 4200)
inside the husband’s drawer, presented by the
wife in the proceeding for legal separation,
admissible in evidence?
A: NO. The intimacies between husband and wife do

not justify any one of them in breaking the drawers
and cabinets of the other and in ransacking them for
any telltale evidence of marital infidelity.
A person, by contracting marriage, does not shed

his/her integrity or his right to privacy as an
individual and the constitutional protection is ever
available to him or to her. (Zulueta v. CA, G.R. No.
107383, Feb. 20, 1996)
2. WHEN INTRUSION IS ALLOWED
The Right to Privacy is Not Absolute
A limited intrusion into a person's privacy has long

been regarded as permissible where that person is
a public figure and the information sought to be
elicited from him or to be published about him
constitute of a public character.
Succinctly put, the right of privacy cannot be

invoked to resist publication and dissemination of
matters of public interest.
The interest sought to be protected by the right of

privacy is the right to be free from unwarranted
publicity, from the wrongful publicizing of the
private affairs and activities of an individualwhich
are outside the realm of legitimate public concern.
(Ayer Productions Pty. Ltd. v. Capulong, G.R. No.
82380, 29 Apr. 1988)
NOTE: Probable cause in Sec. 2, Art. III of the 1987

Constitution should be followed for the court to
allow intrusion. Particularity of description is
166
2023 GOLDEN NOTES
A regulation mandating the opening of mail or Indeed, in many cases, public employees are
correspondence of detainees is not violative of entrusted with tremendous responsibility, and the
the constitutional Right to Privacy consequences of their misconduct or incompetence
to both the agency and the public interest can be
There is no longer a distinction between an inmate severe. In contrast to law enforcement officials,
and a detainee with regard to the reasonable therefore, public employers are not enforcers of the
expectation of privacy inside his cell. The criminal law. Instead, public employers have a
curtailment of certain rights is necessary to direct and overriding interest in ensuring that the
accommodate institutional needs and objectives of work of the agency is conducted in a proper and
prison facilities, primarily internal security. As long efficient manner.
as the letters are not confidential communication
between the detainee and his lawyer the detention A probable cause requirement for searches of the
officials may read them. type at issue here would impose intolerable
burdens on public employers. The delay in
But if the letters are marked confidential correcting the employee misconduct caused by the
communication between detainee and the lawyer, need for probable cause rather than reasonable
the officer must not read them but only inspect them suspicion will be translated into tangible and often
in the presence of detainees. A law is not needed irreparable damage to the agency's work, and
before an executive officer may intrude into the ultimately to the public interest.
rights of privacy of a detainee or a prisoner. By the
very fact of their detention, they have diminished Besides, Pollo failed to prove that he had an actual
expectations of privacy rights. (Alejano v. Cabuay, (subjective) expectation of privacy either in his
G.R. No. 160792, 25 Aug. 2005) office or government-issued computer which
contained his personal files. He did not allege that he
Q: The CSC Chairperson Karina Constantino- had a separate enclosed office which he did not
David received a letter-complaint which said share with anyone, or that his office was always
that an employee of the CSC was a lawyer of an locked and not open to other employees or visitors.
accused government employee having a pending Neither did he allege that he used passwords or
case in the said agency. Acting on the matter, she adopted any means to prevent other employees
ordered the backing up of all files in the from accessing his computer files. (Pollo v.
computers found in the Public Assistance and Constantino-David, G.R. No. 181881, 18 Oct. 2011)
Liaison Division (PALD) of which Briccio Pollo
was the Officer-in-Charge. Drafts of legal The Cybercrime Law does not regard as crime
pleadings were found in Pollo’s computer. private communications of sexual character
Thereafter, he was charged with Dishonesty, between consenting adults
Grave Misconduct, Conduct Prejudicial to the
Best Interest of the Service and Violation of R.A. The deliberations of the Bicameral Committee of
No. 6713. On his part, Pollo attacks the backing Congress on Sec.4(c)(i) of the law show a lack of
up of his files as it was done without his intent to penalize a private showing between and
knowledge and consent, thus infringing on his among two private persons although that may be a
constitutional right to privacy. Is he correct? form of obscenity to some. The understanding of
those who drew up the cybercrime law is that the
A: NO. Public employers have an interest in element of “engaging in a business” is necessary to
ensuring that their agencies operate in an effective constitute the crime of illegal cybersex. The Act
and efficient manner, and the work of these agencies actually seeks to punish cyber prostitution, white
inevitably suffers from the inefficiency, slave trade, and pornography for favor and
incompetence, mismanagement, or other work- consideration. This includes interactive prostitution
related misfeasance of its employees. and pornography, e.g., by webcam. (Disini v.
Secretary of Justice, G.R. No. 203335, 11 Feb. 2014)
167
Right to Privacy in Social Media space. (Vivares v. St. Theresa’s College, G.R. No.
202666, 29 Sept. 2014)
To address concerns about privacy, but without
defeating its purpose, Facebook was armed with Reasonable Expectation of Privacy Test
different privacy tools designed to regulate the
accessibility of a user’s profile as well as information This test determines whether a person has a
uploaded by the user. It is through the availability of reasonable expectation of privacy and whether the
said privacy tools that many Online Social Network expectation has been violated.
(OSN) users are said to have a subjective
expectation that only those to whom they grant The reasonableness of a person’s expectation of
access to their profile will view the information they privacy depends on a two-part test:
post or upload thereto.
1. Whether, by his conduct, the individual has
This, however, does not mean that any Facebook exhibited an expectation of privacy; and
user automatically has a protected expectation of 2. This expectation is one that society
privacy in all of his or her Facebook activities. recognizes as reasonable. (Ople v. Torres,
G.R. No. 127685, 23 July 1998)
Before one can have an expectation of privacy in his
or her OSN activity, it is first necessary that said Customs, community norms, and practices may,
user, in this case the children of petitioners, therefore, limit or extend an individual’s
manifest the intention to keep certain posts private, “reasonable expectation of privacy.” Hence, the
through the employment of measures to prevent reasonableness of a person’s expectation of privacy
access thereto or to limit its visibility. And this must be determined on a case-to-case basis since it
intention can materialize in cyberspace through the depends on the factual circumstances surrounding
utilization of the OSN’s privacy tools. In other words, the case. (Ople v. Torres, G.R. No. 127685, 23 July
utilization of these privacy tools is the 1998)
manifestation, in cyber world, of the user’s
invocation of his or her right to informational Q: Sps. Hing were owner of a parcel of land and
privacy. Aldo Inc. constructed an auto-repair shop
building on the adjacent lot. Aldo filed a case for
Therefore, a Facebook user who opts to make use of injunction and damages claiming that the Sps.
a privacy tool to grant or deny access to his or her Hing were constructing a fence without valid
post or profile detail should not be denied the permit and that the construction would destroy
informational privacy right which necessarily their building. The case was dismissed for
accompanies said choice. Otherwise, using these failure of Aldo to substantiate its allegations.
privacy tools would be a feckless exercise, such that Aldo Inc. then installed two cameras on their
if, for instance, a user uploads a photo or any building facing the property of the Sps. Hing. The
personal information to his or her Facebook page spouses contend that the installation of the
and sets its privacy level at “Only Me” or a custom cameras was an invasion of their privacy. Is
list so that only the user or a chosen few can view it, there a limitation on the installation of
said photo would still be deemed public by the surveillance cameras?
courts as if the user never chose to limit the photo’s
visibility and accessibility. Such position, if adopted, A: YES. In this day and age, video surveillance
will not only strip these privacy tools of their cameras are installed practically everywhere for the
function but it would also disregard the very protection and safety of everyone. The installation
intention of the user to keep said photo or of these cameras, however, should not cover places
information within the confines of his or her private where there is reasonable expectation of privacy,
unless the consent of the individual, whose right to
168
2023 GOLDEN NOTES
privacy would be affected, was obtained. Nor should 3. EXCLUSIONARY RULE
these cameras be used to pry into the privacy of
another’s residence or business office as it would be
See page 161 for discussion on exclusionary rule.
no different from eavesdropping, which is a crime
under R.A. No. 4200 or the Anti-Wiretapping Law.
(Sps. Hing v. Choachuy, G.R. No. 179736, 26 June
2013) F. FREEDOM OF SPEECH AND EXPRESSION
Q: DOJ Secretary Raul Gonzales warned that

reporters who had copies of the compact disc Sec. 4, Art. III of the 1987 Constitution
(CD) and those broadcasting or publishing its
contents could be held liable under the Anti- No law shall be passed abridging the freedom of
Wiretapping Act. Secretary Gonzales also speech, of expression, or of the press, or of the right
ordered the NBI to go after media organizations of the people peaceably to assemble and petition the
“found to have caused the spread, the playing government for redress of grievances. (Sec. 4, Art. III,
and the printing of the contents of a tape” of an 1987 Constitution)
alleged wiretapped conversation involving the
President about fixing votes in 2004 national Concept of Freedom of Speech and Expression
elections. Can the DOJ Secretary use the Anti-
Wiretapping act as a regulatory measure to The right to freedom of expression applies to the
prohibit the media from publishing the contents entire continuum of speech from utterances made
of the CD? to conduct enacted, and even to inaction itself as a
symbolic manner of communication. (The Diocese of
A: NO. The Court ruled that not every violation of a Bacolod v. COMELEC, G.R. No. 205728, 21 Jan. 2015)
law will justify straitjacketing the exercise of
freedom of speech and of the press. There are laws Scope of Protected Freedom of Expression under
of great significance but their violation, by itself and the Constitution
without more, cannot support suppression of free
speech and free press. 1. Freedom of speech; (Sec. 4, Art. III, 1987
Constitution)
In fine, violation of law is just a factor, a vital one to 2. Freedom of the press; (Ibid.)
be sure, which should be weighed in adjusting 3. Right of assembly and to petition the
whether to restrain freedom of speech and of the government for redress of grievances;
press. The totality of the injurious effects of the (Ibid.)
violation to private and public interest must be 4. Right to form associations or societies not
calibrated in light of the preferred status accorded contrary to law; (Sec. 8, Ibid.)
by the Constitution and by related international 5. Freedom of religion; and (Sec. 5, Ibid.)
covenants protecting freedom of speech and of the 6. Right to access to information on matters of
press. public concern. (Sec. 7, Ibid.)
By all means, violations of law should be vigorously Four (4) aspects of Freedom of Speech and Press
prosecuted by the State for they breed their own evil (2014 BAR) (Ce-Sub-A-C)
consequence. But to repeat, the need to prevent
their violation cannot per se trump the exercise of 1. Freedom from Censorship or prior restraint –
free speech and free press, a preferred right whose the official government restrictions on the
breach can lead to greater evils. (Chavez v. Gonzales, press or other forms of expression in advance of
G.R. No. 168338, 15 Feb. 2008) actual publication or dissemination. (Bernas,
2003)
169
See page 174 for further discussion on NOTE: There need not be total suppression; even
freedom from prior restraint restriction of circulation constitutes censorship.
(Chavez v. Gonzales G.R. No. 168338, 15 Feb. 2008)
2. Freedom from Subsequent punishment to
publication – A limitation on the power of the Political Speech
State from imposing a punishment after
publication or dissemination. Without this Political speech is one of the most important
assurance, the individual would hesitate to expressions protected by the fundamental law and
speak for fear that he might be held to account have to be protected at all costs for the sake of
for his speech, or that he might be provoking the democracy. (GMA Network v. COMELEC, G.R. No.
vengeance of the officials he may have 205357, 02 Sept. 2014)
criticized. (Nachura, 2014)
Political speech is motivated by the desire to be
See page 174 for further discussion on heard and understood, to move people to action. It
freedom from subsequent punishment. is concerned with the sovereign right to change the
contours of power whether through the election of
3. Freedom of Access to information regarding representatives in a republican government or the
matters of public interest – Official papers, revision of the basic text of the Constitution. We
reports, and documents, unless held evaluate restrictions on freedom of expression from
confidential and secret by competent authority their effects. We protect both speech and medium
in the public interest, are public records. As because the quality of this freedom in practice will
such, they are open and subject to regulation, to define the quality of deliberation in our democratic
the scrutiny of the inquiring reporter or editor. society. (Diocese of Bacolod v. COMELEC, G. R. No.
Information obtained confidentially may be 205728, 21 Jan. 2015)
printed without specification of the source; and
that source is closed to official inquiry, unless Continuum of Thought, Speech, Expression, and
the revelation is deemed by the courts, or by a Speech Acts
House or committee of the Congress, to be vital
to the security of the State. (Bernas, 2003) Speech is not limited to vocal communication.
Conduct is treated as a form of speech sometimes
4. Freedom of Circulation – Refers to the referred to as “symbolic speech,” such that when
unhampered distribution of newspapers and “speech” and “nonspeech” elements are combined
other media among customers and among the in the same course of conduct, the “communicative
general public. It may be interfered with in element” of the conduct may be sufficient to bring
several ways. The most important of these is into play the right to freedom of expression.
censorship. Other ways include requiring a
permit or license for the distribution of media The right to freedom of expression, thus, applies to
and penalizing dissemination of copies made the entire continuum of speech from utterances
without it, and requiring the payment of a fee or made to conduct enacted, and even to inaction itself
tax, imposed either on the publisher or on the as a symbolic manner of communication. (Diocese of
distributor, with the intent to limit or restrict Bacolod v. COMELEC, G.R. No. 205728, 21 Jan. 2015)
circulation. These modes of interfering with the
freedom to circulate have been constantly All forms of media, whether print or broadcast, are
stricken down as unreasonable limitations on entitled to the broad protection of the freedom of
press freedom. (Chavez v. Gonzales G.R. No. speech and expression clause. (Eastern
168338, 15 Feb. 2008) Broadcasting Corporation v. Dans, G.R. No. L-59329,
19 July 1985)
170
2023 GOLDEN NOTES
Purposes of Free Speech Doctrines A: SWS IS WRONG. The names of those who
commission or pay for election surveys, including
The Constitution provides that “sovereignty resides subscribers of survey firms, must be disclosed
in the people” who manifest it regularly through pursuant to Sec. 5.2(a) of the Fair Election Act. This
their suffrages and, more frequently and generally, requirement is a valid regulation in the exercise of
by the assertion of their freedom of expression. This police power and effects the constitutional policy of
sovereignty would be negated if they were denied guaranteeing equal access to opportunities for
the opportunity to participate in the shaping of public service. Sec. 5.2(a)’s requirement of
public affairs through the arbitrary imposition upon disclosing subscribers neither curtails petitioners’
them of the ban of silence. (Cruz, 2015) free speech rights nor violates the constitutional
proscription against the impairment of contracts.
Balance Between Unbridled Expression and
Liberty Concededly, what are involved here are not election
propaganda per se. Election surveys, on their face,
Freedom to express a person’s sentiments and do not state or allude to preferred candidates. When
belief does not grant one the license to nullify the published, however, the tendency to shape voter
honor and integrity of another. Any sentiment must preferences comes into play. In this respect,
be expressed within the proper forum and with published election surveys partake of the nature of
proper regard for the right of others. (Soriano v. election propaganda. It is then declarative speech in
Laguardia, G.R. No. 164785, 15 Mar. 2010) the context of an electoral campaign properly
subject to regulation. Hence, Sec. 5.2 of the Fair
Limitations on Freedom of Expression (2014 Election Act’s regulation of published surveys.
BAR)
While it does regulate expression (i.e., petitioners’
It should be exercised within the bounds of laws publication of election surveys), it does not go so far
enacted for the promotion of social interests and the as to suppress desired expression. There is neither
protection of other equally important individual prohibition nor censorship specifically aimed at
rights such as: election surveys. The freedom to publish election
surveys remains. All Resolution No. 9674 does is
1. Laws against obscenity, libel and slander articulate a regulation as regards the manner of
(contrary to public policy); publication, that is, that the disclosure of those who
2. Right to privacy of an individual; commissioned and/or paid for, including those
3. Right of state/government to be protected subscribed to, published election surveys must be
from seditious attacks; made. (Social Weather Station v. COMELEC, G.R. No.
4. Legislative immunities; 208062, 07 Apr. 2015)
5. Fraudulent matters;
6. Advocacy of imminent lawless conducts; Q: COMELEC Resolution No. 9615 deviated from
7. Fighting words; and the previous COMELEC resolutions relative to
8. Guarantee implies only the right to reach a the airtime limitations on political
willing audience but not the right to compel advertisements. It computes the airtime on an
others to listen, see or read. (Chavez v. aggregate basis involving all the media of
Gonzales, G.R. No. 168338, 15 Feb. 2008) broadcast communications compared to the
past where it was done on a per station basis.
Q: Social Weather Station (SWS) questions The result of which is the reduction of the
COMELEC Resolution No. 9674 requiring them to allowable minutes within which candidates and
disclose the names of commissioners and/or political parties would be able to campaign
payors of election surveys on the ground that it through the air. Did COMELEC commit grave
is a curtailment of free speech. Decide. abuse of discretion in issuing said resolution?
171
A: YES. The assailed rule on “aggregate-based” essential role in our democracy. The press was to
airtime limits is unreasonable and arbitrary as it serve the governed, not the governors. The
unduly restricts and constrains the ability of Government's power to censor the press was
candidates and political parties to reach out and abolished so that the press would remain forever
communicate with the people. Here, the adverted free to censure the Government. The press was
reason for imposing the “aggregate-based” airtime protected so that it could bare the secrets of
limits – leveling the playing field – does not government and inform the people. Only a free and
constitute a compelling state interest which would unrestrained press can effectively expose deception
justify such a substantial restriction on the freedom in government.” (GMA Network v. COMELEC, G.R. No.
of candidates and political parties to communicate 205357, 02 Sept. 2014)
their ideas, philosophies, platforms and programs of
government. This is specially so in the absence of a Q: Members of the faculty of the University of the
clear-cut basis for the imposition of such a Philippines College of Law (UP COL) published a
prohibitive measure. In this particular instance, statement on the allegations of plagiarism and
what the COMELEC has done is analogous to letting misrepresentation relative to a certain Court’s
a bird fly after one has clipped its wings. decision. Essentially, the faculty calls for the
resignation of Justice Mario Pascual in the face
It is also particularly unreasonable and whimsical to of allegations of plagiarism in his work. Does
adopt the aggregate-based time limits on broadcast this act of the faculty members squarely fall
time when we consider that the Philippines is not under the freedom of speech and expression?
only composed of so many islands. There are also a
lot of languages and dialects spoken among the A: NO. The publication of a statement by the faculty
citizens across the country. Accordingly, for a of the UP COL regarding the allegations of
national candidate to really reach out to as many of plagiarism and misrepresentation in the Supreme
the electorates as possible, then it might also be Court was totally unnecessary, uncalled for and a
necessary that he conveys his message through his rash act of misplaced vigilance. While most agree
advertisements in languages and dialects that the that the right to criticize the judiciary is critical to
people may more readily understand and relate to. maintaining a free and democratic society, there is
To add all of these airtimes in different dialects also a general consensus that healthy criticism only
would greatly hamper the ability of such candidate goes so far. Many types of criticism leveled at the
to express himself – a form of suppression of his judiciary cross the line to become harmful and
political speech. irresponsible attacks. These potentially devastating
attacks and unjust criticism can threaten the
COMELEC itself states that “television is arguably independence of the judiciary. (Re: Letter of the UP
the most cost-effective medium of dissemination. Law Faculty entitled “Restoring Integrity: A
Even a slight increase in television exposure can Statement by the Faculty of the University of the
significantly boost a candidate's popularity, name Philippines College of Law on the Allegations of
recall and electability.” If that be so, then drastically Plagiarism and Misrepresentation in the Supreme
curtailing the ability of a candidate to effectively Court.”, A.M. No. 10-10-4-SC, 08 Mar. 2011)
reach out to the electorate would unjustifiably
curtail his freedom to speak as a means of
connecting with the people.
Finally, on this matter, it is pertinent to quote what

Justice Black wrote in his concurring opinion in the
landmark Pentagon Papers case: “In the First
Amendment, the Founding Fathers gave the free
press the protection it must have to fulfill its
172
2023 GOLDEN NOTES
1. PRIOR RESTRAINT AND SUBSEQUENT NOTE: Only in these instances may expression be
PUNISHMENT subject to prior restraint. All other expression is not
subject to prior restraint. (Soriano v. Laguardia, G.R.
No. 165636, 02 Apr. 2009)
FREEDOM FROM PRIOR RESTRAINT
Near v. Minnesota, 283 US 697 (1931) adds the

Prior Restraint
following to the enumeration:
It refers to the official government restrictions on

1. When a nation is at war, many things that might
the press or other forms of expression in advance of
be said in time of peace are such a hindrance to
actual publication or dissemination. (Bernas, 2006)
its effort that their utterance will not be
endured so long as men fight and that no court
NOTE: There need not be total suppression. (Bernas,
could regard them as protected by any
2006)
constitutional right;
Freedom From Prior Restraint

2. The primary requirements of decency may be
enforced against obscene publications; and
Freedom from prior restraint is largely freedom
from government censorship of publications,
3. The security of community life may be
whatever the form of censorship, and regardless of
protected against incitements to acts of
whether it is wielded by the executive, legislative or
violence and the overthrow by force of orderly
judicial branch of the government. Thus, it
government.
precludes governmental acts that required approval
of a proposal to publish; licensing or permits as
Provisions of the RPC on Libel and of the Cyber
prerequisites to publication including the payment
Crime Law on Cyber Libel are Constitutional
of license taxes for the privilege to publish; and even
injunctions against publication.
Libel is not a constitutionally protected speech and
that the government has an obligation to protect
Even the closure of the business and printing offices
private individuals from defamation. Indeed, cyber
of certain newspapers, resulting in the
libel is actually not a new crime since Art. 353, in
discontinuation of their printing and publication,
relation to Art. 355 of the RPC, already punishes it.
are deemed as previous restraint or censorship. Any
In effect, Sec. 4(c)(4) merely affirms that online
law or official that requires some form of
defamation constitutes “similar means” for
permission to be had before publication can be
committing libel. Furthermore, the United Nations
made, commits an infringement of the
Human Rights Committee did not actually enjoin the
constitutional right, and remedy can be had at the
Philippines to decriminalize libel. It simply
courts. (Chavez v. Gonzales, G.R. No. 168338, 15 Feb.
suggested that defamation laws be crafted with care
2008)
to ensure that they do not stifle freedom of
expression. Free speech is not absolute. It is subject
XPNs to the Prohibition of Prior Restraint:
to certain restrictions, as may be necessary and as
(P-F-A-D)
may be provided by law. (Disini v. Secretary of
Justice, G.R. No. 203335, 11 Feb. 2014)
1. Pornography;
2. False or Misleading Advertisement;
NOTE: In her dissenting and concurring opinion,
3. Advocacy of Imminent Lawless Actions;
Chief Justice Maria Lourdes Sereno posits that the
and
ponencia correctly holds that libel is not a
4. Danger to National Security. (Soriano v.
constitutionally protected conduct. It is also correct
Laguardia, G.R. No. 165636, 2 Apr. 2009)
in holding that, generally, penal statutes cannot be
invalidated on the ground that they produce a
173
“chilling effect,” since by their very nature, they are Juan Dela Cruz filed a case for online libel
intended to have an in terrorem effect (benign against Nestor, Dexter and 23 other people who
chilling effect) to prevent a repetition of the offense liked the post using as his basis Sec. 5 of the
and to deter criminality. The “chilling effect” is Cybercrime law which penalizes any person who
therefore equated with and justified by the intended willfully abets or aids in the commission of any
in terrorem effect of penal provisions. (Disini v. of the offenses enumerated in the said law. Is
Secretary of Justice, G.R. No. 203335, 11 Feb. 2014) this provision of the law constitutional?
Thus, when Congress enacts a penal law affecting A: NO. Sec. 5 with respect to Sec. 4(c)(4) is
free speech and accordingly imposes a penalty that unconstitutional. Its vagueness raises apprehension
is so discouraging that it effectively creates an on the part of internet users because of its obvious
“invidious chilling effect,” thus impeding the chilling effect on the freedom of expression,
exercise of speech and expression altogether, then especially since the crime of aiding or abetting
there is a ground to invalidate the law. In this ensnares all the actors in the cyberspace front in a
instance, it will be seen that the penalty provided fuzzy way. What is more, as the petitioners point
has gone beyond the in terrorem effect needed to out, formal crimes such as libel are not punishable
deter crimes and has thus reached the point of unless consummated. In the absence of legislation
encroachment upon a preferred constitutional right. tracing the interaction of netizens and their level of
(Disini v. Secretary of Justice, G.R. No. 203335, 11 Feb. responsibility such as in other countries, Sec. 5, in
2014) relation to Sec. 4(c)(4) on Libel, Sec. 4(c)(3) on
Unsolicited Commercial Communications, and Sec.
Benign Chilling Effect vs. Invidious Chilling 4(c)(2) on Child Pornography, cannot stand
Effect scrutiny. (Disini v. Secretary of Justice, G.R. No.
203335, 11 Feb. 2014)
BENIGN CHILLING INVIDIOUS CHILLING
EFFECT EFFECT FREEDOM FROM SUBSEQUENT PUNISHMENT
As to effect
May be caused by penal Subsequent Punishment
statutes which are
intended to have an in A limitation on the power of the State from imposing
May be caused by penal
terrorem effect to a punishment after publication or dissemination.
laws affecting free
prevent a repetition of Without this assurance, the individual would
speech and accordingly
the offense and to hesitate to speak for fear that he might be held to
imposes a penalty that
deter criminality. The account for his speech, or that he might be
is so discouraging thus
chilling effect is provoking the vengeance of the officials he may
impeding the exercise
equated with and have criticized. (Nachura, 2014)
of speech and
justified by the
expression altogether.
intended in terrorem This second basic prohibition of the free speech and
effect of penal press clause prohibits systems of subsequent
provisions. punishment which have the effect of unduly
As to permissibility curtailing expression. (Nachura, 2014)
Permissible Not Permissible
Freedom From Subsequent Punishment is Not
Q: Nestor posted on Facebook that Juan Dela Absolute
Cruz, a married person, has an illicit affair with
Maria. Dexter liked this post and commented: It may be properly regulated in the interest of the
“Yes! This is true! What an immoral thing to public. The State may validly impose penal and/or
do?!” This post was likewise liked by 23 people. administrative sanctions such as in the following:
174
2023 GOLDEN NOTES
1. Libel – A public and malicious imputation of a
crime, vice, or defect, real or imaginary or any XPN to the XPN: If the comment is an expression of
act omission, status tending to cause dishonor, opinion, based on established facts; it is immaterial
discredit, or contempt of a natural or judicial whether the opinion happens to be mistaken, as
person, or blacken the memory of one who is long as it might reasonably be inferred from facts.
dead; (Art 353, RPC) (Borjal v. CA, G.R. No. 126466, 14 Jan. 1999)
2. Obscenity – The determination of what is Freedom of the Press

obscene is a judicial function; (Pita v. CA, G.R. No.
80806, 05 Oct. 1989) The guaranty of freedom to speak is useless without
the ability to communicate and disseminate what is
3. Criticism of Official Conduct – In New York said. And where there is a need to reach a large
Times v. Sullivan (376 US 254, 09 Mar. 1964), the audience, the need to access the means and media
constitutional guarantee requires a federal rule for such dissemination becomes critical. This is
that prohibits a public official from recovering where the press and broadcast media come along.
damages for a defamatory falsehood relating to
his official conduct; and In the ultimate analysis, when the press is silenced,
or otherwise muffled in its undertaking of acting as
XPN: unless he proves that the statement was a sounding board, the people ultimately would be
made with actual malice. the victims. (GMA Network v. COMELEC, G.R. No.
205357, 02 Sept. 2014)
4. Rights of students to free speech in school
premises are not absolute – The school cannot Q: A national daily newspaper carried an
suspend or expel a student solely on the basis of exclusive report stating that Senator Bal Bass
the articles he has written. received a house and lot located at YY Street,
Makati, in consideration for his vote to cut
XPN: except when such article materially cigarette taxes by 50%. The Senator sued the
disrupts class work or involves substantial newspaper, its reporter, editor, and publisher
disorder or invasion of rights of others. (Miriam for libel, claiming the report was completely
College Foundation v. CA, G.R. 127930, 15 Dec. false and malicious. According to the Senator,
2000) there is no YY Street in Makati, and the tax cut
was only 20%. He claimed one million pesos in
Doctrine of Fair Comment damages. The defendants denied "actual
malice," claiming privileged communication and
GR: Every discreditable public imputation is false absolute freedom of the press to report on
because every man is presumed innocent, thus, public officials and matters of public concern. If
every false imputation is deemed malicious, hence, there was any error, the newspaper said it
actionable. (Borjal v. CA, G.R. No. 126466, 14 Jan. would publish the correction promptly. Are the
1999) defendants liable for damages?
XPN: When the discreditable imputation is directed A: NO. Since Senator Bal Bass is a public person and
against a public person in his public capacity, such the questioned imputation is directed against him in
is not necessarily actionable. (Borjal v. CA, G.R. No. his public capacity, in this case actual malice means
126466, 14 Jan. 1999) the statement was made with knowledge that it was
false or with reckless disregard of whether it was
NOTE: For it to be actionable, it must be shown that false or not. Since there is no proof that the report
either there is a false allegation of fact or comment was published with knowledge that it is false or with
based on a false supposition. (Borjal v. CA, G.R. No. reckless disregard of whether it was false or not, the
126466, 14 Jan. 1999)
175
defendants are not liable for damages. (Borjal v. CA, disorder and anarchy. Erika crossed the line, as hers
G.R. No. 126466, 14 Jan. 1999) are baseless scurrilous attacks which demonstrate
Applicability of Borjal Doctrine nothing but an abuse of press freedom. They leave
no redeeming value in furtherance of freedom of the
The Borjal doctrine is not applicable in a case where press. They do nothing but damage the integrity of
the allegations against a public official were false, the High Court, undermine the faith and confidence
and no effort was exerted to verify the information of the people in the judiciary, and threaten the
before publishing his articles. (Tulfo v. People, G.R. doctrine of judicial independence. (In Re: Allegations
No. 161032, 11 Jan. 2021) Contained in the Columns of Mr. Amado P. Macasaet,
A.M. No. 07-09-13-SC, 08 Aug. 2008)
Types of Privileged Communications
2. CONTENT-BASED AND CONTENT-NEUTRAL
Those which are not REGULATIONS
actionable even if the actor
acted in bad faith.
Content-Based vs. Content-Neutral Regulation
Absolutely e.g., Sec. 11, Art. VI of the 1987

CONTENT-BASED CONTENT-NEUTRAL
privileged Constitution exempts a
REGULATION REGULATION
member of Congress from
As to Definition
liability of any speech or
The restriction is based
debate in the Congress or in Merely concerned with
on the subject matter
any Committee thereof. the incidents of the
of the utterance or
Defamatory imputations are speech, or one that
speech. The cast of the
not actionable unless found to merely controls the
restriction determines
have been made without good time, place or manner,
the test by which the
intention or justifiable motive. and under well-defined
Qualifiedly challenged act is
standards.
privileged assailed with.
e.g. “private communications”
As to What is Being Regulated
and “fair and true report
This answers
without any comments or This answers the
questions such as
remarks.” question of WHAT is
WHEN or WHERE can
(Borjal v. CA, G.R. No. 126466, 14 Jan. 1999) the content of the
the speech be
speech to be regulated.
delivered.
Q: Wincy Diez penned several articles in Malaya
As to Presumption of Unconstitutionality
newspaper regarding alleged bribery incidents
in the Supreme Court and characterizing the There is a presumption
There is no
Justices as “thieves” and “a basket of rotten of unconstitutionality
presumption of
which the State has to
apples.” The Court En Banc required Wincy to unconstitutionality.
explain why no sanction should be imposed on overcome.
her for indirect contempt of court. Did the order As to Presence of Chilling Effect
of the Court violate freedom of the press? Does not produce
Produces chilling effect
chilling effect
A: NO. While freedom of speech, of expression and As to Requisites for Validity
of the press are at the core of civil liberties and have To be valid, it must: To be valid, it must:
to be protected at all costs for the sake of 1. be subjected to
democracy, these freedoms are not absolute. For, if 1. be subjected to Strict Intermediate Scrutiny
left unbridled, they have the tendency to be abused Scrutiny approach in approach in judicial
and can translate to licenses, which could lead to judicial review. review.
176
2023 GOLDEN NOTES
anyone else’s constitutional rights. (Diocese of
2. pass the Clear and Bacolod v. COMELEC, G.R. No. 205728, 21 Jan. 2015)
Present Danger Test;
3. FACIAL CHALLENGES AND OVERBREADTH
3. pass the Void-for- DOCTRINE
Vagueness test; and
FACIAL CHALLENGE
4. be justified by a
compelling interest.
Facial Challenge (2015 BAR)
(Chavez v. Gonzales, G.R. No. 168338, 15 Feb. 2008)
A challenge to a statute in court, in which the
Q: As part of the Catholic Church’s opposition to
plaintiff alleges that the legislation is always, and
the Reproductive Health Law, the Diocese of
under all circumstances, unconstitutional, and
Bacolod put up a 6’ x 10’ ft. tarpaulin with the
therefore void.
heading “Conscience Vote”, identifying the
candidates who voted for (Team Patay) or
Facial challenge is allowed to be made to a vague
against the law (Team Buhay). The COMELEC
statute and to one which is overbroad because of
advised the Diocese to pull down the same since
possible “chilling effect” upon protected speech. The
it is beyond the maximum size of 2’ x 3’ ft. The
theory is that “[w]hen statutes regulate or proscribe
Church refused, alleging that the regulation is
speech and no readily apparent construction
against their freedom of expression. COMELEC
suggests itself as a vehicle for rehabilitating the
argue that the tarpaulin is election propaganda
statutes in a single prosecution, the transcendent
as it endorsed candidates who voted against the
value to all society of constitutionally protected
RH Law and rejected those who voted for it. As
expression is deemed to justify allowing attacks on
such, it is subject to regulation by COMELEC
overly broad statutes with no requirement that the
under its constitutional mandate. Also, it avers
person making the attack demonstrate that his own
that the regulation is content-based. Are the
conduct could not be regulated by a statute drawn
contentions of COMELEC proper?
narrow specificity.” (Estrada v. Sandiganbayan, G.R.
148560, 19 Nov. 2001)
A: NO. While the tarpaulin may influence the
success or failure of the named candidates and
Facial Challenge vs. “As-applied” Challenge
political parties, this does not necessarily mean it is
an election propaganda. The tarpaulin was not paid
“AS-APPLIED”
for or posted "in return for consideration" by any FACIAL CHALLENGE
CHALLENGE
candidate, political party, or party-list group.
An examination of the
Size limitations during elections hit at a core part of entire law, pinpointing
expression. The content of the tarpaulin is not easily its flaws and defects,
divorced from the size of its medium. Content-based not only on the basis of
regulation bears a heavy presumption of invalidity its actual operation to
and is measured against the clear and present the parties, but also on
Considers only extant
danger rule. the assumption or
facts affecting real
prediction that its very
litigants
Even with the clear and present danger test, existence may cause
COMELEC failed to justify the regulation. There is no others not before the
compelling and substantial State interest court to refrain from
endangered by the posting of the tarpaulins to constitutionally
justify curtailment of the right of freedom of protected speech or
expression. The size of the tarpaulin does not affect activities.
177
(Southern Hemisphere Engagement Network, Inc. v. The most distinctive feature of the overbreadth
Anti-Terrorism Council, G.R. No. 178552, 05 Oct. technique is that it marks an exception to some of
2010) the usual rules of constitutional litigation.
Q: Is facial challenge to a penal statute allowed? Ordinarily, a particular litigant claim that a statute
is unconstitutional as applied to him or her; if the
A: NO. Facial challenges are not allowed in penal litigant prevails, the courts carve away the
statutes. Criminal statutes have general in terrorem unconstitutional aspects of the law by invalidating
effect resulting from their very existence, and, if its improper applications on a case-to-case basis.
facial challenge is allowed for this reason alone, the
State may well be prevented from enacting laws Moreover, challengers to a law are not permitted to
against socially harmful conduct. In the area of raise the rights of the third parties and can only
criminal law, the law cannot take chances as in the assert their own interests. In overbreadth analysis,
area of free speech. (KMU v. Ermita, G.R. No. 178554, those rules give way; challenges are permitted to
05 Oct. 2010) raise the rights of third parties; and the court
invalidates the entire statute “on its face,” not
NOTE: A litigant cannot thus successfully mount a merely “as applied for” so that the overbroad law
facial challenge against a criminal statute on either becomes unenforceable until a properly authorized
vagueness or overbreadth grounds. court construes it more narrowly.
The rule established in our jurisdiction is only The factor that motivates court to depart from the
statutes on free speech, religious freedom, and other normal adjudicatory rules is the concern with the
fundamental rights may be facially challenged. “chilling,” deterrent effect of the overbroad statute
(Southern Hemisphere Engagement Network, Inc. v. on third parties not courageous enough to bring
Anti-Terrorism Council, G.R. No. 178552, 05 Oct. suit. The Court assumes that an overbroad law’s
2010) “very existence may cause others not before the
court to refrain from constitutionally protected
OVERBREADTH DOCTRINE speech or expression.” An overbreadth ruling is
designed to remove that deterrent effect on the
Overbreadth Doctrine (2014, 2010 BAR) speech of those third parties. (Southern Hemisphere
Engagement Network, Inc. v. Anti-Terrorism Council,
The overbreadth doctrine decrees that a G.R. No. 178552, 05 Oct. 2010)
governmental purpose to control or prevent
activities constitutionally subject to State 4. TESTS TO DETERMINE THE VALIDITY OF
regulations may not be achieved by means which GOVERNMENTAL REGULATION
sweep unnecessarily broadly and thereby invade
the area of protected freedoms. (Southern
1. Clear and present danger test;
Hemisphere Engagement Network, Inc. v. Anti-
2. Dangerous tendency test; and
Terrorism Council, G.R. No. 178552, 05 Oct. 2010)
3. Balancing of interest.
Applicability of Overbreadth Doctrine

CLEAR AND PRESENT DANGER TEST
The application of the overbreadth doctrine is

Clear and Present Danger Test (2014 BAR)
limited to a facial kind of challenge and, owing to the
given rationale of a facial challenge, applicable only
In the U.S., the current understanding of Clear and
to free speech cases.
Present Danger Doctrine was laid down in a 1969
case wherein it was held that speech is punishable
only when it is directed to inciting or producing
178
2023 GOLDEN NOTES
imminent lawless action, and when it is likely to actually created for mere tendency towards the evil
incite or produce such action. (Brandenburg v. Ohio, is enough. (Gonzales v. COMELEC, G.R. No. L-27833,
395 U.S. 447, 27 Feb. 1969; Defensor-Santiago, 2016) 18 Apr. 1969)
The government must show the type of harm the Emphasis

speech sought to be restrained would bring about—
especially the gravity and the imminence of the Nature of the circumstances under which the speech
threatened harm – otherwise, the prior restraint is uttered, though the speech per se may not be
will be invalid. Prior restraint on speech based on its dangerous. (Gonzales v. COMELEC, G.R. No.L-27833,
content cannot be justified by hypothetical fears, 18 Apr. 1969)
but only by showing a substantive and imminent
evil that has taken the life of a reality already on BALANCING OF INTEREST TEST
ground. (Iglesia ni Cristo v. CA, G.R. No. 119673, 26
July 1996) Question
As formulated, the question in every case is whether Which of the two conflicting interests (not involving
the words used are used in such circumstances and national security crimes) demands the greater
are of such a nature as to create a clear and present protection under the particular circumstances
danger that they will bring about the substantive presented:
evils that Congress has a right to prevent. It is a
question of proximity and degree.” (Schenck v. 1. When particular conduct is regulated in the
United States, 249 U.S. 47, 03 Mar. 1919) interest of public order; and
2. The regulation results in an indirect,
The regulation which restricts the speech content conditional and partial abridgement of
must also serve an important or substantial speech. (Gonzales v. COMELEC, G.R. No. L-
government interest, which is unrelated to the 27833, 18 Apr. 1969)
suppression of free expression. (Chavez v. Gonzales,
G.R. No. 168338, 15 Feb. 2008) Q: Can an offensive and obscene language
uttered in a prime-time television broadcast
The question in every case is whether the words which was easily accessible to the children be
used are used in such circumstances and are of such reasonably curtailed and validly restrained?
a nature as to create a clear and present danger that
they will bring about the substantive evils that A: YES. The government’s interest to protect and
Congress has a right to prevent. (Schenck v. United promote the interests and welfare of the children
States, 249 U.S. 47, 03 Mar. 1919) adequately buttresses the reasonable curtailment
and valid restraint on petitioner’s prayer to
NOTE: The test can be applied with regard to the continue as program host of Ang Dating Daan during
Freedom of Religion when what is involved is the suspension period. Soriano’s offensive and
religious speech as this is often used in cases of obscene language uttered on prime-time television
freedom of expression. (Iglesia ni Cristo v. CA, G.R. broadcast, without doubt, was easily accessible to
No. 119673, 26 July 1996) the children.
DANGEROUS TENDENCY TEST
His statements could have exposed children to a
Question language that is unacceptable in everyday use. As
such, the welfare of children and the State’s
Whether the speech restrained has a rational mandate to protect and care for them, as parens
tendency to create the danger apprehended, be it far patriae, constitute a substantial and compelling
or remote, thus government restriction would then government interest in regulating Soriano’s
be allowed. It is not necessary though that evil is
179
utterances in TV broadcast. (Soriano v. MTRCB, G.R. rights are not compromised in secret conclaves of
No. 165636, 29 Apr. 2009) long-ago. (Ibid.)
NOTE: In his dissenting opinion, Justice Carpio cited A public trial is not synonymous with publicized
Action for Children's Television v. Federal trial; it only implies that the court doors must be
Communications Commission (D.C. Cir., 1995) which open to those who wish to come, sit in the available
establishes the safe harbor period to be from 10:00 seats, conduct themselves with proper decorum and
in the evening to 6:00 in the morning, when the observe the trial process. (Ibid.)
number of children in the audience is at a minimum.
In effect, between the hours of 10:00 p.m. and 6:00 Q: In 2011, the Supreme Court promulgated a
a.m., the broadcasting of material considered Resolution partially granting pro hac vice the
indecent is permitted. Between the hours of 6:00 request for live broadcast by television and
a.m. and 10:00 p.m., the broadcast of any indecent radio of the trial court proceedings of the
material may be sanctioned. “Maguindanao massacre” cases, subject to
specific guidelines set forth in said Resolution.
5. STATE REGULATION OF DIFFERENT TYPES Accused Andal Ampatuan, Jr. filed a Motion for
OF MASS MEDIA Reconsideration alleging that the Resolution
“deprives him of his rights to due process, equal
protection, presumption of innocence, and to be
Live Media Coverage of Court Proceedings
shielded from degrading psychological
punishment.” Ampatuan contends that the Court
The propriety of granting or denying permission to
should accord more vigilance because the
the media to broadcast, record, or photograph court
immense publicity and adverse public opinion
proceedings involves weighing the constitutional
which live media coverage can produce would
guarantees of freedom of the press, the right of the
affect everyone, including the judge, witnesses,
public to information and the right to public trial, on
and the families of all concerned parties. The
the one hand, and on the other hand, the due process
OSG, however, contends that the coverage by
rights of the defendant and the inherent and
live media neither constitutes a barbarous act
constitutional power of the courts to control their
nor inflicts upon the accused inhuman physical
proceedings in order to permit the fair and impartial
harm or torture that is shocking to the
administration of justice. (Secretary of Justice v.
conscience and is freedom of the press. Should
Estrada, A.M. No. 01-4-03-SC, 13 Sept. 2001)
live broadcast of the trial be disallowed?
Collaterally, it also raises issues in the nature of

A: NO. The Court is now disallowing live media
media, particularly television and its role in society,
broadcast of the trial of “Maguindanao massacre”
and of the impact of new technologies on law. Video
cases but is still allowing the filming of the
footage of court hearings for news purposes shall be
proceedings for (1) the real-time transmission to
restricted and limited to shots of the courtroom, the
specified viewing areas, and (2) documentation.
judicial officers, the parties, and their counsel taken
prior to the commencement of official proceedings.
While the Court recognizes the freedom of press and
No video shots or photographs shall be permitted
the right to public information, the constitutional
during the trial proper. (Ibid.)
rights of the accused provide more than ample
justification to take a second look at the view that a
An accused has a right to a public trial but it is a right
camera that broadcasts the proceedings live on
that belongs to him, more than anyone else, where
television has no place in a criminal trial because of
his life or liberty can be held critically in balance. A
its prejudicial effects on the rights of accused
public trial aims to ensure that he is fairly dealt with
individuals. As previously held, the live coverage of
and would not be unjustly condemned and that his
180
2023 GOLDEN NOTES
judicial proceedings involved an inherent denial of Constitutional Protection of Commercial
due process. Speeches
In this case that has achieved notoriety and Commercial speech is entitled to constitutional
sensational status, a greater degree of care is protection. (Ayer Productions Pty., Ltd. V. Capulong,
required to safeguard the constitutional rights of G.R. No. 82380, 29 Apr. 1988)
the accused. To be in the best position to weigh the
conflicting testimonies of the witnesses, the judge The Court ruled in Disini v. Secretary of Justice (G.R.
must not be affected by any outside force or No. 203335, 11 Feb. 2014) that commercial speech is
influence. Like any human being, however, a judge a separate category of speech which is not accorded
is not immune from the pervasive effects of media. the same level of protection as that given to other
constitutionally guaranteed forms of expression but
In a constitutional sense, public trial is not is nonetheless entitled to protection.
synonymous with publicized trial. The right to a
public trial belongs to the accused. The accused’s 7. UNPROTECTED SPEECH
right to a public trial should not be confused with
the freedom of the press and the public’s right to
In general, it refers to utterances which involve no
know as a justification for allowing the live
essential part of any exposition of ideas and are of
broadcast of the trial. (In Re: Petition for Radio and
such slight social value as a step of truth that any
TV Coverage of the Multiple Murder Cases against
benefit that may be derived from them is clearly
Zaldy Ampatuan, A.M. No. 10-11-5-SC, 14 June. 2011).
outweighed by the social interest in order and
morality. (Chaplinsky v. New Hampshire, 315 U.S.
6. COMMERCIAL SPEECH 568, 08 Mar. 1942)
Commercial Speech This means that since they are of little to no value,
there is no need to invoke any test to determine
It is an expression related to the economic interests whether it should be protected by the Constitution.
of the speaker and its audience, generally in the (Bernas, 1996)
form of a commercial advertisement for the sale of
goods and services. (U.S. Healthcare, Inc. v. Blue Some Unprotected Speeches
Cross of Greater Philia., 898 F. 2d 914, 933 (3d. Cir.
1990) 1. Obscenity/pornography;
2. False or misleading Advertisement;
It means communication whose sole purpose is to 3. Advocacy of imminent lawless actions;
propose a commercial transaction. (Bernas, 2009) 4. Expression endangering national security;
and
Review by Government Agencies 5. Illegal or immoral activities prejudicial to
the welfare of children. (Soriano v.
Commercial speech may be required to be Laguardia, G.R. No. 164785, 29 Apr. 2009)
submitted to a government agency for review to
protect public interest by preventing false or OBSCENITY OR PORNOGRAPHY
deceptive claims. It may be curtailed by the
government to protect public interest and welfare. Obscenity or Pornography
(Pharmaceutical and Health Care Association of the
Philippines v. Duque, G.R. No. 173034, 9 Oct. 2007) The case of Miller v. California (413 U.S. 15, 21 June
1973) established basic guidelines, to wit: (A-PO-L)
181
a. Whether the Average person, applying Pornography
contemporary standards, would find that the
work, taken as a whole, appeals to the prurient It refers to any representation, whether visual,
interest; audio, or written combination thereof, by electronic,
mechanical, digital, optical, magnetic or any other
b. Whether the work depicts or describes, in a means, of child engaged or involved in real or
Patently Offensive way, sexual conduct simulated explicit sexual activities. (Sec. 3, R.A. No.
specifically defined by the application state law; 9775 or the Anti-Child Pornography Act of 2009)
and
Pornography is the depiction of erotic behavior (as
c. Whether the work, taken as a whole, Lacks in pictures or writing) intended to cause sexual
serious literary, artistic, political, or scientific excitement. (Merriam-Webster Dictionary)
value. No one will be subject to prosecution for
the sale or exposure of obscene materials unless FALSE OF MISLEADING ADVERTISEMENT
these materials depict or describe patently
offensive “hard core” sexual conduct. False or Misleading Advertisement
NOTE: What remains clear is that obscenity is One of the main issues in Pharmaceutical and Health
an issue for judicial determination and should Care Association v. Duque III (G.R. No. 173034, 09 Oct.
be treated on a case-to-case basis, and on the 2007) was whether the Department of Health (DOH)
judge’s sound discretion. went beyond its power when it included in its
Revised IRR of the Milk Code, a total ban on
There is much difficulty in formulating a perfect advertising breastmilk substitutes. Such ban ran
definition of “obscenity” that shall apply in all cases. afoul with the Milk Code which did not impose such
As such, obscenity is an issue proper for judicial ban, but merely a regulation by an Inter-Agency
determination and should be treated on a case-to- Committee on any advertisement featuring a milk
case basis and on the judge’s sound discretion, product. The Supreme Court ultimately held that the
applying the test laid down in Miller. (Fernando v. overarching ban was unconstitutional.
CA, G.R. No. 159751, 06 Dec. 2006)
In his separate concurring opinion in the same case,
It was observed that movies, compared to other Chief Justice Puno proffered another view why the
media of expression, have greater capacity for evil ban was indeed unconstitutional. Firstly, he
and are consequently subject to more regulation. established that advertisement and promotion of
The burden of proving the film is unprotected breastmilk substitutes properly fall within the
expression must rest on the censor. (Freedman v. ambit of the term commercial speech – that is,
Maryland, 380 U.S. 51, 01 Mar. 1965) speech that proposes an economic transaction,
which nonetheless is entitled to protection by the
The Court held that obscenity is not within the area Constitution. (Pharmaceutical and Health Care
of constitutionally protected speech or press. A Association v. Duque III, G.R. No. 173034, 09 Oct.
thing is obscene if considered as a whole, its 2007; Central Hudson Gas & Electric Corp v. Public
predominant appeal is to prurient interest, i.e., a Service Commission of N.Y., 447 US 557, 20 June 1980)
shameful or morbid interest in nudity, sex, or
excretion, and if it goes substantially beyond Four-Part Analysis of Evaluating Validity of
customary limits of candor in description or Regulations of Commercial Speech
representation of such matters. (Roth v. U.S., 354 U.S.
476, 24 June 1957) 1. The advertisement must not be unlawful or
inaccurate;
182
2023 GOLDEN NOTES
2. The Government has a substantial interest ILLEGAL OR IMMORAL ACTIVITIES
to protect; PREJUDICIAL TO THE WELFARE OF CHILDREN
3. The regulation directly advances that
interest; and Illegal or Immoral Activities Prejudicial to the
4. The regulation is not more than extensive Welfare of Children
than is necessary to protect that interest.
(Central Hudson Gas & Electric Corp v. Public This is a relatively new addition to the list of
Service Commission of N.Y., 447 US 557, 20 unprotected speech in this Jurisdiction which was
June 1980) added in Soriano v. Laguardia (G.R. No. 165636, 29
Apr. 2009). In that case, the MTRCB imposed a
NOTE: For the sake of determining whether suspension of Petitioner’s program Ang Dating
commercial speech is protected, it must pass the Daan wherein Petitioner, as host of the program,
first measure above, i.e., it the advertisement must uttered some vulgar and indecent words. The
not be unlawful or inaccurate. Otherwise, such program, it will be noted, was Rated G or for general
advertisement will be unprotected speech which viewership. Because of this, the Supreme Court
the Government may validly restrict or suppress. upheld the MTRCB Suspension since at the time
when the said words were uttered, children might
ADVOCACY OF IMMINENT LAWLESS ACTIONS have heard and learned such were, thus prejudicial
AND DANGER TO NATIONAL SECURITY to their general well-being. The words, the Court
likewise held, do not afford protection by the
Advocacy of Imminent Lawless Actions and Constitution.
Expression Endangering National Security
Another form of unprotected speech includes those G. FREEDOM OF RELIGION

that advocate of imminent lawless action, and
danger to national security.
Provisions on Religion in the Constitution

Petitioner sought to compel respondents to allow
the reopening of the former’s radio station, which
1. Sec. 5, Art. III - No law shall be made
was summarily closed on the grounds of national
respecting an establishment of religion or
security for allegedly inciting the public to commit
prohibiting the free exercise thereof. The free
acts of sedition. While the case eventually became
exercise and enjoyment of religious
moot and was dismissed, the Supreme Court
profession and worship, without
nonetheless said that in applying the Clear and
discrimination or preference, shall forever be
Present Danger Test in broadcast media, the
allowed. No religious test shall be required
Government or the media industry itself must be
for the exercise of civil or political rights;
thoughtful and intelligent in determining whether a
broadcast indeed poses any threat to national
2. Sec. 28(3), Art. VI, 1987 Constitution -
security, for all forms of media are entitled to broad
Charitable institutions, churches and
protection of the freedom of expression clause. This
parsonages or convents appurtenant thereto,
is notwithstanding the fact that broadcast media is
mosques, non-profit cemeteries, and all lands,
somewhat lesser in scope than the freedom
buildings, and improvements, actually,
accorded to newspaper and print media. (Soriano v.
directly, and exclusively used for religious,
Laguardia, G.R. No. 165636, 29 Apr. 2009; Eastern
charitable, or educational purposes shall be
Broadcasting Corp. v. Dans, G.R. No. L-59329, 19 July.
exempt from taxation; and
1985)
3. Sec. 29(2), Art. VI, 1987 Constitution - No

public money or property shall be
183
appropriated, applied, paid, or employed, composite strength, against the individual's right to
directly or indirectly, for the use, benefit, or worship. (Engel v. Vitale, 370 U.S. 421, 25 June 1962)
support of any sect, church, denomination,
sectarian institution, or system of religion, or Q: What is a purely ecclesiastical affair to which
of any priest, preacher, minister, or other the State cannot meddle?
religious teacher, or dignitary as such, except
when such priest, preacher, minister, or A: An ecclesiastical affair is “one that concerns
dignitary is assigned to the armed forces, or doctrine, creed, or form of worship of the church, or
to any penal institution, or government the adoption and enforcement within a religious
orphanage or leprosarium. association of needful laws and regulations for the
government of the membership, and the power of
Religion excluding from such associations those deemed not
worthy of membership.” Based on this definition, an
It is a profession of faith to an active power that ecclesiastical affair involves the relationship
binds and elevates man to his creator. (Aglipay v. between the church and its members on matters of
Ruiz, G.R. No. L-45459, 13 Mar. 1937) faith, religious doctrines, worship, and governance
of the congregation. To be concrete, examples of this
In the context of the constitutional provision, so-called ecclesiastical affairs to which the State
religion also includes a rejection of religion, a cannot meddle are proceedings for
refusal to believe in a hereafter or in the supremacy excommunication, ordinations of religious
of a supernatural person with powers over life and ministers, administration of sacraments and other
death. (Cruz, 2016) activities with attached religious significance.
(Pastor Dionisio V. Austria v. NLRC, G.R. No. 124382,
Guarantees contained in Sec. 5, Art. III of the 16 Aug. 1999)
1987 Constitution (2012, 2009, 2003, 1998,
1997, 1996 BAR) Q: Petitioner is a religious minister of the
Seventh Day Adventist (SDA). He was dismissed
1. Non-establishment clause; and because of alleged misappropriation of
2. Free exercise clause. denominational funds, willful breach of trust,
serious misconduct, gross and habitual neglect
Doctrine of Separation of Church and the State of duties and commission of an offense against
the person of his employer’s duly authorized
The idea is to delineate the boundaries between the representative. He filed an illegal termination
two institutions and thus avoid encroachments by case against the SDA before the labor arbiter.
one against the other because of misunderstanding The SDA filed a motion to dismiss invoking the
of the limits of their respective exclusive doctrine of separation of Church and State.
jurisdictions. The demarcation line calls on the Should the motion be granted?
entities to "render therefor unto Ceasar the things
that are Ceasar’s and unto God the things that are A: NO. Where what is involved is the relationship of
God’s.” (Cruz and Cruz, 2015) the church as an employer and the minister as an
employee and has no relation whatsoever with the
It is not only the State that is prohibited from practice of faith, worship, or doctrines of the church,
interfering in purely ecclesiastical affairs; the i.e., the minister was not excommunicated or
Church is likewise barred from meddling in pure expelled from the membership of the congregation
secular matters. And the reason is that a union of the but was terminated from employment, it is a purely
Church and State "tends to destroy government and secular affair. Consequently, the suit may not be
to degrade religion." It is also likely to result in a dismissed invoking the doctrine of separation of
conspiracy, well-nigh irresistible because of its
184
2023 GOLDEN NOTES
church and the state. (Pastor Dionisio V. Austria v. requests for exemption of affected students.
NLRC, G.R. No. 124382, 16 Aug. 1999) Instead, the memorandum only imposes minimum
standards should HEIs decide to require remedial
Growth of a religious sect as a social force must work. (Denmark S. Valmores v. Dr. Cristina Achacoso
come from the voluntary support of its members and Dr. Giovanni Cabildo, G.R. No. 217453, 19 July
because of the belief that both spiritual and secular 2017)
society will benefit if religions are allowed to
compete on their own intrinsic merit without 1. NON-ESTABLISHMENT AND FREE EXERCISE
benefit of official patronage. (Bernas., 2011) CLAUSES
Q: Denmark S. Valmores is a member of the

NON-ESTABLISHMENT CLAUSE
Seventh-day Adventist Church, whose
fundamental beliefs include the strict
Non-Establishment Clause
observance of the Sabbath as a sacred day. As
such, he refrains from non-religious
No law shall be made respecting an establishment of
undertakings from sunset of Friday to sunset of
religion or prohibiting the free exercise thereof.
Saturday. Prior to the instant controversy,
(Sec. 5, Art. III, 1987 Constitution)
Valmores was enrolled as a first-year student at
the MSU-College of Medicine. However, in one
The non-establishment clause means that the State
instance, petitioner Valmores was unable to
cannot set up a church, nor pass laws which aid
take his Histo-Pathology laboratory
religion or prefer one religion over the another, nor
examination. Despite his request for exemption,
force nor influence a person to go or remain away
no accommodation was given. As a result,
from church against his will or force him to profess
Valmores received a failing grade of 5. Valmores
a belief or disbelief in any religion, etc. In Engel v.
seeks to enforce the 2010 CHED Memorandum.
Vitale (370 U.S. 421, 25 June 1962), known as the
Notwithstanding the lapse of several months, no
“School Prayer Case”, the recitation by the students
written or formal response was ever given by
in public school in New York of a prayer composed
Achacoso. He then brings his cause before the
by the Board of Regents was held unconstitutional.
Court and prayed for the issuance of a writ of
(Nachura, 2015)
mandamus against Achacoso. Will the petition
prosper?
The Government is Neutral
A: YES. The enforcement of the 2010 CHED

While protecting all, it prefers no one, and it
Memorandum is compellable by writ of mandamus.
disparages none. All here applies both to the
Mandamus is employed to compel the performance
believer and non-believer. Freedom of religion
of a ministerial duty by a tribunal, board, officer, or
includes freedom from religion; the right to worship
person. A plain reading of the memorandum reveals
includes the right not to worship. (Imbong v. Ochoa,
the ministerial nature of the duty imposed upon
G.R. No. 204819, 08 Apr. 2014)
Higher Education Institutions (HEIs). Its policy is
crystal clear: a student's religious obligations take
NOTE: The non-establishment clause means that
precedence over his academic responsibilities,
the State should adopt a “position of neutrality”
consonant with the constitutional guarantee of free
when it comes to religious matters. (Suarez, 2011)
exercise and enjoyment of religious worship.
Accordingly, the CHED imposed a positive duty on
Purpose of Non-Establishment Clause:
all HEIs to exempt students, as well as faculty
members, from academic activities in case such
1. Protects voluntarism; and
activities interfere with their religious obligations.
2. Insulation of political process from interfaith
Clearly, under the 2010 CHED Memorandum, HEIs
dissension. (Bernas, 2011)
do not possess absolute discretion to grant or deny
185
NOTE: Voluntarism, as a social value, means that the NOTE: Religious instruction in public
growth of a religious sect as a social force must come schools:
from the voluntary support of its members because a. At the option of parents/guardians
of the belief that both spiritual and secular society expressed in writing;
will benefit if religions are allowed to compete on
their own intrinsic merit without benefit of official b. Within the regular class hours by
patronage. (Bernas, 2011) instructors designated or approved by
religious authorities of the religion to
Constitutional Provisions which Express the which the children belong; and
Non-establishment Clause
c. Without additional costs to the
1. Art. VI, Sec. 29, “No public money/property government. (Ibid.)
given to religious sect or minister/religious
personnel” (except for those assigned to army, 4. Citizenship requirement of ownership of
penal institution, government orphanage and educational institutions, except those
leprosarium). It has also been held that the established by religious groups and mission
aforecited constitutional provision "does not boards. (Sec. 4(2), Ibid.)
inhibit the use of public property for religious
purposes when the religious character of such 5. Appropriation allowed where ecclesiastic is
use is merely incidental to a temporary use employed in armed forces, in a penal
which is available indiscriminately to the public institution, or in a government-owned
in general". (Re: Letter of Tony Q. Valenciano, orphanage or leprosarium. (Sec. 29(2), Art. VI,
Holding of Religious Rituals at the Hall of Justice Ibid.)
Building in Quezon City, A.M. No. 10-4-19-SC, 07
Mar. 2017) Exceptions to the Non-establishment Clause as
held by Jurisprudence:
2. Separation of church and State is inviolable.
(Sec. 6, Art. II, 1987 Constitution) 1. Government sponsorship of town fiestas,
some purely religious traditions have now
3. No religious sects can be registered as political been considered as having acquired secular
parties. (Sec. 2(5), Art. IX(C), 1987 Constitution) character; (Garces v. Estenzo, G.R. No. L-53487,
25 May 1981)
Constitutionally-created Exceptions to the Non-
establishment Clause 2. Postage stamps depicting Philippines as the
venue of a significant religious event –
1. Prohibition on appropriation of public money benefit to the religious sect involved was
or property for the use, benefit or support of merely incidental as the promotion of
any religion. (Sec. 29, Art. VI, 1987 Philippines as a tourist destination was the
Constitution) primary objective; and (Aglipay v. Ruiz, G.R.
No. L-45459, 13 Mar. 1937)
2. Exemption from taxation of properties
actually, directly and exclusively used for 3. Exemption from zoning requirements to
religious purposes. (Sec. 28(3), Ibid.) accommodate unique architectural features of
religious buildings i.e., Mormon’s tall pointed
3. Optional religious instruction in public steeple. (Martin v. Corporation of the Presiding
elementary and high schools. (Sec. 3(3), Art. Bishop, 434 Mass. 141, 16 May 2001)
XIV, Ibid.)
186
2023 GOLDEN NOTES
The Non-establishment Clause states that the immortality of his soul – in fact, cherish any
State CANNOT religious conviction as he and he alone sees fit.
1. Set up a church; However absurd his beliefs may be to others,

even if they be hostile and heretical to the
2. Pass laws which aid one, all religions or prefer majority, he has full freedom to believe as he
one over another; pleases. He may not be required to prove his
beliefs. He may not be punished for his inability
3. Force or influence a person to go to or stay to do so. (Iglesia ni Cristo v. CA, G.R. No. 119673,
away from church against his will or force him 26 July 1996)
to profess a belief or disbelief in any religion;
Right to act on one’s belief, which is subject to
4. Punish a person for entertaining or professing regulation. (Iglesia ni Cristo v. CA, G.R. No.
religious beliefs or disbeliefs, for church 119673, 26 July 1996)
attendance or non-attendance;
Where the individual externalizes his beliefs in acts
5. Collect tax in any amount, can be levied to or omissions that affect the public, his freedom to do
support any religious activity or institution so becomes subject to the authority of the State. As
whatever they may adopt to teach or practice great as this liberty may be, religious freedom, like
religion; and all the other rights guaranteed in the Constitution, it
is limited and subject to the police power of the
6. Openly or secretly participate in the affairs of State and can be enjoyed only with proper regard to
any religious organization or group or vice the rights of others. (Iglesia ni Cristo v. CA, G.R. No.
versa. (Everson v. Board of Education, 330 U.S. 1, 119673, 26 July 1996)
10 Feb. 1947)
2. BENEVOLENT NEUTRALITY AND
FREE EXERCISE CLAUSE CONSCIENTIOUS OBJECTOR
Free Exercise Clause

Benevolent Neutrality
The Free Exercise Clause affords absolute

Benevolent neutrality is an approach that looks
protection to individual religious convictions.
further than the secular purposes of government
However, the government is able to regulate the
action and examines the effect of these actions on
times, places, and manner of its exercise. (Cantwell
religious exercise. Benevolent neutrality recognizes
v. Connecticut, 310 U.S. 296, 20 May 1940)
the religious nature of the Filipino people and the
elevating influence of religion in society; at the same
Aspects of Freedom and Enjoyment of Religious
time, it acknowledges that the government must
Profession and Worship:
pursue its secular goals. In pursuing these goals,
however, it might adopt laws or actions of general
1. Right to believe, which is absolute.
applicability which inadvertently burden religious
exercise. Benevolent neutrality gives room for
The individual is free to believe (or disbelieve)
accommodation of these religious exercises as
as he pleases concerning the hereafter. He may
required by the Free Exercise Clause. It allows these
indulge his own theories about life and death;
breaches in the wall of separation to uphold
worship any god he chooses, or none at all;
religious liberty, which after all is the integral
embrace or reject any religion; acknowledge the
purpose of the religion clauses. (Estrada v. Escritor,
divinity of God or of any being that appeals to
A.M. No. P-02-1651, 04 Aug. 2003)
his reverence; recognize or deny the
187
Benevolent Neutrality/Accommodation is premised those were acts of worship or religious
on a different view of the “wall of separation”. Unlike devotion, which they could not
the Jeffersonian wall that is meant to protect the conscientiously give to anyone or anything
State from the Church, the wall is meant to protect except God. (Ebralinag v. Division
the Church from the State. This view believes that Superintendent of Schools of Cebu, G.R. No.
some legislative acts as regards accommodation of 96770, 01 Mar. 1993)
religion may be allowed, not to promote the
government’s favored form of religion, but to allow 3. The Court recognized that the observance
individuals and groups to exercise their religion of Ramadan as integral to the Islamic faith
without hindrance. The purpose of accommodation and allowed Muslim employees in the
is to remove a burden on, or facilitate the exercise Judiciary to hold flexible office hours from
of, a person’s or institution’s religion. 7:30 o'clock in the morning to 3:30 o'clock
in the afternoon without any break during
It would appear that the intent of the framers of our the period. (In Re: Request of Muslim
Constitution was adopt a benevolent neutrality Employees in the Different Courts in Iligan
approach in interpreting the religious clauses in our City, A.M. No. 02-2-10-SC, 14 Dec. 2005)
constitution because of some provisions such as the
tax exemption of church property, salary of religious 4. The Revised Administrative Code of 1987 has
officers in government institutions, and optional declared Maundy Thursday, Good Friday,
religious instruction. (Estrada v. Escritor, A.M. No. P- and Christmas Day as regular holidays.
02-1651, 04 Aug. 2003)
5. R.A. No. 9177 proclaimed the First Day of
Accommodation Shawwal, the 10th month of the Islamic
Calendar, a national holiday for the
Accommodations are government policies that take observance of Eidul Fitr (the end of
religion specifically into account not to promote the Ramadan).
governments favored form of religion, but to allow
individuals and groups to exercise their religion 6. R.A. No. 9849 declared the 10th day of Zhu/
without hindrance. Their purpose or effect Hijja, the 12th month of the Islamic
therefore is to remove a burden on, or facilitate the Calendar, a national holiday for the
exercise of, a persons or institutions religion. observance of Eidul Adha.
(Estrada v. Escritor, AM P-02-1651, 04 Aug. 2003)
7. P.D. 1083 or the Code of Muslim Personal
Examples of Governmental Accommodation Laws of the Philippines, expressly allows a
Filipino Muslim to have more than one (1)
wife and exempts him from the crime of
1. The exemption of members of Iglesia ni
bigamy punishable under the RPC. It also
Cristo from the coverage of a closed shop
allows Muslims to have divorce.
agreement between their employer and a
union, because it would violate the teaching
Conscientious Objector
of their church not to affiliate with a labor
organization. (Victoriano v. Elizalde Rope
An "individual who has claimed the right to refuse
Workers Union, G.R. No. L-25246, 12 Sept.
to perform military service on the grounds of
1974)
freedom of thought, conscience, and/or religion.”
(Art. 18, International Covenant on Civil and
2. The petitioners, who were members of the
Political Rights)
Jehovah's Witnesses, refused to salute the
flag, sing the national anthem, and recite
the patriotic pledge for it is their belief that
188
2023 GOLDEN NOTES
Requisites for one to be considered a accommodation of religious exercises as required
Conscientious Objector: (BR-OW-S) by the Free Exercise Clause. The benevolent
neutrality doctrine allows accommodation of
1. The person is Opposed to War in any form; morality based on religion, provided it does not
2. He must show that this opposition is Based offend compelling state interests. (Estrada v.
upon Religious training and belief; and Escritor, A.M. No. P-02-1651, 04 Aug. 2003)
3. And he must show that this objection is
Sincere. (Clay v. United States, 403 U.S.698, Q: Ang Ladlad is an organization composed of
28 June 1971) men and women who identify themselves as
lesbians, gays, bisexuals, or transgender
Q: Angel, a court interpreter, is living with a man individuals (LGBTs). Ang Ladlad applied for
not her husband. Ben filed an administrative registration with the COMELEC to participate in
case against Angel as he believes that she is the party-list elections. The COMELEC dismissed
committing an immoral act that tarnishes the the petition on moral grounds, stating the
image of the court, thus she should not be definition of sexual orientation of the LGBT
allowed to remain employed therein as it might sector makes it crystal clear that petitioner
appear that the court condones that act. Angel tolerates immorality which offends religious
admitted that she has been living with a man beliefs based on the Bible and the Koran. Ang
without the benefit of marriage for 20 years and Ladlad argued that the denial of registration,
that they have a son. But as a member of the insofar as it justified the exclusion by using
religious sect known as the Jehovah’s Witnesses, religious dogma, violated the constitutional
the Watch Tower and Bible Tract Society, their guarantees against the establishment of
conjugal arrangement is in conformity with religion. Is this argument correct?
their religious beliefs. In fact, after 10 years of
living together, she executed on 28 July 1991 a A: YES. It was a grave violation of the non-
“Declaration of Pledging Faithfulness.” Should establishment clause for the COMELEC to utilize the
Angel’s right to religious freedom carve out an Bible and the Koran to justify the exclusion of Ang
exception from the prevailing jurisprudence on Ladlad. Under Sec. 5, Art. III of the 1987 Constitution
illicit relations for which government that “no law shall be made respecting an
employees are held administratively liable? establishment of religion or prohibiting the free
exercise thereof.” At bottom, what our non-
A: YES. Angel’s conjugal arrangement cannot be establishment clause calls for is government
penalized as she has made out a case for exemption neutrality in religious matters. Clearly,
from the law based on her fundamental right to governmental reliance on religious justification is
freedom of religion. The Court recognizes that the inconsistent with this policy of neutrality. (Ang
State’s interests must be upheld in order that Ladlad v. COMELEC, G.R. No. 190582, 08 Apr. 2010)
freedom – including religious freedom – may be
enjoyed. In the area of religious exercise as a NOTE: When the law speaks of immoral or,
preferred freedom, however, man stands necessarily, disgraceful conduct, it pertains to
accountable to an authority higher than the State, public and secular morality. It refers to those
and so the State interest sought to be upheld must conducts which are proscribed because they are
be so compelling that its violation will erode the detrimental to conditions upon which depend the
very fabric of the State that will also protect the existence and progress of human society. (Leus v. St.
freedom. In the absence of showing that such State Scholastica’s College Westgrove, G.R. No. 187226, 28
interest exists, man must be allowed to subscribe to Jan. 2015)
the Infinite.
Q: Dychie, Rose Anne, Julie, Kimmy, Alarice and
Furthermore, our Constitution adheres to the Krizelle were minor school children and
Benevolent Neutrality approach that gives room for member of the sect, Jehovah’s Witnesses. They
189
were expelled from their classes by various 3. TESTS TO DETERMINE THE VALIDITY OF
public school authorities for refusing to salute GOVERNMENTAL REGULATION
the flag, sing the national anthem and recite the
“Panatang Makabayan” required by R.A. No.
a) CLEAR AND PRESENT DANGER
1265. According to them, the basic assumption
in their universal refusal to salute the flags of
Lemon Test
the countries in which they are found is that
such a salute constitutes an act of religious
A test to determine whether an act of the
devotion forbidden by God's law and that their
government violates the non-establishment clause.
freedom of religion is grossly violated. On the
other hand, the public authorities claimed that
To pass the Lemon test, a government act or policy
the freedom of religious belief guaranteed by
must:
the Constitution does not mean exception from
non-discriminatory laws like the saluting of flag
1. Have a secular purpose;
and the singing of the national anthem. To allow
2. Not promote or favor any set of religious
otherwise would disrupt school discipline and
beliefs or religion generally; and
demoralize the teachings of civic consciousness
3. Not get the government too closely
and duties of citizenship. Is the expulsion
involved (“entangled”) with religion.
justified?
(Lemon v. Kurtzman, 403 U.S. 602, 28 June
1971)
A: NO. Religious freedom is a fundamental right of
highest priority. The two-fold aspect of right to
b) COMPELLING STATE INTEREST
religious worship is: 1) Freedom to believe which is
an absolute act within the realm of thought. 2)
Compelling State Interest
Freedom to act on one’s belief regulated and
translated to external acts. The only limitation to
Used to determine if the interests of the State are
religious freedom is the existence of grave and
compelling enough to justify infringement of
present danger to public safety, morals, health and
religious freedom. It involves a three-step process:
interests where the right to prevent belongs to the
State. The expulsion of the petitioners from the
1. Has the statute or government action
school is not justified.
created a burden on the free exercise of
religion? – Courts often look into the
In the case at bar, the students expelled are only
sincerity of the religious belief, but
standing quietly during ceremonies. By observing
without inquiring into the truth of the
the ceremonies quietly, it does not present any
belief since the free exercise clause
danger so evil and imminent to justify their
prohibits inquiring about its truth;
expulsion. The expulsion of the students by reason
of their religious beliefs is also a violation of a
2. Is there a sufficiently compelling state
citizen’s right to free education.
interest to justify this infringement of
religious liberty? – In this step, the
The non-observance of the flag ceremony does not
government has to establish that its
totally constitute ignorance of patriotism and civic
purposes are legitimate for the State and
consciousness. Love for country and admiration for
that they are compelling; and
national heroes, civic consciousness, and form of
government are part of the school curricula.
3. Has the State in achieving its legitimate
Therefore, expulsion due to religious beliefs is
purposes used the least intrusive means
unjustified. (Ebralinag v. Division Superintendent of
possible so that the free exercise is not
Cebu, G.R. No. 95770, 01 Mar. 1993)
infringed any more than necessary to
190
2023 GOLDEN NOTES
achieve the legitimate goal of the State? – or a convict. (Silverio v. CA, G.R. No. 94284, 08 Apr.
The analysis requires the State to show that 1991)
the means in which it is achieving its
legitimate State objective is the least The liberty of abode may be impaired only:
intrusive means, or it has chosen a way to 1. Upon lawful order of the court; and
achieve its legitimate State end that imposes 2. Within the limits prescribed by law such as
as little as possible intrusion on religious public safety and security. (Sec. 6, Art. III,
beliefs. (Estrada v. Escritor, A.M. No. P-02- 1987 Constitution)
1651, 04 Aug. 2003)
NOTE: A lawful order of the court is required before
the liberty of abode and of changing the same can be
H. LIBERTY OF ABODE AND RIGHT TO TRAVEL impaired. (Sec. 6, Art. III, 1987 Constitution)
Q: Paz, was employed by the Far Eastern

Employment Bureau, owned by Jocelyn. An
Rights guaranteed under Sec. 6 of the Bill of
advanced payment has already been given to
Rights (2012, 1998, 1996, 1991 BAR)
Paz by the employment agency, for her to work
as a maid. However, Paz wanted to transfer to
1. Freedom to choose and change one’s place
another residence, which was disallowed by the
of abode; and
employment agency. Further she was detained
2. Freedom to travel within the country and
and her liberty was restrained. The employment
outside.
agency wanted that the advance payment, which
was applied to her transportation expense from
1. SCOPE AND LIMITATIONS the province should be paid by Paz before she
could be allowed to leave. Does the employment
LIBERTY OF ABODE agency have the right to restrain and detain a
maid who could not return the advance payment
Liberty of Abode it gave?
It is the right of a person to have his home or to A: NO. An employment agency, regardless of the
maintain or change his home, dwelling, residence, amount it may advance to a prospective employee
or habitation in whatever place he has chosen, or maid, has absolutely no power to curtail her
within the limits prescribed by law. (Sec. 6, Art. III, freedom of movement. The fact that no physical
1987 Constitution) force has been exerted to keep her in the house of
the respondent does not make less real the
When Liberty of Abode May be Impaired deprivation of her personal freedom of movement,
freedom to transfer from one place to another,
This right, pursuant to the Constitution, may only be freedom to choose one’s residence.
impaired by lawful order of the court. Unless there
be important societal considerations and interests Freedom may be lost due to external moral
that are implicated by a person’s decision to stay compulsion, to founded or groundless fear, to
anywhere, he should be given complete freedom of erroneous belief in the existence of an imaginary
choice as to where he may want to dwell and set up power of an impostor to cause harm if not blindly
his abode. (Genuino v. De Lima, G.R. No. 197930, 17 obeyed, to any other psychological element that
Apr. 2019) may curtail the mental faculty of choice or the
unhampered exercise of the will.
The right is NOT absolute, as there may be a law that
restricts the freedom, as when the person is a leper If the actual effect of such psychological spell is to
place a person at the mercy of another, the victim is
191
entitled to the protection of courts of justice as much public health, as may be provided by law. (Genuino
as the individual who is illegally deprived of liberty v. De Lima, G.R. No.197930, 17 Apr. 2018)
by duress or physical coercion. (Caunca v. Salazar,
82 Phil. 851, 01 Jan. 1949) DPWH may validly ban certain vehicles on
expressways in consideration of constitutional
Return to One’s Country provisions of right to travel.
Q: Ferdinand Marcos, in his deathbed, has The right to travel does not mean the right to choose
signified his desire to return to the Philippines any vehicle in traversing a toll way. The right to
to die. But President Corazon Aquino barred the travel refers to the right to move from one place to
return of Marcos and his family. The Marcoses another. Petitioners are not denied the right to
invoke their right to return. Is the right to return move from Point A to Point B along the toll way.
a constitutionally protected right? Anyone is free to access the toll way, much as the
rest of the public can. The mode by which one
A: NO. The right to return to one’s country is not wishes to travel pertains to the manner of using the
among the rights specifically guaranteed in the Bill tollway, a subject that can be validly limited by
of Rights, which treats only of the liberty of abode regulation. There was no absolute right to drive; on
and the right to travel. Nevertheless, the right to the contrary, this privilege was heavily regulated.
return may be considered as a generally accepted (Mirasol v. DPWH, G.R. No. 158793, 08 June 2006)
principle of International law, and under the
Constitution, is part of the law of the land. However, Q: PASEI is engaged in the recruitment of
it is distinct and separate from the right to travel Filipino workers, male and female, for overseas
and enjoys a different protection under the employment. It challenged the validity of
International Covenant of Civil and Political Rights. Department Order (D.O.) 1 of the Department of
(Marcos v. Manglapus, G.R. No. 88211, 15 Sept. 1989 Labor and Employment (DOLE) because it
& 27 Oct. 1989) suspends the deployment of female domestic
and household workers in Iraq, Jordan and
RIGHT TO TRAVEL Qatar due to growing incidence of physical and
personal abuses to female overseas workers.
Right to Travel PASEI contends that it impairs the constitutional
right to travel. Is the contention correct?
This refers to the right of a person to go where he
pleases without interference from anyone. (Cruz, A: NO. The deployment ban does not impair the
2015) right to travel. The right to travel is subject, among
other things, to the requirements of "public safety,"
The Limitations on the Right to Travel: (S-S-H) "as may be provided by law." D.O. No. 1 is a valid
implementation of the Labor Code, in particular, its
1. Interest of national Security; basic policy to "afford protection to labor," pursuant
2. Public Safety; and to the DOLE’s rule-making authority vested in it by
3. Public Health. (Sec. 6, Art. III, 1987 Constitution) the Labor Code. The petitioner assumes that it is
unreasonable simply because of its impact on the
NOTE: It is settled that only a court may issue a hold right to travel, but as we have stated, the right itself
departure order against an individual addressed to is not absolute. The disputed Order is a valid
the Bureau of Immigration and Deportation. qualification thereto. (Philippine Association of
However, administrative authorities, such as Service Exporters, Inc. v. Drilon, G.R. No. 81958, 30
passport-officers, may likewise curtail such right in June 1988)
the interest of national security, public safety, or
192
2023 GOLDEN NOTES
A member of the military cannot travel freely to Departure Orders. DOJ Circular No. 41 is not a law.
other places apart from his command post. It is a compulsory requirement that there be an
existing law, complete and sufficient in itself,
Mobility of travel is another necessary restriction on conferring the expressed authority to the concerned
members of the military. A soldier cannot leave agency to promulgate rules. On its own, the DOJ
his/her post without the consent of the cannot make rules, its authority being confined to
commanding officer. The commanding officer has to execution of laws.
be aware at all times of the location of the troops
under command, so as to be able to appropriately The power to issue Hold Departure Orders remains
respond to any exigencies. For the same reason, inherent to the courts. (Genuino v. De Lima, G.R. No.
commanding officers have to be able to restrict the 197930, 17 Apr. 2018)
movement or travel of their soldiers, if in their
judgment, their presence at place of call of duty is Q: Several criminal complaints were filed
necessary. Military life calls for considerable against former President Gloria Macapagal
personal sacrifices during the period of Arroyo (GMA) before the DOJ. In view thereof,
conscription, wherein the higher duty is not to self DOJ Sec. De Lima issued Watchlist Orders (WLO)
but to country. (Gudani v. Senga, G.R. No. 170165, 15 pursuant to her authority under DOJ Circular No.
Aug. 2006) 41 which was issued pursuant to the rule-
making powers of the DOJ in order to keep
2. WATCH-LIST AND HOLD DEPARTURE individuals under preliminary investigation
ORDERS within the jurisdiction of the Philippines.
Subsequently, GMA requested for the issuance of
Allow Departure Orders (ADO) so that she may
Right to Travel is Not Impaired by a Hold
be able to seek medical attention abroad. Before
Departure Order
the resolution of her application for ADO, GMA
filed a petition with prayer for the issuance of a
The basic reason for the rule is that inasmuch as the
TRO seeking to annul and set aside DOJ Circular
jurisdiction of the courts from which orders and
No. 41 and WLOs issued against her for being
processes were issued does not extend beyond that
unconstitutional. A TRO was issued but GMA was
of the Philippines, they would have no binding force
prevented from leaving the country. Is DOJ
outside of said jurisdiction. (People v. Uy Tuising, G.R.
Circular No. 41 unconstitutional for being a
Nos. 42118-42120, 25 Apr. 1935)
violation of the right to travel?
Hold Departure Order

A: YES. The DOJ has no authority to issue DOJ
Circular No. 41 which effectively restricts the right
It is an order in writing issued by a court,
to travel through the issuance of WLOs and HDOs
commanding the Bureau of Immigration to prevent
(Hold Departure Orders). There are only three
any attempt by a person suspected of a crime to
considerations that may permit a restriction on the
depart from the Philippines which shall be issued
right to travel: national security, public safety or
ex-parte in cases involving crimes where the
public health. Further, there must be an explicit
minimum of the penalty prescribed by law is at least
provision of statutory law or Rules of Court
six (6) years and one (1) day or when the offender
providing for the impairment.
is a foreigner regardless of the imposable penalty.
(A.M. No. 18-07-05-SC, 07 Aug. 2018)
DOJ Circular No. 41 is not a law. It is not a legislative
enactment, but a mere administrative issuance
In Genuino vs. De Lima (G.R. No. 197930, 17 Apr.
designed to carry out the provisions of an enabling
2018), however, the Court has ruled that there is no
law. DOJ is not authorized to issue WLOs and HDOs
law authorizing the Secretary of Justice to issue
to restrict the constitutional right to travel.
Hold Departure Orders, WatchList Orders, or Allow
193
There is no mention of the exigencies stated in the A: NO. This case does not actually involve the right
Constitution that will justify the impairment. The to travel in its essential sense. Any bearing that
provision simply grants the DOJ the power to Proclamation No. 475 may have on the right to
investigate the commission of crimes and prosecute travel is merely corollary to the closure of Boracay
offenders. It does not carry the power to and the ban of tourists and non-residents therefrom
indiscriminately devise all means it deems proper in which were necessary incidents of the island's
performing its functions without regard to rehabilitation. There is certainly no showing that
constitutionally-protected rights. Proclamation No. 475 deliberately meant to impair
the right to travel. The questioned proclamation is
DOJ cannot justify the restraint in the liberty of clearly focused on its purpose of rehabilitating
movement imposed by the circular on the ground Boracay and any intention to directly restrict the
that it is necessary to ensure presence and right cannot, in any manner, be deduced from its
attendance in the preliminary investigation of the import.
complaints.
The closure of Boracay was only temporary
There is no authority of law granting it the power to considering the categorical pronouncement that it
compel the attendance of the subjects of a was only for a definite period of 6 months. Hence, if
preliminary investigation pursuant to its at all, the impact of Proclamation No. 475 on the
investigatory powers. Its investigatory power is right to travel is not direct but merely
simply inquisitorial and, unfortunately, not broad consequential; and the same is only for a reasonably
enough to embrace the imposition of restraint on short period of time or merely temporary. (Zabal v.
the liberty of movement. (Genuino v. De Lima, G.R. Duterte, G.R. No. 238467, 12 Feb. 2019)
No. 197930, 17 Apr. 2018)
It is, however, important to stress that before there I. RIGHT TO INFORMATION

can even be a valid administrative issuance, there
must first be a showing that the delegation of
legislative power is itself valid. It is valid only if
Rationale
there is a law that (a) is complete in itself, setting
forth therein the policy to be executed, carried out,
The purpose is to promote transparency in
or implemented by the delegate; and (b) fixes a
policymaking and in the operations of the
standard the limits of which are sufficiently
government, as well as provide the people sufficient
determinate and determinable to which the
information to exercise effectively other
delegate must conform in the performance of his
constitutional rights. Armed with the right
functions. (Rodrigo v. Sandiganbayan, G.R. No.
information, citizens can participate in public
125498, 02 July 1999)
discussions leading to the formulation of
government policies and their effective
Q: President Rodrigo Duterte issued
implementation. An informed citizenry is essential
Proclamation No. 475 formally declaring a state
to the existence and proper functioning of any
of calamity in Boracay and ordering its closure
democracy. (IDEALs v. PSALM, G.R. No. 192088, 09
for six (6) months. On account of this, Boracay
Oct. 2012)
residents Mark Anthony Zabal and Thiting
Jacosalem filed the present petition alleging that
Three (3) Categories of Information:
they would suffer grave and irreparable damage
as their livelihood depends on the tourist
1. Official records;
activities therein. They attacked the order on
2. Documents and papers pertaining to
the ground that it violates the right to travel. Are
official acts, transactions, and decisions;
they correct?
and
194
2023 GOLDEN NOTES
3. Government research data used in A: NO. The State’s policy of full public disclosure is
formulating policies. (Sec. 7, Art. III, 1987 restricted to transactions involving public interest
Constitution) and is tempered by reasonable conditions
prescribed by law. (Sereno v. CTRM, G.R. No. 175210,
1. SCOPE AND LIMITATIONS 01 Feb. 2016)
Requisites Before the Right to Information May

GR: The access must be for a lawful purpose and is
be Compelled by Writ of Mandamus
subject to reasonable conditions by the custodian of
the records.
1. The information sought must be in relation
to matters of public concern or public
XPNs: The right does not extend to the following:
interest; and
1. National security matters. These include
state secrets regarding military, diplomatic
2. It must not be exempt by law from the
and other national security, and information
operation of the constitutional guarantee.
on inter-government exchanges prior to the
(Sereno v. CTRM, G.R. No. 175210, 01 Feb.
conclusion of treaties and executive
2016)
agreements.
The information sought by Wilfredo are classified as

2. Criminal matters relating to investigation,
a closed-door Cabinet meeting by virtue of the
apprehension, and detention of criminals
CTRM’s composition and the nature of its mandate
which the court may not inquire into prior to
dealing with matters of foreign affairs, trade and
arrest, prosecution and detention;
policymaking. A President and those who assist him
must be free to explore alternatives in the process
3. Trade and industrial secrets and other
of shaping policies and making decisions and to do
banking transactions as protected by the
so in a way many would be unwilling to express
Intellectual Property Code and the Secrecy of
except privately. Without doubt, therefore, ensuring
Bank Deposits Act; and
and promoting the free exchange of ideas among the
members of CTRM tasked to give tariff
4. Other confidential information falling under
recommendations to the President were truly
the scope of the Ethical Safety Act concerning
imperative. (Sereno v. Committee on Tariff and
classified information. (Chavez v. PCGG, G.R.
Related Matters of the NEDA, G.R. No. 175210, 01 Feb.
No. 130716, 9 Dec. 1998)
2016)
Q: Adolfo, filed in his capacity as a citizen and as

Q: The Supreme Court directed the Office of the
a stakeholder in the industry involved in
Solicitor General (OSG) to submit the following
importing petrochemicals, filed a mandamus
information/documents in connection with the
petition to compel the Committee on Tariff and
police drug operations conducted from 01 July
Related Matters (CTRM) to provide him a copy of
2016 to 30 November 2017, to wit:
the minutes of its May 23, 2005 meeting; as well
as to provide copies of all official records,
1. List of persons killed in legitimate police
documents, papers and government research
operations from 1 July 2016 to 30
data used as basis for the issuance of Executive
November 2017;
Order No. 486 which lifted the suspension of the
2. List of deaths under investigation from 1
tariff reduction schedule on petrochemicals.
July 2016 to 30 November 2017;
Wilfredo based his action on the constitutional
3. List of Chinese and Fil-Chinese drug lords
right to information on matters of public
who have been neutralized;
concern and the State’s policy of full public
4. List of drugs involved whether shabu,
disclosure. Will the petition prosper?
cocaine, marijuana, opioids, etc.;
195
5. Comparative tables on index crimes; These information and documents do not involve
6. Statistics of internal cleansing within the rebellion, invasion, terrorism, espionage,
police force; infringement of our sovereignty or sovereign rights
7. Drug watchlist in the affected areas; by foreign powers, or any military, diplomatic or
8. Reports and documents regarding state secret involving national security. It is simply
Almora, Aparri and Soriano; ridiculous to claim that these information and
9. Pre- and post-operation reports in all the documents on police operations against drug
Dafio incidents; pushers and users involve national security matters
10. Number of buy-bust incidents in San so sensitive that even this Court cannot peruse these
Andres Bukid from 1 July 2016 to 30 information and documents in deciding
November 2017; constitutional issues affecting the fundamental right
11. List of warrants and warrantless arrests in to life and liberty of thousands of ordinary citizens.
High Value Target police operations; and (Almora v. Dir. Gen. Dela Rosa, G.R. No. 234359, 03
12. List of cases under investigation under Apr. 2018)
Internal Affairs Service.
Electoral Debates
The OSG claimed that they cannot submit the
abovementioned documents to the Court since Q: The online news agency Rappler, Inc. sued
these documents involve sensitive information COMELEC Chair Bautista for breach of contract
that have national security implications. Is the (MOA) in disallowing the former to stream
OSG correct? online the coverage of the 2016 presidential and
vice-presidential debates. Does Rappler, Inc.
A: NO. The order to produce the information and have a cause of action against Chair Bautista?
documents is about the existence of the requested
information and documents. This Court would like A: YES. Aside from the fact that Chair Bautista
to determine for itself, through the existence of the clearly breached an express stipulation of the MOA
requested information and documents, whether the allowing Rappler, Inc. to stream online the coverage
conduct of operations was indeed done in the of the debates, the presidential and vice-
performance of official functions. Indeed, this Court presidential debates are held primarily for the
is not a trier of facts, and it is not within our benefit of the electorate to assist the electorate in
jurisdiction to determine questions of fact and making informed choices on election day.
evaluate the truthfulness of the contents. In
ordering the production of the documents, the Court Through the conduct of the national debates among
exercises its judicial power to protect and enforce presidential and vice-presidential candidates, the
inherent rights. electorate will have the "opportunity to be informed
of the candidates' qualifications and track record,
Contrary to the claim of the Solicitor General, the platforms and programs, and their answers to
requested information and documents do not significant issues of national concern."
obviously involve state secrets affecting national
security. The information and documents relate to The political nature of the national debates and the
routine police operations involving violations of public's interest in the wide availability of the
laws against the sale or use of illegal drugs. There is information for the voters' education certainly
no showing that the country's territorial integrity, justify allowing the debates to be shown or
national sovereignty, independence, or foreign streamed in other websites for wider dissemination.
relations will be compromised or prejudiced by the (Rappler, Inc. v. Bautista, G.R. No. 222702, 05 Apr.
release of these information and documents to this 2016)
Court or even to the public.
196
2023 GOLDEN NOTES
Publication of Laws and Regulations
J. EMINENT DOMAIN
There is a need for publication of laws to reinforce
the right to information. Laws must come out in the
open in the clear light of the sun instead of skulking
in the shadows with their dark, deep secrets. 1. CONCEPT
Mysterious pronouncements and rumored rules
cannot be recognized as binding unless their Private Property shall not be taken for public use
existence and contents are confirmed by a valid without just compensation. (Sec. 9, Art. III, 1987
publication intended to make full disclosure and Constitution)
give proper notice to the people. (Tanada v. Tuvera,
G.R. No. L-63915, 29 Dec. 1986) NOTE: Sec. 9 of Article III of the Constitution is not a
conferment of the power of eminent domain upon
Publication of Regulations the State, but a specification of the limitations as to
its exercise. (Cruz, 2015)
Publication is necessary to apprise the public of the
contents of penal regulations and make the said Proceeding from the principle of jus regalia, the
penalties binding on the persons affected thereby. right to eminent domain has always been
(Pesigan v. Angeles, G.R. No. L-6427, 30 Apr. 1984) considered as a fundamental state power that is
inseparable from sovereignty. It is described as the
Publication is required in the following: State’s inherent power that need not be granted by
the Constitution, and as the government’s right to
1. All statutes, including those of local appropriate, in the nature of compulsory sale to the
application, and private laws; State, private property for public use or purpose.
(Republic v. Samson-Tatad, G.R. No. 187277, 27 Apr.
2. President decrees and executive orders 2013)
promulgated by the President;
NOTE: Eminent domain is a power primarily lodged
3. Administrative rules and regulations if in the legislative branch of the government.
their purpose is to enforce and implement (Municipality of Parañaque v. V.M. Realty
existing law; and Corporation, G.R. No. 127820, 20 July 1998)
4. Memorandum Circulars, if they are meant Who may exercise the Power of Eminent Domain
note merely to interpret but to “fill in the
details” which that body is supposed to 1. Congress;
enforce. (Tañada v. Tuvera, G.R. No. L- 2. President of the Philippines
63915, 29 Dec. 1986) 3. Local legislative and administrative
bodies; and
Publication is NOT required in the following: 4. Public and quasi-public corporations.
(Cruz, 2015)
1. Interpretative regulations and those
merely internal in nature, regulating
only the personnel of the
administrative agency; and
2. Letters of instructions (LOIs) issued

by administrative superiors
concerning rules and guidelines.
(ibid.)
197
Requisites of Valid Exercise of Eminent and wisdom, if it could be a justiciable
Domain (E-M-U-D-U) question, of the expropriation can only be
raised before the court. (Republic v. Legaspi,
1. The expropriator must Enter a private G.R. No. 177611, 18 Apr. 2012)
property;
2. Determination of Just Compensation - after
2. The entry must be for More than a the first stage, the court’s power of judicial
momentary period; review is limited to the determination of the
appropriate just compensation, and whether
3. The entry must be Under a warrant or color the owner had been given his just
of legal authority; compensation after the taking. (Republic v.
Legaspi, G.R. No. 177611, 18 Apr. 2012)
4. The property must be Devoted to public use
or otherwise informally appropriated or Limitations
injuriously affected; and
The power of eminent domain is not an unlimited
5. The Utilization of the property for public use power. The very text of the Constitution sets down
must be in such a way as to oust the owner two limitations on this fundamental right. (Heirs of
and deprive him of beneficial enjoyment of Alberto Suguitan v. City of Mandaluyong, G.R. No.
the property. (Republic v. Castellvi, G.R. No. L- 135087, 14 Mar. 2000)
20620, 15 Aug. 1974)
The taking must:
Procedure for Eminent Domain: (P-P-G-O-O) a. be for public purpose; and (Sec. 9, Art. III,
1987 Constitution)
1. The land must be a Private property; b. be accompanied by a payment of just
(Manotok v. National Housing Authority, G.R. compensation to the owner. (Sec. 9, Art. III,
No. L-55166-67, 21 May 1987) 1987 Constitution)
2. It must be for a Public purpose; (Ibid.) 2. PUBLIC USE
3. There must be Genuine necessity; (Ibid)

Public Use Clause
4. There must be a previous valid and definite

The term "public use," not having been otherwise
Offer to buy the private property in writing;
defined by the Constitution, must be considered in
(Heirs of Alberto Suguitan v. City of
its general concept of meeting a public need or a
Mandaluyong, G.R. No. 135087, 14 Mar. 2000)
public exigency. For condemnation purposes,
“public use” is one which confers some benefit or
5. The Offer is denied or rejected. (Manotok v.
advantage to the public.
National Housing Authority, Supra)
It is not confined to actual use by the public. As long
NOTE: The offer shall specify the property sought to
as public has the right to use, whether exercised by
be acquired, the reasons for the acquisition, and the
one or many members, a “public advantage” or
price offered. (Art. 25, LGC)
“public benefit” accrues sufficient to constitute a
public use. There will also be public use involved
Stages of Expropriation Proceedings
even if the expropriated property is not actually
acquired by the government but is merely devoted
1. Determination of the Validity of the
to public services administered by privately-owned
Expropriation - questions of the necessity
198
2023 GOLDEN NOTES
public communities. (Manosca v. CA, G.R. No. (Evergreen Manufacturing Corporation v. Republic,
106440, 29 Jan. 1996) G.R. Nos. 218628 and 218631, 06 Sept. 2017)
NOTE: Property already devoted to public use is still The power of eminent domain necessarily includes
subject to expropriation, provided this is done taking, wherein the owner of a property is
directly by the national legislature or under a physically disposed of the same, or his exercise of
specific grant of authority to the delegate. A mere his rights therefor be otherwise impaired or
general authority may not suffice. In such a case the prevented. As such, physical taking of private
courts will have authority to inquire into the property is similar to flying government planes over
necessity of the expropriation and, finding none, a property at such a low altitude as to practically
refuse to allow it. (City of Manila v. Chinese tough the trees therein which thereby intrudes the
Community, G.R. No. L-14355, 31 Oct. 1919) suprajacent rights of the owner. In both cases, there
is a need for just compensation, although the latter
Judicial Review of the Question of Necessity case includes no physical divesture of ownership.
Such taking is compensable. (US v. Causby, 328 U.S.
GR: As regards the question of necessity or wisdom 256, 26 May 1946)
of the taking, it is not usually subject to judicial
review when so exercised by the Congress, it being The general rule is that a taking is not compensable
essentially a political question and may not be when it is a valid exercise of police power aimed at
interfered with by the court. (City of Manila v. improving the general welfare. Where there is only
Chinese Community, G.R. No. L-14355, 31 Oct. 1919) general and common damage suffered by the
community, the taking is not compensable since the
XPN: But where the expropriation is exercised by a damage is damnum absque injuria. (Cruz, 2015)
delegate only of the Congress (such as LGUs), the
courts may inquire into the appropriateness or However, taking is compensable when the damage
wisdom of the expropriation since it now becomes a produced is exclusively or exceptionally shouldered
justiciable question. This view is grounded on two by a person within a community, such as when only
principles: one house within a community is affected by the
smoke blown by the exhaust fan in a train tunnel.
1. The power of eminent domain should be (Richards v. Washington Terminal, 233 U.S. 546, 04
interpreted liberally in favor of the private May 1914)
property owner and strictly against the
expropriator; and Period to Determine Just Compensation
2. An LGU only exercises its power to GR: Just compensation must be reckoned from the
expropriate when authorized by Congress time of taking or filing of the complaint, whichever
and subjected to the latter’s control and came first. (NTC vs. Oroville Dev’t. Corp, G.R. No.
restraints. (Cruz, 2015) 223366, 1 Aug. 2017)
3. JUST COMPENSATION NOTE: In an expropriation case where no actual

taking was evident prior to the filing of the original
complaint, and, subsequently, an amended
Just Compensation Clause
complaint was filed, the computation of just
compensation must be reckoned from the time of
It is the fair and full equivalent of the loss. The true
the filing of the original complaint which is deemed
measure is on the owner of the property’s loss and
to be the time of taking of the property. (Republic v.
not the taker’s gain. The determination of just
Castillo, et.al., G.R. No. 190453, 26 Feb. 2020, J.
compensation is a judicial prerogative that is
Hernando)
usually aided by the appointed commissioner.
199
XPN: At the time the inverse condemnations judgment as to what amount should be awarded and
proceedings were instituted. how this amount should be arrived at.
Award of Consequential Damages Legislative enactments, as well as executive

issuances, providing the method of computing just
Consequential damages may be awarded if the compensation are treated as mere guidelines in
remaining portion not expropriated suffers from ascertaining the amount of just compensation.
impairment. It follows that no consequential
damages may be granted when the entire property When acting within the parameters set by the law
is expropriated, therefore, there are no remaining itself, courts are not strictly bound to apply the
portions left. (Republic v. Spouses Bunsay, G.R. No. formula to its minutest detail, particularly when
205473, 10 Dec. 2019) faced with situations that do not warrant the
formula's strict application. The courts may, in the
Standard to Measure the Proper Compensation exercise of their discretion, relax the formula's
to be Paid application to fit the factual situations before them.
(Republic of the Philippines v. Mupas, G.R. No. 181892,
The measure of just compensation is not the taker's 08 Sept. 2015)
gain, but the owner's loss. We have ruled that just
compensation must not extend beyond the property Q: On the basis of the BIR zonal valuation and
owner's loss or injury. R.A. No. 8974, the Republic of the Philippines
pays Spouses A and B P2,750 per square meter
This is the only way for the compensation paid to be as just compensation for the expropriated
truly just, not only to the individual whose property property. However, spouses A and B invoke that
is taken, but also to the public who shoulders the they should be paid based on fair market value
cost of expropriation. of around P8,000-P10,000. Is the claim of the
spouses proper?
Even as undervaluation would deprive the owner of
his property without due process, so too would its A: YES. The determination of just compensation in
overvaluation unduly favor him to the prejudice of eminent domain cases is a judicial function. As such,
the public. (Republic of the Philippines v. Mupas, G.R. legislative enactments, as well as executive
No. 181892, 08 Sept. 2015) issuances, which fix or provide for the method of
computing just compensation are tantamount to
Q: Congress enacted R.A. No. 8974 laying down impermissible encroachment on judicial
guiding principles to facilitate the expropriation prerogatives. The Courts are not strictly bound to
of private property and payment of just mechanically follow each of the standards
compensation. Is this binding on the courts? enumerated in Sec. 5 of R.A. 8974 because those
factors are merely recommendatory. In arriving at
A: NO. The determination of just compensation in the full and fair equivalent of the property subject of
eminent domain cases is essentially and exclusively expropriation, the courts are guided by certain
a judicial function. standards for valuation such as those mentioned in
R.A. No. 8974. The court will sustain the lower
Fixing the formula with definitiveness and court's determination of just compensation even if
particularity in just compensation is not the it is higher than, or more specifically, as in this case,
function of the executive nor of the legislative double the BIR zonal value as long as such
branches, much less of the parties in this case. determination is justified. (Republic of the
Philippines represented by DPWH v. Heirs of Sps. Luis
Any valuation for just compensation laid down in J. Dela Cruz and Imelda Reyes, G.R. No. 215988, 16
the statutes may not replace the court's own June 2021)
200
2023 GOLDEN NOTES
Q: Philippine Veterans Bank (PVB) acquired the proceeding at its choosing or worse to find that PVB
two properties originally owned by Belmonte can claim compensation from both proceedings
Agro-Industrial Development Corporation would result in unjust enrichment on the part of
(BAIDECO) through foreclosure. When PVB was PVB. (Philippine Veterans Bank v. Bases Conversion
placed under liquidation of the Central Bank and Development Authority, G.R. No. 217492, 04 Oct.
from 1984 to 1991, the said properties were 2021)
placed under the coverage of the CARP and
consequently distributed to the Saguns. Later Garnishment of Government Funds in
on, the Bases Conversion Development Expropriation Cases
Authority (BCDA) instituted expropriation
proceedings for the acquisition of lands needed Q: Keanu Lazzer filed an action directly in court
for SCTEX project, two of the properties were in against the government seeking payment for a
the name of the Saguns. After learning of the parcel of land which the national government
expropriation filed by BCDA, PVB filed motions utilized for a road widening project. Can the
to intervene in the cases asserting that it is government invoke the doctrine of non-
entitled to the expropriation proceeds in either suitability of the state?
the CARP and SCTEX project. Is the contention of
PVB correct? A: NO. When the government expropriates property
for public use without paying just compensation, it
A: No, the contention is not correct. PVB’s cannot invoke its immunity from suit. Otherwise,
contention that it is entitled to the proceeds in the right guaranteed in Sec. 9, Art. III of the 1987
either the CARP and SCTEX expropriations runs Constitution that private property shall not be taken
contrary to the concepts of “taking” and “just for public use without just compensation will be
compensation” in our jurisdiction. In the context of rendered nugatory. (Ministerio v. CFI, G.R. No. L-
the State’s inherent power of eminent domain, there 31635, 31 Aug. 1971)
is “taking” where the owner is actually deprived or
dispossessed of his property; where there is a 4. EXPROPRIATION BY LOCAL GOVERNMENT
practical destruction or a material impairment of UNITS
the value of his property; or when he is deprived of
the ordinary use thereof. Taking may be deemed to
Requisites
occur, for instance, at the time EPs are issued by the
government. Here, it is undisputed that prior to the
The following essential requisites must concur
SCTEX expropriation initiated in 2003, PVB was
before a local government unit can exercise the
already deprived of use and possession of the
power of eminent domain: (P-O-P-O)
properties when CLOAs were awarded and TCTs
were issued in favor of the Saguns in 2001. Thus, the
1. The power of eminent domain is exercised for
taking of PVB’s property was by virtue of the CARP
Public use, purpose, or welfare;
expropriation, and not the SCTEX expropriation.
2. An Ordinance was enacted authorizing the local

The “taking” suffered by PVB occurred by virtue of
chief executive, on behalf of the LGU, to exercise
the implementation of CARP. Thus, just
the power of eminent domain or pursue
compensation must be paid by the LBP by virtue of
expropriation proceedings;
the CARP expropriation. PVB should not be entitled
to just compensation beyond the loss it suffered
3. There is Payment of just compensation; and
therein. As between the two expropriation
proceedings in the case at bench, PVB may recover
4. A valid and definite Offer has been previously
only from the proceeding that resulted in the taking
made to the owner of the property sought to be
of the properties from its possession. To find that
expropriated, but said offer was not accepted.
PVB is entitled to compensation from either
201
(City of Manila v. Prieto, G.R. No. 221366, 08 July “resolution” is not enough to satisfy the ordinance
2019) requisite. (Ibid.)
Additionally, before a local government unit may Valid and Definite Offer to the Owner of the
enter into the possession of the property sought to Property
be expropriated, it must do the following:
As regards the owner, the term includes not only the
1. File a complaint for expropriation sufficient actual owner of the property, but also all other
in form and substance in the proper court; persons owning, occupying, or claiming to own the
and property. In American jurisprudence, the term
2. Deposit with the said court at least 15% of the owner when employed in statutes relating to
property’s fair market value based on its eminent domain to designate the persons who are
current tax declaration. (Francia v. to be made parties to the proceeding, refers to all
Municipality of Meycauayan, G.R. No. 170432, those who have lawful interest in the property to be
24 May 2008) condemned, including a mortgagee, a lessee, and a
vendee in possession under executory contract.
Procedure for Eminent Domain: (Re-D-E-D)
Every person having an estate or interest at law or
1. If the owner Rejects the offer, the LGU can in equity in the land taken is entitled to share in the
then file a complaint for expropriation in award. If a person claiming an interest in the land
the RTC; sought to be condemned is not made a party, he is
given the right to intervene and lay claim to the
2. The LGU must then Deposit the amount compensation. (De Knecht v. CA, G.R. No. 108015, 20
equivalent to 15% of the fair market value May 1998)
of the property to be expropriated based on
its current tax declaration; Q: May an LGU expropriate a property for the
benefit of a specific homeowners’ association?
3. The LGU may then Enter the property; and
A: NO. An LGU cannot use the power of eminent
4. The Court will Determine the amount of domain to expropriate a property merely for the
just compensation for the property purpose of providing a sports and recreational
expropriated. (Sec. 19, LGC) facility to a small group of persons such as those
belonging to homeowners’ association.
Ordinance
“Where the taking by this State of private property
Without an ordinance for the purpose of exercising is done for the benefit of a small community which
the power of eminent domain, there would be no seeks to have its own sports and recreational
compliance with this requisite. The Local facility, notwithstanding that there is such a
Government Code itself requires the same. (Francia recreational facility only a short distance away, such
v. Municipality of Meycauayan, G.R. No. 170432, 24 taking cannot be considered to be for public use. Its
May 2008) expropriation is not valid.” (Masikip v. City of Pasig,
G.R. No. 136349, 23 Jan. 2006)
NOTE: Ordinance and Resolution are two different
things. The former is a law, while the latter is merely Q: May an LGU expropriate a property to provide
a declaration of the sentiment or opinion of a a right-of-way to a specific community?
lawmaking body on a specific matter. An ordinance
possesses a general and permanent character, but a A: NO. To deprive respondents of their property
resolution is temporary in nature. Therefore, a instead of compelling the subdivision owner to
202
2023 GOLDEN NOTES
comply with his obligation under the law is an abuse the questioned provision does in a sense compel a
of the power of eminent domain and is patently lawyer to be a member of the Integrated Bar, such
illegal. Without doubt, expropriation cannot be compulsion is justified as an exercise of the police
justified on the basis of an unlawful purpose. power of the State. (In Re: Atty. Marcial A. Edillon,
A.M. No. 1928, 03 Aug. 1978)
Public funds can be used only for a public purpose.
In this proposed condemnation, government funds Q: Can members of religious sects be compelled
would be employed for the benefit of a private to join labor unions due to closed shop
individual without any legal mooring. In criminal agreements with the employers?
law, this would constitute malversation. (Barangay
Sindalan, San Fernando, Pampanga v. CA, G.R. No. A: NO. In spite of any closed shop agreement,
150640, 22 Mar. 2007) members of said religious sects cannot be refused
employment or dismissed from their jobs on the
sole ground that they are not members of the
K. RIGHT TO ASSOCIATION collective bargaining union. It is clear, therefore,
that R.A. No. 3350, far from infringing the
constitutional provision on freedom of association,
upholds and reinforces it. It does not prohibit the
1. SCOPE AND LIMITATIONS members of said religious sects from affiliating with
labor unions. It still leaves to said members the
Right to Association liberty and the power to affiliate, or not to affiliate,
with labor unions. R.A. No. 3350, therefore, does not
The right to association is already comprehended in violate the constitutional provision on freedom of
due process, particularly as it protects the person’s association. (Victoriano v. Elizalde Rope Workers
liberty. The right to association is deemed embraced Union, Inc., G.R. No. L-25246, 12 Sept. 1947)
in the freedom of expression because the
organization can be used as a vehicle for the Q: Lolita is the Legal Researcher II of RTC Branch
expression of views that have a bearing on the 100 and the president of the Sunny Homes
public welfare. (Cruz, 2015) Homeowners' Association. An administrative
complaint was filed against her, alleging that her
NOTE: When a political party incites violence or duties as president of the homeowners'
puts forward policies that are incompatible with association conflicted with her functions as
democracy, it falls outside the protection of the court legal researcher. The OCA recommended
freedom of association guarantee. (Ang Ladlad v. that the complaint be dismissed for lack of
COMELEC, G.R. No. 190582, 08 Apr. 2010) merit. However, the OCA also recommended that
Lolita be directed to relinquish her position as
Q: Is compelling a lawyer to be a member of the president of the homeowners' association in
Bar a violation of his constitutional freedom to order to fully devote her time in his duties and
associate? functions as Court Legal Researcher. Can Lolita
be required to relinquish her position in the
A: NO. Bar integration does not compel the lawyer homeowners’ association?
to associate with anyone. The only compulsion to
which he is subjected is the payment of annual dues. A: NO. Lolita is neither engaged in outside
The Supreme Court, in order to further the State's employment nor in any private business or
legitimate interest in elevating the quality of profession. She is not receiving any salary from the
professional legal services, may require that the cost services she renders as president of the
of improving the profession in this fashion be homeowners' association. Lolita is merely
shared by the subjects and beneficiaries of the exercising a civic duty as a member of the
regulatory program — the lawyers. Assuming that community. Her involvement in the homeowners'
203
association should be commended rather than Applicability of the Provision
censured. To required Lolita to relinquish her post
as president of the homeowners' association would NOTE: It is NOT absolute and is NOT to be read with
effectively deprive her of her freedom of association literal exactness. It is restricted to contracts with
guaranteed by Sec. 8, Art. III of the 1987 respect to property or some object of value and
Constitution which provides that "the right of the which confer rights that may be asserted in a court
people, including those employed in the public and of justice; it has no application to statutes relating to
private sectors, to form unions, associations, or public subjects within the domain of the general
societies for purposes not contrary to law shall not legislative powers of the State and involving the
be abridged." (Rubio v. Basada, OCA IPI N. 15-4429- public rights and public welfare of the entire
P, 06 Dec. 2017) community affected by it.
This constitutional provision is applicable ONLY if

L. NON-IMPAIRMENT OF CONTRACTS the obligation of contract is impaired by legislative
act (statute, ordinance, etc.). The act need not be by
a legislative office; but it should be legislative in
nature. Furthermore, the impairment must be
1. SCOPE AND LIMITATIONS substantial. (Philippine Rural Electric Cooperatives
Assoc. v. DILG Secretary, G.R. No. 143076, 10 June
Impairment of Contracts 2003)
Any law which introduces a change into the express Inapplicability of the Provision
terms of the contract, or its legal construction, or its
validity, or its discharge, or the remedy for its 1. In case of franchises, privileges, licenses, etc.
enforcement, impairs the contract. (Clemons v.
Nolting, G.R. No. L-17959, 24 Jan. 1922) NOTE: These are subject to amendment,
alteration, or repeal by Congress when the
The law impairs the obligation of contracts if: common good so requires.
(Ch-Im)
2. There is neither public interest involved nor a
1. It Changes the terms and conditions of a law that supports the claim.
legal contract either as to the time or
mode of performance; or (Cruz, 2013) NOTE: It can only be invoked if it is against the
government or when the government intervenes in
2. It Imposes new conditions or dispenses contract between the parties. (Pacific Wide Realty
with those expressed if it authorizes for its and Development Corp. v. Puerto Azul Land, Inc., G.R.
satisfaction something different from that No. 180893, 25 Nov. 2009)
provided in its terms. (Cruz, 2013)
The non-impairment clause always yields to the
NOTE: Mere technical change which does not police power of the state–and even to the power of
change the substance of the contract, and still leaves taxation and eminent domain–for as long as the
an efficacious remedy for enforcement does NOT subject matter of the contract is imbued with
impair the obligation of contracts. A valid exercise paramount public interest. Into every contract is
of police power is superior to the obligation of deemed written the police power of the State. Also,
contracts. (Cruz, 2013) the police power may not be bargained away
through the medium of a contract, or even that of a
treaty. (Villanueva et al. v. Castañeda et al., G.R. No.
L-61311, 21 Sept. 1987)
204
2023 GOLDEN NOTES
Mutuality of Contracts Governments automatically terminate the
Commercial Agreement?
GR: Valid contracts should be respected by the
legislature and not tampered with by subsequent A: NO. An act of the Philippine Government negating
laws that will change the intention of the parties or the commercial agreement between the two airlines
modify their rights and obligations. (Siska would infringe the vested rights of a private
Development Corporation v. Office of the President of individual. Since PAL was already under private
the Phils., G.R. No. 93176, 22 Apr. 1994) ownership at the time the CMU was entered into, the
Court cannot presume that any and all
NOTE: The will of the parties to a contract must commitments made by the Philippine Government
prevail. A later law which enlarges, abridges, or in are unilaterally binding on the carrier even if this
any manner changes the intent of the parties to the comes at the expense of diplomatic embarrassment.
contract necessarily impairs the contract itself and Even granting that the police power of the State may
cannot be given retroactive effect without violating be exercised to impair the vested rights of privately-
the constitutional prohibition against impairment of owned airlines, the deprivation of property still
contracts. (Sangalang v. IAC, G.R. No. 71169, 22 Dec. requires due process of law. (Kuwait Airline
1988) Corporation v. PAL, G.R. No. 156087, 08 May 2009)
XPN: Enactment of laws pursuant to the exercise of

police power because public welfare prevails over M. FREE ACCESS TO COURTS AND ADEQUATE
private rights. It is deemed embedded in every LEGAL ASSISTANCE
contract a reservation of the State’s exercise of
police power, eminent domain and taxation, so long
as it deals with a matter affecting the public welfare.
Basis (2002, 1991 BAR)
(PNB v. Remigio, G.R. No. 78508, 21 Mar. 1994)
Free access to courts and quasi-judicial bodies and

Q: While still being a GOCC, PAL entered into a
adequate legal assistance shall not be denied to any
Commercial Agreement and Joint Services
person by reason of poverty. (Sec. 11, Art. III, 1987
Agreement with Kuwait Airways in 1981
Constitution)
establishing a joint commercial arrangement
whereby the two airlines were to jointly operate
Right to Free Access to Courts
the Manila-Kuwait (and vice versa) route,
utilizing the planes and services of Kuwait
This right is the basis for Sec. 17, Rule 5 of the ROC
Airways. In that Agreement, PAL may collect
allowing litigation in forma pauperis. Those
royalties from Kuwait Airways. Subsequently,
protected include low paid employees, domestic
the government lost control over PAL and
servants and laborers. (Cabangis v. Almeda Lopez,
became a private corporation. After 14 years,
G.R. No. 47685, 20 Sept. 1940)
delegations from the Philippine
government and Kuwait government met. The
Q: The Municipal Trial Court denied Jaypee’s
talks culminated in a Confidential Memorandum
petition to litigate in forma pauperis on the
of Understanding (CMU). The CMU terminates
ground that Jaypee has regular employment and
the agreement concerning the royalties effective
sources of income thus cannot be classified as
12 April 1995. However, PAL insists that the
poor or pauper. Is the court’s order justified?
agreement could only be effectively terminated
on 31 October 1995, or the last day of the then
A: NO. Litigants need not be persons so poor that
current traffic period and therefore the
they must be supported at public expense. It suffices
provisions of the agreement shall continue to be
that the plaintiff is indigent. And the difference
enforced until such date. Can the execution of
between paupers and indigent persons is that the
the CMU between Kuwait and Philippine
205
latter are persons who have no property or sources whose income is insufficient for the subsistence of
of income sufficient for their support aside from his family."
their own labor though self-supporting when able to
work and in employment. (Acar v. Rosal, G.R. No. L- Even on the assumption that petitioner owns
21707, 18 Mar. 1967) property, he may still be an indigent considering his
sworn statement that he had no income. Under the
Pauper standard set forth in Acar v. Rosal as well as the
recent legislations heretofore adverted to, it is the
A person so poor that he must be supported at income of a litigant that is the determinative factor.
public expense. Also, suitor who, on account of For, really, property may have no income. It may
poverty, is allowed to sue or defend without being even be a financial burden. (Enaje v. Ramos, G.R. No.
chargeable with costs. (Black's Law Dictionary; L-22109, 30 Jan. 1970)
Enaje v. Ramos, G.R. No. L-22109, 30 Jan. 1970)
Q: The Good Shepherd Foundation, Inc. seeks to N. CUSTODIAL INVESTIGATION

be exempted from paying legal fees for its
indigent and underprivileged clients couching
their claim on the free access clause embodied
Also known as the “Miranda Rights.” These are the
in Sec. 11, Art. III of the 1987 Constitution. Is the
rights to which a person under custodial
contention tenable?
investigation is entitled to. At this stage, the person
is not yet an accused as there is yet no case filed
A: NO. The Court cannot grant exemption of
against him. He is merely a suspect. (Miranda v.
payment of legal fees to foundations/institutions
Arizona, 384 U.S. 436; People v. Hernandez, G.R. No.
working for indigent and underprivileged people.
L-6025, 30 May 1964)
According to Sec. 19, Rule 141 of the ROC, only a
natural party litigant may be regarded as an
indigent litigant that can be exempted from 1. MEANING OF CUSTODIAL INVESTIGATION
payment of legal fees. Exemption cannot be
extended to the foundations even if they are Custodial investigation commences when a person
working for the indigent and underprivileged is taken into custody and is singled out as a suspect
people. (Re: Query of Mr. Roger C. Prioreschi Re: in the commission of a crime under investigation
exemption from legal and filing fees of the Good and the police officers begin to ask questions on the
Shepherd Foundation, Inc., A. M. No. 09-6-9-SC, 19 suspect's participation therein and which tend to
Aug. 2009) elicit an admission. (Ariel Lopez v. People of the
Philippines, G.R. No. 212186, 29 June 2016)
Q: A pauper is known to have several parcels of
land but that for several years prior to the filing 2. RIGHTS OF A PERSON UNDER CUSTODIAL
of the complaint in the inferior court said INVESTIGATION
parcels of land had been divided and partitioned
amongst his children who had since been in
The following are the rights of suspects: (2013
possession thereof and paying the taxes
BAR)
thereon. Is he considered indigent? May he
apply for free legal assistance?
1. Right to remain silent; (Sec. 12, Art. III, 1987
Constitution)
A: YES. R.A. No. 6034 (An Act Providing
Transportation and Other Allowances for Indigent
2. Right to competent and independent counsel,
Litigants) has defined the term "indigent" to refer to
preferably of his own choice; (People v. Rapeza,
a person "who has no visible means of income or
G.R. No. 169431, 03 Apr. 2007)
206
2023 GOLDEN NOTES
3. Right to be reminded that if he cannot afford to whom the police would then direct interrogatory
the services of counsel, he would be provided questions which tend to elicit incriminating
with one (Sec. 12, Art. III, 1987 Constitution) statements. (People v. Marra, G.R. No. 108494, 20
Sept. 1994)
4. Right to be informed of his rights; (Sec. 12, Art.
III, 1987 Constitution) NOTE: The Miranda rights extend to custodial
investigations conducted by neighborhood Watch
5. Right against torture, force, violence, threat, Groups such as the so-called "Bantay Bayan" or
intimidation or any other means which vitiate those facilitated by Barangay Tanods or Chairman
the free will; (Sec. 12, Art. III, 1987 Constitution) Hence, uncounseled extrajudicial admissions or
confessions given during such investigations are
6. Right against secret detention places, solitary, inadmissible as evidence.
incommunicado, or similar forms of detention;
and (Sec. 12, Art. III, 1987 Constitution) Any inquiry such entities make have the color of a
state-related function and objective insofar as the
7. Right to have confessions or admissions Miranda Rights is concerned. Logically, then, any
obtained in violation of these rights considered uncounseled admission or confession made before
inadmissible in evidence. (Sec. 12(3), Art. III, security guards or private individuals may
1987 Constitution) nonetheless be admissible as evidence. (People v.
Lauga, G.R. No. 186228, 18 Mar. 2010; People v.
NOTE: Looking at the historical background of the Malngan, GR. No. 170470, 26 Sept. 2006)
Miranda Rights, it would seem that the rights kick in
the moment a person has already become the R.A. No. 7438 - An Act Defining Certain Rights of
suspect, or the one singled out for investigation for Person Arrested, Detained or Under Custodial
possible participation in the crime under scrutiny. Investigation and the Duties of the Arresting,
(People v. Ting Lan Uy, Jr., G.R. No. 157399, 17 Nov. Detaining, and Investigating Officers
2005)
This is a special penal law enacted pursuant to Sec.
The “Miranda Rights” are available to avoid 12(4), Art. III of the 1987 Constitution.
involuntary extrajudicial confession.
The custodial investigation shall include the
Even if the person consents to answer questions practice of issuing an invitation to a person who is
without the assistance of counsel, the moment he under investigation in connection with an offense he
asks for a lawyer at any point in the investigation, is suspected to have committed. (Sec. 2, R.A. No.
the interrogation must cease until an attorney is 7438)
present.
NOTE: Rights during custodial investigation apply
The purpose of providing counsel to a person under only against testimonial compulsion and not when
custodial investigation is to curb the police-state the body of the accused is proposed to be examined
practice of extracting a confession that leads (e.g., urine sample, photographs, measurements,
appellant to make self-incriminating statements. garments, shoes) which is a purely mechanical act.
(People v. Rapeza, G.R. No. 169431, 03 Apr. 2007) Under the right against self-incrimination, the
accused may not also be compelled to do certain acts
During Custodial Investigation (2014 BAR) which would produce evidence against him such as
urine tests and providing specimen signature.
As soon as the investigation ceases to be a general
inquiry unto an unsolved crime and direction is The constitutional safeguard is applied
aimed upon a particular suspect, as when the notwithstanding that the person is not yet arrested
suspect who has been taken into police custody and or under detention at the time. However, Fr. Bernas
207
has qualified this statement by saying that 6. Suggestiveness of the identification
jurisprudence under the 1987 Constitution has procedure. (Concha v. People, G.R. No.
consistently held, following the stricter view, that 208114, 03 Oct. 2018)
the rights begin to be available only when the
person is already in custody. (People v. Ting Lan Uy, Unavailability of Miranda Rights
G.R. No. 157399, 17 Nov. 2005)
1. During a police line-up, unless admissions
The mantle of protection afforded by the above- or confessions are being elicited from the
quoted provision covers the period from the time a suspect; (Gamboa v. Cruz, G.R. No. L-56291,
person is taken into custody for the investigation of 27 June 1988)
his possible participation in the commission of a
crime from the time he was singled out as a suspect 2. During administrative investigations;
in the commission of the offense although not yet in (Sebastian, Jr. v Garchitorena, G.R. No
custody.” (People v. Reyes, G.R. No. 178300, 17 Mar. 114028, 18 Oct. 2000)
2009)
3. Confessions made by an accused at the time
Infraction of the rights of an accused during he voluntarily surrendered to the police or
custodial investigation or the so-called Miranda outside the context of a formal
Rights render inadmissible only the extrajudicial investigation; (People v. Baloloy, G.R. No
confession or admission made during such 140740, 12 Apr. 2002)
investigation. "The admissibility of other evidence,
provided they are relevant to the issue and is not 4. Statements made to a private person; and
otherwise excluded by law or rules, is not affected (People v. Tawat, G.R. No 62871, 25 May
even if obtained or taken in the course of custodial 1985)
investigation." (Ho Wai Pang v. People, G.R. No.
176229, 19 Oct. 2011) 5. Forensic investigation is not tantamount to
custodial investigation, therefore Miranda
Totality of Circumstances Test rights is not applicable. (People v. Tranca,
G.R. No. 110357, 17 Aug. 1994)
Out-of-court identifications such as police show-up
is inadmissible if it is tainted with improper 3. REQUISITES OF A VALID WAIVER
suggestions by police officers. (Concha v. People, G.R.
No. 208114, 03 Oct. 2018)
Rights that may be waived
The totality of circumstances test in resolving the

1. Right to remain silent; and
admissibility and relying on out-of-court
2. Right to counsel. Sec. 12(1), Art. III, 1987
identification of suspects considers the following:
Constitution)
(L-O-A-D-Len-S)
NOTE: Rights of the accused to be given the Miranda

1. Level of certainty demonstrated by the
warnings may not be waived. (Ibid.)
witness at the identification;
2. Opportunity of witness to view the criminal
Requisites for Valid Waiver
at the time of the crime;
3. Accuracy of any prior description given by
1. Made voluntarily, knowingly and intelligently;
the witness;
2. In writing; and
4. Witness' Degree attention at that time;
3. With the presence of counsel. (People v. Galit,
5. Length of time between the crime and the
G.R. No. L-51770, 20 Mar. 1985)
identification; and
208
2023 GOLDEN NOTES
Admissibility as evidence of confessions given to threatened into signing the same. Is the
news reporters and/or media and videotaped confession admissible?
confessions
A: YES. The Court believed that Berry’s confession is
Generally, confessions given in response to a admissible because it was voluntary executed with
question by news reporters, not policemen, are the assistance of a competent and independent
admissible. Where the suspect gave spontaneous counsel in the person of Atty. Suarez following Sec.
answers to a televised interview by several press 12, Art. III of the Constitution. In default of proof
reporters, his answers are deemed to be voluntary that Atty. Suarez was negligent in his duties, the
and are admissible. Court held that the custodial investigation of Berry
was regularly conducted. there was no ample proof
Videotaped confessions are admissible, where it is to show that Berry’s narration of events to Amparo
shown that the accused unburdened his guilt was the product of intimidation or coercion. Berry’s
willingly, openly and publicly in the presence of the extrajudicial confession to Amparo, a news reporter,
newsmen. Such confessions do not form part of is deemed voluntary and is admissible in evidence
confessions in custodial investigations as it was not as it was not made to the police authorities or to an
given to policemen but to media in attempt to solicit investigating officer. (People v. Constancio, G.R. No.
sympathy and forgiveness from the public. 206226, 04 Apr. 2016)
However, due to inherent danger of these 4. EXCLUSIONARY DOCTRINE

videotaped confessions, they must be accepted with
extreme caution. They should be presumed
Exclusionary Rule (Fruit of the Poisonous Tree
involuntary, as there may be connivance between
Doctrine)
the police and media men. (People v. Endino, G.R. No.
133026, 20 Feb. 2001) Once the primary source (the tree) is shown to have
been unlawfully obtained, any secondary or
NOTE: What the Constitution bars is the derivative evidence (the fruit) derived from it is also
compulsory disclosure of the incriminating facts or inadmissible. It does not necessarily follow that the
confessions. The rights under Sec. 12 are guarantees property illegally seized will be returned
to preclude the slightest use of coercion by the State, immediately, it could remain in custodia legis.
and not to prevent the suspect from freely and
voluntarily telling the truth. (People v. Andan, G.R. Any evidence obtained in violation of this or the
No. 116437, 03 Mar. 1997) preceding section shall be inadmissible for any
purpose in any proceeding. (Sec. 3(2), Art. III, 1987
Q: Constancio and Berry were charged with the Constitution)
crime of Rape with Homicide committed against
“AAA”. During the trial, Amparo, a news The issue of admissibility of such evidence may be
reporter, testified that he personally waived. Objections are deemed waived if not raised
interviewed Berry. Amparo declared that during during trial. (Demaisip v. CA, G.R. No. 89393, 25 Jan.
his interview, Berry revealed what happened 1991)
the night “AAA” was killed. Atty. Suarez testified
that during the custodial investigation he NOTE: The rule is based on the principle that
advised Berry of his constitutional rights and evidence illegally obtained by the State should not
the consequences of his statements. Berry then be used to gain other evidence, because the
executed an extrajudicial confession which was originally illegally obtained evidence taints all
embodied in a Sinumpaang Salaysay. However, evidence subsequently obtained. (People v. Alicando,
at the trial, Berry attested that the Sinumpaang G.R. No. 117487, 12 Dec. 1995)
Salaysay was false, and claimed that he was
209
Q: Mayor Tatum arrived and proceeded to the to him without the assistance of counsel is
investigation room. Upon seeing the mayor, inadmissible in evidence as provided for under Sec.
appellant Flores approached him and 12, Art. III of the Constitution. (People v. Lauga, G.R.
whispered a request to talk privately. The No. 186228, 15 Mar. 2010)
mayor led appellant to the office of the Chief of
Police and there, Flores broke down and said
"Mayor, patawarin mo ako! I will tell you the O. RIGHTS OF THE ACCUSED
truth. I am the one who killed Villaroman." The
mayor opened the door of the room to let the
public and media representatives witness the
Rights of an Accused (D-I-C-A-S-S-Wit-Do-Ba)
confession. The mayor first asked for a lawyer to
assist appellant but since no lawyer was
1. Due process;
available, she ordered the proceedings
2. Be presumed Innocent;
photographed and videotaped. In the presence
3. Be heard by himself and Counsel;
of the mayor, the police, representatives of the
4. Be informed of the nature and cause of the
media and appellant's own wife and son,
Accusation against him;
appellant confessed his guilt. His confession was
5. A Speedy, impartial and public trial;
captured on videotape and covered by the media
6. Have compulsory process to Secure the
nationwide. Did such uncounseled confession
attendance of witnesses and production of
violate the suspect’s constitutional rights?
evidence on his behalf;
7. Meet the Witnesses face to face;
A: NO. A confession given to the mayor may be
8. Against Double jeopardy; and
admitted in evidence if such confession by the
9. Bail. (Sec. 14, Art. III, 1987 Constitution)
suspect was given to the mayor as a confidant and
not as a law enforcement officer. In such a case, the
uncounseled confession did not violate the suspect’s 1. CRIMINAL DUE PROCESS
constitutional rights. What the constitution bars is
the compulsory disclosure of incriminating facts or No person shall be held to answer for a criminal
confessions. The rights under Sec. 12 are guarantees offense without due process of law. (Sec. 14(1), Art.
to preclude the slightest use of coercion by the State III, 1987 Constitution)
and not to prevent the suspect from freely and
voluntarily telling the truth. (People v. Andan, G.R. Requisites of Criminal Due Process
No. 116437, 03 Mar. 1997) (Heard-O-N-Law)
Q: Accused Antonio Lauga was charged and 1. Accused is Heard by a court of competent
convicted of the crime of rape of his thirteen- jurisdiction;
year old daughter, AAA. During the proceedings, 2. Accused is proceeded against under the
Juan Paulo Nepomuceno, a bantaybayan in the Orderly processes of law;
barangay, testified that the accused confessed 3. Accused is given Notice and opportunity to
that he had in fact raped AAA. The trial court be heard; and
found him guilty of the crime of rape. Lauga 4. Judgment must be rendered after Lawful
contends that the extrajudicial confession he hearing. (People v. Castillo, C.A. No. 227, 01
made to Nepomuceno is inadmissible in Feb. 1946)
evidence as it was made without assistance of
counsel. Is his contention tenable?
A: YES. A barangay bantaybayan is considered a

public officer and any extrajudicial confession made
210
2023 GOLDEN NOTES
Right to appeal not a natural right Who are entitled to bail
The right to appeal is neither a natural right nor part 1. Persons charged with offenses punishable
of due process. It is a mere statutory right, but once by death, reclusion perpetua or life
given, denial constitutes violation of due process. imprisonment, when evidence of guilt is not
(Fenequito v. Vergara, Jr., G.R. No. 172829, 18 July strong;
2012)
2. Persons convicted by the trial court
2. BAIL pending their appeal; and
3. Persons who are members of the AFP facing

Concept
a court martial. (Sec. 13, Art. III, 1987
Constitution)
Bail is the security required by the court and given
by the accused to ensure that the accused appear
Q: Sen. Enrile, who was indicted for plunder in
before the proper court at the scheduled time and
connection with the Pork Barrel Scam, applied
place to answer the charges brought against him. It
for bail arguing among others that he is not a
is awarded to the accused to honor the presumption
flight risk, and that his age and physical
of innocence until his guilt is proven beyond
condition must be seriously considered. May he
reasonable doubt, and to enable him to prepare his
post bail?
defense without being subject to punishment prior
to conviction. (Cortes v. Catral, A.M. No. RTJ-99-1508,
A: YES. Enrile’s poor health justifies his admission
15 Dec. 1999) Its main purpose is to relieve an
to bail. The Court is guided by the earlier mentioned
accused from the rigors of imprisonment until his
principal purpose of bail, which is to guarantee the
conviction and secure his appearance at the trial
appearance of the accused at the trial, or whenever
(Paderanga v. CA, G.R. No. 115407, 28 Aug. 1995)
so required by the court. The Court is further
mindful of the Philippines’ responsibility in the
When available
international community arising from the national
commitment under the Universal Declaration of
The right to bail is available from the very moment
Human Rights to make available to every person
of arrest (which may be before or after the filing of
under detention such remedies which safeguard
formal charges in court) up to the time of conviction
their fundamental right to liberty. These remedies
by final judgment (which means after appeal). No
include the right to be admitted to bail. This national
charge need be filed formally before one can file for
commitment to uphold the fundamental human
bail, so long as one is under arrest. (Heras Teehankee
rights as well as value the worth and dignity of every
v. Rovira, G.R. No. L-101, 20 Dec. 1945)
person has authorized the grant of bail not only to
those charged in criminal proceedings but also to
Application for bail in relation to challenging the
extraditees upon a clear and convincing showing:
arrest
(1) that the detainee will not be a flight risk or a
danger to the community; and (2) that there exist
The application or admission of the accused to bail
special, humanitarian and compelling
shall not bar him from challenging both the validity
circumstances. (Enrile v. Sandiganbayan, G.R. No.
of his arrest or the legality of the warrant issued
213847, 18 Aug. 2015).
therefore, provided that he raises them before he
enters his plea. It shall not likewise bar the accused
Constitutional provisions connected to Right to
from assailing the regularity or questioning the
Bail
absence of a preliminary investigation of the charge
against him provided the same is raised before he
1. The suspension of the privilege of the writ
enters his plea. (Sec. 26, Rule 114, ROC)
of habeas corpus does not impair the right
211
to bail; and (Sec. 13, Art. III, 1987 (Sec. 27, A.M. No. 02-1- strong. (Sec. 28, A.M.
Constitution) 18-SC or Rule on No. 02-1-18-SC or Rule
Juveniles in Conflict on Juveniles in Conflict
2. Excessive bail is not required. (Sec. 13, Art. with the Law) with the Law)
III, 1987 Constitution)
NOTE: The prosecution cannot adduce evidence for
NOTE: The amount of bail should be high enough to the denial of bail where it is a matter of right.
assure the presence of the accused when so However, where the grant of bail is discretionary,
required, but it should be no higher than is the prosecution may show proof to deny the bail.
reasonably calculated to fulfill this purpose. Thus, (People v. Tanes, G.R. No. 240596, 03 Apr. 2019)
bail acts as a reconciling mechanism to
accommodate both the accused’s interest in his Grounds for Denial of Bail
provisional liberty before or during the trial, and the
society’s interest in assuring the accused’s presence If the penalty imposed by the trial court is
at trial. (Enrile v. Sandiganbayan, G.R. No. 213847, 18 imprisonment exceeding six (6) years, the accused
Aug. 2015) shall be denied bail, or his bail shall be cancelled
upon a showing by the prosecution, with notice to
Bail as a matter of right vs. Bail as a matter of the accused, of the following or other similar
discretion circumstances:
Bail as a matter of Bail as a matter of 1. That he is a recidivist, quasi-recidivist, or

right discretion habitual delinquent, or has committed the
Stage of conviction crime aggravated by the circumstance of
Upon conviction by the reiteration;
Before or after
RTC of an offense not
conviction by the
punishable by death, 2. That he has previously escaped from legal
Metropolitan or
reclusion perpetua or confinement, evaded sentence, or violated
Municipal Trial Courts;
life imprisonment; the conditions of his bail without valid
(Sec. 4, Rule 114, ROC)
(Sec. 5, Rule 114, ROC) justification;
Regardless of the stage
of the criminal 3. That he committed the offense while under
Before conviction by prosecution, a person probation, parole, or conditional pardon;
the RTC of an offense charged with a capital
not punishable by offense, or an offense 4. That the circumstances of his case indicate
death, reclusion punishable by the probability of flight if released on bail;
perpetua or life reclusion perpetua or or
imprisonment; and life imprisonment,
(Sec. 4, Rule 114, ROC) when evidence of guilt 5. That there is undue risk that he may
is not strong; and (Sec. commit another crime during the pendency
7, Rule 114, ROC) of the appeal.
Children in Conflict with the Law
Before final conviction A child in conflict with The appellate court may, motu proprio or on motion
by all children in the law charged with of any party, review the resolution of the RTC after
conflict with the law an offense punishable notice to the adverse party in either case. (Sec. 5,
for an offense not by death, reclusion Rule 114, ROC)
punishable by perpetua or life
reclusion perpetua or imprisonment when
life imprisonment. evidence of guilt is
212
2023 GOLDEN NOTES
Scenarios where the penalty of the person 6. Weight of evidence against the accused;
applying for bail is imprisonment exceeding 6 7. Probability of the accused appearing in
years trial;
8. Forfeiture of other bonds;
1. Absence of the circumstances 9. Fact that accused was a fugitive from justice
enumerated in Sec. 5(3), Rule 114 of the when arrested; and
Rules of Court. In this scenario, bail is a 10. Pendency of cases in which the accused is
matter of discretion. This means that if under bond. (A.M. No. 12-11-2-SC, 18 Mar.
none of the circumstances mentioned in the 2014)
third paragraph of Sec. 5, Rule 114 is
present, then the appellate court has the Q: Manolet was arrested for child abuse. She
discretion to grant or deny bail. An filed a petition for application of bail. The court
application for bail pending appeal may be granted her application with a condition that the
denied even if the bail-negating approval of the bail bonds shall be made only
circumstances in the third paragraph are after her arraignment. Is the court’s order valid?
absent; and
A: NO. The grant of bail should not be conditioned
NOTE: The discretionary nature of the upon prior arraignment of the accused. A condition
grant of bail pending appeal does not mean imposed by the judge that before an accused may be
that bail should automatically be granted allowed to post bail, he must be arraigned first was
absent any of the circumstances mentioned declared unconstitutional because it violates two
in the third paragraph of Sec. 5, Rule 114 of (2) important rights of the accused:
the Rules of Court. (Leviste v. CA, G.R. No.
189122, 17 Mar. 2010) 1. The right not to be put on trial except upon
a valid complaint or information sufficient
2. Existence of at least one of the said to charge him in court; and
circumstances. The appellate court 2. Right to bail.
exercises a more stringent discretion, that
is, to carefully ascertain whether any of the In cases where bail is authorized, bail should be
enumerated circumstances in fact exists. If granted before arraignment, otherwise the accused
it so determines, it has no other option will be precluded from filing a motion to quash
except to deny or revoke bail pending which is to be done before arraignment. If the
appeal. (Leviste v. CA, G.R. No. 189122, 17 information is quashed and the case is dismissed,
Mar. 2010) there would be no need for the arraignment of the
accused.
Forms of Bail
To condition the grant of bail on his arraignment
1. Corporate Surety would be to place him in a position where he has to
2. Property Bond choose between:
3. Cash deposit; and
4. Recognizance (Sec. 1, Rule 114, ROC) 1. Filing a motion to quash and thus delay his
release until his motion can be resolved
Amount of Bail; Guidelines because prior to its resolution, he cannot be
arraigned; and
1. Financial ability of the accused to give bail;
2. Nature and circumstances of offense; 2. Foregoing the filing of a motion to quash so
3. Penalty for offense charged; that he can be arraigned at once and
4. Character and reputation of accused; thereafter be released on bail.
5. Age and health of accused;
213
These scenarios undermine the accused’s Rules regarding Presumption of Innocence
constitutional right not to be put on trial except
upon valid complaint or information sufficient to 1. The prosecution has the burden to prove
charge him with a crime and his right to bail. the guilt of the accused beyond reasonable
(Lavides v. CA, G.R. No. 129670, 01 Feb. 2000) doubt; (People v. Colcol., Jr., G.R. No. 94554,
19 Feb. 1993)
NOTE: It should not be taken to mean that the
hearing on a petition for bail should at all times 2. The prosecution must rely on the strength
precede arraignment, because the rule is that a of its evidence and not in the weakness of
person deprived of his liberty by virtue of his arrest the defense; (People v. Solis, G.R. Nos. 78732-
or voluntary surrender may apply for bail as soon as 33, 14 Feb. 1990)
he is deprived of his liberty, even before a complaint
or information is filed against him. (Serapio v. 3. Conviction of an accused must be based on
Sandiganbayan, G.R. No. 148468, 28 Jan. 2003) the strength of the prosecution evidence
and not on the weakness or absence of
3. PRESUMPTION OF INNOCENCE evidence of the defense; (People v. Mirondo,
G.R. No. 210841, 14 Oct. 2015)
Basis
4. The prosecution bears the burden to
overcome such presumption. If the
In all criminal prosecutions, the accused shall be
prosecution fails to discharge this burden,
presumed innocent until the contrary is proved.
the accused deserves a judgment of
(Sec. 14(2), Art. III, 1987 Constitution)
acquittal; and (Delarivav v. People, G.R. No.
212940, 16 Sept. 2015)
NOTE: It can be invoked only by an individual
accused of a criminal offense; a corporate entity has
5. Generally, flight, in the absence of a credible
no personality to invoke the same. (Feeder
explanation, would be a circumstance from
International Line v. CA, G.R. No. 94262, 31 May 1991)
which an inference of guilt might be
established, for a truly innocent person
Every circumstance favoring the innocence of the
would normally grasp the first available
accused must be taken into account. The proof
opportunity to defend himself and assert
against him must survive the test of reason, the
his innocence. It has been held, however,
strongest suspicion must not be permitted to sway
that non-flight may not be construed as an
judgment. (People v. Austria, G.R. No. L-55109, 8 Apr.
indication of innocence either. There is no
1991)
law or dictum holding that staying put is
proof of innocence, for the Court is not
However, after conviction by the trial court, the
blind to the cunning ways of a wolf which,
presumption of innocence terminates and,
after a kill, may feign innocence and choose
accordingly, the constitutional right to bail ends.
not to flee. In Cristina's case, she explained
(Leviste v. CA, G.R. No. 189122, 17 Mar. 2010; Qui v.
that she took flight for fear of her safety
People, G.R. No. 196161, 26 Sept. 2012)
because of possible retaliation from her
husband's siblings. The Court finds such
NOTE: There still exists the discretionary bail
reason for her choice to flee acceptable. She
pending appeal after conviction. (Leviste v. CA, G.R.
did not hide from the law but from those
No. 189122, 17 Mar. 2010)
who would possibly do her harm. (People v.
Samson, G.R. No. 214883, 02 Sept. 2015).
214
2023 GOLDEN NOTES
Proof Beyond Reasonable Doubt Does this provision violate the constitutional
presumption of innocence?
It is a cardinal principle that, in all criminal
prosecutions, it is the prosecution that bears the A: NO. This Court has upheld the constitutionality of
burden to establish the guilt of the accused beyond disputable presumptions in criminal laws. The
reasonable doubt. In discharging such burden, the constitutional presumption of innocence is not
prosecution has the duty to prove each and every violated when there is a logical connection between
element of the crime charged in the information to the fact proved and the ultimate fact presumed.
warrant a finding of guilt for that crime or any other When such prima facie evidence is unexplained or
crime that is necessarily included therein. Further, not contradicted by the accused, the conviction
the prosecution likewise carries the burden to founded on such evidence will be valid. However,
prove the participation of the accused in the the prosecution must still prove the guilt of the
commission of the offense. Corollary thereto, it is accused beyond reasonable doubt. The existence of
essential that the evidence for the prosecution must a disputable presumption does not preclude the
stand or fall on its own weight and cannot be presentation of contrary evidence.
allowed to draw strength from the weakness of the
defense. This burden of proof placed upon the Here, petitioner fails to show that a logical relation
prosecution is anchored on the presumption of between the fact proved—presence of a person
innocence granted in favor of the accused, which no during the hazing—and the ultimate fact
less than our Constitution has guaranteed. (Horca v. presumed—their participation in the hazing as a
People, GR No. 224316, 10 Nov. 2021, J. Hernando) principal—is lacking. Neither has it been shown
how Sec. 14 of the Anti-Hazing Law does away with
The conviction of the accused must rest, not on the the requirement that the prosecution must prove
weakness of the defense, but on the strength of the the participation of the accused in the hazing
evidence for the prosecution. The burden is on the beyond reasonable doubt. (Fuertes v. Senate, G.R. No.
prosecution to prove the accused's guilt beyond 208162, 07 Jan. 2020)
reasonable doubt, not on the accused to prove his
innocence. The administration of justice is not a 4. RIGHT TO BE HEARD
matter of guess work. Since a person's liberty is at
stake here, all measures must be taken to ensure the
No person shall be held to answer for a criminal
protection of his fundamental rights. (People v.
offense without due process of law. (Sec. 14(1), Art.
Enojo, G.R. No. 252258, 06 Apr. 2022, J. Hernando)
III, 1987 Constitution)
In CICL v. People (G.R. No. 230964, 02 Mar. 2022, J.

In all criminal, prosecutions, the accused shall be
Hernando) the Court ruled that although the Illegal
presumed innocent until the contrary is proved, and
Possession of Dangerous Drugs and Paraphernalia
shall enjoy the right to be heard by himself and
were present, the integrity and evidentiary value of
counsel, to be informed of the nature and cause of
the confiscated items were compromised because
the accusation against him, to have a speedy,
the police officers did not follow the stringent
impartial, and public trial, to meet the witnesses
requirements of Section 21(1), Article II of RA 9165
face to face, and to have compulsory process to
as well as its IRR. Since proof beyond reasonable
secure the attendance of witnesses and the
doubt is required to secure a conviction in criminal
production of evidence in his behalf. However, after
cases, all of the accused should be acquitted, as the
arraignment, trial may proceed notwithstanding the
chain of custody was broken.
absence of the accused: Provided, that he has been
duly notified and his failure to appear is
Q: Sec. 14(4) of the Anti-Hazing Law provides
unjustifiable. (Sec. 14(2), Art. III, 1987 Constitution)
that an accused's presence during a hazing is
prima facie evidence of his or her participation.
215
Jurisprudence acknowledges that due process in dispensed with or performed perfunctorily. (People
criminal proceedings, in particular, require: v. Ferrer, G. R. No. 148821, 18 July 2003)
a. That the court or tribunal trying the case is If he opts to be silent where he has a right to speak,
properly clothed with judicial power to hear he cannot later be heard to complain that he was
and determine the matter before it; unduly silenced. (Stronghold Insurance Co., Inc. v. CA,
G.R. No. 89020, 05 May 1992)
b. That jurisdiction is lawfully acquired by it
over the person of the accused; Assistance of Counsel
c. That the accused is given opportunity to be The right to counsel is absolute and may be invoked
heard; and at all times. In an ongoing litigation, it is a right that
must be exercised at every step of the way, with the
d. That judgment is rendered only upon lawful lawyer faithfully keeping his client company. Unless
hearing. the accused is represented by a lawyer, there is
great danger that any defense presented in his
The above constitutional postulates, by now behalf will be inadequate considering the legal
elementary and deeply imbedded in our own perquisites and skills needed in the court
criminal justice system, are mandatory and proceedings. This would certainly be a denial of due
indispensable. The principles find universal process. (Inacay v. People, G.R. No. 223506, 28 Nov.
acceptance and are tersely expressed in the oft- 2016)
quoted statement that procedural due process
cannot possibly be met without a “law which hears NOTE: A PAO lawyer can be considered an
before it condemns, which proceeds upon inquiry independent counsel within the contemplation of
and renders judgment only after trial.” (Alonte v. the Constitution considering that he is not a special
Savellano, Jr., G.R. No. 131652, 09 Mar. 1998) counsel, public or private prosecutor, counsel of the
police, or a municipal attorney whose interest is
NOTE: For the purpose of satisfying the due process admittedly adverse of the accused-appellant. Thus,
requirements, it is also necessary that the accused the assistance of a PAO lawyer satisfies the
have an understanding of what the proceeding is all constitutional requirement of a competent and
about. Accordingly, he would have to be assisted independent counsel for the accused. (People v.
and informed in such language and in a manner that Bacor, G.R. No. 122895, 30 Apr. 1999)
he can understand and comprehend what is being
conveyed. Also, an accused should be proceeded Duties of the Court in Case When a Defendant
against with a particular understanding of his state Appears Without a Counsel
or condition of mind. One exhibiting signs of
unstable mental condition should not be treated like 1. Inform the defendant that it is his right to
any other sane person if the guarantee of due have attorney;
process is to be accorded substance and meaning. 2. Ask him if he desires the aid of an attorney;
(Riano. 2019) 3. Assign an attorney de officio, if he desires
and is unable to employ attorney; and
5. RIGHT TO COUNSEL 4. Grant him a reasonable time if he desires to
procure an attorney of his own. (People v.
Holgado, G.R. No. L-2809, 22 Mar. 1950)
The right to counsel proceeds from the fundamental
principle of due process which basically means that
a person must be heard before being condemned.
The due process requirement is part of a person’s
basic rights; it is not a mere formality that may be
216
2023 GOLDEN NOTES
6. RIGHT TO BE INFORMED OF THE NATURE NOTE: The purpose of an Information is to afford an

AND CAUSE OF ACCUSATION accused his right to be informed of the nature and
cause of the accusation against him. It is in pursuit
of this purpose that the Rules of Court require that
An accused cannot be convicted in the courts of any
the Information allege the ultimate facts
offense, unless it is charged in the complaint or
constituting the elements of the crime charged.
information on which he is tried, or necessarily
Details that do not go into the core of the crime need
included therein. He has the right to be informed as
not be included in the Information but may be
to the nature of the offense with which he is charged
presented during trial. The rule that evidence must
before he is put on trial, and to convict him of an
be presented to establish the existence of the
offense higher than that charged in the complaint or
elements of a crime to the point of moral certainty is
information on which he is tried would be an
only for purposes of conviction. It finds no
unauthorized denial of that right. (Canceran v.
application in the determination of whether or not
People, G.R. No. 206442, 01 July 2015)
an Information is sufficient to warrant the trial of an
accused. (People v. Sandiganbayan, G.R. No. 160619,
Purposes
09 Sept. 2015)
1. To furnish the accused with such a

It is not necessary for the information to allege the
description of the charge against him as will
date and time of the commission of the crime with
enable to make his defense;
exactitude unless such date and time are essential
ingredients of the offenses charged. (People v.
2. To avail himself of his conviction or
Nuyok, G.R. No. 195424, 15 June 2015)
acquittal for protection against a further
prosecution for the same cause; and
Variance Doctrine
3. To inform the court of the facts alleged, so

In spite of the difference between the crime that was
that it may decide whether they are
charged and that which was eventually proved, the
sufficient in law to support a conviction, if
accused may still be convicted of whatever offense
one should be had. (U.S. v. Karelsen, G.R. No.
that was proved even if not specifically set out in the
1376, 21 Jan. 1904)
information provided it is necessarily included in
the crime charged. (Teves v. Sandiganbayan, G.R. No.
Requisites for properly informing the accused of
154182, 17 Dec. 2004)
the nature and cause of accusation
The Court in Villanueva v. People (G.R. No. 218652, 23

1. Information must state the name of the
Feb. 2022, J. Hernando) ruled that that the
accused; (Sec. 7, Rule 110, ROC)
petitioner, when he allowed himself to be arraigned
2. Designation given to the offense by statute;
and proceeded to trial after entering his plea under
the Amended Information, is now estopped from
3. Statement of the acts or omission so
claiming, after his conviction, that the Amended
complained of as constituting the offense;
Information is "vague," and that he was deprived of
his constitutional right to be informed of the nature
4. Name of the offended party; (Sec. 12, Rule
and cause of the accusations against him. The fact
110, ROC)
that petitioner was able to mount a defense belie his
5. Approximate time and date of commission
allegations.
of the offense; (Sec. 11, Rule 110, ROC)
6. Place where offense was committed; and
7. Every element of the offense must be
alleged in the complaint or information.
217
7. RIGHT TO SPEEDY, IMPARTIAL AND PUBLIC the preliminary investigation. The lapse of six years
TRIAL before the filing of the Information with the
Sandiganbayan placed her in a situation of
uncertainty. (Salvacion Zaldivar-Perez vs. Hon. First
Q: A Complaint-Affidavit dated 28 Apr. 2006, for
Division Of The Sandiganbayan, People Of The
Unlawful Appointment, defined and penalized
Philippines, Represented By Assistant Special
under Art. 244 of the RPC, was filed with the
Prosecutor III Ma. Hazelina Tujan-Militante, Office Of
Office of the Provincial Prosecutor of San Jose,
The Special Prosecutor, Office Of The Ombudsman,
Antique against Perez. On 24 May 2012, an
G.R. No. 204739, 13 Nov. 2019, J. Hernando)
Information indicting petitioner Perez for
Violation of Art. 244 of the RPC (Unlawful
Appointments) was filed before the 8. RIGHT OF CONFRONTATION
Sandiganbayan. Petitioner Perez filed a Motion
for Reconsideration with the Office of the Two-Fold Purpose
Overall Deputy Ombudsman. Was Perez’ right to
the speedy disposition of her case violated? 1. To afford the accused an opportunity to test
the testimony of a witness by cross-
A: YES. "The right to speedy disposition of cases… examination; and (Bernas, 1996)
enshrined in Section 16, Article III of the
Constitution… declares in no uncertain terms that 2. To allow the judge to observe the
“[a]ll persons shall have the right to a speedy deportment of the witness. (Bernas, 1996)
disposition of their cases before all judicial, quasi-
judicial, or administrative bodies.” After a careful NOTE: If the failure of the accused to cross-examine
review of the facts and circumstances of this case a witness is due to his own fault or was not due to
and following the above principle, we find that the fault of the prosecution, the testimony of the
petitioner Perez's right to speedy disposition of the witness should not be excluded. (Dantis v.
case against her has been transgressed. Maghinang, Jr., G.R. No. 191696, 10 Apr. 2013)
First, as to the length of delay. Approximately six The affidavits of witnesses who are not presented
years had elapsed from May 17, 2006, the time during trial are inadmissible for being hearsay. The
when the complaint-affidavit was filed before the accused is denied the opportunity to cross-examine
OPP-Antique, until May 24, 2012, when the case was the witnesses. (Dantis v. Maghinang, Jr., G.R. No.
filed before the Sandiganbayan. The OPP-Antique 191696, 10 Apr. 2013)
took almost three years from the filing of the
Complaint-Affidavit within which to conclude the Depositions are admissible under circumstances
preliminary investigation. This period to conduct provided by the Rules of Court. (Jonathan Landoil
and complete the preliminary investigation is International Co., Inc. v. Mangudadatu, G.R. No.
already excessive. Second, the prosecution offered 155010, 16 Aug. 2004)
no explanation regarding the delay in conducting
the preliminary investigation and in its findings While the prosecution must provide the accused
indicting petitioner Perez of the offense charged. every opportunity to take the deposition of
Third, it is not for the petitioner to ensure that the witnesses that are material to his defense in order
wheels of justice continue to turn. Rather, it is for to avoid charges of violating the right of the accused
the State to guarantee that the case is disposed to compulsory process, the State itself must resort
within a reasonable period. Thus, it is of no moment to deposition-taking sparingly if it is to guard
that petitioner Perez did not file any motion before against accusations of violating the right of the
the Ombudsman to expedite the proceeding. Fourth, accused to meet the witnesses against him face to
there is no doubt that petitioner Perez was face. Great care must be observed in the taking and
prejudiced by the inordinate delay in the conduct of use of depositions of prosecution witnesses to the
218
2023 GOLDEN NOTES
end that no conviction of an accused will rely on ex Requirements for the exercise of the right to
parte affidavits and deposition. (Go v. People, G.R. No. secure attendance of witness
185527, 18 July 2012)
1. The witness is really material;
In People v. Sergio (G.R. No. 240053, 21 Mar. 2022, J. 2. The attendance of the witness was
Hernando) the Court held that Cristina and Julius previously obtained;
have no opportunity to confront Mary Jane face to 3. The witness will be available at the time
face in light of the prevailing circumstance. desired; and
However, the terms and conditions laid down by the 4. No similar evidence could be obtained.
trial court ensure that they are given ample (People v. Chua, G.R. No. 128280, 04 Apr.
opportunity to cross-examine Mary Jane by way of 2001)
written interrogatories so as not to defeat the first
purpose of their constitutional right. The trial court NOTE: Right to cross-examine is demandable only
required Cristina and Julius, through their counsel, during trials. Thus, it cannot be availed of during
to file their comment and may raise objections to the preliminary investigations. (Dequito v. Arellano, G.R.
proposed questions in the written interrogatories No. L-1336, 28 May 1948)
submitted by the prosecution. The trial court judge
shall promptly rule on the objections. Thereafter, XPNs to the right of confrontation
only the final questions would be asked by the
Consul of the Philippines in Indonesia or his 1. Dying declarations and all exceptions to the
designated representative. The answers of Mary hearsay rule; (People v. Lanza, G.R. No. L-
Jane to the propounded questions must be written 31782, 14 Dec. 1979)
verbatim, and a transcribed copy of the same would 2. Trial in absentia; and (Sec. 14(2), Art. III,
be given to the counsel of the accused who would, in 1987 Constitution)
turn, submit their proposed cross interrogatory 3. Child testimony. (Bernas, 2011)
questions to the prosecution. Should the
prosecution raise any objection thereto, the trial 10. TRIAL IN ABSENTIA
court judge must promptly rule on the same, and the
final cross interrogatory questions for the
After arraignment, trial may proceed
deposition of Mary Jane will then be conducted.
notwithstanding the absence of the accused
Mary Jane's answers in the cross interrogatory shall
provided that he has been duly notified and his
likewise be taken verbatim and a transcribed copy
failure to appear is unjustifiable. (Sec. 14(2), Art. III,
thereof shall be given to the prosecution.
of the 1987 Constitution)
9. RIGHT TO COMPULSORY PROCESSES Requisites of a Valid Trial in Absentia (A-N-U)
Means to compel the attendance of witnesses and 1. The accused has already been Arraigned;
the production of documents and things needed in 2. He has duly been Notified of the trial; and
the prosecution or defense of a case 3. His failure to appear is Unjustifiable.
(Bernardo v. People, G.R. No. 166980, 04 Apr.
1. Subpoena ad testificandum and subpoena 2007)
duces tecum;
2. Depositions and other modes of discovery; The presence of the accused is mandatory in the
and following instances
3. Perpetuation of testimonies. (Go v. People, 1. During arraignment and plea; (Carredo v.
G.R. No. 185527, 18 July 2012) People, G.R. No. 77542, 19 Mar. 1990)
219
2. During trial, for identification, unless the Factors to Balance
accused has already stipulated on his
identity during the pre-trial and that he is In determining whether the accused's right to
the one who will be identified by the speedy trial was violated, the delay should be
witnesses as the accused in the criminal considered in view of the entirety of the
case; and (Carredo v. People, G.R. No. 77542, proceedings. The factors to balance are the
19 Mar. 1990) following:
3. During promulgation of sentence, unless 1. Duration of the delay;

for a light offense. (Carredo v. People, G.R. 2. Reason thereof;
No. 77542, 19 Mar. 1990) 3. Assertion of the right or failure to assert it;
and
Promulgation of judgment in absentia is valid 4. Prejudice caused by such delay. (People v.
provided the following are present Sandiganbayan, G.R. Nos. 233557-67. 19
June 2019)
1. Judgment be recorded in the criminal
docket; and
2. Copy be served upon accused or counsel. Mere mathematical reckoning of the time involved
would not suffice as the realities of everyday life
NOTE: Recording the decision in the criminal must be regarded in judicial proceedings.
docket of the court satisfies the requirement of (Saldariega v. Panganiban, G.R. Nos. 211933 &
notifying the accused of the decision wherever he 211960, 15 Apr. 2015)
may be. (Estrada v. People, G.R. No. 162371, 25 Aug.
2005) NOTE: The denial of the right to speedy trial is a
ground for acquittal. (Almario v. CA, G.R. No. 127772
A person criminally charged before the 22 Mar. 2001)
Sandiganbayan may be permitted to travel outside
the Philippines, subject to certain conditions set by Right to Speedy Trial vs. Right to Speedy
the above provision. Paragraph (c) thereof is of Disposition of Cases
particular relevance to the case at hand: an accused
conditionally arraigned under the first Information RIGHT TO SPEEDY
RIGHT TO SPEEDY
will not lose the right to question in a motion to DISPOSITION OF
TRIAL
quash the amended or new Information filed after CASES
the conditional arraignment. (Radaza v. People, G.R. It applies to all cases
It particularly refers to
No. 201380. 04 Aug. 2021, J. Hernando) before judicial, quasi-
criminal prosecutions
judicial or
which are at the trial
administrative bodies
stage.
trial.
P. RIGHT TO SPEEDY TRIAL AND SPEEDY
(Sec. 14(2), Art. III, 1987 Constitution; Sec. 16, Art. III,
DISPOSITION OF CASES
1987 Constitution)
RIGHT TO SPEEDY DISPOSITION OF CASES

RIGHT TO SPEEDY TRIAL
Right to Speedy Disposition of Cases
Right to Speedy Trial
This is a right that is available to all persons in all
The term “speedy” means free from vexatious,
kinds of proceedings, whether criminal, civil, or
capricious, and oppressive delays. (Tan v. People, administrative bodies,. (Sec. 16, Art. III, 1987
G.R. No. 173637, 21 Apr. 2009)
Constitution) Unlike the right to speedy trial which
220
2023 GOLDEN NOTES
is available only to an accused in a criminal case and, all cases, be it civil or administrative in nature.
therefore, only the accused may invoke such. (Sec. (Almeda v. Office of the Ombudsman, G.R. No. 204267,
14, Art. III, 1987 Constitution) 25 July 2016)
The right to speedy disposition of cases is different Q: Roman and several others were charged with
from the right to speedy trial to the extent that the a violation of the Anti-Graft and Corrupt
former applies to all cases, whether judicial, quasi- Practices Act for wrongfully claiming that a
judicial, or administrative cases. (Sec. 16, Art. III, mini-theater construction was already finished.
1987 Constitution); whereas the latter applies to Roman filed several extensions to file his
criminal cases only. (Sec. 14(2), Art. III, 1987 counter-affidavit and asked for the
Constitution) consolidation of the case with another
complaint. Later on, Roman filed a motion to
Violation quash the information claiming that his right to
speedy disposition of cases was violated as 11
The right to a speedy disposition of a case, like the years already lapsed since the filing of the
right to a speedy trial, is deemed violated only when complaint before the Ombudsman. The Republic
the proceedings are attended by vexatious, claims that they followed the procedures of the
capricious, and oppressive delays; or when law and that the presence of several of accused
unjustified postponements of the trial are asked for made it difficult to resolve the case. Will
and secured; or even without cause or justifiable Roman’s motion to quash prosper?
motive, a long period of time is allowed to elapse
without the party having his case tried. (Roquero v. A: NO. Citing the case of Corpuz v. Sandiganbayan
Chancellor of UP-Manila, G.R. No. 181851, 09 Mar. (G.R. No. 162214, 11 Nov. 2004), the Court ruled that
2010) the right to speedy disposition of cases is violated
only when there is inordinate delay. The Republic
showed that it followed the procedure leading to the
Q: Luz Almeda, Schools Division Superintendent resolution of the preliminary investigation. When
of the DepEd, was being charged of violation of the Complaint was filed before the Ombudsman, it
R.A. No. 3019. However, the preliminary required the counter-affidavits of respondents. It
investigation proceedings took more than 11 even granted the motions for extension filed by
long years to resolve due to the repeated Roman. Despite this, Roman did not allege any
indorsement of the case between the Office of irregularity in the conduct of the preliminary
the Ombudsman (Ombudsman) and the Office of investigation and approval of the Resolution.
the Special Prosecutor (OSP). It is attributed to Further the Republic explained that the multiple
the Ombudsman’s failure to realize that Almeda respondents and numerous documents involved
was not under the jurisdiction of the OSP or made the case more complex and difficult to resolve.
the Sandiganbayan. Almeda then prays for the The investigating officer needed to evaluate
dismissal of the case against her, claiming that whether each accused impleaded is probably guilty
there was a violation of her right to speedy trial. of the charges.
Is she correct?
In addition, Roman contributed to the delay as he
A: YES. The right includes within its contemplation moved for an extension to file his counter-affidavit
the periods before, during and after trial, such as twice and filed another motion to consolidate the
preliminary investigations and fact-finding case with another complaint. (Republic v.
investigations conducted by the Office of the Sandiganbayan and Roman, G.R. No. 231144, 19 Feb.
Ombudsman. Further, this right applies to all cases 2020)
pending before all judicial, quasi-judicial or
administrative bodies and not limited to the accused Q: Cesar Matas Cagang, provincial treasurer of
in criminal proceedings but extends to all parties in Sarangani was one of the government officials
221
alleged of graft and corruption by embezzling Undersecretary of the Department of Interior
millions in public funds. On 11 August 2004, the and Local Government were written by Emelita.
Office of the Ombudsman found probable cause In 2007, more than eight (8) years after the
to charge him of Malversation of Public Funds filing, the Provincial Prosecutor dismissed
through Falsification of Public Documents and without prejudice the complaints for want of
Violation of Sec. 3 (e) of R.A. No. 3019. On 17 jurisdiction by reason of improper venue. It was
November 2011 the Ombudsman filed a case at only in 2008 that the DOJ issued a Resolution
the Sandiganbayan for violation of Sec. 3 (e) of finding probable cause which resulted to the
R.A. No. 3019 and Malversation of Public Funds filing of two separate Information for libel
through Falsification of Public Documents against Emelita. The delays were attributed to
against him. He filed a Motion to Quash/Dismiss complications in the venue. Emelita filed a
on the ground that there was inordinate delay of motion to dismiss on the ground that the filing of
seven (7) years in the filing of the Informations the Information, after the lapse of more than
which violated his constitutional rights to due nine (9) years after the filing of the libel
process and to speedy disposition of cases. Did complaints, violates her constitutionally
the Sandiganbayan commit grave abuse of guaranteed right to speedy disposition of cases.
discretion on the ground of inordinate delay in The RTC, in denying the motion to dismiss,
denying petitioner’s Motion to Quash Dismiss? applied the principle of laches or implied
acquiescence in construing the silence of the
A: NO. Sec. 16, Art. III of the 1987 Constitution states accused or their inaction to object to the delay
that "all persons shall have the right to a speedy and/or failure to seasonably raise the right to
disposition of their cases before all judicial, quasi- speedy disposition of their cases as waiver
judicial, or administrative bodies. Inordinate delay thereof. Is the RTC correct?
in the resolution and termination of a preliminary
investigation will result in the dismissal of the case A: NO. The issue on venue in libel cases is neither a
against the accused. Courts should appraise a novel nor difficult one. The more than eight years it
reasonable period from the point of view of how took the Provincial Prosecutor to resolve a rather
much time a competent and independent public routine issue is clearly inordinate, unreasonable,
officer would need in relation to the complexity of a and unjustified. Under the circumstances, it cannot
given case. Nonetheless, the accused must invoke be said "that there was no more delay than is
his or her constitutional rights in a timely manner. reasonably attributable to the ordinary processes of
The failure to do so could be considered by the justice." Furthermore, the silence of the accused
courts as a waiver of right. Despite the pendency of during such period could not be viewed as an
the case since 2003, Cagang only invoked his right unequivocal act of waiver of their right to speedy
to speedy disposition of cases when the determination of their cases. That the accused could
informations were filed on 17 November 2011. have filed a motion for early resolution of their cases
Admittedly, while there was delay in filing the is immaterial. The delay of more than eight years
information, Cagang did not show that he asserted that the Provincial Prosecutor incurred is an affront
his rights during this period, choosing instead to to a reasonable dispensation of justice and such
wait until the information was filed against him with delay could only be perpetrated in a vexatious,
the Sandiganbayan. (Cagang v. Sandiganbayan, G.R. capricious and oppressive manner. (People v.
Nos. 206438 and 210141-42, 31 July 2018) Macasaet, G.R. Nos. 196094, 196720 & 197324, 05
Mar. 2018)
Q: In 1999, nine (9) counts of libel were filed
against Emelita on account of nine interrelated Q: An information was filed before the
newspaper articles which appeared in Makati Sandiganbayan, charging petitioners with
Times where statements allegedly derogatory to violation of Sec. 3(e) of Republic Act No. 3019, as
the then Governor and the former amended. Petitioners filed several motions, all
222
2023 GOLDEN NOTES
containing an argument that there was Public Trial is not synonymous with Publicized
inordinate delay in the filing of the case, and Trial
should thus be dismissed outright for being
violative of their right to due process and speedy The right to a public trial belongs to the accused. The
disposition of cases. Was there a violation of requirement of a public trial is satisfied by the
petitioners’ right to speedy disposition of cases? opportunity of the members of the public and the
press to attend the trial and to report what they
A: NO. Jurisprudence teaches us is that the right to a have observed. The accused’s right to a public trial
speedy disposition of cases is a relative and flexible should not be confused with the freedom of the
concept and that the assertion of the right ultimately press and the public’s right to know as a justification
depends on the peculiar circumstances of the case. for allowing the live broadcast of the trial. The
Moreover, the right is deemed violated only when tendency of a high-profile case like the subject case
there is inordinate delay, such that the proceedings to generate undue publicity with its concomitant
are attended by vexatious, capricious, and undesirable effects weighs heavily against
oppressive delays; or when unjustified broadcasting the trial. Moreover, the fact that the
postponements of the trial are asked for and accused has legal remedies after the fact is of no
secured, or when without cause or unjustifiable moment, since the damage has been done and may
motive, a long period of time is allowed to elapse be irreparable. It must be pointed out that the
without the party having his case tried. The Court fundamental right to due process of the accused
ruled that while it took the Special Panel more than cannot be afforded after the fact but must be
three years to issue a Resolution, and another four protected at the first instance. (In Re: Petition for
months for the Ombudsman to approve it, the delay Radio and Television Coverage of the Multiple Murder
was not inordinate, but was brought about only by Cases against Maguindanao Governor Zaldy
the nature and peculiar circumstances of the case. Ampatuan, A.M. No. 10-11-5-SC, 23 July 2012)
While there was delay, it was not vexatious,
capricious, and oppressive as to constitute a
violation of the petitioners' right to speedy Q. RIGHT AGAINST SELF-INCRIMINATION
disposition of cases. (Daep v. Sandiganbayan and
People of the Philippines, G.R. No. 244649, 14 June
2021)
Basis (2006, 1998, 1992, 1990 BAR)
Right to Public Trial

No person shall be compelled to be a witness against
himself. (Sec. 17, Art. III, 1987 Constitution)
GR:
1. Trial must be public in order to prevent
This constitutional privilege has been defined as a
possible abuses which may be committed
protection against testimonial compulsion, but this
against the accused; and
has since been extended to any evidence
“communicative in nature” acquired under
2. The attendance at the trial is open to all,
circumstances of duress. (People v. Olvis, G.R. No.
irrespective of their relationship to the
71092, 30 Sept. 1987)
accused.
NOTE: What is prohibited is the use of physical or

XPN: If the evidence to be adduced is “offensive to
moral compulsion to extort communication from
decency or public morals,” the public may be
the witness or to otherwise elicit evidence which
excluded. (Sec. 21, Rule 119, Rules of Criminal
would not exist were it not for the actions compelled
Procedure)
from the witness–NOT the inclusion of his body in
evidence when it may be material. For instance,
substance emitted from the body of the accused may
223
be received as evidence in prosecution for acts of accused or the witness. (Cabal v. Kapunan, G.R. No.
lasciviousness. (U.S. v. Tan Teng, G.R. No. 7081, 07 L-19052, 29 Dec. 1962)
Sept. 1912). And morphine forced out of the mouth
of the accused may also be used as evidence against NOTE: The privilege against self-incrimination is
him. (U.S. v. Ong Siu Hong, G.R. No. 12778, 03 Aug. not self-executing or automatically operational. It
1917) must be claimed. It follows that the right may be
waived, expressly, or impliedly, as by a failure to
Consequently, although accused-appellant insists claim it at the appropriate time. (People v. Ayson, G.R.
that hair samples was forcibly taken from him and No. 85215. 07 July 1989)
submitted to the NBI for forensic examination, the
hair samples may be admitted in evidence against The privilege against self-incrimination can be
him, for what is proscribed is the use of testimonial claimed only when the specific question,
compulsion or any evidence communicative of the incriminatory in character, is actually addressed to
nature acquired from the accused under duress. the witness. It cannot be claimed at any other time.
(People v. Rondero, G.R. No. 125687, 09 Dec. 1999) It does not give a witness the right to disregard a
subpoena, to decline to appear before the court at
1. SCOPE AND LIMITATIONS the time appointed. (Rosete v. Lim, G.R. No. 136051,
08 June 2006)
The right is available in (C-C-I-A-O)

Right against Self-Incrimination of an Accused
vs. Right against Self-Incrimination of a Witness
1. Criminal cases;
2. Civil cases;
ACCUSED ORDINARY WITNESS
3. Impeachment;
Cannot refuse to take
4. Administrative cases;
the witness stand; can
5. Other legislative investigations that Can refuse to take the
only refuse to answer
possess a criminal or penal aspect. (People witness stand
specific questions
v. Ayson, G.R. No. 85215, 07 July 1989) altogether by invoking
which would
the right against self-
incriminate him in the
NOTE: It does not apply to private investigations incrimination.
commission of an
done by private individual. (BPI v. CASA, GR. No.
offense.
149454, 28 May 2004).
(People v. Ayson, G.R. No. 85215. 07 July 1989; Rosete
v. Lim, G.R. No. 136051, 08 June 2006)
When the privilege against self-incrimination is
violated outside of court, say, by the police, then the
testimony, as already noted, is not admissible under NOTE: For, in reality, the purpose of calling an
accused as a witness for the People would be to
the exclusionary rule. When the privilege is violated
incriminate him. The rule positively intends to avoid
by the court itself, that is, by the judge, the court is
ousted of its jurisdiction, all its proceedings are null and prohibit the certainly inhuman procedure of
compelling a person “to furnish the missing
and void, and it is as if no judgment has been
evidence necessary for his conviction”. (Chavez v.
rendered. (Chavez v. CA, G.R. No. L-29169, 19 Aug.
1968) CA, G.R. No. L-29169, 19 Aug. 1968)
Incriminating Question Re-enactment of a crime
A person who is made to re-enact a crime may

A question tends to incriminate when the answer of
the accused or the witness would establish a fact rightfully invoke his privilege against self-
incrimination, because by his conduct of acting out
which would be a necessary link in a chain of
how the crime was supposedly committed, he
evidence to prove the commission of a crime by the
224
2023 GOLDEN NOTES
thereby practically confesses his guilt by action possession of evidence and its fruits in any
which is as eloquent, if not more so, than words. necessary or manner in connection
(People v. Olvis, G.R. No. 71092, 30 Sept. 1987) convenient in with the criminal
determining any part prosecution of the
Handwritten testimony is covered by the right of investigation witness are prohibited.
against self- incrimination conducted is immune
from criminal
Under Sec. 17, Art. III of the 1987 Constitution, “no prosecution for an
person shall be compelled to be a witness against offense to which such
himself.” Since the provision prohibits compulsory compelled testimony
testimonial incrimination, it does not matter relates.
whether the testimony is taken by oral or written. As to prosecution of the witness
Writing is not purely a mechanical act because it The witness can still be
requires the application of intelligence and prosecuted, but his
The witness cannot be
attention. The purpose of the privilege is to avoid compelled testimony
prosecuted at all.
and prohibit thereby the repetition and recurrence may not be used
of compelling a person, in a criminal or any other against him.
case, to furnish the missing evidence necessary for (Galman v. Pamaran, G.R. Nos. 71208-09, 30 Aug.
his conviction. (Bermudez v. Castillo, Prec. Rec. No. 1985; Mapa v. Sandiganbayan, G.R. No. 100295, 26
714-A, 26 July 1937; Beltran v. Samson, G.R. No. Apr. 1994)
32025, 23 Sept. 1929)
NOTE: If an accused is given some kind of immunity
Inapplicability of the Right against Self- by the State in exchange for his testimony against
Incrimination to Juridical Persons his co- accused in a criminal case, he may no longer
validly invoke his right against self-incrimination.
It is not available to juridical persons as “it would be (Chavez v. CA, G.R. No. L-29169, 19 Aug. 1968)
a strange anomaly to hold that a state having
chartered a corporation to make use of certain Q: The Republic of the Philippines filed a case
franchises, could not, in the exercise of sovereignty, against Westinghouse Corporation before the US
inquire how these franchises had been employed, District Court due to the belief that
and whether they have been abused, and demand Westinghouse contract for the construction of
the production of the corporate books and papers the Bataan Nuclear Power Plant, which was
for that purpose.” (Bataan Shipyard and Engineering brokered by HerminioDisini’s company, had
Corporation v. PCG, G.R. No. 75885, 27 May 1987) been attended by anomalies. Having worked as
Herminio’s executive in the latter’s company for
2. IMMUNITY STATUTES 15 years, the Republic asked Jesus Disini to give
his testimony regarding the case.
1. Use Immunity; and
2. Transactional Immunity. (Galman v. An immunity agreement was entered between
Pamaran, G.R. Nos. 71208-09, 30 Aug. 1985) Jesus and the Republic which he undertook to
testify for his government and provide its
Transactional Immunity vs. Use Immunity lawyers with information needed to prosecute
the case. Said agreement gave Jesus an
assurance that he shall not be compelled to give
TRANSACTIONAL
USE IMMUNITY further testimonies in any proceeding other
IMMUNITY
than the present matter. Jesus complied with his
As to definition
undertaking. But after 18 years, Sandiganbayan
The testimony of any The use of the witness
issued a subpoena against him, commanding
person or whose compelled testimony
him to testify and produce documents before
225
said court in an action filed against Herminio. Two kinds of Double Jeopardy
Can Jesus be compelled to testify before the
Sandiganbayan? 1. Double jeopardy for the same offense; (1st
sentence, Sec. 21, Art. III, 1987 Constitution);
A: NO. A contract is the law between the parties. It and
cannot be withdrawn except by their mutual 2. Double jeopardy for the same act. (2nd
consent. In the case at bar, the Republic, through the sentence, Sec. 21, Art. III, 1987 Constitution);
PCGG, offered Jesus not only criminal and civil (People v. Quijada, G.R. Nos. 115008-09, 24 July
immunity but also immunity against being 1996)
compelled to testify in any proceeding other than
the civil and arbitration cases identified in the 1. REQUISITES AND LIMITATIONS
agreement, just so he would agree to testify. When
the Republic entered in such agreement, it needs to
Instances Where Legal Jeopardy Attaches
fulfill its obligations honorably as Jesus did. The
(Com-Fi-A-P-A-W-E-C)
government should be fair. (Disini v. Sandiganbayan,
G.R. No. 180564, 22 June 2010)
1. Valid Complaint or information;
2. Filed before a competent court;
3. The Arraignment of the accused;
R. RIGHT AGAINST DOUBLE JEOPARDY 4. To which he had Pleaded; and
5. Defendant was previously Acquitted or
convicted, or the case dismissed or
Basis otherwise terminated Without his Express
Consent. (Saldariega v. Panganiban, G.R.
No person shall be twice put in jeopardy of Nos. 211933 & 211960, 15 April 2015)
punishment for the same offense. If an act is
punished by a law and an ordinance, conviction or NOTE: Consent of the accused to the dismissal
acquittal under either shall constitute a bar to cannot be implied or presumed; it must be
another prosecution for the same act. (Sec. 21, Art. expressed as to have no doubt as to the accused’s
III, 1987 Constitution) conformity. (Caes v. IAC, 179 SCRA 54, 06 Nov. 1989)
Rationale To substantiate a claim of double jeopardy, the

following must be proven: (Fi-Va-Sa)
To reconsider a judgment of acquittal places the
accused twice in jeopardy for being punished for the 1. A First jeopardy must have attached prior
crime of which he has already been absolved. There to the second;
is reason for this provision of the Constitution. In
criminal cases, the full power of the State is ranged 2. The first jeopardy must have been Validly
against the accused. If there is no limit to attempts terminated; and
to prosecute the accused for the same offense after
he has been acquitted, the infinite power and 3. The second jeopardy must be for the Same
capacity of the State for a sustained and repeated offense, or the second offense includes or is
litigation would eventually overwhelm the accused necessarily included in the offense charged
in terms of resources, stamina, and the will to fight. in the first information or is an attempt to
(Lejano v. People, G.R. Nos. 176389 and 176864, 14 commit the same or is a frustration thereof.
Dec. 2010) (Suero v. People, G.R. No. 156408, 31 Jan.
2005)
226
2023 GOLDEN NOTES
Related protections provided by the right 3. Dismissal of the case was during the
against double jeopardy preliminary investigation; (Jamaca v. People,
G.R. No. 183681, 27 July 2015)
1. Against a second prosecution for the same
offense after acquittal; 4. It does not apply to administrative cases; and
2. Against a second prosecution for the same
offense after conviction; and 5. Dismissal or termination of the case was with
3. Against multiple punishments for the same the express consent of the accused. (People v.
offense. (People v. Dela Torre, G.R. Nos. Labatete, G.R. No. L-12917, 27 Apr. 1960)
137953-58, 11 Apr. 2002)
NOTE: When the dismissal is made at the
Grant of demurrer to evidence operates as an instance of the accused, there is no double
acquittal jeopardy. (People v. Quijada, G.R. Nos. 115008-
09, 24 July 1996)
The grant of a demurrer to evidence operates as an
acquittal and is, thus, final and unappealable. GR: Double jeopardy is not available when the
(People v. Sandiganbayan, G.R. No. 233437, 26 Apr. case is dismissed other than on the merits or
2021) other than by acquittal or conviction upon
motion of the accused personally, or through
The demurrer to evidence in criminal cases is filed counsel, since such dismissal is regarded as with
after the prosecution had rested its case, and when express consent of the accused, who is therefore
the same is granted, it calls for an appreciation of the deemed to have waived the right to plea double
evidence adduced by the prosecution and its jeopardy. (People v. Salico, G.R. No. L-1567, 13
sufficiency to warrant conviction beyond Oct. 1949)
reasonable doubt, resulting in a dismissal of the case
on the merits, is tantamount to an acquittal of the XPNs:
accused. (Dayap v. Sendiong, G.R. No. 177960, 29 Jan. a. Dismissal based on insufficiency of
2009) Such dismissal of a criminal case by the grant evidence; (Saldariega v. Panganiban, G.R.
of demurrer to evidence may not be appealed, for to Nos. 211933 & 211960, 15 Apr. 2015)
do so would be to place the accused in double
jeopardy. The verdict being one of acquittal, the case b. Dismissal because of denial of accused’s
ends there. (People v. Sandiganbayan, G.R. No. right to speedy trial; and (Saldariega v.
233437, 26 Apr. 2021) Panganiban, G.R. Nos. 211933 & 211960, 15
Apr. 2015)
XPNs to the Right against Double Jeopardy
c. Accused is discharged to be a State witness.
1. When the trial court acted with grave abuse of (Saldariega v. Panganiban, G.R. Nos. 211933
discretion amounting to lack or excess of & 211960, 15 Apr. 2015)
jurisdiction; (Bangayan, Jr. v. Bangayan, G.R. No.
172777, and De Asis Delfin v. Bangayan, G.R. No. 6. When the case was provisionally dismissed;
172792, 19 Oct. 2011)
The graver offense developed due to
2. The accused was not acquitted nor was there a supervening facts arising from the same act or
valid and legal dismissal or termination of the omission constituting the former charge; (Sec. 7,
case; (People v. Obsania, G.R. No. L-2444, 29 June Rule 117, ROC)
1968)
NOTE: Doctrine of Supervening Event - The
accused may still be prosecuted for another
offense if a subsequent development changes
227
the character of the first indictment under merely a means to commit other crimes such that
which he may have already been charged or conviction or acquittal of such quasi-offense bars
convicted. (Sec. 7(2), Rule 117, ROC) subsequent prosecution for the same quasi-offense,
regardless of its various resulting acts.
7. The facts constituting the graver charge became
known or were discovered only after a plea was Reason and precedent both coincide in that once
entered in the former complaint or information; convicted or acquitted of a specific act of reckless
(Sec. 7, Rule 117, ROC) imprudence, the accused may not be prosecuted
again for that same act. For the essence of the quasi-
8. The plea of guilty to a lesser offense was made offense of criminal negligence under Art. 365 of the
without the consent of the prosecutor and of the Revised Penal Code lies in the execution of an
offended party except as otherwise provided in imprudent or negligent act that, if intentionally
Sec. 1(f) of Rule 116. (Sec. 7(2), Rule 117, ROC) done, would be punishable as a felony.
Q: Hans, a writer in Q Magazine, published an The law penalizes thus the negligent or careless act,
article about Carlo’s illicit affairs with other not the result thereof. The gravity of the
women. The magazine also happened to have a consequence is only taken into account to
website where the same article was published. determine the penalty, it does not qualify the
Carlo then filed a libel case against Hans both substance of the offense.
under the Revised Penal Code and the
Cybercrime Law. Is there a violation of the And, as the careless act is single, whether the
proscription against double jeopardy? injurious result should affect one person or several
persons, the offense (criminal negligence) remains
A: YES. There should be no question that if the one and the same and cannot be split into different
published material on print, said to be libelous, is crimes and prosecutions. (Ivler v. Hon. Modesto-San
again posted online or vice versa, that identical Pedro, G.R. No. 172716, 17 Nov. 2010)
material cannot be the subject of two separate libels.
The two offenses, one, a violation of Art. 353 of the Q: Three Informations were filed against John
Revised Penal Code and the other a violation of Sec. for two counts of murder and one count of
4(c)(4) of R.A. No. 10175 involve essentially the attempted murder. At the pre-trial, it was
same elements and are in fact one and the same agreed that the prosecution would present its
offense. Online libel under Sec. 4(c)(4) is not a new evidence in four settings. However, the
crime but is one already punished under the Art. prosecution failed to present a single witness in
353. Sec. 4(c)(4) merely establishes the computer each of those four settings. Thus, the Court
system as another means of publication. Charging dismissed the cases and directed the release of
the offender under both laws would be a blatant John. The Prosecutor filed a motion for
violation of the proscription against double reconsideration, claiming that notices to the
jeopardy. (Disini v. Secretary of Justice, G.R. No. prosecution witnesses had not been served
203335, 11 Feb. 2014) because they constantly transferred to other
places due to persistent threats to their lives as
Q: Jet was convicted for Reckless Imprudence a result of these cases. The Court granted the
Resulting in Slight Physical Injuries. Can he still motion and ordered the rearrest of John. After
be prosecuted for Reckless Imprudence trial on the merits, the Court convicted John of
Resulting in Homicide and Damage to Property the crimes charged. On appeal, John claims that
arising from the same incident? he was deprived of his right to a speedy trial and
was placed in double jeopardy. Is John correct?
A: NO. The doctrine that reckless imprudence under
Art. 365 is a single quasi-offense by itself and not
228
2023 GOLDEN NOTES
A: YES. It is incumbent upon the State and the 110 of the Rules of Court mandates the "complaint
private complainants, where applicable, to exert or Information to charge only one offense, except
reasonable efforts to prosecute the case, especially when the law prescribes a single punishment for
in cases where the accused is incarcerated. The various offenses." (Wu v. People, G.R. Nos. 207220-
delay here shows that the prosecution and the 21, 16 Mar. 2022, J. Hernando)
private complainants failed to exert the reasonable
efforts to even present any evidence. The reason for Q: After a long and protracted trial, the accused
their failure is likewise unsubstantiated. involved in the murder of then Senator Aquino
Furthermore, in instances where the State has been were acquitted by the Sandiganbayan. After the
given every opportunity to present its evidence, yet EDSA People Power Revolution, a commission
it failed to do so, it cannot claim to have been appointed by President Aquino recommended
deprived of a fair opportunity to present its the re-opening of the Galman-Aquino murder
evidence. Such failure and the resulting dismissal of case after finding out that the then authoritarian
the case is deemed an acquittal of the accused even president Marcos ordered the Tanodbayan and
if it is the accused who moved for the dismissal of Sandiganabyan to rig the trial. Marcos
the case and will bar another prosecution of the repudiated the findings of the very Fact Finding
accused for the same offense. This is an exception to Board that he himself appointed to investigate
the rule that a dismissal, upon the motion or with the assassination of Ninoy Aquino; he totally
the express consent of the accused, will not be a bar disregarded the Board’s majority and minority
to the subsequent prosecution for the same offense. findings of fact and publicly insisted that the
(People v. Domingo, G.R. No. 204895, 21 Mar. 2018) military’s “fall guy” Rolando Galman was the
killer of Ninoy Aquino; the Sandiganbayan’s
A Valid Information is required in order for the decision in effect convicted Rolando Galman as
First Jeopardy to attach Ninoy’s assassin notwithstanding that he was
not on trial but the victim, and granted all 26
When accused policemen entered their pleas of not accused total absolution notwithstanding the
guilty, and later arraigned anew by reason of Fact Finding Board declaring the soldiers’
amendment of information, and consequently version of Galman being Aquino’s killer a
convicted, they were not placed in double jeopardy. perjured story. Will the rule on double jeopardy
The first requirement for jeopardy to attach – that apply?
the information was valid – has not been complied
with. (Herrera v. Sandiganbayan, G.R. Nos. 119660- A: NO. There was no double jeopardy. It is a settled
61, 13 Feb. 2009) doctrine that double jeopardy cannot be invoked
against this Court’s setting aside of the trial courts’
NOTE: When the first case was dismissed due to judgment of dismissal or acquittal where the
insufficiency of evidence without giving the prosecution which represents the sovereign people
prosecution the opportunity to present its evidence, in criminal cases is denied due process. The
jeopardy has not yet attached. (People v. Dumlao, proceedings that took place before was a sham and
G.R. No. 168918, 02 Mar. 2009) a mock trial which resulted in the denial of the
State’s right to due process. (Galman v.
Variance in the Information, Right to be Sandiganbayan, G.R. No. 72670, 12 Sept. 1986)
Informed of Cause of Action
Effect of order of a court which lacks jurisdiction
Duplicity of actions is not the same as duplicity of
offenses as a ground for a motion to dismiss. Since the MTC did not have jurisdiction to take
Certainly, duplicity of offenses is not the same as the cognizance of the case pending this Court’s review
rule on double jeopardy. The Rules of Court do not of the RTC Order, its order of dismissal was a total
proscribe the filing of dual or even multiple actions nullity and did not produce any legal effect. Thus,
against a respondent or accused. Section 13, Rule the dismissal neither terminated the action on the
229
merits, nor amounted to an acquittal. (Quiambao v. A: YES. The general rule is that the grant of a
People, G.R. No. 185267, 17 Sept. 2014) demurrer to evidence operates as an acquittal and
is, thus, final and unappealable. The demurrer to
The same can be said of the Order of Revival. Since evidence in criminal cases, such as the one at bar, is
both orders cannot be the source of any right nor ''filed after the prosecution had rested its case," and
create any obligation, the dismissal and the when the same is granted, it calls "for an
subsequent reinstatement of Criminal Case No. appreciation of the evidence adduced by the
89724 did not effectively place the petitioners in prosecution and its sufficiency to warrant
double jeopardy. (Quiambao v. People, G.R. No. conviction beyond reasonable doubt, resulting in a
185267, 17 Sept. 2014) dismissal of the case on the merits, tantamount to an
acquittal of the accused." Such dismissal of a
The appeal of an accused operates as a waiver of criminal case by the grant of demurrer to evidence
his right against double jeopardy may not be appealed, for to do so would be to place
the accused in double jeopardy. The verdict being
When an accused appeals from the sentence of the one of acquittal, the case ends there. (Macapagal-
trial court, he waives the constitutional safeguard Arroyo v. People, G.R. No. 220598, 18 Apr. 2017)
against double jeopardy and throws the whole case
open to the review of the appellate court, which is
then called upon to render such judgment as law S. RIGHT AGAINST INVOLUNTARY SERVITUDE
and justice dictate, whether favorable or
unfavorable to the appellant.” In other words, when
appellant appealed the RTC’s judgment of
Involuntary Servitude (1993 BAR)
conviction for murder, he is deemed to have
abandoned his right to invoke the prohibition on
It is where one is compelled by force, coercion, or
double jeopardy since it became the duty of the
imprisonment, and against his will, to labor for
appellate court to correct errors as may be found in
another, whether he is paid or not.
the appealed judgment. Thus, appellant could not
have been placed twice in jeopardy when the CA
GR: No involuntary servitude shall exist. (Sec. 18(2),
modified the ruling of the RTC by finding him guilty
Art. III, 1987 Constitution)
of robbery with homicide as charged in the
Information instead of murder. (People v. Torres,
XPNs: (Pu-S-E-C-O-M)
G.R. No. 189850, 22 Sept. 2014)
1. Punishment for a crime for which the party has

Q: Former President Gloria Macapagal-Arroyo
been duly convicted; (Sec. 18(2), Art. III, 1987
(GMA) filed a demurrer to evidence as a defense
Constitution)
in the criminal case filed against her. The
Supreme Court granted the said petition. The
2. Personal military or civil Service in the interest
Office of the Ombudsman moved for the
of national defense; (Sec. 4, Art. II, 1987
reconsideration of the decision. As a defense,
Constitution)
GMA contends that the decision has effectively
barred the consideration and granting of the
3. In naval Enlistment, a person who enlists in a
motion for reconsideration of the State because
merchant ship may be compelled to remain in
doing so would amount to re-prosecution or
service until the end of a voyage; (Robertson v.
revival of the charge against her despite her
Baldwin, 165 U.S. 275, 25 Jan. 1987)
acquittal and would thereby violate the
constitutional proscription against double
4. Posse comitatus or the Conscription of able-
jeopardy. Is the contention of GMA tenable?
bodied men for the apprehension of criminals;
(U.S. v. Pompeya, G.R. No. L-10255, 06 Aug. 1915)
230
2023 GOLDEN NOTES
Mere extinguishment of life alone does not
5. Return to work Order issued by the DOLE constitute cruel, degrading, inhuman punishment.
Secretary or the President; (Kaisahan ng To be such, it must involve prolonged agony and
Manggagawa sa Kahoy v. Gotamco Sawmills, G.R. suffering; it refers more to the nature of the
No. L-1573, 29 Mar. 1948) punishment to be inflicted upon a convict, that
which is shocking to the conscience of mankind
6. Minors under patria potestas are obliged to under contemporary standards. (Echegaray v.
obey their parents. (Art. 311, Civil Code) Secretary of Justice, G.R. No. 132601, 12 Oct. 1998)
Cruel and Inhuman Penalty

T. RIGHT AGAINST EXCESSIVE FINES, AND
CRUEL AND INHUMAN PUNISHMENTS A penalty is cruel and inhuman if it involves torture
or lingering suffering. (e.g. being drawn and
quartered) (Echegaray v. Secretary of Justice, et al.,
G.R. No. 132601, 19 Jan. 1999)
The prohibition of cruel and unusual punishments is
generally aimed at the form or character of the
Degrading Penalty
punishment rather than its severity in respect of
duration or amount and applies to punishments
A penalty is degrading if it exposes a person to
which public sentiment has regarded as cruel or
public humiliation. (e.g., being tarred and feathered,
obsolete, for instance, those inflicted at the
then paraded throughout town) (Nachura, 2014)
whipping post, or in the pillory, burning at the stake,
breaking on the wheel, disemboweling, and the like.
NOTE: The power to re-impose the death penalty
Fine and imprisonment would not thus be within
for certain heinous crimes is vested in the Congress;
the prohibition. It takes more than merely being
not in the President. After all, the power to define
harsh, excessive, out of proportion, or severe for a
crimes and impose penalties is legislative in nature.
penalty to be obnoxious to the Constitution.
(Sec. 19(1), Art. III, 1987 Constitution)
In line with this, this Court has found that the

Q: Petitioner claims that the Anti-Hazing Law
penalty of life imprisonment or reclusion perpetua
imposes cruel and unusual punishments on
does not violate the prohibition. Even the death
those charged under it, as the offense is
penalty in itself was not considered cruel,
punishable with reclusion perpetua, a non-
degrading, or inhuman.
bailable offense.
Nonetheless, this Court has found that penalties like
A: NO. Settled is the rule that a punishment
fines or imprisonment may be cruel, degrading, or
authorized by statute is not cruel, degrading or
inhuman when they are "flagrantly and plainly
disproportionate to the nature of the offense unless
oppressive and wholly disproportionate to the
it is flagrantly and plainly oppressive and wholly
nature of the offense as to shock the moral sense of
disproportionate to the nature of the offense as to
the community." However, if the severe penalty has
shock the moral sense of the community. It takes
a legitimate purpose, then the punishment is
more than merely being harsh, excessive, out of
proportionate, and the prohibition is not violated.
proportion or severe for a penalty to be obnoxious
(Fuertes v. Senate, G.R. No. 208162, 07 Jan. 2020)
to the Constitution. Based on this principle, the
Court has consistently overruled contentions of the
NOTE: The fact that the punishment authorized by
defense that the penalty of fine or imprisonment
the statute is severe does not make it cruel and
authorized by the statute involved is cruel and
unusual. (Corpuz v. People, G.R. No. 180016, 29 Apr.
degrading.
2014)
231
The intent of the Anti-Hazing Law is to deter Poll tax
members of a fraternity, sorority, organization, or
association from making hazing a requirement for A specific sum levied upon any person belonging to
admission. By making the conduct of initiation rites a certain class without regard to property or
that cause physical and psychological harm malum occupation (e.g., community tax). (Cruz, 2015)
prohibitum, the law rejects the defense that one's
desire to belong to a group gives that group the NOTE: A tax is not a debt since it is an obligation
license to injure, or even cause the person's death. arising from law. Hence, its non-payment maybe
Moreover, the law was meant to counteract the validly punished with imprisonment. Only poll tax is
exculpatory implications of "consent" and " initial covered by the constitutional provision. (Cruz,
innocent act" in the conduct of initiation rites by 2015)
making the mere act of hazing punishable or mala
prohibita. If an accused fails to pay the fines imposed upon
him, this may result in his subsidiary imprisonment
Petitioner here fails to show how the penalties because his liability is ex delicto and not ex
imposed under the Anti-Hazing Law would be cruel, contractu. (Lozano v. Martinez, G.R. No. L-63419, 18
degrading, or inhuman punishment, when they are Dec. 1986)
similar to those imposed for the same offenses
under the Revised Penal Code, albeit a degree Generally, a debtor cannot be imprisoned for failure
higher. To emphasize, the Anti-Hazing Law aims to to pay his debt. However, if he contracted his debt
prevent organizations from making hazing a through fraud, he can be validly punished in a
requirement for admission. The increased penalties criminal action as his responsibility arises not from
imposed on those who participate in hazing is the the contract of loan but from commission of a crime.
country's response to a reprehensible phenomenon (Lozano v. Martinez, G.R. No. L-63419, 18 Dec. 1986)
that persists in schools and institutions. The Anti-
Hazing Law seeks to punish the conspiracy of
silence and secrecy, tantamount to impunity, that V. EX POST FACTO LAWS AND BILLS OF
would otherwise shroud the crimes committed. ATTAINDER
(Fuertes v. Senate, G.R. No. 208162, 07 Jan. 2020)
EX POST FACTO LAWS

U. NON-IMPRISONMENT FOR DEBTS
Ex post facto law (1990 BAR)
Basis (2002, 2000, 1997, 1993 BAR) An ex post facto law is any law that makes an action,
done before the passage of the law, which was
No person shall be imprisoned for debt or non- innocent when done, criminal, and punishes such
payment of a poll tax. (Sec. 20, Article III, 1987 action. Ex post facto laws, unless they are favorable
Constitution) to the defendant, are prohibited. (U.S. v. Conde, G.R.
No. L-18208, 14 Feb. 1922)
Debt
Kinds of ex post facto law
It is any civil obligation arising from contract.
(Bernas, 2011) It can be a law that: (In-A-Great-E-Civ-Pro)
1. Makes an act, which was Innocent when done,

criminal and punishes such action;
232
2023 GOLDEN NOTES
2. Aggravates a crime or makes it greater than committed and that the accused is the person
when it was committed; responsible. (Pulido v. People, G.R. No. 220149, 27
July 2021, J. Hernando)
3. Changes the punishment and inflicts a Greater
punishment than the law annexed to the crime Q: On Oct. 8, 1992, President Ramos issued A.O.
when it was committed; No. 13 creating the Presidential AdHoc Fact-
Finding Committee on Behest Loans. The
4. Alters the legal rules of Evidence and receives Committee was tasked to inventory all behest
less or different testimony than the law loans and determine the courses of action that
required at the time of the commission of the the government should take to recover these
offense in order to convict the defendant; loans.
5. Assumes to regulate Civil rights and remedies By Memorandum Order No. 61 dated Nov. 9,
only. In effect imposes penalty or deprivation of 1992, the functions of the Committee were
a right for something which when done was expanded to include all non-performing loans
lawful; or which shall embrace behest and non-behest
loans. Said Memorandum also named criteria to
6. Deprives a person accused of a crime of some be utilized as a frame of reference in
lawful Protection to which he has become determining a behest loan.
entitled, such as the protection of a former
conviction or acquittal, or a proclamation of Several loan accounts were referred to the
amnesty. (Nuñez v. Sandiganbayan and People, Committee for investigation, including the loan
G.R. Nos. L-50581-50617, 30 Jan. 1982) transactions between PEMI and the DBP.
Characteristics of ex post facto law Consequently, Atty. Salvador, Consultant of the

Fact-Finding Committee, and representing the
The ex post facto law must: (C-P-R) PCGG, filed with the Ombudsman a sworn
complaint for violation of Sec. 3(e) and (g) of R.A.
1. Refer to Criminal matters; No. 3019 against the respondents Mapa, Jr. et. al.
2. Be to the Prejudice of the accused; and The Ombudsman dismissed the complaint on
3. Be Retroactive in its application. (Cruz, the ground of prescription.
2015)
According to the Ombudsman, the loans were
Where the discrepancies in the evidence are such as entered into by virtue of public documents
to give rise to a reasonable doubt, the accused during the period of 1978 to 1981.Records show
should be acquitted. "The overriding consideration that the complaint was referred and filed with
is not whether the court doubts the innocence of the the Ombudsman on Oct. 4, 1996, or after the
accused but whether it entertains a reasonable lapse of more than fifteen years from the
doubt as to his/her guilt. The quantum of evidence violation of the law. Therefore, the offenses
required in criminal cases is proof beyond charged had already prescribed.
reasonable doubt. Sec. 2 of Rule 133 of the 1997
Rules of Court provides that "proof beyond The Presidential Ad Hoc Committee on Behest
reasonable doubt does not mean such degree of Loans was created on Oct. 8, 1992, under
proof as, excluding possibility of error, produces Administrative Order No. 13. Subsequently,
absolute certainty. Moral certainty only is required, Memorandum Order No. 61, dated Nov. 9, 1992,
or that degree of proof which produces conviction was issued defining the criteria to be utilized as
in an unprejudiced mind." To overcome the a frame of reference in determining behest
accused's constitutional presumption of innocence, loans.
the prosecution must prove that a crime was
233
Accordingly, if these Orders are to be considered the doctrine of separation of powers. (Fuertes v.
the bases of charging respondents for alleged Senate, G.R. No. 208162, 07 Jan. 2020)
offenses committed, they become ex-post facto
laws which are proscribed by the Constitution. NOTE: For a law to be considered a bill of attainder,
The Committee filed a Motion for it must be shown to contain all of the following: "a
Reconsideration, but the Ombudsman denied it specification of certain individuals or a group of
on 27 July 1998. individuals, the imposition of a punishment, penal
or otherwise, and the lack of judicial trial." The most
Are A.O. No. 13 and Memorandum Order No. 61 essential of these elements is the complete
ex-post facto laws? exclusion of the courts from the determination of
guilt and imposable penalty. (Fuertes v. Senate, G.R.
A: NO. The constitutional doctrine that outlaws an No. 208162, 07 Jan. 2020)
ex post facto law generally prohibits the
retrospectivity of penal laws. Penal laws are those It is only when a statute applies either to named
acts of the legislature which prohibit certain acts individuals or to easily ascertainable members of a
and establish penalties for their violations; or those group in such a way as to inflict punishment on them
that define crimes, treat of their nature, and provide without a judicial trial does it become a bill of
for their punishment. The subject administrative attainder. (People v. Ferrer, G.R. Nos. L-32613-14, 27
and memorandum orders clearly do not come Dec. 1972)
within the shadow of this definition.
Two (2) kinds of Bill of Attainder
A.O. No. 13 creates the Presidential Ad Hoc Fact-
Finding Committee on Behest Loans and provides 1. Bill of attainder proper (legislative
for its composition and functions. It does not mete imposition of the death penalty); and
out penalty for the act of granting behest loans. 2. Bill of pains and penalties (imposition of a
Memorandum Order No. 61 merely provides a lesser penalty. (People v. Ferrer, G.R. Nos. L-
frame of reference for determining behest loans. 32613-14, 27 Dec. 1972)
Not being penal laws, A.O. No. 13 and Memorandum

Order No. 61 cannot be characterized as ex post W. WRITS OF HABEAS CORPUS, KALIKASAN,
facto laws. There is, therefore, no basis for the HABEAS DATA, AND AMPARO
Ombudsman to rule that the subject administrative
and memorandum orders are ex post facto.
(Salvador v. Mapa, Jr., G.R. No. 135080, 28 Nov. 2007)
WRIT OF HABEAS CORPUS
BILLS OF ATTAINDER
Writ of Habeas Corpus
Bill of attainder
Writ of habeas corpus is a speedy and effectual
remedy to relive persons from unlawful restraint. It
A bill of attainder is generally understood as a
secures to a prisoner the right to have the cause of
legislative act which inflicts punishment on
his detention examined and determined by a court
individuals or members of a particular group
of justice and to have it ascertained whether he is
without a judicial trial.
held under lawful authority. (In Re: The Writ of
Habeas Corpus for Michael Labrador Abellana, G.R.
A bill of attainder encroaches on the courts' power
No. 232006, 10 July 2019)
to determine the guilt or innocence of the accused
and to impose the corresponding penalty, violating
The writ of habeas corpus extends to all cases of
illegal confinement or detention by which any
234
2023 GOLDEN NOTES
person is deprived of his liberty, or by which the The primary purpose of the writ "is to inquire into
rightful custody of any person is withheld from the all manner of involuntary restraint as distinguished
person entitled thereto. (Sec. 1, Rule 102, ROC) from voluntary, and to relieve a person therefrom if
such restraint is illegal." "Any restraint which will
The most basic criterion for the issuance of the writ preclude freedom of action is sufficient."
is that the individual seeking such relief be illegally (Villavicencio v. Lukban, G.R. No. 14639, 25 Mar.
deprived of his freedom of movement or placed 1919)
under some form of illegal restraint.
When to Invoke
Concomitantly, if a person's liberty is restrained by
some legal process, the writ of habeas corpus is Once a deprivation of a constitutional right is shown
unavailing. The writ cannot be used to directly assail to exists such as arbitrary detention without
a judgment rendered by a competent court or charges filed in Court, habeas corpus is the
tribunal which, having duly acquired jurisdiction, appropriate remedy to assail the legality of the
was not ousted of this jurisdiction through some detention. (Conde v. Diaz, 45 Phil. 173)
irregularity in the course of the proceedings.
Prescribed period of detention of persons
Writ of Habeas Corpus as a Post-Conviction arrested prior to filing of charges
Remedy
The penalties provided in Art. 124 shall be imposed
Jurisprudence has recognized that the writ of upon the public officer or employee who shall detain
habeas corpus may also be availed of as a post- any person for some legal ground and shall fail to
conviction remedy when, as a consequence deliver such person to the proper judicial
sentence as to circumstance of a judicial proceeding, authorities within the period of:
any of the following exceptional circumstances is
attendant: for crimes or offenses
12 hours punishable by light penalties, or
1. There has been a deprivation of a their equivalent
constitutional right resulting in the for crimes or offenses
restraint of a person; 18 hours punishable by correctional
penalties, or their equivalent
2. The court had no jurisdiction to impose the for crimes, or offenses
sentence; or punishable by afflictive or
36 hours
capital penalties, or their
3. The imposed penalty has been excessive, equivalent
thus voiding the sentence as such excess. (Art. 125, RPC)
(In Re: The Writ of Habeas Corpus for
Michael Labrador Abellana, G.R. No. 232006, What should the Court do when a petition for
10 July 2019) habeas corpus is filed
Purpose When the writ of habeas corpus is invoked, it is

incumbent upon the court to pass on the legality of
The writ of habeas corpus "shall extend to all cases the detention.
of illegal confinement or detention by which any
person is deprived of his liberty, or by which the The liberty enshrined in the Constitution, for the
rightful custody of any person is withheld from the protection of which habeas corpus is the appropriate
person entitled thereto." (Sec. 1, Rule 102, ROC) remedy, imposes that obligation. Its task is clear. It
must be performed.
235
That is a trust to which it cannot be recreant. Justify official or employee, or private individual or entity,
detention or release the detainees. Precisely, a involving environmental damage of such magnitude
habeas corpus petition calls for that response. as to prejudice the life, health or property of
(Aquino v. Enrile, L-35546, 11 Sept. 1974) inhabitants in two or more cities or provinces. (Sec.
1, Rule 7, A.M. No. 09-6-8-SC, Rules of Procedure for
Jurisdiction Environmental Cases)
Based on Sec. 2, Rule 102 of the ROC, it is clear that Requisites

the trial court, the appellate court, and this Court
exercise concurrent jurisdiction over petitions for 1. There is an actual or threatened violation of
the issuance of the writ of habeas corpus. However, the constitutional right to a balanced and
this does not mean that parties are absolutely free healthful ecology;
to choose before which court to file their petitions,
thus: Mere concurrency of jurisdiction does not 2. The actual or threatened violation arises
afford parties absolute freedom to choose the court from an unlawful act or omission of a public
with which the petition shall be filed. Petitioners official or employee, or private individual
should be directed by the hierarchy of courts. After or entity; and
all, the hierarchy of courts 'serves as a general
determinant of the appropriate forum for 3. The actual or threatened violation involves
petitioners for the extraordinary writs.' (Miguel v. or will lead to an environmental damage of
Director of the Bureau of Prisons, UDK-15368 15 Sept. such magnitude as to prejudice the life,
2021, J. Hernando) health or property of inhabitants in two or
more cities or provinces. (Segovia v. Climate
Q: Can a petition for habeas corpus be filed to Change Commission, G.R. No. 211010, 07
assail the detention of an accused who was Mar. 2017)
arrested by mistaken identity?
Q: Petitioners are Carless People of the
YES. Habeas corpus is the proper remedy for a Philippines and Car-owners. They claim that
person deprived of liberty due to mistaken identity. they are entitled to the issuance of the
In such cases, the person is not under any lawful extraordinary writs of Kalikasan and Mandamus
process and is continuously being illegally detained. due to the alleged failure and refusal of Climate
(In the Matter of the Petition for Habeas Corpus of Change Commission to implement the Road
Datukan Malang Salibo v. Warden, Quezon City Jail Sharing Principle, an act mandated by
Annex, BJMP Building, Camp Bagong Diwa, Taguig environmental laws, and violation of
City, G.R. No. 197597, 08, Apr. 2015) environmental laws resulting in environmental
damage of such magnitude as to prejudice the
WRIT OF KALIKASAN life, health and property of all Filipinos. Should
the writ of Kalikasan and Mandamus be issued to
Writ of Kalikasan the petitioners?
This is a remedy available to a natural or juridical A: NO. The petitioners failed to establish the
person, entity authorized by law, people’s requisites for the issuance of the writs prayed for.
organization, non-governmental organization, or With regard to the Writ of Kalikasan, apart from the
any public interest group accredited by or repeated invocation of the constitutional right to
registered with any government agency, on behalf health and to a balanced and healthful ecology and
of persons whose constitutional right to a balanced bare allegations that their right was violated, the
and healthful ecology is violated, or threatened with petitioners failed to show that public respondents
violation by an unlawful act or omission of a public are guilty of any unlawful act or omission that
236
2023 GOLDEN NOTES
constitutes a violation of the petitioners' right to a the crime of Murder is one that is mandatorily
balanced and healthful ecology. Petitioners have not punishable by death, in accordance with the Death
been able to show that respondents are guilty of Penalty Law. Being such, it falls within the definition
violation or neglect of environmental laws that of “heinous crimes” in the 2019 Revised IRR and is
causes or contributes to bad air quality. therefore considered as a heinous crime. In sum,
Murder is considered a heinous crime in so far as the
Similarly, the writ of continuing mandamus cannot GCTA Law is concerned, and persons charged with
issue. First, the petitioners failed to prove direct or and/or convicted of such are disqualified from
personal injury arising from acts attributable to the availing of the benefits of the law.
Climate Change Commission to be entitled to the
writ. Second, the Road Sharing Principle is merely a Further, Art. 70 of the RPC does not cap the duration
principle. It cannot be considered an absolute of the penalty of reclusion perpetua at 30 years only.
imposition to encroach upon the province of the The law only provides that in applying the rules laid
Commission to determine the manner by which this out in Art. 70, such as the three-fold rule, the
principle is applied in their policy decisions. duration of perpetual penalties shall be computed at
Mandamus lies to compel the performance of duties 30 years. Jurisprudence likewise provides that
that are purely ministerial in nature, not those that reclusion perpetua entails imprisonment for at least
are discretionary. (Victoria Segovia et. al. v.. The 30 years after which the convict becomes eligible for
Climate Change Commission, et. al., G.R. No. 211010, pardon.
07 Mar. 2017)
X was delivered to the National Bilibid on 15 Jan.
Q: On 26 Feb. 1991, X was charged with the crime 1994. Therefore, as of 15 Aug. 2021, he has only
of Murder before the RTC of Quezon City. After served a total of 27 years and 7 months of his
trial, he was found guilty and sentenced to suffer sentence. Hence, having been punished to suffer the
the penalty of reclusion perpetua. X was penalty of reclusion perpetua, X’s continued
delivered to the National Bilibid Prison on 15 detention is valid and justified. He has utterly failed
Jan. 1994. to show that he is illegally confined or deprived of
his liberty. Accordingly, the Writ of Habeas Corpus
Alleging that his continued detention no longer may not be issued and the discharge of X from
holds legal basis in view of R.A. No. 10592 or the imprisonment should not be authorized. (Gil Miguel
“Good Conduct Time Allowance Law” (GCTA v. The Director of the Bureau of Prisons, UDK-15368,
Law), he filed a petition for the issuance of the 15 Sept. 2021, Second Division, J. Hernando)
Writ of Habeas Corpus on 19 Aug. 2015. He
anchors his claim on the assertion that applying WRIT OF HABEAS DATA
the GCTA Law, he has served a total of 38 years,
10 months, and 1 day already. He also posits that Writ of Habeas Data
Art. 70 of the RPC caps the duration of the
penalty of reclusion perpetua at 30 years. It is a remedy available to any person whose right to
Having served a total of 38 years, Miguel privacy in life, liberty or security is violated or
concludes that he has fully served his sentence threatened by an unlawful act or omission of a
and his detention no longer holds legal basis. Is public official or employee, or of a private individual
X’s contention tenable? or entity engaged in the gathering, collecting or
storing of data or information regarding the person,
A: NO. Recidivists, habitual delinquents, escapees, family, home and correspondence of the aggrieved
and persons charged with heinous crimes are party. (Sec. 1, A. M. No. 08-1-16-SC, The Rule on the
excluded from the benefits of the GCTA Law. The Writ of Habeas Data)
IRR of the law defines heinous crimes as those
including crimes which are mandatorily punishable
by Death under the provisions of RA 7659. Hence,
237
Purpose A: NO. Information-sharing must observe strict
confidentiality.
The writ of habeas data is an independent and
summary remedy designed to protect the image, Intelligence gathered must be released exclusively
privacy, honor, information, and freedom of to the authorities empowered to receive the
information of an individual, and to provide a forum relevant information.
to enforce one's right to the truth and to
informational privacy. After all, inherent to the right to privacy is the
freedom from "unwarranted exploitation of one's
It seeks to protect a person's right to control person or from intrusion into one's private activities
information regarding oneself, particularly in in such a way as to cause humiliation to a person's
instances in which such information is being ordinary sensibilities.”
collected through unlawful means in order to
achieve unlawful ends. That it was leaked to third parties and the media
was regrettable, even warranting reproach. But it
It must be emphasized that in order for the privilege must be stressed that there are other reliefs
of the writ to be granted, there must exist a nexus available to her to address the purported damage to
between the right to privacy on the one hand, and her reputation, making a resort to the extraordinary
the right to life, liberty or security on the other. remedy of the writ of habeas data unnecessary and
(Gamboa v. Chan, G.R. No. 193636, 24 July 2012) improper. (Gamboa v. Chan, G.R. No. 193636, 24 July
2012)
Q: Mayor Marynette Gamboa was included in a
government report listing politicians coddling Q: Lee and Ilagan were common law partners.
private armies. The PNP supposedly leaked this They had bitter arguments that later turned into
report to the media, who then made it public. Is ugly scenes and violent quarrels. Ilagan, who
Gamboa entitled to a writ of habeas data? was a big man but very emotional and physically
aggressive, would often hit and slap the hapless
A: NO. Gamboa was unable to prove through female Lee.
substantial evidence that her inclusion in the list of
individuals maintaining PAGs made her and her Thus, Lee filed a criminal case against Ilagan for
supporters susceptible to harassment and to violation of R.A. 9262. Lee used as part of her
increased police surveillance. evidence a sex video of Ilagan with another
woman, which she found in the memory card of
It is clear from the foregoing discussion that the their digital camera. Lee reproduced the video
state interest of dismantling PAGs far outweighs the for the purpose of using it as evidence in other
alleged intrusion on the private life of Gamboa, cases she intends to file against Ilagan.
especially when the collection and forwarding by
the PNP of information against her was pursuant to In turn, Ilagan applied for a Writ of Habeas Data
a lawful mandate. in the RTC to compel Lee to return the memory
card and enjoin her from reproducing and
Therefore, the privilege of the writ of habeas data distributing the sex video. Should the writ be
must be denied. (Gamboa v. Chan, G.R. No. 193636, issued?
24 July 2012)
A: No. Ilagan was not able to sufficiently allege that
Q: Was it lawful for the government to have his right to privacy in life, liberty or security was or
leaked the said report to the media? would be violated through the supposed
reproduction and threatened dissemination of the
subject sex video.
238
2023 GOLDEN NOTES
While Ilagan purports a privacy interest in the
suppression of this video — which he fears would A person who places a photograph on the Internet
somehow find its way to Quiapo or be uploaded in precisely intends to forsake and renounce all
the internet for public consumption — he failed to privacy rights to such imagery, particularly under
explain the connection between such interest and circumstances such as here, where the Defendant
any violation of his right to life, liberty or security. did not employ protective measures or devices that
would have controlled access to the Web page or the
As the rules and existing jurisprudence on the photograph itself.
matter evoke, alleging and eventually proving the
nexus between one's privacy right to the cogent That the photos are viewable by "friends only" does
rights to life, liberty or security are crucial in habeas not necessarily bolster the petitioners' contention.
data cases, so much so that a failure on either In this regard, the cyber community is agreed that
account certainly renders a habeas data petition the digital images under this setting still remain to
dismissible, as in this case. (Lee v. Ilagan, G.R. No. be outside the confines of the zones of privacy in
203254, 08 Oct. 2014) view of the following:
Q: Two (2) students of STC in Cebu City posted 1. Facebook "allows the world to be more
pictures of themselves on their Facebook page open and connected by giving its users the
wearing only their undergarments. Their tools to interact and share in any
classmates showed the Facebook page to their conceivable way;"
teacher and the two (2) erring students were
administratively sanctioned. The subject 2. A good number of Facebook users
students questioned the penalty imposed upon "befriend" other users who are total
them on the ground that the retrieval of the strangers;
photos from their Facebook page was a violation
of their right to privacy. 3. The sheer number of "Friends" one user
has, usually by the hundreds; and
Are the students correct? Is there a right to
privacy on Facebook and other online social 4. A user's Facebook friend can "share" the
media (OSN)? former's post, or "tag" others who are not
Facebook friends with the former, despite
A: NO. Before one can have an expectation of its being visible only to his or her own
privacy in his or her OSN activity, it is first necessary Facebook friends. (Vivares v. St. Theresa’s
that said user manifest the intention to keep certain College, G.R. No. 202666, 29 Sept. 2014)
posts private, through the employment of measures
to prevent access thereto or to limit its visibility. WRIT OF AMPARO
And this intention can materialize in cyberspace
through the utilization of the OSN's privacy tools. In Writ of Amparo
other words, utilization of these privacy tools is the
manifestation, in cyber world, of the user's This is a remedy available to any person whose right
invocation of his or her right to informational to life, liberty and security is violated of threatened
privacy. with violation by an unlawful act or omission of a
public official or employee, or of a private individual
Considering that the default setting for Facebook or entity. The writ shall cover extralegal killings an
posts is "Public," it can be surmised that the enforced disappearances or threats thereof. (Sec. 1,
photographs in question were viewable to everyone A.M. No. 07-9-12-SC, Rule on the Writ of Amparo)
on Facebook, absent any proof that petitioners'
children positively limited the disclosure of the
photograph.
239
Extralegal Killings and Enforced respondents that will mitigate, if not totally
Disappearances eradicate, the violation of or the threat to the
petitioner's life, liberty, or security. (De Lima v.
Extralegal killings are killings committed without Gatdula, G.R. No. 204528, 19 Feb. 2013)
due process of law, i.e., without legal safeguards or
judicial proceedings. On the other hand, enforced A judgment which simply grants "the privilege of the
disappearance has been defined by the Court as the writ" cannot be executed. It is tantamount to a
arrest, detention, abduction or any other form of failure of the judge to intervene and grant judicial
deprivation of liberty by agents of the State or by succor to the petitioner. (De Lima v. Gatdula, G.R. No.
persons or groups of persons acting with the 204528, 19 Feb. 2013)
authorization, support or acquiescence of the State,
followed by a refusal to acknowledge the Q: Can the “Writ of Amparo” be used in all cases
deprivation of liberty or by concealment of the fate of missing persons?
or whereabouts of the disappeared person, which
place such a person outside the protection of the A: NO. For the protective writ of amparo to issue in
law. (Mamba v. Bueno, G.R. No. 191416, 07 Feb. 2017) enforced disappearance cases, allegation and proof
that the persons subject thereof is missing are not
Elements Constituting Enforced Disappearances enough.
1. That there be an arrest, detention, It must also be shown by the required quantum of
abduction or any form of deprivation of proof that their disappearance was carried out by,
liberty; "or with the authorization, support or acquiescence
of, [the government] or a political organization,
2. That it be carried out by, or with the followed by a refusal to acknowledge the same or
authorization, support or acquiescence of, give information on the fate or whereabouts of said
the State or a political organization; missing persons.”
3. That it be followed by the State or political Even if the person sought to be held accountable or
organization’s refusal to acknowledge or responsible in an amparo petition is a private
give information on the fate or individual or entity, still, government involvement
whereabouts of the person subject of the in the disappearance remains an indispensable
amparo petition; and element. (Navia v. Pardico, G.R. No. 184467, 19 June
2012)
4. That the intention for such refusal is to
remove subject person from the protection Q: Engr. Peregrina disappeared one day, and his
of the law for a prolonged period of time. wife filed a petition for the Writ of Amparo with
(Navia v. Pardico, G.R. No. 184467, 19 June the CA directed against the PNP, claiming that
2012) the “unexplained uncooperative behavior” of
the respondents request for help and their
failure and refusal to extend assistance in
Privilege of the Writ of Amparo vs. Writ of locating the whereabouts of Peregrina were
Amparo indicative of their actual physical possession
and custody of the missing engineer.”
The privilege includes availment of the entire
procedure outlined in A.M. No. 07-9-12-SC, the Rule The PNP was held responsible for the “enforced
on the Writ of Amparo. After examining the petition disappearance” of Engr. Peregrina. Is this valid?
and its attached affidavits, the Return and the
evidence presented in the summary hearing, the
judgment should detail the required acts from the
240
2023 GOLDEN NOTES
A: YES. The government in general, through the PNP (Agcaoili v. Hon. Farinas, G.R. No. 232395, 03 July
and the PNP-CIDG, and in particular, the Chiefs of 2017)
these organizations together with Col. Kasim,
should be held fully accountable for the enforced Q: Substantial evidence is sufficient in
disappearance of Peregrina. proceedings involving petitions for the writ of
amparo. The respondent must show in the
Given their mandates, the PNP and the PNPCIDG return on the writ of amparo the observance of
officials and members were the ones who were extraordinary diligence.
remiss in their duties when the government
completely failed to exercise extraordinary Once an enforced disappearance is established
diligence that the Amparo rule requires. (Razon v. by substantial evidence, the relevant State
Tagitis, G.R. No. 182498, 03 Dec. 2009) agencies should be tasked to assiduously
investigate and determine the disappearance,
Q: Six (6) department heads of the provincial and, if warranted, to bring to the bar of justice
government of Ilocos Norte appeared before the whoever may be responsible for the
House Blue Ribbon Committee as resource disappearance.
persons in the investigation being conducted by
the said committee with regard to the alleged Is this a violation of the right to presumption of
misuse of the excise taxes collected from innocence?
Tobacco companies in the province.
A: NO. The proceedings taken under the Rule on the
These resource persons (Ilocos 6) were cited in Writ of Amparo are not akin or similar to those in
contempt and ordered detained because they criminal prosecutions. In the former, the guilt or
refused to provide answers to the questions of innocence of the respondents is not determined,
the lawmakers (since most of them said they and no penal sanctions are meted.
could no longer remember the facts). These
resource persons (Ilocos 6) then applied for a The proceedings only endeavor to give the
Writ of Amparo to protect them from alleged aggrieved parties immediate remedies against
actual and threatened violations of their rights imminent or actual threats to life, liberty, or
to liberty and security of person. Should the Writ security.
of Amparo be issued?
The presumption of innocence is never an issue. In
A: NO. The privilege of the writ of Amparo is a the latter, the prosecution of the accused with due
remedy available ONLY to victims of extra-judicial process of law is the object of the proceedings.
killings and enforced disappearances or threats of a
similar nature, regardless of whether the The presumption of innocence in favor of the
perpetrator of the unlawful act or omission is a accused is always the starting point. Hence, the need
public official or employee or a private individual. for the State to adduce proof beyond reasonable
doubt of the guilt of the accused. (Republic v.
The writ of Amparo is designed to protect and Cayanan, G.R. No. 181796, 07 Nov. 2017)
guarantee the (1) right to life; (2) right to liberty;
and (3) right to security of persons, free from fears Q: Is a petition for a writ of amparo the proper
and threats that vitiate the quality of life. Petitioners recourse for obtaining parental authority and
thus failed to establish that their attendance at and custody of a minor child previously given up for
participation in the legislative inquiry as resource adoption?
persons have seriously violated their right to liberty
and security, for which no other legal recourse or A: NO. The privilege of the writ of amparo is a
remedy is available. Perforce, the petition for the remedy available to victims of extra-judicial killings
issuance of a writ of Amparo must be dismissed. and enforced disappearances or threats of a similar
241
nature, regardless of whether the perpetrator of the In this case, the totality of petitioner’s evidence
unlawful act or omission is a public official or convincingly shows that she and her family became
employee or a private individual. subject of unwarranted police surveillance due to
their relationship with a suspected member of the
It is envisioned basically to protect and guarantee NPA, which resulted to an actual threat to their life,
the right to life, liberty, and security of persons, free liberty, and security due to the government’s
from fears and threats that vitiate the quality of life. unparalleled zeal in eradicating communism.
Since what is involved is the issue of child custody
and the exercise of parental rights over a child, who, Thus, in determining the existence of substantial
for all intents and purposes, has been legally evidence to support a petition for a writ of amparo,
considered a ward of the State, the Amparo rule judges should also be cognizant of the different
cannot be properly applied. (Caram v. Segui, G.R. No. power dynamics at play when assessing if there is
193652, 05 Aug. 2014) an actual or future threat to a petitioner's life,
security, or liberty. Refusing to acknowledge this
Q: A Petition for Writ of Amparo was granted by might lead to an outright denial of protection to
the court after finding that petitioner Vivian A. those who need it the most. (Sanchez v. Darroca, G.R.
Sanchez proved with substantial evidence that No. 242257, 15 June 2021)
she and her children became persons of interest
and were put under surveillance because of her Q: X received a text message from her daughter
dead husband’s suspected affiliation with the that Z was arrested and detained by the
NPA. The Court pointed out that spousal and barangay tanods for the alleged theft of a mobile
filial privileges protected the petitioner and her phone. X went to the barangay hall and she was
children from inquiries regarding her husband’s informed that Z was already released on that
activities because these privileges continue to same day from the custody of barangay as
exist after the death of a spouse. Respondent evidenced by the entry in the barangay blotter,
police officers now filed a Motion for signed by Z himself. Rumors circulated that Z
Reconsideration, contending that the right to had been extrajudicially killed and that his body
privacy, as well as gender and power analysis, was mixed in cement to conceal the incident.
[is] not applicable in the present case, and This prompted X to institute a petition for the
asserting further that petitioner failed to issuance of a writ of amparo. Will the case
present sufficient evidence to prove that she was prosper?
entitled to the writ. Will the Motion for
Reconsideration prosper? A: NO. The elements constituting enforced
disappearance as defined under RA 9851 are as
A: NO. The right to privacy is a fundamental right, follows: (a) that there be an arrest, detention,
explicitly provided for by the Constitution as for the abduction, or any form of deprivation of liberty; (b)
limitations on unwarranted State intrusion into that it be carried out by, or with the authorization,
personal affairs. While respondents have the support or acquiescence of, the State or a political
mandate to investigate, their duty must be balanced organization; (c) that it be followed by the State or
with petitioner’s fundamental rights. In this case, political organization’s refusal to acknowledge or
whatever information respondents may have give information on the fate or whereabouts of the
wished to obtain from petitioner, or her children is person subject of the amparo petition; and (d) that
protected by spousal and filial privilege. the intention for such refusal is to remove subject
person from the protection of the law for a
Further, through Razon v. Tagitis (G.R. No. 182498, prolonged period of time.
03 Dec. 2009), courts are mandated to consider the
“totality of the obtaining situation” in determining For the issuance of the writ of amparo, it is not
whether a petitioner is entitled to a writ of amparo. sufficient that a person’s life is endangered. It is
242
2023 GOLDEN NOTES
even not sufficient to allege and prove that a person
has disappeared. It has to be shown by the required
quantum of proof that the disappearance was
carried out by, or with the authorization, support, or
acquiescence of the government or a political
organization, and that there is a refusal to
acknowledge the same or to give information on the
fate or whereabouts of the missing persons.
While it is admitted that Z was arrested for the

alleged theft, it was sufficiently established by the
respondents that he was already released from their
custody as evidenced by the barangay blotter,
signed by Z himself. Thus, it is clear that there was
no refusal to give information on the whereabouts
of Z. Accordingly, there was no intention to remove
Z from the protection of the law for a prolonged
period of time as he had been released already.
Hence, there was no enforced or involuntary
disappearance that would warrant the issuance of
the writ of amparo. (Fe J. Morada v. Randy Rias et al,
G.R. No. 222226, 14 Feb. 2022, J. Hernando)
243
HABEAS CORPUS AMPARO HABEAS DATA KALIKASAN
Literal Interpretation
It is a Filipino word
You have the body. To protect You have the data. which means “nature” in
English
Availability
Special remedy available
to a natural or juridical
person, entity
authorized by law,
people’s organization,
non-governmental
Remedy available to any organization, or any
Writ directed to the person whose right to public interest group
person detaining privacy in life, liberty or accredited by or
another, commanding security is violated or registered with any
Remedy available to any
him to produce the body threatened by an government agency, on
person whose right to
of the prisoner at a unlawful act or omission behalf of persons whose
life, liberty, and security
designated time and of a public official or constitutional right to a
is violated or threatened
place, with the day and employee, or of a private balanced and healthful
with violation by an
cause of his capture and individual or entity ecology is violated, or
unlawful act or omission
detention, to do, submit engaged in the gathering, threatened with
of a public official or
to, and receive collecting, or storing of violation by an unlawful
employee, or of a private
whatsoever the court or data or information act or omission of a
individual or entity.
judge awarding the writ regarding the person, public official or
shall consider in that family, home and employee, or private
behalf. correspondence of the individual or entity,
aggrieved party. involving environmental
damage of such
magnitude as to
prejudice the life, health
or property of
inhabitants in two or
more cities or provinces.
Office of the Remedy
To order the protection
of the constitutional
right to a balanced and
To direct the public
To direct the person healthful ecology and
officers involved to To order the disclosure
detaining another to restrain further acts that
conduct an investigation or destruction of data
produce the body of the cause environmental
as to the whereabouts relating to the right to
person being detained damage of such a
and legality of the life, liberty or security of
and show the cause of magnitude that
detention of a missing a person.
detention. prejudices the right to
person.
life, health or property of
inhabitants in two or
more cities or provinces.
Rights involved
244
2023 GOLDEN NOTES
Constitutional right to a
Right to life, liberty, and Right to informational
Right to liberty. balanced and healthful
security privacy.
ecology
Coverage
1. All cases of illegal
confinement or
1. Gathering;
detention by which
2. Collecting; or
any person is Environmental damage
1. Extrajudicial killings; 3. Storing data or
deprived of liberty; of such magnitude as to
and information
and prejudice the life, health,
regarding:
or property of
2. Enforced a. Person;
2. Cases where the inhabitants in two or
disappearances. b. Family;
rightful custody of any more cities or provinces.
c. Home; or
person is withheld
d. Correspondence
from the person
entitled.
Venue
1. RTC where the
petitioner or
respondent resides,
1. RTC of the place or that which has
where the threat, act jurisdiction over the
1. RTC where the
or omission was place where the data
person is detained;
committed or any of or information is
2. Sandiganbayan;
its elements gathered, collected
3. CA; 1. CA; or
occurred; or stored, at the
4. SC; or 2. SC.
2. Sandiganbayan; option of the
5. Any justice of the
3. CA or any justice petitioner;
three preceding
thereof; or 2. Sandiganbayan;
courts.
4. SC or any justice 3. CA; or
thereof. 4. SC when the action
concerns public data
files or government
offices.
Who may file Petition
1. Any aggrieved party;
Aggrieved party, or a
2. However, in cases of
qualified person or entity
extralegal killings and
in the following order: A natural or juridical
enforced
person, entity
disappearances:
1. Any member of the authorized by law,
1. Party for whose relief
immediate family; people’s organization,
it is intended; or a. Any member of
NGO, or any public
2. Any person on his the immediate
2. Any ascendant, interest group
behalf. family; or
descendant, or accredited by or
collateral relative of registered with any
b. Any ascendant,
the aggrieved party government agency.
descendant, or
within the 4th civil
collateral relative
degree of
of the aggrieved
245
consanguinity or party within the
affinity; or 4th civil degree of
consanguinity or
3. Any concerned affinity.
citizen, organization,
association or
institution, if there is
no known member of
the immediate family
or relative.
Respondent
Public official or
employee or a private
individual or entity
engaged in the gathering,
Public official or Public official or
May or may not be an collecting or storing of
employee or a private employee, private
officer. data or information
individual or entity. individual or entity.
regarding the person,
family, home and
correspondence of the
aggrieved party.
Enforceability of the Writ
If granted by SC, CA, or
Sandiganbayan:
Enforceable anywhere In Enforceable anywhere in
the Philippines; the Philippines Enforceable anywhere in Enforceable anywhere in
regardless of who issued the Philippines. the Philippines.
If granted by RTC: the same.
Enforceable only within
the judicial district.
Docket fees
Payment is required. Payment is required.
Petitioner is exempted Petitioner is exempted
NOTE: Rule on indigent from payment. NOTE: Rule on indigent from payment.
petitioner applies. petitioner applies.
Service of Writ
Served upon the person
Served upon the Served upon the Served upon the
to whom it is directed,
respondent personally; respondent personally; respondent personally;
and if not found or has
or through substituted or through substituted or through substituted
not the prisoner in his
service in case the writ service in case the writ service in case the writ
custody, to the other
cannot be served cannot be served cannot be served
person having or
personally. personally. personally.
exercising such custody.
Person who makes the Return
Officer by whom the
prisoner is imprisoned or Respondent Respondent Respondent
the person in whose
246
2023 GOLDEN NOTES
custody the prisoner is
found.
When to file a return
The respondent shall file
a verified written return
Within 5 working days together with supporting
after service of the writ, affidavits within 5
Within non-extendible
On the day specified in the respondent shall file working days from
period of 10 days after
the writ. a verified written return service of the writ, which
the service of writ.
together with supporting period may be
affidavits. reasonably extended by
the Court for justifiable
reasons.
Return
If issued by RTC:
returnable before such
If granted by the SC or CA: court;
If issued by RTC:
returnable before the
court or any member or If issued by SB or CA or
court;
before RTC or any judge any of their justices:
thereof; returnable before such
If issued by SB or CA or
court or to any RTC of the
any of their justices:
If granted by RTC: place where the
returnable before such petitioner or respondent
court or to any RTC of the
court resides or that which has
place where the threat,
jurisdiction over the
act or omission was
In writ of habeas corpus place where the data or
committed or any of its If issued by SC, returnable
in relation to custody of information is gathered,
elements occurred; before such court or CA.
minors, the writ may be collected or stored;
made returnable to a
If issued by SC or any of its
Family Court or to any If issued by SC or any of its
justices: returnable
regular court within the justices: returnable
before such court, or
region where the before such court, or
before SB, CA, or to any
petitioner resides or before SB, CA, or to any
RTC of the place where
where the minor may be RTC where the petitioner
the threat, act or
found for hearing and or respondent resides or
omission was committed
decision on the merits that which has
or any of its elements
(Sec. 20, A.M. No. 03-04- jurisdiction over the
occurred.
04-SC). place where the data or
information is gathered,
collected or stored.
Effect of Failure to file Return
1. Hearing of the petition
shall proceed ex parte;
and
Hearing of the petition Hearing of the petition
shall proceed ex parte. shall proceed ex parte.
2. The Court may also
grant the petitioner
such relief as the
247
petition may warrant,
UNLESS the Court, in
its discretion, requires
the petitioner to
submit evidence.
Available Interim Remedies
1. Temporary
Protection Order;
1. Ocular Inspection
2. Inspection Order;
Order;
3. Production Order;
2. Inspection Order; and
and
3. Production Order.
4. Witness Protection
Order.
Quantum of Proof
Preponderance of
Substantial evidence Substantial evidence Substantial evidence
evidence
General Denial
Not prohibited Not allowed Not allowed Not allowed
Liability of the Person to whom Writ is directed if he refuses to make Return
Forfeit to the aggrieved
party the sum of P 1000, Imprisonment or fine for Imprisonment or fine for
Indirect contempt.
and may also be committing contempt. committing contempt.
punished for contempt.
Hearing
Summary hearing shall
Summary hearing shall The hearing including
be conducted not later
Date and time of hearing be conducted not later the preliminary
than 10 working days
is specified in the writ. than 7 days from the date conference shall not
from the date of issuance
of issuance of the writ. extend beyond 60 days.
of the writ.
Period of Appeal
Within 15 days from the
Within 48 hours from
5 working days from the 5 working days from the date of notice of the
notice of the judgment or
date of notice of the date of notice of the adverse judgment or
final order appealed
adverse judgment. judgment or final order. denial of motion for
from.
reconsideration.
Prohibited Pleadings
1. Motion to dismiss; 1. Motion to dismiss; 1. Motion to dismiss the
2. Motion for extension 2. Motion for extension complaint;
of time to file of time to file return; 2. Motion for a bill of
opposition, affidavit, 3. Motion for particulars;
position paper and postponement; 3. Motion for extension
other pleadings; 4. Motion for a bill of of time to file
particulars; pleadings, EXCEPT to
NOTE: In writ of 5. Counterclaim or file answer, the
amparo, a motion for cross-claim; extension not to
extension of time to 6. Third-party exceed 15 days;
file the return is no complaint; 4. Motion to declare the
longer a prohibited 7. Reply; defendant in default;
248
2023 GOLDEN NOTES
pleading, as it may be 8. Motion to declare 5. Reply and rejoinder;
granted by the court respondent in default; and
on highly meritorious 9. Intervention; 6. Third-party
cases. 10. Memorandum; complaint.
11. Motion for
3. Dilatory motion for Reconsideration of
postponement; interlocutory orders
4. Motion for a bill of or interim relief
particulars; orders; and
5. Counterclaim or cross 12. Petition for
- claim; certiorari,
6. Third - party mandamus, or
complaint; prohibition against
7. Reply; any interlocutory
8. Motion to declare order.
respondent in default;
9. Intervention;
10. Memorandum;
11. Motion for
reconsideration of
interlocutory orders
or interim relief
orders; and
12. Petition for
certiorari,
mandamus or
prohibition against
any interlocutory
order.
249
before the law, equality between values given and
III. SOCIAL JUSTICE AND HUMAN RIGHTS received on the basis of efforts exerted in their
production. (Guido v. Rural Progress Administration,
G.R. No. L-2089, 31 Oct. 1949)
Constitutional Mandate
Aspects of Human Life covered by Art. XIII:
(H-A-U-L-S-Wo-R-Hu)
Congress shall give highest priority to the
enactment of measures that protect and enhance
1. Health; (Art. XIII, 1987 Constitution)
the right of all people to human dignity, reduce
2. Agrarian and Natural Resources Reform;
social, economic, and political inequalities and
(Ibid.)
remove cultural inequities by equitably diffusing
3. Urban Land Reform and Housing; (Ibid.)
wealth and political power for the common good.
4. Labor; (Ibid.)
(Sec. 1, Art. XIII, 1987 Constitution)
5. Social Justice and Human Rights; (Ibid.)
6. Women; (Ibid.)
The promotion of social justice shall include the
7. Role and Rights of People’s Organization;
commitment to create economic opportunities
and (Ibid.)
based on freedom of initiative and self-reliance.
8. Human rights. (Ibid.)
(Sec. 2, Art. XIII, 1987 Constitution)
Factors which must be weighed in regulating the

relations between Workers and Employers
A. CONCEPT OF SOCIAL JUSTICE
1. The right of labor to its just share in the
fruits of production; and
Social Justice
2. The right of enterprises to reasonable
Social justice is "neither communism, nor returns of investments, and to expansion
despotism, nor atomism, nor anarchy," but the and growth. (Sec. 3(4), Art. XIII, 1987
humanization of laws and the equalization of social Constitution)
and economic forces by the State so that justice in
its rational and objectively secular conception may Provisions of the 1987 Constitution on Women
at least be approximated. Social justice means the
promotion of the welfare of all the people, the 1. The State shall equally protect the life of the
adoption by the Government of measures calculated mother and the life of the unborn from
to insure economic stability of all the competent conception. (Sec. 12, Art. II, 1987
elements of society, through the maintenance of a Constitution)
proper economic and social equilibrium in the
interrelations of the members of the community, 2. The State recognizes the role of women in
constitutionally, through the adoption of measures nation-building and shall ensure the
legally justifiable, or extra-constitutionally, through fundamental equality before the law of
the exercise of rowers underlying the existence of women and men. (Sec. 14, Art. II, 1987
all governments on the time-honored principle of Constitution)
salus populi est suprema lex. (Calalang v. Williams,
G.R. No. 47800, 02 Dec. 1940) 3. The State shall protect working women by
providing safe and healthful working
Social justice does not champion division of conditions, taking into account their
property or equality of economic status; what it and maternal functions, and such faculties and
the Constitution do guaranty are equality of opportunities that will enhance their
opportunity, equality of political rights, equality
250
2023 GOLDEN NOTES
welfare and enable them to realize their full the land remains agricultural in use. Will it
potential in the service of the nation. (Sec. prosper?
14, Art. XIII, 1987 Constitution)
A: NO. At the outset, the Court notes that the
Consultation Requirement before Urban and Conversion Order dated 04 September 1975 had
Rural Dwellers can be relocated already attained finality. Citing jurisprudence. The
Court ruled that once final and executory, an order
No resettlement of urban or rural dwellers shall be for land conversion can no longer be questioned.
undertaken without adequate consultation with Parties cannot assail said order without running
them and the communities where they are to be afoul of the doctrine of estoppel. Assuming it can
relocated. (Sec. 10(2), Art. XIII, 1987 Constitution) still be assailed, AA has already sufficiently
complied with the conditions stated therein. Under
People’s Organizations the prevailing law at the time i.e., R.A. 6389, there
was no requirement for the landowner to develop
People’s organizations are bona fide associations of the subject property within a certain period. The
citizens with demonstrated capacity to promote the only requisite under the law was payment of
public interest and with identifiable leadership, disturbance Compensation which has been done.
membership, and structure. (Sec. 15(2), Art. XIII, Likewise, the Conversion Order itself does not
1987 Constitution) specify a period for the full and complete
development of the subject property. (CAT Realty v.
The State shall respect the role of independent Department of Agrarian Reform (DAR), G.R. No.
people’s organizations to enable the people to 208399, 23 June 2021)
pursue and protect, within the democratic
framework, their legitimate and collective interests Right of Retention under Agrarian Reform
and aspirations through peaceful and lawful means.
(Sec. 15(1), Art. XIII, 1987 Constitution) The right of retention is a constitutionally
guaranteed right, which is subject to qualification by
Agrarian Reform the legislature. It serves to mitigate the effects of
compulsory land acquisition by balancing the rights
It refers to the redistribution of lands, regardless of of the landowner and the tenant and by
crops or fruits produced, to farmers and regular implementing the doctrine that social justice was
farmworkers who are landless, irrespective of not meant to perpetrate an injustice against the
tenurial arrangement, to include the totality of landowner. (Delfino v. Anasao, G.R. No. 197486, 10
factors and support services designed to lift the Sept. 2014)
economic status of the beneficiaries and all other
arrangements alternative to the physical
redistribution of lands, such as production or profit- B. ECONOMIC, SOCIAL, AND CULTURAL RIGHTS
sharing, labor administration, and the distribution
of shares of stocks, which will allow beneficiaries to
receive a just share of the fruits of the lands they
Economic, Social and Cultural Rights (ESCR)
work. (Sec. 3(a), R.A. No. 6657)
Economic, social, and cultural rights are those

Q: AA filed a filed a petition for conversion of
human rights relating to the workplace, social
parcels of agricultural land on 04 September
security, family life, participation in cultural life, and
1975, which the DAR granted, declaring the
access to housing, food, water, health care and
property as land suitable for residential,
education. (Sarmiento, 2013)
commercial, industrial, and other urban
purposes. On 15 Dec. 2004, private-respondents
sought for revocation of the conversion because
251
The ESCR include the rights to adequate food and Obligations of States on Economic, Social and
housing, to education, to health, to social security, to Cultural Rights
take part in cultural life, to water and sanitation, and
to work. (Office of the United Nations High The obligations of States in relation to economic,
Commissioner for Human Rights, Frequently Asked social, and cultural rights are expressed differently
Questions on Economic, Social and Cultural Rights) from treaty to treaty. The International Covenant on
Economic, Social and Cultural Rights requires States
ESCR is interlinked with Civil and Political “to take steps” to the maximum of their available
Rights resources to achieve progressively the full
realization of economic, social, and cultural rights.
Economic, social and cultural rights are part of the The Covenant also requires States to guarantee the
body of human rights law. They are also often enjoyment of economic, social, and cultural rights
referred to as second generation human rights. without discrimination and to ensure the equal right
These rights are deeply intertwined with civil and of men and women to the enjoyment of these rights.
political rights, which are first generation rights. Other treaties or constitutions word obligations
(Vasak, 1977) differently and even include specific actions that
States must take, such as the adoption of legislation
For example, the right to speak freely means little or the promotion of these rights in public policies.
without a basic education, the right to vote means (Office of the United Nations High Commissioner for
little if you are suffering from starvation. Similarly, Human Rights, Frequently Asked Questions on
the right to work means little if you are not allowed Economic, Social and Cultural Rights)
to meet and assemble in groups to discuss work
conditions. (Office of the United Nations High Q: Do economic, social, and cultural rights make
Commissioner for Human Rights, Frequently Asked people dependent on welfare?
Questions on Economic, Social and Cultural Rights)
A: NO. One of the principal objectives of human
Source of ESCR rights law is to empower individuals so that they
have the capacity and the freedom to live a life in
The primary international legal source of economic, dignity. Economic, social, and cultural rights require
social, and cultural rights is the “International much more than the provision of social assistance,
Covenant on Economic, Social and Cultural including the dismantling of social barriers that
Rights” but few socio-economic rights were already obstruct the full participation of everyone in
recognized under the “Universal Declaration on economic and social life. (Office of the United Nations
Human Rights.” (Office of the United Nations High High Commissioner for Human Rights, Frequently
Commissioner for Human Rights, Frequently Asked Asked Questions on Economic, Social and Cultural
Questions on Economic, Social and Cultural Rights) Rights)
NOTE: It should be noted that various national laws

and international treaties had already codified C. COMMISSION ON HUMAN RIGHTS
many of the human rights we now call economic,
social and cultural rights prior to the adoption of the
Universal Declaration of Human Rights in 1948.
Commission on Human Rights (CHR)
(Office of the United Nations High Commissioner for
Human Rights, Frequently Asked Questions on
It is an independent National Human Rights
Economic, Social and Cultural Rights)
Institution (NHRI) created under the 1987
Philippine Constitution, established on 05 May 1987
by virtue of E.O. No. 163.
252
2023 GOLDEN NOTES
NOTE: The creation of CHR may be constitutionally 1. POWERS AND FUNCTIONS
mandated, but it is not, in the strict sense, a
constitutional commission. Art. IX of the 1987
Functions of the CHR
Constitution, plainly entitled "Constitutional
1. Investigate, on its own or on complaint by
Commissions," identifies only the Civil Service
any party, all forms of human rights
Commission, the Commission on Elections, and the
violations involving civil and political
Commission on Audit. The mandate for the creation
rights;
of the CHR is found in Sec. 17 of Art. XIII of the 1987
Constitution on Human Rights. (CHR Employees
2. Adopt its operational guidelines and rules
Association v. CHR, G.R. No. 155336, 21 July 2006)
of procedure, and cite for contempt for
violations thereof in accordance with the
Mandate of the CHR
Rules of Court;
The Commission is mandated to conduct

3. Monitor the Philippine Government's
investigations on human rights violations against
compliance with international treaty
marginalized and vulnerable sectors of the society,
obligation on human rights;
involving civil and political rights. (Sec. 18, Art. XIII,
1987 Constitution)
4. Provide appropriate legal measures for the
protection of human rights of all persons
Civil rights
within the Philippines, as well as Filipinos
residing abroad, and provide for preventive
These are rights that belong to every citizen of the
measures and legal aid services to the
state or country, or, in a wider sense, to all its
under-privileged whose human rights have
inhabitants, and are not connected with the
been violated or need protection;
organization or administration of government. They
include the rights of property, marriage, equal
5. Exercise visitorial powers over jails,
protection of the laws, freedom of contract, etc. Or,
prisons, or detention facilities;
as otherwise defined civil rights are rights
appertaining to a person by virtue of his citizenship
6. Establish a continuing program of research,
in a state or community. Such term may also refer,
education, and information to enhance
in its general sense, to rights capable of being
respect for the primacy of human rights;
enforced or redressed in a civil action." Also quite
often mentioned are the guarantees against
7. Recommend to Congress effective
involuntary servitude, religious persecution,
measures to promote human rights and to
unreasonable searches and seizures, and
provide for compensation to victims of
imprisonment for debt. (Simon, Jr. v. CHR, G.R.
violations of human rights, or their families;
No.100150, 05 Jan. 1994)
8. Grant immunity from prosecution to any
Political rights
person whose testimony or whose
possession of documents or other evidence
Are said to refer to the right to participate, directly
is necessary or convenient to determine the
or indirectly, in the establishment or administration
truth in any investigation conducted by it or
of government, the right of suffrage, the right to hold
under its authority;
public office, the right of petition and, in general, the
rights appurtenant to citizenship vis-a-vis the
9. Request the Assistance of any department,
management of government. (Simon, et. al., v. CHR,
bureau, office, or agency in the
G.R. No. 100150, 05 Jan. 1994)
performance of its functions;
253
10. Appoint its officers and employees in Composition and qualifications of members of
accordance with law; and the CHR
11. Perform such other duties and functions as
may be provided by law. (Sec. 3, E.O. No. The CHR is composed of a chairman and four
163) Members, who shall be appointed by the President
for a term of seven years. The qualifications for the
Limited Fiscal Autonomy of the CHR chairman and commissioners are as follows:
(Nat-35-Not-Bar)
Fiscal autonomy granted to the respondent by the
1987 Constitution and the Administrative Code of 1. A Natural-born citizen of the Philippines;
1987 shall be limited only to the automatic and
regular release of its approved annual 2. At least 35 years of age at the time of their
appropriations. appointment;
The 1987 Constitution extends to respondent a 3. Must Not have been a candidate for any
certain degree of fiscal autonomy through the elective position preceding their
privilege of having its approved annual appointment; and
appropriations released automatically and
regularly. However, it withholds from respondent 4. Majority of whom must be members of the
fiscal autonomy, in its broad or extensive sense, as Philippine Bar. (E.O. No. 163; Sec. 17(2), Art.
granted to the Judiciary, constitutional XIII, 1987 Constitution)
commissions, and the Office of the Ombudsman.
(CHR Employees Association v. CHR, G.R. No. 155336, Q: Informal settlers and vendors have put up
21 July 2006) structures in an area intended for a People's
Park, which are impeding the flow of traffic in
Investigatory Powers of the CHR the adjoining highway. Mayor Cruz gave notice
for the structures to be removed, and the area
The CHR has the power to investigate all forms of vacated within a month, or else, face demolition
human rights violations involving civil and political and ejectment. The occupants filed a case with
rights and monitor the compliance by the the Commission on Human Rights (CHR) to stop
government with international treaty obligations on the mayor’s move. The CHR then issued an order
human rights. (Sec. 18, Art. XIII, 1987 Constitution) to desist against Mayor Cruz with warning that
he would be held in contempt should he fail to
The CHR cannot prosecute comply with the desistance order. When the
allotted time lapsed, Mayor Cruz caused the
In essence, the Commission’s power is only demolition and removal of the structures.
investigative. It has no prosecutorial power. For Accordingly, the CHR cited him for contempt. Is
prosecution, it must rely on the executive the CHR empowered to declare Mayor Cruz in
department. (Sec. 3, E.O. No. 163) contempt? Does it have contempt powers at all?
The CHR has no Adjudicatory Powers A: NO. CHR does not possess adjudicative functions
and therefore, on its own, is not empowered to
The Constitution clearly and categorically grants to declare mayor in contempt for issuing the “order to
the Commission the power to investigate all forms desist”. However, under the 1987 Constitution, the
of human rights violations involving civil and CHR is constitutionally authorized, in the exercise of
political rights. To investigate is not to adjudicate or its investigative functions, to "adopt its operational
adjudge. (Cariño v. CHR, G.R. No. 96681, 02 Dec. 1991) guidelines and rules of procedure and cite for
contempt for violations thereof in accordance with
254
2023 GOLDEN NOTES
the Rules of Court." Accordingly, the CHR, in the or writs of preliminary injunction. The Commission
course of an investigation, may only cite or hold any on Human Rights has no judicial power. Its powers
person in contempt and impose the appropriate are merely investigatory.
penalties in accordance with the procedure and
sanctions provided for in the Rules of Court. (Cariño
v. CHR, G.R. No. 96681, 02 Dec. 1991)
Absence of Compulsory Powers
The CHR may not issue writs of injunction or

restraining orders against supposed violators of
human rights to compel them to cease and desist
from continuing their acts complained of. (Export
Processing Zone Authority v. CHR, G.R. No. 101476, 14
Apr. 1992)
As to its contempt powers, the CHR is

constitutionally authorized to "adopt its operational
guidelines and rules of procedure and cite for
contempt for violations thereof in accordance with
the Rules of Court." That power to cite for contempt,
however, should be understood to apply only to
violations of its adopted operational guidelines and
rules of procedure essential to carry out its
investigatory powers. (Simon, Jr. v. CHR, G.R.
No.100150, 05 Jan. 1994)
Q: In order to implement a big government flood

control project, the Department of Public Works
and Highways (DPWH) and a local government
unit (LGU) removed squatters from the bank of
a river and certain esteros for relocation to
another place. Their shanties were demolished.
The CHR conducted an investigation and issued
an order for the DPWH and the LGU to cease
and desist from effecting the removal of the
squatters on the ground that the human rights of
the squatters were being violated. The DPWH
and the LGU objected to the order of the CHR.
Resolve which position is correct. Reasons.
A: The position of the Department of Public Works

and Highways and of the local government unit is
correct. As held in Export Processing Zone Authority
v. Commission on Human Rights (G.R. No. 101476, 14
Apr. 1992), no provision in the Constitution or any
law confers on the Commission on Human Rights
jurisdiction to issue temporary restraining orders
255
IV. EDUCATION, SCIENCE, TECHNOLOGY, ARTS, Physical integrity refers to the structure itself – how
CULTURE, AND SPORTS strong and sound the structure is. The same law
does not mention that another project, building, or
property, not itself a heritage property or building,
may be the subject of a cease-and-desist order when
Arts and Culture
it adversely affects the background view, vista, or
sightline of a heritage property or building. Thus,
Arts and letters shall enjoy the patronage of the
the law cannot apply to the Torre de Manila
State. The State shall conserve, promote, and
condominium project. (Knights of Rizal v. DMCI
popularize the nation’s historical and cultural
Homes, G.R. No. 213948, 25 Apr. 2017)
heritage and resources, as well as artistic creations.
(Sec. 15, Art. XIV, 1987 Constitution)
All the country’s artistic and historic wealth A. ACADEMIC FREEDOM

constitutes the cultural treasure of the nation and
shall be under the protection of the State which may
regulate its disposition. (Sec. 16, Art. XIV, 1987 Academic freedom shall be enjoyed in all
Constitution) institutions of higher learning. (Sec. 5(2), Art. XIV,
1987 Constitution)
Q: DMCI Project Developers, Inc. (DMCI-PDI)
acquired a huge lot in the City of Manila for the Academic freedom of institutions of higher learning
construction of the Torre de Manila is a freedom granted to “institutions of higher
condominium project, a 49-storey building learning” which is thus given a “wide sphere of
looming at the back of the Rizal Monument in authority certainly extending to the choice of
Luneta Park. The Knights of Rizal (KoR) filed a students.” If such institution of higher learning can
Petition for Injunction against the construction, decide who can and who cannot study in it, it
arguing that it will cause the desecration of the certainly can also determine on whom it can confer
Rizal Monument, which, as a National Treasure, the honor and distinction of being its graduates.
is entitled to full protection of the law. Is the KoR Thus, a university can validly revoke a degree or
correct? honor it has conferred to a student after graduation
after finding that such degree or honor was
A: NO. There is no law prohibiting the construction obtained through fraud. (Garcia v. Faculty Admission
of Torre de Manila. Sec. 15, Art. XIV of the 1987 Committee, Loyola School of Theology, G.R. No. L-
Constitution is not self-executory, Congress passed 40779, 28 Nov. 1975)
laws dealing with the preservation and
conservation of our cultural heritage, such as the Aspects of Academic Freedom: (I-F-S)
National Cultural Heritage Act of 2009, which
empowers the National Commission for Culture and 1. From the standpoint of the educational
the Arts (NCCA) and other cultural agencies to issue Institution – To provide that atmosphere, which
a cease and desist order "when the physical is most conducive to speculation,
integrity of the national cultural treasures or experimentation and creation; (Garcia v.
important cultural properties [is] found to be in Faculty Admission Committee, G.R. No. L-40779
danger of destruction or significant alteration from 28 Nov. 1975)
its original state. This law declares that the State
should protect the "physical integrity" of the 2. From the standpoint of the Faculty –
heritage property or building if there is "danger of
destruction or significant alteration from its original a. Freedom in research and in the publication
state." of the results, subject to the adequate
256
2023 GOLDEN NOTES
performance of his other academic duties; et al. of Tau Gamma Phi Fraternity with “direct
(Tilton v. Richardson, 403 U.S. 672, 681-82, assault” because of their involvement in an
1971) offensive action causing injuries to the
complainants, which were the result of a
b. Freedom in the classroom in discussing his fraternity war. The DLSU-CSB Joint Discipline
subject less controversial matters which Board found Aguilar et al. guilty and were meted
bear no relation to the subject; and (Ibid.) the penalty of automatic expulsion. Was DLSU
within its rights in expelling the students?
c. Freedom from institutional censorship or
discipline, limited by his special position in A: NO. It is true that schools have the power to instill
the community. (Ibid.) discipline in their students as subsumed in their
academic freedom. This power does not give them
3. From the standpoint of the Student – Right to the untrammeled discretion to impose a penalty
enjoy in school the guarantee of the Bill of which is not commensurate with the gravity of the
Rights. (Non v. Dames, G.R. No. 89317, 20 May misdeed. If the concept of proportionality between
1990) the offense committed and the sanction imposed is
not followed, an element of arbitrariness intrudes.
Freedoms afforded to Educational Institutions Thus, the penalty of expulsion imposed by DLSU on
relating to its Right to determine for itself on Aguilar, et al. is disproportionate to their deeds.
Academic Grounds (DLSU v. CA, G.R. No. 127980, 19 Dec. 2007)
1. Who may teach; Q: The counsel of the losing party in the case of
2. What may be taught; Vinuya, et al. v. Exec. Sec filed a Supplemental
3. How shall it be taught; and Motion for Reconsideration, in the said Decision,
4. Who may be admitted to study. (Miriam College they posited their charge of plagiarism as one of
Foundation v. CA, G.R. No. 127930, 15 Dec. 2000) the grounds for reconsideration of the decision.
A statement by the faculty of UP Law on the
Limitations on Academic Freedom: (Pol-Si) allegations of plagiarism and misrepresentation
in the SC entitled “Restoring Integrity” was
1. Police power of the State submitted by the UP professors. They expressed
2. Social Interest of the community dissatisfaction over Justice Del Castillo’s
explanation on how he cited the primary
This freedom of a university does not terminate sources of the quoted portions and yet arrived at
upon the “graduation” of a student, for it is precisely a contrary conclusion to those of the authors of
the “graduation” of such a student that is in the articles supposedly plagiarized. Beyond this,
question. An institution of higher learning cannot be however, the statement bore certain remarks
powerless if it discovers that an academic degree it which raise concern for the Court. It reads: “An
has conferred is not rightfully deserved. The pursuit extraordinary act of injustice has again been
of academic excellence is the university’s concern. It committed against the brave Filipinas who had
should be empowered, as an act of self-defense, to suffered abuse during a time of war.”
take measures to protect itself from serious threats
to its integrity. (UP Board of Regents v. CA, G.R. No. Thus, the Court, in a Show Cause Resolution,
134625, 31 Aug. 1999) directed Dean Leonen, and several other
lawyers from UP Law to show cause, why they
Q: Juan delos Santos, et al., students of De La should not be disciplined as members of the Bar
Salle University (DLSU) and College of Saint for violation of Canons 1, 11 and 13 and Rules
Benilde are members of the “Domingo Lux 1.02 and 11.05 of the Code of Professional
Fraternity”. They lodged a complaint with the Responsibility.
Discipline Board of DLSU charging Alvin Aguilar,
257
Does the Show Cause Resolution violate rules and regulations that it may deem necessary for
respondents’ academic freedom as law the maintenance of school discipline, which is
professors? specifically mandated by Sec. 3(2), Art. XIV of the
1987 Constitution. The PMA has the freedom on who
A: NO. It is not contested that respondents (UP Law to admit (and, conversely, to expel) given the high
professors) are, by law and jurisprudence, degree of discipline and honor expected from its
guaranteed academic freedom and indisputably, students who are to form part of the AFP. The
they are free to determine what they will teach their schools’ power to instill discipline in their students
students and how they will teach. As pointed out, is subsumed in their academic freedom and that
there is nothing in the Show Cause Resolution that “the establishment of rules governing university-
dictates upon respondents the subject matter they student relations, particularly those pertaining to
can teach and the manner of their instruction. student discipline, may be regarded as vital, not
Moreover, it is not inconsistent with the principle of merely to the smooth and efficient operation of the
academic freedom for this Court to subject lawyers institution, but to its very survival. The dismissal of
who teach law to disciplinary action for Cudia from the PMA due to being 2 minutes late for
contumacious conduct and speech, coupled with a class was affirmed.
undue intervention in favor of a party in a pending
case, without observing proper procedure, even if It must be borne in mind that schools are
purportedly done in their capacity as teachers. (RE: established, not merely to develop the intellect and
Letter of the UP-Law Faculty, A.M. No. 10-10-4-SC, 08 skills of the studentry, but to inculcate lofty values,
Mar. 2011) ideals and attitudes of the total man. Under the
rubric of "right to education," students have a
Regulatory Power of the Education Secretary as concomitant duty to learn under the rules laid down
to Teaching and Non-teaching Personnel of by the school. Hence, as the primary training and
Private Schools educational institution of the AFP, the PMA certainly
has the right to invoke academic freedom in the
The qualifications of teaching and non-teaching enforcement of its internal rules and regulations,
personnel of private schools, as well as the causes which are the Honor Code and the Honor System.
for the termination of their employment, are an
integral aspect of the educational system of private The Honor Code is a set of basic and fundamental
schools. It is thus within the authority of the ethical and moral principle. It is the minimum
Secretary of Education to issue a rule, which standard for cadet behavior and serves as the
provides for the dismissal of teaching and non- guiding spirit behind each cadet's action.
teaching personnel of private schools based on their Throughout a cadet's stay in the PMA, he or she is
incompetence, inefficiency, or some other absolutely bound thereto. (Cudia v. PMA, G.R. No.
disqualification. (Leus v. St. Scholastica’s College 211362, 24 Feb. 2015)
Westgrove, G.R. No. 187226, 28 Jan. 2015)
Constitutional Tax Exemptions for Certain
Philippine Military Academy’s (PMA) Authority Educational Institutions
to impose Disciplinary Measures
Charitable institutions, churches and parsonages or
PMA may impose disciplinary measures and convents appurtenant thereto, mosques, non-profit
punishment, as it deems fit and consistent with the cemeteries, and all lands, buildings, and
peculiar needs of the Academy. Even without improvements, actually, directly, and exclusively
express provision of a law, the PMA has regulatory used for religious, charitable, or educational
authority to administratively dismiss erring cadets. purposes shall be exempt from taxation. (Sec. 28(3),
As an academic institution, the PMA has the Art. VI, 1987 Constitution)
inherent right to promulgate reasonable norms,
258
2023 GOLDEN NOTES
All revenues and assets of non-stock, non-profit local planning in the development of educational
educational institutions used actually, directly, and policies and programs. (Sec. 5(1), Art. XIV, 1987
exclusively for educational purposes shall be Constitution)
exempt from taxes and duties. Upon the dissolution
or cessation of the corporate existence of such Rationale of the Tax Exemption
institutions, their assets shall be disposed of in the
manner provided by law. To provide broader tax privilege to non-stock, non-
profit educational institutions as recognition of
Proprietary educational institutions, including their role in assisting the State provide a public
those cooperatively owned, may likewise be entitled good. The tax exemption was seen as beneficial to
to such exemptions subject to the limitations students who may otherwise be charged
provided by law including restrictions on dividends unreasonable tuition fees if not for the tax
and provisions for reinvestment. (Sec. 4(3), Art. XIV, exemption extended to all revenues and assets of
1987 Constitution) non-stock, non-profit educational institutions.
(Commissioner of Internal Revenue (CIR) v. De La
Kinds of Educational Institutions Salle University, Inc., G.R. Nos. 196596, 198841,
198941, 09 Nov. 2016)
1. Non-stock, non-profit educational institutions;
or (Sec. 4(3), Art. XIV, 1987 Constitution)
2. Proprietary educational institutions. (Sec. 4(3),
Art. XIV, 1987 Constitution)
Requisites for Tax Exemption
1. The school must be non-stock and non-profit;

and
2. The income is actually, directly and exclusively
used for educational purposes. (Jacinto-
Henares v. St. Paul College of Makati, G.R. No.
215383, 08 Mar. 2017)
Charitable institutions, churches and parsonages or

convents appurtenant thereto, mosques, non-profit
cemeteries, and all lands, buildings, and
improvements, actually, directly, and exclusively
used for religious, charitable, or educational
purposes shall be exempt from taxation. (Sec. 28(3),
Proprietary education institutions are also entitled

to the same exemptions, but subject to limitations
imposed by law. (Sec. 4(3), Art. XIV, 1987
Constitution)
The Role of the State in Developing Educational

Policies and Programs
The State shall take into account regional and

sectoral needs and conditions and shall encourage
259
Jura Regalia
Under the concept of Jura Regalia, private title to
land must be traced to some grant, express or
Goals of the National Economy implied, from the Spanish Crown or its successors,
the American Colonial government, and thereafter,
The following are the goals of the national economy: the Philippine Republic. Title to land must emanate
(S-E-E) from some source for it cannot be issued from
1. A more equitable distribution of opportunities, nowhere.
income and wealth;
Jura regalia simply means that the State is the
2. Sustained increase in the amount of goods and original proprietor of all lands and, as such, is the
services produced by the nation for the benefit general source of all private titles. (Agcaoili, 2015)
of the people; and
Regalian Doctrine is embodied in the
3. An expanding productivity as the key to raising Constitution
the quality of life for all, especially, the
underprivileged. (Sec. 1, Art. XII, 1987 All lands of the public domain, waters, minerals,
Constitution) coal, petroleum, and other mineral oils, all forces of
potential energy, fisheries, forests, or timber,
How the State may attain the goals of the wildlife, flora and fauna, and other natural
National Economy resources are owned by the State. With the
exception of agricultural lands, all other natural
The State shall promote industrialization and full resources shall not be alienated. (Sec. 2, Art. XII,
employment based on sound agricultural 1987 Constitution)
development and agrarian reform, through
industries that make full and efficient use of human Exception to the Regalian Doctrine
and natural resources, and which are competitive in
both domestic and foreign markets. However, the When there is an existing native title to land or
State shall protect Filipino enterprises against ownership of land by Filipinos by virtue of
unfair foreign competition and trade practices. (Sec. possession under a claim of ownership since time
1, Art. XII, 1987 Constitution) immemorial and independent of any grant from the
Spanish Crown. (Cariño v. Insular Government, G.R.
No. 2869, 25 Mar. 1907)
I. REGALIAN DOCTRINE
Any land that should have been in the possession of
an occupant and of his predecessors in interest
since time immemorial, for such possession would
Regalian Doctrine justify the presumption that the land had never
been part of the public domain or that it had been a
All lands of whatever classification and other
private property even before the Spanish conquest.
natural resources not otherwise appearing to be (Oh Cho v. Director of Lands, G.R. No. L-48321, 31 Aug.
clearly within private ownership belong to the State. 1946)
The State is the source of any asserted right to
ownership of land and charged with the
conservation of such patrimony. (Republic v.
Raneses, G.R. No. 189970, 02 June 2014; Sec. of DENR
v. Yap, G.R. No. 167707, 08 Oct. 2008)
260
2023 GOLDEN NOTES
Constitutionality of RA 8371 “Indigenous lands of the public domain in Musuan Bukidnon,
Peoples’ Rights Act” (IPRA Law) as a school site for Central Mindanao University.
In 2003, President Arroyo issued a Presidential
The Regalian Doctrine does not negate native title to Proclamation taking hectares from CMU’s
lands held in private ownership since time registered lands for distribution to indigenous
immemorial and independent of any grant from the peoples and cultural communities. CMU filed a
Spanish Crown. IPRA recognizes the right of petition to declare the proclamation
ownership of Indigenous Cultural Communities or unconstitutional. Decide.
Indigenous Peoples (ICCs/IPs) to their ancestral
domains and ancestral lands on the basis of native A: The lands by their character have become
title. (Cruz v. Sec. of DENR, G.R. No. 135385, 06 Dec. inalienable from the moment President Garcia
2000) dedicated them for CMUs use. They have ceased to
be alienable public lands. Besides, Sec. 56 of IPRA
NOTE: The constitutionality of the law was deemed provides that property rights within the ancestral
upheld only because the votes were equally divided domains already existing and/or vested upon its
7 to 7. Hence, the necessary majority was not effectivity shall be recognized and respected. In this
obtained. Accordingly, pursuant to Rule 56, Sec. 7 of case, ownership over the subject lands had been
the Rules of Civil Procedure, the petition was vested in CMU as early as 1958. Consequently,
dismissed. (Cruz v. Sec. of DENR, G.R. No. 135385, 06 transferring the lands in 2003 to the indigenous
Dec. 2000) peoples around the area is not in accord with IPRA.
(CMU v. Exec. Secretary, G.R. No. 184869, 21 Sept.
Native Title 2010)
Native title refers to pre-conquest rights to lands Q: Provincial government of AA exercised its
and domains which, as far back as memory reaches, power of eminent domain by expropriating the
have been held under a claim of private ownership eastern position of BB’s lot as a barangay road
by ICCs/IPs, have been public lands and are thus although he has not yet received just
indisputably presumed to have been held that way compensation for it. Adjoining the barangay
since before the Spanish Conquest. (Sec. 3(l), Ch. II, road is an accreted land in which BB claimed
R.A. No. 8371) ownership. The lower court ruled that the
accreted land is owned by the provincial
Ancestral Domain government of AA. Is this correct?
All areas generally belonging to ICCs/IPs A: NO. Provincial government of AA converted the
comprising lands, inland waters, coastal areas, and portion of BB’s lot into a barangay road without
natural resources therein, held under a claim of justly compensating BB for it.
ownership, occupied and possessed by ICCs/IPs, by
themselves or through their ancestors, communally Since the Provincial government of AA had not
or individually since time immemorial, completed just compensation to BB for the barangay
continuously to the present, except when road, title thereon had not transferred to the former,
interrupted by war, force majeure or displacement but remained with the latter. For purposes of
by force, deceit, stealth or as a consequence of completing the Proposed Survey Plan, indicating
government projects or any other voluntary therein that the accreted lot be appended to BB’s lot,
dealings with government and/or private the same could very well issue to BB, subject to legal
individuals or corporations. (Sec. 3(a), Ch. II, R.A. No. easement along the banks of the San Agustin River.
8371)
The Provincial government of AA is not prevented
Q: In 1958, President Garcia issued a from vying for riparian ownership over the accreted
Presidential Proclamation reserving hectares of lot if, in the appropriate land registration
261
proceedings, it can establish complete payment of
just compensation over the barangay road prior to II. PUBLIC TRUST DOCTRINE
the accretion of alluvial deposits. (Aquilino
Manigbas v. Melo Abel, Froilan Ylagan, And Dennis De
Guzman, G.R. No. 222123, 28 June 2021)
Public Trust Doctrine
Q: Paliza is the owner of two coconut lands, Lot

Public Trust Doctrine means that the people are the
5763 and Lot 5853, both located in Albay. The
ultimate owners of the country's resources, over
lands were placed under the compulsory
which the State is a trustee, a subservient manager,
acquisition scheme of the CARP. Subsequently,
a mere nominal holder. The doctrine enjoins all
Land Bank of the Philippines conducted the
public service providers that earn their keep
required field investigation for the subject lots.
primarily through paychecks funded by the people,
On 20 January 1997, the Registry of Deeds (RD)
in the strict compliance of the regulatory laws
of Albay canceled the transfer certificate of title
relevant to them.
(TCT) covering Lot 5763 and issued another TCT
in the name of Republic of the Philippines. On 16
The doctrine mentions an obligation placed on the
March 1999, RD Albay entered in its registry the
State and its agent to continue to watch over the
original certificate of title (OCT) covering Lot
taking and usage of water that has been
5853, which the State issued in favor of a farmer-
appropriated. Therefore, "parties who obtained
beneficiary. When the case reached the RTC, the
rights in trust property only hold these rights
court used the formula under DAR AO No. 1,
subject to the trust and, hence, could not assert any
which it held effectively amended the
vested right to exercise those rights in a way
presumptive date of taking from the date of the
detrimental to the trust."
issuance of the emancipation patent, certificate
of land ownership award (CLOA), or title in the
The public is regarded as the beneficial owner of
name of the Republic, to 30 June 2009. Thus, the
trust resources, and courts can enforce the Public
RTC adopted the report of the appointed
Trust Doctrine against the government itself.
commissioner, which used the production data
(Maynilad Water Services, Inc., v Secretary of the
and values within the 12-month period
DENR, G.R. No. 202897, 06, Aug. 2019, J. Hernando)
preceding 30 June 2009. Is the RTC correct?
A: NO. Just compensation is the fair and full

equivalent of the property at the time of taking. The
time of taking is the time when the landowner was
deprived of the use and benefit of their property,
such as when the title is transferred in the name of
the Republic of the Philippines, or when the CLOAs
are issued in favor of farmer-beneficiaries. Here, the
TCT covering Lot 5763 was issued in the name of the
Republic of the Philippines on 20 January1997.
Meanwhile, the OCT covering Lot 5853 was issued
to a farmer beneficiary on 16 March 1999. Thus, the
actual taking took place on 20 January 1997 and 16
March 1999, for Lot 5763 and Lot 5853,
respectively. (Land Bank of the Philippines v. Paliza,
Sr., G.R. Nos. 236772-73, 28 June 2021)
262
2023 GOLDEN NOTES
Q. Charoen, a foreign-owned company engaged
III. NATIONALIST AND CITIZENSHIP in agribusiness, applied for registration with the
REQUIREMENT PROVISIONS Board of Investments (Board) as a new producer
in the swine, poultry, and fishery industries. The
Alliance of Agribusinesses in the Philippines
(AAP), an organization of domestic companies,
Foreigners who own substantial stockholdings
assailed the Board’s approval of the ABC’s
in a corporation, engaged in the advertising
applications for registration for being violative
industry, cannot sit as a treasurer of said
of the constitutional provisions against foreign
corporation (1989 BAR)
ownership of enterprises in industries imbued
with public interest. Is the contention of AAP
A treasurer of the corporation is an executive and
correct?
managing officer. The advertising industry is
impressed with public interest and shall be
A. NO. The Constitution does not prohibit foreign
regulated by law for the protection of consumers
ownership of industries in the Philippines, save for
and promotion of the general welfare. The
certain industries, such as advertising, public
participation of foreign investors in the governing
utilities, mass media, educational institutions,
body of entities in such industry shall be limited to
ownership of private lands, and the exploration,
their proportionate share in the capital thereof, and
development, and utilization of natural resources.
all the executive and managing officers of such
The Foreign Investments Act of 1991 declares that
entities must be citizens of the Philippines. (Sec 11
as much as 100% foreign ownership in domestic
(2), Art. XVI, 1987 Constitution)
enterprises may be allowed, except for industries in
the negative list. In this regard, the Board does not
Ownership Requirement
place “agriculture/agribusiness and fishery” in the
negative lists for several years already. Thus,
1. Advertising - 70% of their capital must be
agribusiness, not being a nationalized or partly
owned by Filipino citizens. (Sec. 11(2), Art.
nationalized industry, may be made the subject of
XVI, 1987 Constitution)
foreign investment. (National Federation of Hog
Farmers, Inc. v. Board of Investments, et al, G.R. No.
2. Mass Media - must be wholly owned by
205835, 23 June 2020)
Filipino citizens. (Sec. 11(1), Art. XVI, 1987
Constitution)
3. Educational institutions - 60% of their

capital must be owned by Filipino citizens.
(Sec. 4(2), Art. XIV, 1987 Constitution)
Requisites for a State to Take-Over of Business

Affected with Public Interest
The State may take over or direct the operation of

any privately owned public utility or business
affected with public interest provided that:
1. There is national emergency;
2. The public interest so requires; and
3. Under reasonable terms prescribed by it.
(Sec. 17, Art. XII, 1987 Constitution)
263
2. Co-production, joint venture or produc4on-
IV. EXPLORATION, DEVELOPMENT, AND sharing agreements with Filipino citizens
UTILIZATION OF NATURAL RESOURCES or qualified corporations;
3. Congress may, by law, allow small-scale

utilization of natural resources by Filipino
Exploration, Development and Utilization of
citizens; and
Natural Resources (2015 BAR)
4. For the large-scale exploration,

Only Filipino citizens and corporations or
development and utilization of minerals,
associations at least 60% of whose capital is owned
petroleum and other mineral oils, the
by Filipino citizens are qualified to take part in
President may enter into agreements with
exploration, development and utilization of natural
foreign-owned corporations involving
resources. (Sec. 2, Art. XII, 1987 Constitution)
technical or financial assistance.
Natural resources, except agricultural resources

For the Joint Marine Seismic Undertaking (JMSU) to
that cannot be alienated, can be explored,
be valid, it must be executed and implemented
developed, or utilized by:
under one of the four modes stated. Obviously, the
JMSU does not fall in the first mode as it was not
1. Direct undertaking of activities by the State;
undertaken solely by the State. It neither involves
and
the second nor the third modes considering that the
2. Co-production, joint venture, or production
other parties to the agreement are wholly-owned
sharing agreements with the State and all
foreign corporations. The fourth mode is the most
under the full control and supervision of the
feasible route for the JMSU since it allows foreign-
State. (Miners Association v. Factoran, G.R. No.
owned corporations to participate in the large-scale
98332, 16 Jan. 1995)
exploration, development, and utilization of
NOTE: However, as to marine wealth, only Filipino petroleum. (Bayan Muna v. Gloria Macapagal-
citizens are qualified. This is also true of natural Arroyo, G.R. No. 159618, 1 Feb. 2011)
resources in rivers, bays, lakes, and lagoons, but
with allowance for cooperatives. (Sec. 2(2-3), Art. Control Test and Grandfather Rule (2015 BAR)
XII, 1987 Constitution)
Control Test and Grandfather Rule were discussed
Unconstitutionality of the Tripartite Agreement by the Supreme Court in determining whether or
for Joint Marine Seismic Undertaking in the not Narra Nickel Mining and Development
Agreement Area in the South China Sea by and Corporation Tesoro Mining and Development, Inc.,
among China National Offshore Oil Corporation and McArthur Mining, Inc. complied with the
and Vietnam Oil and Gas Corporation and Filipino ownership requirement, thus, entitled to
Philippine National Oil Company Mineral Production Sharing Agreements (MPSAs).
(Narra Nickel Mining and Development Corporation
The exploration, development, and utilization v. Redmont Consolidated Mines Corporation, G.R. No.
(EDU) of natural resources shall be under the full 195580, 28 Jan. 2015 (Resolution))
control and supervision of the State. The State may
undertake such ac4vi4es through the following CONTROL TEST GRANDFATHER RULE
modes: Also known as the The method by which
“liberal test”; This the percentage of
1. Directly; provides that shares Filipino equity in a
belonging to corporation is
corporations or computed, in cases
264
2023 GOLDEN NOTES
partnerships at least where corporate Circumstances that compelled the application of
60% of the capital of shareholders are the Grandfather Rule in Narra Nickel Mining v.
which is owned by present, by attributing Redmont Consolidated Mines
Filipino citizens shall the nationality of the
be considered of second or even 1. The three mining corporations had the
Philippine nationality. subsequent tier of same 100% Canadian owned foreign
ownership to investor;
This does not determine the 2. The similar corporate structure and
scrutinize further the nationality of the shareholder composition of the three
ownership of the corporate shareholder. corporations;
Filipino shareholdings.
Thus, to arrive at the 3. A major Filipino shareholder within the
actual Filipino corporate layering did not pay any amount
ownership and control with respect to its subscription; and
in a corporation, both
the direct and indirect 4. The dubious act of the foreign investor in
shareholdings in the conveying its interests in the mining
corporation are corporations to another domestic
determined. corporation. (Narra Nickel Mining and
Applies only when the Development Corporation v. Redmont
60-40 Filipino-foreign Consolidated Mines Corporation, G.R. No.
ownership is in doubt 195580, 21 Apr. 2014)
or where there is
Primary test (but it NOTE: Corporate layering is valid insofar as it does
reason to believe that
may be combined with not intend to circumvent the Filipino ownership
there is non-
the Grandfather Rule) requirement of the Constitution. (Ibid.)
compliance with the
provisions of the
Constitution on the Validity of Service Contract Entered Into by the
nationality restriction. State with a Foreign-owned Corporation
(Narra Nickel Mining and Development Corporation
v. Redmont Consolidated Mines Corporation, G.R. No. Subject to the strict limitations in the last two
paragraphs of Sec. 2, Art. XII, 1987 Constitution,
195580, 28 Jan. 2015 (Resolution); Villanueva, 2001)
financial and technical agreements are a form of
NOTE: “Doubt” does not refer to the fact that the service contract. These service contracts may be
entered into only with respect to minerals,
apparent Filipino ownership of the corporation’s
equity falls below the 60% threshold. Rather, it petroleum, and other mineral oils. The grant of such
refers to various indicia that the "beneficial service contracts is subject to several safeguards,
among them:
ownership" and "control" of the corporation do not
in fact reside in Filipino shareholders but in foreign
stakeholders. (Narra Nickel Mining and Development 1. That the service contract be crafted in
accordance with a general law setting
Corporation v. Redmont Consolidated Mines
Corporation, G.R. No. 195580, 28 Jan. 2015 standard of uniform terms, conditions and
requirements;
(Resolution))
Ratio: To attain certain uniformity in

provisions and avoid the possible insertion of
terms disadvantageous to the country. (La
Bugal B’laan v. Secretary of the DENR, G.R. No.
127882, 01 Dec. 2004)
265
2. President be the signatory for the
government; and
Ratio: Before an agreement is presented to the
President for signature, it will have been vetted
several times over at different levels to ensure
that it conforms to law and can withstand public
scrutiny. (La Bugal B’laan v. Secretary of the
DENR, G.R. No. 127882, 01 Dec. 2004)
3. President reports the executed agreement to

Congress within 30 days.
Ratio: To give that branch of government an

opportunity to look over the agreement and
interpose timely objections, if any. (La Bugal
B’laan v. Secretary of the DENR, G.R. No. 127882,
01 Dec. 2004)
Violation of Sec. 68 of P.D. 705, as amended
Sec. 68 of P.D. 705, as amended, refers to Articles

309 and 310 of the RPC for the penalties to be
imposed on violators. Violation of Sec. 68 of P.D
.705, as amended, is punished as qualified theft. The
law treats cutting, gathering, collecting, and
possessing timber or other forest products without
license as an offense as grave as and equivalent to
the felony of qualified theft. (Talabis v. People, G.R.
No. 214647, 06 Aug. 2019, J. Hernando)
266
2023 GOLDEN NOTES
by Congress or a Presidential Proclamation in cases
V. ACQUISITION, OWNERSHIP, AND TRANSFER where the President is duly authorized by law.
OF PUBLIC AND PRIVATE LANDS (Heirs of Mario Malabanan v. Republic of the
Philippines, G.R. No. 179987, 29 Apr. 2009)
Purchase or Grant
Imperium vs. Dominium
Public land is acquired from the government either

IMPERIUM DOMINIUM
by purchase or by grant. (Oh Cho v. Director of Lands,
The power to govern
The capacity of the G.R. No. L-48321, 31 Aug. 1946)
possessed by the State
State to own or acquire
which is embraced in
properties. Prescription
sovereignty.
(Nachura, 2014)
Public land held by a possessor, personally or
through his predecessors-in-interest, openly,
Classification of Lands of Public Domain: (Agri-
continuously and exclusively for the prescribed
For-Mi-Na)
statutory period is converted to private property by
the mere lapse of completion of said period, ipso
1. Agricultural;
jure. The land ipso jure ceases to be of the public
2. Forest or timber;
domain and becomes private property. (Director of
3. Mineral lands; and
Lands v. IAC, G.R. No. 73002, 29 Dec. 1986)
4. National parks (Sec. 3, Art. XII, 1987
Constitution)
Two (2) kinds of prescription by which
Patrimonial Property may be acquired
Conversion of Public Land to Private Land
1. Ordinary – possession for at least 10 years,
Before any land may be converted to alienable and
in good faith and with just title; or
disposable land, there must be a positive act from
the government. Unless and until the land is
2. Extraordinary – possession for at least 30
released in an official proclamation, it may not form
years, regardless of good faith or just title.
part of the disposable agricultural lands of the
(Canlas v. Republic, G.R. No. 200894, 10 Nov.
public domain. (Sunbeam v. CA, G.R. No. L-50464, 29
2014)
Jan. 1990)
There must be an express declaration that the
There must be an express declaration by the State
property is no longer intended for public service or
that the public dominion property is no longer
development of national wealth. Without such
intended for public service or the development of
declaration, the property, even if classified as
the national wealth or that the property has been
alienable and disposable, remains property of the
converted into patrimonial. Without such express
State, and thus, may not be acquired by prescription.
declaration, the property, even if classified as
(Malabanan v. Republic, G.R. No. 179987, 29 Apr.
alienable or disposable, remains property of the
2009)
public dominion, pursuant to Art. 420(2) of the Civil
Code, and thus incapable of acquisition by
Disposition of Private Lands or holding of lands
prescription. It is only when such alienable and
of the Public Domain
disposable lands are expressly declared by the State
to be no longer intended for public service or for the
No private land shall be transferred or conveyed
development of the national wealth that the period
except to individuals, corporations or associations
of acquisitive prescription can begin to run. Such
qualified to acquire or hold lands of the public
declaration shall be in the form of a law duly enacted
domain. (Sec. 7, Art. XII, 1987 Constitution)
267
XPNs: Religious associations controlled by non-
Filipinos cannot own lands
1. By hereditary succession; (Sec. 7, Art. XII, 1987
Constitution) The Constitution makes no exception in favor of
religious associations restricting the acquisition of
2. Former natural-born citizens of the Philippines public agricultural lands and other natural
who has lost his Philippine citizenship; (Sec. 7, resources to corporations or associations at least
Art. XII, 1987 Constitution) sixty per centum of the capital of which is owned by
such citizens. To permit religious associations
3. Condominium units; or (R.A. No. 4726 or The controlled by non-Filipinos to acquire agricultural
Condominium Act) lands would be to drive the opening wedge to revive
alien religious land holdings in this country.
4. Those acquired by Americans while the Parity (Register of Deeds v. Ung Siu Si Temple, G.R. No. L-
Right Agreement was still in effect. (Republic v. 6776, 21 May 1955)
Quasha, G.R. No. L-30299, 17 Aug. 1972)
Military Reservations are not subject to
Hereditary succession; Intestate succession registration
This means foreigners who inherit through intestate In Republic v. PNP (G.R. No. 198277, 8 Feb. 2021, J.
succession. It does not extend to testate succession Hernando) the Court agreed with the OSG when the
for otherwise the Constitutional prohibition will be latter argued that the subject lots are incapable of
for naught and meaningless. Any alien would be able registration pursuant to the CENRO Report. It
to circumvent the prohibition by paying money to a asserted that the PNP's possession of the subject
Philippine landowner in exchange for a devise of a lots for more than 30 years is irrelevant because
piece of land. (Ramirez v. Ramirez, G.R. No. L-27952, said lots are inalienable, having been reserved for
15 Feb. 1982) military purposes. Moreover, the PNP presented no
evidence that the same had been released from their
Natural-born citizens who lost their Citizenship classification as a military reservation. The OSG
further contends that the annotation on the
Any natural-born citizen of the Philippines who has subdivision plan is insufficient to prove that they
lost his Philippine citizenship and who has the legal are alienable and disposable lands of the public
capacity to enter into a contract under Philippine domain.
laws may be a transferee of a private land up to a
maximum area of one thousand square meters, in Aliens and Alien-owned Corporations may lease
the case of urban land, or one hectare in the case of Private Lands
rural land, to be used by him as his residence. (Sec.
2, B.P. 185) The maximum period allowable for the duration of
leases of private lands to aliens or alien-owned
Religious Corporations can own lands corporations, associations, or entities not qualified
to acquire private lands in the Philippines shall be
A corporation sole by the nature of its incorporation 25 years, renewable for another period of 25 years
is vested with the right to purchase and hold real upon mutual agreement of both lessor and lessee.
estate property. It need not therefore be treated as (Sec. 1, P.D. 471)
an ordinary private corporation because whether or
not it be so treated as such, the Constitutional
provision involved will, nevertheless, be not
applicable. (Sec. 113, B.P. 68; Republic v. IAC, G.R. No.
75042, 29 Nov. 1988)
268
2023 GOLDEN NOTES
Right of Party to Register Alienable Land and Requisites for Reconstitution of Land Title
Burden of Proof
The judicial reconstitution of a Torrens title under
To prove that the land subject of the application for R.A No. 26 means the restoration in the original
registration is alienable, an applicant must establish form and condition of a lost or destroyed Torrens
the existence of a positive act of the government certificate attesting the title of a person to
such as a presidential proclamation or an executive registered land. The purpose of the reconstitution is
order; an administrative action; investigation to enable, after observing the procedures
reports of Bureau of Lands investigators; and a prescribed by law, the reproduction of the lost or
legislative act or a statute. (Republic v. Court of destroyed Torrens certificate in the same form and
Appeals, G.R. No. 127060, 19 Nov. 2002) in exactly the same way it was at the time of the loss
or destruction. (Republic v. Abellanosa, G.R. No.
Opposition to Registration Proceedings 205817, 06 Oct. 2021)
Even though there were no available records of the

supposed prior cadastral proceedings and no other VI. CONCEPT OF ANCESTRAL DOMAIN
party had come forward to challenge the heirs' (INCLUDING ANCESTRAL LANDS)
ownership, it allowed the registration of the
property since "it would be the height of injustice
for the heirs to be held hostage or punished by
Ancestral Domain
reason of the plain scarcity of the records with the
government agencies concerned." The registration
All lands, inland waters, coastal regions, and natural
should be allowed with much more reason here
resources therein that are generally owned by
where no decree of registration covering the subject
ICCs/IPs and have been occupied or owned by
land had yet been issued and only the existence of
ICCs/IPs, either directly or through their
the supposed decision (which has not yet even
predecessors, communally or individually, since
attained finality) bars respondents' application.
time immemorial.
(Republic vs. Tapay, G.R. No. 157719,02 Mar. 2022)
Includes ancestral lands, forests, pasture,

Foreign nationals can own Condominium units
residential, agricultural, and other lands privately
owned, whether alienable and disposable or not;
They can own Philippine real estate through the
bodies of water; mineral and other natural
purchase of condominium units or townhouses
resources; and lands that may no longer be solely
constituted under the Condominium principle with
occupied by ICCs/IPs. (Sec. 3(a), R.A. No. 8371)
Condominium Certificates of Title as long as the
alien interest in such corporation does not exceed
Ancestral Lands
the limits imposed by existing laws. (Sec. 5, R.A. No.
4726)
Land said to be owned individually or by a
traditional group and used by people, families, and
It expressly allows foreigners to acquire
clans who are ICC/IP members since the beginning
condominium units and shares in condominium
of time, either directly or through their
corporations up to not more than 40% of the total
predecessors-in-interest. (Sec. 3(b), R.A. No. 8371)
and outstanding capital stock of a Filipino-owned or
controlled corporation. As long as the 60% of the
members of this Condominium Corporation are
Filipino, the remaining members can be foreigners.
(Jacobus Bernhard Hulst v. PR Builders, Inc., G.R. No.
156364, 25 Sept. 2008)
269
filed a special civil action for mandamus against
VII. PRACTICE OF PROFESSIONS the Board of Medicine praying that they be
ordered to administer the physician’s oath and
to enter their names in the rolls of the PRC. Will
the action of the examinees prosper?
Practice of Profession in the Philippines
A: NO. For mandamus to prosper, there must be

GR: The practice of all professions in the Philippines
showing that the Board has a clear legal duty, not
shall be limited to Filipino citizens. (Sec. 14, Art. XII,
involving discretion. Sec. 20 of the Medical Act of
1987 Constitution)
1959 provides that the Board of Medicine shall sign
and issue certificates of registration to those who
XPN: Save in cases prescribed by law.
have satisfactorily complied with the requirements
of the Board. Gleaned from the Resolution issued by
Reciprocity Clause
the Board, the licensing authority apparently did not
find that the respondents "satisfactorily passed" the
The principle of reciprocity states that favors,
licensure examinations. The Board instead sought
benefits, or penalties that are granted by one state
to nullify the examination results obtained by the
to the citizens or legal entities of another, should be
examinees. (PRC v. De Guzman, G.R. No. 144681, 21
returned in kind.
June 2004)
In this regard, a foreigner may practice profession

Requirement for Foreigners to Practice
in the Philippines if there is a reciprocity provision
Medicine in the Philippines
provided in laws regulating a profession. (Board of
Medicine v. Ota, G.R. No. 166097, 14 July 2008)
A foreign citizen is required to submit competent
and conclusive documentary evidence, confirmed
Regulation of the Practice of Medicine
by the Department of Foreign Affairs (DFA),
showing that his country’s existing laws permit
It is long established rule that a license to practice
citizens of the Philippines to practice medicine
medicine is a privilege or franchise granted by the
under the same rules and regulations governing
government. However, the power to regulate the
citizens thereof. (Board of Medicine v. Ota, G.R. No.
exercise of a profession or pursuit of an occupation
166097, 14 July 2008; Sec. 9, R.A. No. 2382 “Medical
cannot be exercised by the State or its agents in an
Act of 1959”)
arbitrary, despotic, or oppressive manner. (PRC v.
De Guzman, G.R. No. 144681, 21 June 2004)
Q: Yasuyuki Ota, a Japanese national residing in
the Philippines, graduated from Bicol Christian
Q: Graduates of Fatima College of Medicine
College of Medicine with a degree of Doctor of
passed the Physician Licensure Exam in 1993
Medicine. He filed an application to take the
conducted by the Board of Medicine. The Board
medical board examinations in order to obtain a
observed that the grades of 79 successful
license. He submitted the Medical Practitioners
examinees from the said college in the most
Law of Japan duly authenticated by the Consul
difficult subjects were unusually and
General of the Philippine Embassy to Japan.
exceptionally high. The PRC asked the NBI to
After passing the board exams, the Board of
investigate the irregularity. The NBI found that
Medicine denied Ota’s request for a license to
the questionable passing rate of Fatima
practice medicine in the Philippines on the
examinees leads to the conclusion that they
ground that no reciprocity can be found in the
gained early access to the test questions. The
law of Japan as there are no Filipinos who can
Board issued a resolution withholding the
possibly practice there. Ota filed a petition for
registration as physicians of all the examinees
mandamus against the Board. Decide.
from Fatima College of Medicine. The examinees
270
2023 GOLDEN NOTES
A: I will grant the mandamus. It is enough that the
laws in the foreign country permit a Filipino to get
license and practice therein. Requiring respondent
to prove first that a Filipino has already been
granted license and is actually practicing therein
unduly expands the requirements provided for
under the Medical Act. It merely requires a foreign
citizen to submit competent and conclusive
documentary evidence, confirmed by the
Department of Foreign Affairs (DFA), showing that
his country’s existing laws permit citizens of the
Philippines to practice medicine under the same
rules and regulations governing citizens thereof.
(Board of Medicine v. Ota, G.R. No. 166097, 14 July
2008; Sec. 9, R.A. No. 2382 “Medical Act of 1959”)
Practice of Law
Only Filipino citizens may be admitted to the

Philippine bar and therefore, practice law. (Rule
138, Rules of Court)
Filipino Citizenship is a continuing requirement

for the Practice of Law
Filipino citizenship is a requirement for admission

to the bar and is, in fact, a continuing requirement
for the practice of law. The loss thereof means
termination of the petitioner’s membership in the
bar; ipso jure the privilege to engage in the practice
of law. (In Re: Petition to Re-Acquire the Privilege to
Practice Law in the Philippines, Epifanio B. Muneses,
BM No. 2112, 24 July 2012)
Reacquisition of Filipino Citizenship to Practice

Law
A Filipino lawyer who becomes a citizen of another

country and later re-acquires his Philippine
citizenship under RA No. 9225, remains to be a
member of the Philippine Bar. However, the right to
resume the practice of law is not automatic. A
person who intends to practice his profession in the
Philippines must apply with the proper authority
for license or permit to engage in such practice.
(Petition for Leave to Resume Practice of Law,
Benjamin M. Dacanay, BM No. 1678, 17 Dec. 2007)
271
a contract. The concept "public office is not a
property” means that no officer can acquire
LAW ON PUBLIC OFFICERS, ADMINISTRATIVE
vested right in the holding of a public office, nor
LAW, ELECTION LAW, AND LOCAL
can his right to hold the office be transmitted to
GOVERNMENT
his heirs upon his death. Nevertheless, the right
to hold a public office is a protected right-—
secured by due process and the provision of
Constitution on security of tenure. (Santos v.
Secretary of Labor, G.R. No. L-21624, 27 Feb.
I. LAW ON PUBLIC OFFICERS
1968)
3. It is Personal to the public officer – It is not a

property transmissible to the heirs of the officer
A. GENERAL PRINCIPLES upon the latter’s death. (Santos v. Secretary of
Labor, G.R. No. L-21624, 27 Feb. 1968)
Public Office 4. It is not a Vested right; and
It is the right, authority, and duty created and NOTE: Nevertheless, the right to a public office
conferred by law, by which for a given period, either is a protected right. It cannot be taken from its
fixed by law or enduring at the pleasure of the incumbent without due process. (Morfe v.
creating power, an individual is invested with some Mutuc, G.R. No. L-20387, 31 Jan. 1968; Aparri v.
portion of the sovereign functions of the CA, G.R. No. L-30057, 31 Jan. 1984)
government, to be exercised by him for the benefit
of the public. (Fernandez v. Sto. Tomas, G.R. No. 5. It is not a Natural right – Under our political
116418, 07 Mar. 1995) system, the right to hold public office exists only
because and by virtue of some law expressly or
Purpose of a Public Office impliedly creating and conferring it.
A public office is created to effect the end for which Elements of a Public Office (A-D-I-C-C)
government has been instituted which is the
common good; not profit, honor, or private interest 1. Created by Constitution or by law or by some
of any person, family or class of persons. (63C Am. body or agency to which the power to create the
Jur. 2d Public Officers and Employees 667, 1997) office has been delegated;
Characteristics of Public Office (P-P-P--V-N) 2. Vested with Authority to exercise some portion
of the sovereign power of the State;
1. It is a Public trust – The principle of “public
office is a public trust” means that the officer 3. The powers conferred and the duties to be
holds the public office in trust for the benefit of discharged must be Defined directly or
the people—to whom such officers are required impliedly by the legislature or through
to be accountable at all times, and to serve with legislative authority;
utmost responsibility, loyalty, and efficiency,
act with patriotism and justice, and lead modest 4. Duties are performed Independently without
lives. (Sec. 1, Art. XI, 1987 Constitution) control unless those of a subordinate; and
2. It is not a Property and is outside the 5. Continuing and permanent. (Fernandez v. Sto.
commerce of man – It cannot be the subject of Tomas, G.R. No. 116418, 07 Mar. 1995; Tejada v.
272
2023 GOLDEN NOTES
LAW ON PUBLIC OFFICERS, ADMINISTRATIVE LAW,
ELECTION LAW, AND LOCAL GOVERNMENT
Domingo, G.R. No. 91860, 13 Jan. 1992) government resources in the amount of
PHP40,110.
NOTE: Consultancy service is not considered
government service (Agra, 2019) X denied the allegations and claimed that under
the Special Allotment Release Order (SARO), the
Public Office vs. Public Contract main project was split into 11 projects, and that
said projects, with an aggregate amount of P5.5
PUBLIC OFFICE PUBLIC CONTRACT million were already divided in the amount of
As to creation P500,000 per project under the SARO. He
Originates from the insisted that he implemented the SARO in good
will of the contracting faith consistent with the basic guidelines therein
Incident of
parties, subject to the and resorted to the use of the simplified bidding
sovereignty.
limitations imposed by process under the Old Procurement Law instead
law. of R.A. No. 9184.
As to persons affected
Has for its object the The Office of the Ombudsman (OMB)-Mindanao
carrying out of observed that since the materials to be procured
sovereign as well as Imposes obligations for the 11 projects are identical and can be
governmental only upon persons who supplied by a single supplier, the OMB-
functions affecting entered the same. Mindanao concluded that there could only be
even persons not one procurement contract or project.
bound by contract. Consequently, it held that petitioner resorted to
As to subject matter and scope the prohibited act of splitting government
Is almost always contracts as defined in R.A. No. 9184. Can X be
limited in its duration held liable for splitting of government contract?
Embraces the idea of
and specific in its
tenure, duration, and A: YES. Sec. 54.1 of the IRR of R.A. No. 9184
objects. Its terms
continuity. The duties expressly prohibits the splitting of government
define and limit the
connected therewith contracts. It provides that “splitting of Government
rights and obligations
are generally Contracts means the division or breaking up of…
of the parties, and
continuing and contracts into smaller quantities and amounts, or
neither may depart
permanent. dividing contract implementation into artificial
therefrom without the
consent of the other. phases or sub-contracts for the purpose of evading
(De Leon, 2019) or circumventing the requirements of law…,
especially the necessity of competitive bidding and
Q: An administrative complaint was filed against the requirements for the alternative modes of
X on the basis of a COA report finding him guilty procurement.” R.A. No. 9184 and its IRR does not
of splitting government contract amounting to prohibit or penalize the splitting of projects into
PHP5.5 million for the national road project as sub-sections. What the law penalizes is the splitting
follows: (1) he resorted to splitting of contracts of contracts. Hence, the government may enter into
by awarding 11 purchase orders worth contracts with private individuals or entities for the
PHP500,000 each to XYZ company without implementation of several projects. The current
public bidding; (2) purchased overpriced state of laws, however, prohibit the splitting of
guardrails and guardrail posts from XYZ contracts in order that the requirements of the law
company; and (3) left guardrails and guardrail may not be evaded or circumvent to suit personal
posts at the project site resulting in wastage of interests in government procurements.
273
In this case, the OMB-Mindanao held that the a. Legislative;
implementation of the SARO necessitated only one b. Executive; or
procurement contract. There was only one kind of c. Judicial.
project for all the National Roads and the materials
to be procured for the project are identical and can 4. As to the branch of Government served
be supplied by a single supplier. Petitioner admits a. National; or
that while he is aware of the existence of R.A. No. b. Local.
9184 and its IRR during the implementation of the
projects in the SARO, he resorted, in good faith to the 5. As to exercise of judgment
simplified bidding process under the old a. Quasi-Judicial/Discretionary; or
procurement law due to the difficulty of complying b. Ministerial.
with the bidding process requirements under R.A.
No. 9184 and its IRR. Petitioner acted in gross 6. As to compensation
negligence when he resorted to the public bidding a. Lucrative, office of profit, or office
process under the old procurement law which coupled with an interest; or
clearly negates the presumption of good faith on his b. Honorary.
part. (Arturo O. Miñao v. Office of the Ombudsman-
Mindanao, G.R. No. 231042, 23 Feb. 2022, J. 7. As to legality of title to office
Hernando) a. De facto; or
b. De jure.
Public officer
Kinds of Government Employment
The public officer, generally, is the one who holds a
“public office.” A public officer is such an officer as is NON-CAREER
CAREER SERVICE
required by law to be elected or appointed, who has SERVICE
a designation or title given to him by law, and who As to its entry
exercise functions concerning the public, assigned Entrance is based on
to him by law. (De Leon, 2019) merits and fitness,
which is determined by
NOTE: A public officer includes elective and competitive Entrance is based on
appointive officials and employees, permanent or examination (except qualifications other
temporary, whether in the classified, unclassified, or for non-competitive than merit and fitness.
exempt service, receiving compensation, even positions) or based on (Sec. 9, E.O. 292)
nominal, from the government. (Sec. 2(b), R.A. No. highly technical
3019, The Anti-Graft and Corrupt Practices Act) qualifications. (Sec. 7,
E.O. 292)
Kinds of a Public Officer As to opportunity for advancement to a higher
career position
1. As to creation
a. Constitutional; or
b. Statutory.
Has opportunity for
2. As to nature of functions advancement to higher No such opportunity.
a. Civil; or career position. (Sec. 7, (Sec. 9, E.O. 292)
b. Military. E.O. 292)
3. As to the branch of Government to which it

belongs
274
2023 GOLDEN NOTES
As to existence of security of tenure It is, in law, equivalent to “filling a vacancy.” (Conde
Tenure is limited to a v. National Tobacco Corp., G.R. No. L-11985, 28 Jan.
period specified by law, 1961)
coterminous with the
appointing authority or NOTE: It is a basic precept in the law of public
subject to his pleasure, officers that no person, no matter how qualified and
There is security of
or which is limited to eligible he is for a certain position, may be
tenure. (Sec. 7, E.O.
the duration of a appointed to an office which is not vacant. There can
292)
particular purpose. be no appointment to a non-vacant position. The
(Sec. 9,14, Omnibus incumbent must first be legally removed, or his
Rules Implementing appointment validly terminated before one could be
Book V of Executive validly installed to succeed him. (Garces v. Court of
Order No. 292) Appeals, G.R. No. 114795, 17 July 1996)
(Civil Service Commission v. Pililla Water District
(G.R. No. 190147, 05, Mar. 2013) Nature of appointment
Appointment is an essentially discretionary power

B. MODES OF ACQUIRING TITLE TO PUBLIC and must be performed by the officer in which it is
OFFICE vested according to his best lights, the only
condition being that the appointee should possess
the qualifications required by law. If he does, then
the appointment cannot be faulted on the ground
Modes of filling up public offices (A-D-E-L)
that there are others better qualified who should
have been preferred. This is a political question
1. Appointment;
involving considerations of wisdom which only the
2. Election;
appointing authority can decide. (Luego v. CSC, G.R.
3. Designation; or
No. L-69137, 05 Aug. 1986)
4. In some instances, by contract or by some other
modes authorized by Law. (Preclaro v.
Appointment vs. Designation
Sandiganbayan, G.R. No. 111091, 21 Aug. 1995)
a. Succession by operation of law; or
APPOINTMENT DESIGNATION
b. By direct provisions of law.
As to definition
It is the selection by the
It connotes merely the
proper authority of an
C. MODES AND KINDS OF APPOINTMENT imposition by law of
individual who is to
additional duties on an
exercise the functions
incumbent official.
of a given office.
Appointment As to period of holding of office
It connotes Shall hold the office
The act of designation by the executive officer, permanence. When only in a temporary
board, or body to whom that power has been completed, usually capacity and maybe
delegated, the individual who is to exercise the with its confirmation, replaced at will by the
powers and functions of a given office. It refers to appointment results in appointing authority. It
the nomination or designation of an individual to an security of tenure does not confer
office. (Borromeo v. Mariano, G.R. No. L-16808, 03 unless he is security of tenure in
Jan. 1921) replaceable at the the person named.
275
pleasure because of the Absent any contrary statutory provision, the power
nature of his office. to appoint carries with it the power to remove or
As to its nature discipline. (Aguirre, Jr. v. De Castro, G.R. No. 127631,
Essentially executive in 17 Dec. 1999)
Legislative in nature.
nature.
(Binamira v. Garrucho, G.R. No. 92008, 30 July 1990) President appoints four groups of officers
Appointing authority 1. First group - Heads of the Executive

departments, ambassadors, other public
Appointing authority is the officer or body vested by ministers and consuls, officers of the armed
the Constitution or by law with the power to make forces from the rank of colonel or naval
appointments of public officers and employees to captain, and other officers;
public offices or positions.
NOTE: The only officers whose appointments
1. Inherently belongs to the people; need confirmation by the Commission on
Appointments are those mentioned in the first
It belongs to where the people have chosen to group. (Sarmiento v. Mison, G.R. No. 79974, 17
place it by their Constitution or laws. (63C Am. Dec. 1987)
Jur. 2d Public Officers and Employees 738, 1997)
2. Second group - Those whom the President
2. Entrusted to designated elected and appointed may be authorized by law to appoint without
public officials; the consent of the Commission on
Appointments;
The appointment of public officials is generally
looked upon as properly belonging to the 3. Third group - Refers to all other officers of the
executive department. Appointments may also Government whose appointments are not
be made by Congress or the courts, but when so otherwise provided by law (the law is silent or
made should be taken as an incident to the if the law authorizing the head of a department,
discharge of functions within their respective agency, commission, or board to appoint is
spheres. (Government v. Springer, 50 Phil. 259, declared unconstitutional) and without the
affirmed in Springer v. Government, 277 U.S. 189, consent of the Commission on Appointments;
72 Ed. 845, 48 S.CT. 480, 1928) and
NOTE: The general rule is that the appointing power 4. Fourth group - Lower-ranked officers whose
is the exclusive prerogative of the President, upon appointments Congress may, by law, vest in the
which no limitations may be imposed by Congress, heads of departments, agencies, commissions,
except those resulting from the need of securing the or boards. (Sec. 16, Art. VII, 1987 Constitution)
concurrence of the Commission of Appointments
and from the exercise of the limited power to Appointee’s acceptance of office
prescribe the qualifications or disqualifications to a
given appointive office. (Rafael v. Embroidery and GR: An appointee’s acceptance of office is not
Apparel Control and Inspections Board, G.R. No. L- necessary to complete or to make the appointment
19978, 29 Sept. 1967) valid where there is no provision of law to the
contrary.
Where the law is silent as to who is the appointing
authority, it is understood to be the President of the XPN: Acceptance, however, is necessary to enable
Philippines. (Rufino v. Endriga, G.R. No. 139554, 21 the appointee to have full possession, enjoyment,
July 2006) and responsibility of an office. (Borromeo v.
276
2023 GOLDEN NOTES
Mariano, G.R. No. L-16808, 03 Jan. 1921; Lacson v. GR: Appointment to a public office cannot be forced
Romero, G.R. No. L-3081, 14 Oct. 1949) upon any citizen. (Velicaria-Garafil v. Office of the
President, G.R. No. 203372, 16 June 2015)
NOTE: An appointee cannot impose his own
conditions for the acceptance of a public office. He XPN: If it is for purposes of defense of the State
may only either accept or decline it. (De Leon, 2014) under Sec. 4, Art. II (also an XPN to the rule against
The following elements should always concur involuntary servitude). (Lacson v. Romero, No. L-
in the making of a valid appointment 3081, 14 Oct. 1949)
1. Authority to appoint and evidence of the NOTE: In ad interim appointments, steps 1,

exercise of the authority; 3 and 4 precede step 2. For appointments
2. Transmittal of the appointment paper and which do not require confirmation, step 2
evidence of the transmittal; is skipped. (Art. 7, Sec. 16, 1987
3. A vacant position at the time of appointment; Constitution)
and
4. Receipt of the appointment paper and Kinds of Appointments
acceptance of the appointment by the
appointee who possesses all the qualifications 1. Permanent – An appointment in the civil
and none of the disqualifications. service issued to a person who meets all the
requirements for the position to which he is
NOTE: This should be understood as both complete being appointed, including the appropriate
and effective. (Velicaria-Garafil v. Office of the eligibility prescribed, in accordance with
President, G.R. No. 203372, 16 June 2015) the provisions of law, rules and standards
promulgated in pursuance thereof. It lasts
The concurrence of all these elements should until lawfully terminated, thus, enjoys
always apply, regardless of when the appointment security of tenure. (Sec. 25(a), P.D. 807, Civil
is made, whether outside, just before, or during the Service Decree)
appointment ban. (Velicaria-Garafil v. Office of The
President, G.R. No. 203372, 16 June 2015) 2. Temporary – A kind of appointment issued
to a person who meets all the requirements
Procedure for the appointment of those that for the position to which he is being
require confirmation by the Commission on appointed, except the appropriate civil
Appointments service eligibility, in the absence of
appropriate eligibilities and it becomes
1. Nomination by the President; necessary in the public interest to fill a
2. Confirmation by the Commission on vacancy. (Sec. 25(b), P.D. 807)
Appointments;
3. Issuance of commission; and NOTE: Temporary appointment shall not
4. Acceptance by the appointee. (Art. 7, Sec. exceed 12 months, but the appointee may be
16, 1987 Constitution) replaced sooner if a qualified civil service
eligible becomes available. (ibid.)
NOTE: Appointment is deemed complete upon
acceptance. Pending such acceptance, which is One who holds a temporary or acting
optional on the part of the appointee, the appointment has no fixed tenure of office, and,
appointment may still be validly withdrawn. therefore, his enjoyment can be terminated at
the pleasure of the appointing power even
without hearing or cause. (Erasmo v. Home
277
Insurance & Guaranty Corporation, G.R. No. Has not qualified in an
139251, 29 Aug. 2002) appropriate
Meets all requirements
examination but
for position except civil
However, if the appointment is for a specific otherwise meets
service eligibility. (Sec
period, the appointment may not be revoked requirements for
25(b), Civil Service Act of
until the expiration of the term. (Aytona v. appointment to a
1959)
Castillo, et. al., G.R. No. L-19313, 19 Jan. regular position. (Sec
1962) 21(7), EO 292)
NOTE: Acquisition of civil service eligibility will NOTE: Provisional appointments in general have
not automatically convert the temporary already been abolished by R.A. No. 6040. However,
appointment into a permanent one. (Prov. Of it still applies with regard to teachers under the
Camarines Sur v. CA, G.R. No. 104639, 14 July Magna Carta for Public School Teachers.
1995)
4. Regular appointment – One made by the
3. Provisional appointment – One which may be President while Congress is in session;
issued, upon the prior authorization of the takes effect only after confirmation by the
Commissioner of the CSC, to a person who has CA and, once approved, continues until the
not qualified in an appropriate examination but end of the term of the appointee. (General v
who otherwise meets the requirements for Urro, G.R.No. 191560, 29 Mar. 2011)
appointment to a regular position in the
competitive service, whenever a vacancy occurs, 5. Ad interim appointment– One made by the
and the filling thereof is necessary in the interest President while Congress is not in session,
of the service and there is no appropriate which takes effect immediately, but ceases
register of eligibles at the time of appointment. to be valid if: (General v Urro, G.R.No.
(Jimenea v. Guanzon, G.R. No. L-24795, 29 Jan. 191560, 29 Mar. 2011)
1968)
a. Disapproved by the CA; or
Temporary Appointment vs. Provisional b. Upon the next adjournment of Congress,
Appointment (1994 BAR) either in regular or special session, the CA
has not acted upon it. (1994, 1990 BAR),
TEMPORARY PROVISIONAL (Aytona v. Castillo, et. al., G.R. No. L-19313,
APPOINTMENT APPOINTMENT 19 Jan. 1962)
Issued to a person for a
position needed only for Issued upon to the
a limited period not prior authorization of
exceeding twelve (12) CSC. (Sec 24(e), Civil
months. (Sec 24(d), Civil Service Act of 1959)
Service Act of 1959)
Vacancy occurs and
the filing thereof is
Necessary in the public necessary in the
interest to fill the interest of the service
vacancy. (Sec. 10, RA and there is no
6040; Sec. 27, E.O. 292) appropriate register
of eligible at the time
of appointment. (Sec.
27(2), EO 292)
278
2023 GOLDEN NOTES
Difference between Regular appointment, Ad interim appointment, Temporary Appointment and
Designation (General v Urro, G.R. No. 191560, 29 Mar. 2011)
TEMPORARY or
REGULAR AD INTERIM DESIGNATION
ACTING
Mere imposition of new

or additional duties to be
Made when Congress is Made when Congress is Lasts until a permanent performed by an officer
in session. NOT in session. appointment is issued. in a special manner while
he performs the function
of his permanent office.
The officer is already in

Cannot be validly
Made only after the service by virtue of an
Made before confirmed by the CA
nomination is confirmed earlier appointment
confirmation of the CA. because there was no
by CA. performing other
valid nomination
functions.
May be terminated at the

Shall cease to be valid if
pleasure of appointing
disapproved by CA or
Continues until the power without hearing Maybe terminated
upon the next
expiration of the term. or cause. (Ong v. Office of anytime.
adjournment of
the President, et. Al., G.R.
Congress.
No. 184219, 30 Jan. 2012)
279
Acting Appointment (2003 BAR) appointment. (Aquino v. CSC, G.R. No. 92403, 22 Apr.
1992)
An acting appointment is merely temporary. (Sevilla
v. CA, G.R. No. 88498, June 09, 1992) A temporary Revocation vs. Recall of appointment
appointment cannot become a permanent
appointment, unless a new appointment, which is Where an appointment requires the approval of the
permanent, is made. (Marohombsar v. Alonto, G.R. CSC, such appointment may be revoked or
No. 93711, 25 Feb. 1991) withdrawn by the appointing authority any time
before the approval by the CSC. (De Rama v. CA, G.R.
However, if the acting appointment was made No. 131136, 28 Feb. 2001)
because of a temporary vacancy, the temporary
appointee holds office until the assumption of office After an appointment is completed, the CSC has the
by the permanent appointee. In such case, this power to recall an appointment initially approved
temporary appointment cannot be used by the on any of the following grounds: (Sec. 20, Rule VI,
appointing authority as an argument or justification Omnibus Implementing Regulations of the Revised
in order to evade or avoid the security of tenure Administrative Code)
principle provided for under the Constitution and
the Civil Service Law. (Gayatao v. CSC, G.R. No. 93064, 1. Non-compliance with procedures/criteria
22 June 1992) in merit promotion plan;
2. Failure to pass through the selection board;
Q: Can the CSC revoke an appointment by the 3. Violation of existing collective relative
appointing power and direct the appointment of agreement to promotion; or
an individual of its choice? 4. Violation of CSC laws, rules and regulations.
(Debulgado v. CSC, G.R. No. 111471, 26 Sept.
A: NO. The CSC cannot dictate to the appointing 1994)
power whom to appoint. Its function is limited to
determining whether or not the appointee meets
the minimum qualification requirements D. ELIGIBILITY AND QUALIFICATION
prescribed for the position. Otherwise, it would be REQUIREMENTS
encroaching upon the discretion of the appointing
power. (Medalla v. Sto. Tomas, G.R. 94255, 05 May
1992)
General Qualifications for Public Office
(C-C-A-P-A-R-E-S)
Protest to appointment
1. Citizenship;
Any person who feels aggrieved by the appointment
may file an administrative protest against such
NOTE: Only natural-born Filipinos who owe
appointment. Protests are decided in the first
total and undivided allegiance to the Republic of
instance by the department head, subject to appeal
the Philippines could run for and hold elective
to the CSC. (Sec. 7, R.A. 6656; Cerilles v. CSC, G.R. No.
public office. (Arnado v. COMELEC, G.R. No.
180845. 06, June 06, 2018)
210164, 18 Aug. 2015)
The protest must be for a cause (i.e., appointee is not

Congress enacted R.A. No. 9225 allowing
qualified; appointee was not the next-in-rank;
natural-born citizens of the Philippines who
unsatisfactory reasons given by the appointing
have lost their Philippine citizenship by reason
authority in making the questioned appointment).
of their naturalization abroad to re-acquire
The mere fact that the protestant has the more
Philippine citizenship and to enjoy full civil and
impressive resume is not a cause for opposing an
political rights upon compliance with the
280
2023 GOLDEN NOTES
requirements of the law. They may now run for NOTE: If during the incumbency he ceases to be
public office in the Philippines provided that qualified, he forfeits his office. However, forfeiture
they: (1) meet the qualifications for holding such is not automatic. The proper action must be filed
public office as required by the Constitution and against him.
existing laws; and (2) make a personal and
sworn renunciation of any and all foreign Authority to Prescribe Qualifications
citizenships before any public officer authorized
to administer an oath prior to or at the time of Congress is generally empowered to prescribe the
filing of their CoC. (Ibid.; Sec. 5, R.A. No. 9225) qualifications for holding public office, provided it
does not exceed thereby its constitutional powers
This rule applies to all those who have re- or impose conditions of eligibility inconsistent with
acquired their Filipino citizenship without constitutional provisions. (Amora v. COMELEC, G.R.
regard as to whether they are still dual citizens No. 19228, 25 Jan. 2011)
or not. It is a pre-requisite imposed for the
exercise of the right to run for public office. Limitation on the power of Congress to
(Sobejana-Condon v. COMELEC, G.R. No. 198742, Prescribe Qualifications
10 Aug. 2012)
Congress has no power to require qualifications
For appointive public officials, R.A. 9225 other than those qualifications specifically set out in
requires an oath of allegiance to the Republic of the Constitution. Such Constitutional criteria are
the Philippines and its duly constituted exclusive. (Republic of the Philippines v. Sereno, G.R
authorities prior to their assumption of office: No. 237428, 11 May 2018)
Provided, that they renounce their oath of
allegiance to the country where they took that Power of Congress to Prescribe
oath. (Sec. 5(2), R.A. No. 9225) Disqualifications
2. Age; GR: Congress has the same right to provide

3. Residence; disqualifications as it has to provide qualifications
4. Education; for office. (Flores v. Drilon, G.R. No. 104732, 22 June
5. Suffrage; 1993)
6. Civil service examination;
7. Ability to read and write; and XPN: when the Constitution has attached a
8. Political affiliation, as a rule, is not a disqualification to the holding of any office,
qualification. (1987 Constitution, LGC) Congress cannot remove it under the power to
prescribe qualifications as to such offices as it may
XPN: Party-list, membership in the Electoral create. (46 C.J. 936-937)
Tribunal, Commission on Appointments
Requirements for public office
NOTE: The qualifications for public office are
continuing requirements and must be possessed not 1. Eligibility – It is the state or quality of being
only at the time of appointment, election, or legally fit or qualified to be chosen.
assumption of office but during the officer’s entire
tenure. Once any of the required qualification is lost, 2. Qualification – This refers to the act which
his title may be reasonably challenged. (Frivaldo v. a person, before entering upon the
COMELEC, G.R. No. 87193, 23 June 1989; Aguila v. performance of his duties, is by law
Genato, G. R No. L-55151, 17 Mar. 1981) required to do such as the taking, and often,
subscribing and filing of an official oath,
281
and, in some cases, the giving of an official GR: They are not eligible for appointment or
bond. It may refer to: designation in any capacity to any public office
or position during their tenure. (Sec. 7, Art. IX-B,
a. Endowments, qualities or attributes which 1987 Constitution)
make an individual eligible for public office
i.e.., citizenship; or XPN: May hold ex officio positions. (i.e. The Vice
President may be appointed as a Cabinet
b. The act of entering into the performance of member.)
the functions of a public office i.e., taking
oath of office. (De Leon, 2011) 3. Appointive officials
NOTE: To entitle a public officer to hold a public GR: Cannot hold any other office in the
office, he must possess all the qualifications and government. or any agency or instrumentality
none of the disqualifications prescribed by law for thereof, including GOCCs and their subsidiaries.
the position, not only at the time of his election or (Sec. 6, Art. IX-B, 1987 Constitution)
appointment but also during his incumbency.
(Velicaria-Garafil v. OP, G.R. No. 203372, 16 June XPN: Unless otherwise allowed by law, or by
2015) the primary functions of his position. (Ibid.)
Perfection of the Right of a Public Officer to NOTE: The exception does not apply to Cabinet
Enter in Office members, and those officers mentioned in Sec.
13, Art. VII. They are governed by the stricter
Upon his oath of office, it is deemed perfected. Only prohibitions contained therein. (Civil Liberties
when the public officer has satisfied this Union v. The Executive Secretary. G.R. No. 83896,
prerequisite can his right to enter into the position 22 Feb. 1991)
be considered complete. Until then, he has none at
all, and for as long as he has not qualified; the Prohibitions Attached to Elective and
holdover officer is the rightful occupant. (Lecaroz v. Appointive Officials in Terms of Compensation
Sandiganbayan, G.R. No. 130872, 25 Mar. 1999)
GR: They cannot receive (A-D-Ic):
Disqualifications Attached to Civil Service
Employees or Officials 1. Additional compensation – An extra reward
given for the same office; (i.e., bonus)
1. Losing candidate in any election
2. Double compensation – When an officer is
a. Cannot be appointed to any office in the given two sets of compensation for two
government or GOCCs or their subsidiaries; different offices held concurrently by one
and officer;
b. Period of disqualification: One year after 3. Indirect Compensation - Any benefit to the
such election. (Sec. 6, Art. IX-B, 1987 employee that doesn't come in the form of cash.
Constitution) (Sec. 8, Art. IX-B, 1987 Constitution)
XPN: Losing candidates in barangay elections XPN: Unless specifically authorized by law. (Ibid.)
2. Elective officials NOTE: Pensions or gratuities shall not be

considered as additional, double, or indirect
compensation. (Ibid.)
282
2023 GOLDEN NOTES
NOTE: “Specifically authorized” means a specific C. Members of the Constitutional Commission
authority particularly directed to the officer or shall not:
employee concerned.
1. Hold any other office or employment or
engage in the practice of any profession or
E. DISABILITIES AND INHIBITIONS OF PUBLIC in the active management or control of any
OFFICERS business that may be affected by the
functions of his office; or
2. Be financially interested, directly or

Prohibitions imposed under the Constitution
indirectly, in any contract with, or in any
against the holding of two or more positions
franchise, or special privilege granted by
the Government, or any subdivision,
A. Members of Congress shall not: (A-Co-In)
agencies or instrumentalities including
GOCCs, or their subsidiaries. (Sec. 2, Art. IX,
1. Appear as counsel before any court,
1987 Constitution)
electoral tribunal, or quasi-judicial and
other administrative bodies;
NOTE: These shall also apply to the
Ombudsman and his deputies during his
2. Be interested in any Contract with, or in
term. (Ibid.)
any franchise, or special privilege granted
by the Government, or any subdivision,
D. Unless otherwise allowed by law or by the
agency or instrumentality thereof,
primary functions of his position, no
including GOCCs, or its subsidiary; or
appointive official shall hold any other office
or employment in the Government or any
3. Intervene in any matter before any office of
subdivision, agency or instrumentality thereof,
the Government for his pecuniary benefit
including GOCCs or their subsidiaries. (Sec. 7, Art.
or where he may be called upon to act on
IX-B, 1987 Constitution; Flores v. Drilon, G.R. No.
account of his office. (Sec. 14, Art. VI, 1987
104732, 22 June 1993)
Constitution);
E. No member of the armed forces in the active

B. The President, Vice President, Members of the
service shall, at any time, be appointed or
Cabinet, and their deputies or assistants,
designated in any capacity to a civilian position
unless otherwise allowed by the Constitution,
in the government including GOCCs or any of
shall not:
their subsidiaries. (Sec. 5(4), Art. XVI, 1987
Constitution)
1. Directly or indirectly practice any other
profession; or
Grounds for Disqualification to Hold Public
Office: (I-MIS-1-Mo-Re-Ex-I-S-G-ON-E)
2. Participate in any business, or be
financially interested in any contract with,
1. Mental or physical Incapacity;
or in any franchise, or special privilege
2. Misconduct or commission of a crime;
granted by the Government, or any
3. Losing candidate in the election within 1 year
subdivision, agency or instrumentality
following the date of election (prohibitions
thereof, including GOCCs, or its
from office, not from employment);
subdivisions; shall avoid conflict of interest
4. Holding More than one office (except ex officio);
in the conduct of their office. (Sec. 15, E.O.
5. Relationship with the appointing power
292)
283
(nepotism); (2010 BAR) employment as officer, employee,
6. Consecutive terms Exceeding the allowable consultant, counsel, broker, agent, trustee
number of terms; or nominee in any private enterprise
7. Impeachment; regulated, supervised or licensed by their
office;
8. Removal or Suspension from office; (Sec. 12,
Omnibus Election Code, B.P. 881) 3. Engaging in the private practice of their
profession; and
NOTE: Where there is no constitutional or
statutory declaration of ineligibility for 4. Recommending any person to any position
suspension or removal from office, the courts in any private enterprise which has a
may not impose the disability. . (Recall Bennett regular or pending official transaction with
Com. v. Benett Gibson, et. al.) their office.
9. Grounds provided for under the LGC; NOTE: These prohibitions shall continue to apply
for a period of one year after resignation,
10. Office Newly created or the Emoluments of retirement, or separation from public office.
which have been increased (forbidden office);
and XPN: Except In case of participating in any business
or having financial interest in any contract with the
11. Being an Elective official (Flores v. Drilon, G.R. government, but the professional concerned cannot
No. 104732, 22 June 1993). practice his profession in connection with any
matter before the office he used to be with, in which
XPN: Losing candidates in barangay elections. case the one-year prohibition shall likewise apply.
(Sec. 94B, LGC) (Sec. 7, R.A. No. 6713)
NOTE: While all other appointive officials in the Prohibitions against the practice of other
Civil Service are allowed to hold other office or professions under the LGC
employment in the government during their tenure
when such is allowed by law or by the primary 1. Local chief executives (governors, city and
functions of their positions, members of the Cabinet, municipal mayors) are prohibited from
their deputies and assistants may do so only when practicing their profession;
expressly authorized by the Constitution itself. (Civil
Liberties Union v. Executive Secretary, G.R. No. 83896, 2. Sanggunian members may practice their
22 Feb. 1991) profession, engage in any occupation, or
teach in schools except during session hours;
Prohibitions under Code of Conduct and Ethical and
Standards for Public Officials and Employees
3. Doctors of medicine may practice their
1. Prohibition against financial and profession even during official hours of work
material interest – Directly or indirectly in cases of emergency, provided that they do
having any financial or material interest in not derive monetary compensation
any transaction requiring the approval of therefrom. (Sec. 90, R.A. No. 7160)
their office;
Q: Can the members of Sanggunian engage in the
2. Prohibition against outside employment practice of law under the LGC?
and other activities related thereto –
Owning, controlling, managing or accepting A: GR: Yes.
284
2023 GOLDEN NOTES
XPNs: (A-R-Not2) It is also known as “electioneering”. (Sec. 79,
OEC)
1. Cannot appear as counsel in any civil case
wherein a LGU or any office, agency or
Officers or employees in the Civil Service
instrumentality of the government is the
including members of the Armed Forces
Adverse party;
cannot engage in such activity except to
vote. They shall not use their official
2. Cannot appear as counsel in any criminal
authority or influence to coerce the political
case wherein an officer or employee of the
activity of any person. (Sec. 55, Book V, Title
national or local government is accused of
I, Subtitle A, Administrative Code of 1987)
an offense committed in Relation to his
office;
Officers and employees in the Civil Service
can nonetheless express their views on
3. Shall Not collect any fee for their
current political issues and mention the
appearance in administrative proceedings
names of the candidates they support. (Sec.
involving the LGU of which he is an official;
2(b)(4), Art. IX-B, 1987 Constitution; Section
and
124 of the Omnibus Rules on Appointments
and Other Human Resource Actions)
4. May Not use property and personnel of the
Government, except when defending the
Q: De Vera, a court stenographer, deliberately
interest of the Government. (Sec. 7, R.A. No.
and fraudulently, and for a consideration,
6713)
misrepresented her ability to assist the
complainant in the adoption of her niece and
Other prohibitions imposed on public officers nephew. The Office of the Court Administrator
(OCA) equated those acts as Grave Misconduct
1. Prohibition against solicitation of gifts. (Sec. and dismissed De Vera from office. Is the OCA
7(d), R.A. No. 6713) correct?
NOTE: Public officers, however, may accept A: YES. Sec. 2, Canon 1 of the Code of Conduct of
the following gifts from foreign Court Personnel has enjoined all court personnel
governments: from soliciting or accepting any gift, favor or benefit
based on any or explicit understanding that such
a. Gifts of nominal value received as gift, favor, or benefit shall influence their official
souvenir or mark of courtesy; actions. De Vera thus violated her sacred oath as a
b. Scholarship or fellowship grant or court employee to serve the Judiciary with utmost
medical treatment; or loyalty and to preserve the integrity and reputation
c. Travel grants or expenses for travel of the Judiciary as an institution dispensing justice
outside the Philippines. (Sec. 7(d), R.A. to all. Her violation was made worse by her
No. 6713) committing it in exchange for easy money. She was
thereby guilty of corruption. She compounded her
2. Prohibition against partisan political guilt by disobeying the orders of the Court requiring
activities. (Sec. 2(4), Art. IX-B, 1987 her to explain herself. Under the circumstances, she
Constitution) committed Grave Misconduct which is punishable
NOTE: Partisan political activity is an act by dismissal from service. (Galindez v. Susbilla-De
designed to promote the election or defeat Vera, A.M. No. P-13-3126, 04 Feb. 2014)
of a particular candidate/s to a public office.
285
Public officers Who May Engage in Partisan members of constitutional commissions; and civil
Political Activities service officers or employees whose duties and
responsibilities require that their entire time be at
a. Those holding political offices, such as the the disposal of the government are strictly
President of the Philippines, Vice President of prohibited from engaging in the private practice of
the Philippines, Executive Secretary or law. (E.O. 297)
Department Secretaries and other Members of
the Cabinet, all other elective officials at all
levels, and those in the personal and F. POWERS AND DUTIES OF PUBLIC OFFICERS
confidential staff of the above officials; and
NOTE: It shall, however, be unlawful for them

Sources of powers of public officers (Agpalo,
to solicit contributions from their subordinates
2005)
or subject them to any of the acts involving
subordinates prohibited in the Election Code.
1. Expressly conferred upon him by the Act
(CSC Memorandum Circular (M.C.) No. 30, s.
appointing him;
2009)
2. Expressly annexed to the office by law; and
3. Attached to the office by common law as
b. National, provincial, city and municipal elective
incidents to it.
officials. (Santos v. Yatco, G.R. No. L- 16133, 06
Nov. 1959)
NOTE: In general, the powers and duties of public
officers are prescribed by the Constitution or by
1. Prohibition against engaging in strike;
statute or both. Public officers have only those
(Social Security System Employees Assn. v.
powers expressly granted or necessarily implied by
CA, G.R No. 85279, 28 July 1989)
law. If broader powers are desirable, they must be
conferred by the proper authority. They cannot
2. Restriction against engaging in the
merely be assumed by administrative officers, nor
practice of law; (Sec. 90, R.A. No. 7160)
can they be created by the courts in the proper
exercise of their judicial functions. [63C Am. Jur. 2d
3. Prohibition against practice of other
Public Officers and Employees 883 (1997)]
professions; (Sec. 90, R.A. No. 7160)
Doctrine of Necessary Implication

4. Restriction against engaging in private
business; (Abeto v. Garces, A.M. No. P-88-
All powers necessary for the effective exercise of the
269, 29 Dec. 1995)
express powers are deemed impliedly granted.
(Pimentel v. COMELEC, G.R. No. L-53581, 19 Dec.
5. Restriction against accepting certain
1980)
employment. (Sec. 7(b), R.A. No. 6713)
Q: Does the election or appointment of an

attorney to a government office disqualify him
from engaging in the private practice of law?
A: YES. As a general rule, judges, other officials of

the superior courts, of the office of the Solicitor
General and of other government prosecution
offices; the President; Vice-President, and members
of the cabinet and their deputies or assistants;
286
2023 GOLDEN NOTES
Kinds of duties of public officers (2010 BAR) 3. Act with patriotism and justice and to lead
modest lives; (Sec. 1, Art. XI, 1987
MINISTERIAL DISCRETIONARY Constitution) and
As to its characteristic
Public officer may do 4. Submit a declaration under oath of his
Discharge is whichever way he assets, liabilities, and net worth upon
imperative and it must wants, provided it is in assumption of office and as often thereafter
be done by the public accordance with law as may be required by law; ((Article XI, Sec.
officer. and not in a whimsical 17, 1987 Constitution) and
manner.
As to its capability to be compelled by 5. Owe the State and the Constitution
mandamus allegiance at all times. ((Article XI, Sec. 18,
Cannot be compelled 1987 Constitution)
Can be compelled by by mandamus except
mandamus. when there is grave Reasons for the imposition of the duty to
abuse of discretion. disclose financial records
As to its capability to be delegated
Cannot be delegated 1. To maintain public confidence in the
Can be delegated. unless otherwise Government and in public officials and
provided by law employees;
(Espiridion v. CA, G.R. No. 146933, 08 June 2006)
2. To avoid conflicts of interest from arising;
Doctrine of Ratification
3. To deter corruption; and
GR: Although the acts of a public officer may not be
binding on the State because he has exercised his 4. To provide the citizens with information
powers defectively, his acts may be ratified. concerning a public officer’s financial
affairs and thus enable them to better judge
XPNs: his integrity and fitness for office. (Sec 2,
4(e), Natoinal Data Privacy Act)
1. There is a want of power in the public
officer to perform the original act;
2. The act was absolutely void at the time it G. RIGHTS OF PUBLIC OFFICERS
was done;
3. If the principal himself could not have
lawfully done the act; or Rights and privileges of public officers
4. If it could not have lawfully been done by
anyone. Right to: (CARLO-MV-ProPS)
1. Office;
Duties of public officers 2. Compensation/salary; (Sec. 6, R.A. No.
6713)
1. Be accountable to the people; 3. Appointment;
4. Vacation and sick leave;
2. Serve the people with utmost 5. Maternity leave;
responsibility, integrity, and efficiency; 6. Retirement pay;
7. Longevity pay;
8. Pension;
287
9. Self-organization; and 5. Hazard pay;
10. Protection of temporary employees. 6. Allowances of foreign service personnel
stationed abroad; and
Prohibition against diminution of salary of 7. In addition to the non-integrated
constitutional officers allowances specified in Sec. 12, the DBM is
delegated the authority to identify other
Congress is given the power to fix the salaries of allowances that may be given to
certain constitutional officers, but after it has done government employees in addition to the
so, it may not reduce the salary of any of them standardized salary. (Lumauan v. COA, G.R.
during his term or tenure. This provision is intended No. 218304, 09 Dec. 2020, J. Hernando)
to secure their independence. (Sec. 3, Art. IX-A, 1987
Constitution)
H. LIABILITIES OF PUBLIC OFFICERS
Extent of the right to self-organization of
employees in the public service
Liabilities of Public Officers
While the Constitution recognizes the right of public
employees to organize, they are prohibited from
GR: A public officer is not liable for injuries
staging strikes, demonstrations, mass leaves, walk-
sustained by another due to official acts done within
outs, and other forms of mass action which may
the scope of authority. (Vinzons-Chato v. Fortune
result in temporary cessation of work or
Tobacco Corporation, G.R. No. 141309, 19 June 2007)
disturbance of public service. Their right to self-
organization is limited only to form unions or to
XPNs:
associate without including the right to strike. Labor
1. Otherwise provided by law; (Suarez v. COA,
unions in the government may bargain for better
55 Phil. 527,1998)
terms and conditions of employment by either
2. Statutory liability; (Arts. 27, 32, 34, NCC)
petitioning the Congress for better terms and
3. Presence of bad faith, malice, or negligence;
conditions or negotiating with the appropriate
(Sec. 38(1), E.O. No. 292, Administrative
government agencies for the improvement of those
Code)
not fixed by law. (SSS Employees Assn. v. CA, G.R No.
85279, 28 July 1989)
NOTE: Absent of any showing of bad faith or malice,
every public official is entitled to the presumption of
Remuneration of Public Officers under the
good faith as well as regularity in the performance
Salary Standardization Law
or discharge of official duties. (Blaquera v. Alcala,
G.R. No. 109406, 11 Sept. 1998)
GR: All allowances among government personnel
are deemed included in the standardization law.
1. Liability on contracts entered into in excess
or without authority; and (Madera v. COA,
XPNs: Non-integrated allowances under Sec. 12 of
G.R. No. 244128, 08 Sept. 2020)
R.A. No. 6758:
2. Liability on tort if the public officer acted

1. Representation and transportation
beyond the limits of authority and there is
allowances;
bad faith. (USA v. Reyes, G.R. No. 79253, 01
2. Clothing and laundry allowances;
Mar. 1993)
3. Subsistence allowance of marine officers
and crew on board government vessels;
NOTE: The ruling in Arias v. Sandiganbayan (G.R. No.
4. Subsistence of allowance of hospital
81563, 19 Dec. 1989) that heads of offices may rely
personnel;
to a certain extent on their subordinates is not
288
2023 GOLDEN NOTES
automatic. As held in Cesa v. Office of the month suspension or dismissal (CSC v. Cruz, G.R.
Ombudsman (G.R. No. 166658, 30 Apr. 2008), when No. 187858, 09 Aug. 2011).
there are facts that point to an irregularity and the
officer failed to take steps to rectify it, even Three-fold responsibility/liability of public
tolerating it, the Arias doctrine is inapplicable. officers
(Ombudsman v. De los Reyes, G.R. No. 208976, 13 Oct.
2014) 1. Criminal liability;
2. Civil liability; and
Illegal Dismissal, Reinstatement, and Back 3. Administrative liability.
Salaries
Liabilities of ministerial officers
Guiding principles
1. Non-feasance – It is the neglect to perform
1. Reinstatement and back salaries are separate an act which is the officer's legal obligation
and distinct reliefs available to an illegally to perform.
dismissed public officer or employee;
2. Misfeasance – The failure to observe the
2. Back salaries may be awarded to illegally proper degree of care, skill, and diligence
dismissed based on the constitutional provision required in the performance of official
that no officer or employee in the civil service duty; and
shall be removed or suspended except for cause
provided by law; to deny these employees their 3. Malfeasance – It refers to the performance
back salaries amounts to unwarranted of an act by an officer who had no legal right
punishment after they have been exonerated to perform. (Sec. 8, P.D. No. 971, 27 July
from the charge that led to their dismissal or 1976)
suspension. The present legal basis for an
award of back salaries is Sec. 47, Book V of the NOTE: The plaintiff must show that he has suffered
Administrative Code of 1987; an injury, and that it results from a breach of duty
which the officer owed him. (Sps. Custodio v. CA, G.R.
3. Back salaries are ordered paid to an officer or No. 116100, 09 Feb. 1996, cited in Laynesa v. Uy, G.R.
an employee only if he is exonerated of the No. 149553, 29 Feb. 2008)
charge against him and his suspension or
dismissal is found and declared to be illegal; Q: On 13 May 2015, a tragic fire occurred inside
the compound of Kentex in Valenzuela City
4. If the exoneration of the employee is relative (as causing the death of 74 individuals and injury to
distinguished from complete exoneration), an several other persons. The Inter-Agency Anti-
inquiry into the factual premise of the offense Arson Task Force (IATF) investigated the tragic
charged and of the offense committed must be fire. The IATF Team found that the immediate
made. If the administrative offense found to cause of the fire was the stockpiling of 400 sacks
have been actually committed is of lesser or ten (10) tons of Supercell Blowing Agent
gravity than the offense charged, the employee known as Azodicarbonamide, in an area not
cannot be considered exonerated if the factual intended for such storage and adjacent to the
premise for the imposition of the lesser penalty welding activities near the stockpile. Based on
remains the same. The employee found guilty of available records, Kentex was issued by the City
a lesser offense may only be entitled to back of Valenzuela Business Permits for 2010 and
salaries when the offense actually committed 2011 despite the lack of Fire Safety Inspection
does not carry the penalty of more than one Certificate (FSIC) for the years 2010 and 2011.
289
The IATF recommended the filing of criminal 3. He negligently or carelessly Oversees the
and administrative charges against several business of the office as to give his
individuals, including Mayor Gatchalian and subordinates the opportunity for default;
Atty. Padayao.
4. He directed, cooperated, or Authorized the
Is Mayor Gatchalian administratively liable for wrongful act; or
grave misconduct and gross neglect of duty, as
head of the City Government of Valenzuela City, 5. He negligently or willfully employs or
when its Business Permits and Licensing Office Retains unfit or incompetent subordinates.
(BPLO) issued business permits to Kentex (Secs. 38-39, E.O. No. 292, Administrative
despite the absence of FSICs? Code of 1987)
A: NO. It appears that Mayor Gatchalian had no hand Arias Doctrine

in the issuance of the business permits of Kentex
and all other business establishments during the The head of office is not required to examine every
time material to the case since the matter has been single detail of any transaction from its inception
delegated to the BPLO. Carreon recommended the until it is finally approved. We would be setting a
approval of the permits, while Atty. Padayao bad precedent if a head of office plagued by all too
approved the same for Mayor Gatchalian. common problems—dishonest or negligent
subordinates, overwork, multiple assignments or
Being officers of the BPLO of Valenzuela City positions, or plain incompetence—is suddenly
charged with the issuance of business permits to swept into a conspiracy conviction simply because
applicants thereof, it is incumbent upon Atty. he did not personally examine every single detail,
Padayao, who has been delegated by the Mayor to painstakingly trace every step from inception, and
act on such applications, to issue the same to investigate the motives of every person involved in
qualified applicants subject to their post compliance a transaction before affixing his signature as the
with the national government requirements such as final approving authority.
the fire safety inspection and the submission of the
corresponding FSIC. Moreover, under the Revised All heads of offices have to rely to a reasonable
Fire Code of the Philippines (Fire Code), the extent on their subordinates and on the good faith
administration and enforcement of the same rest of those who prepare bids, purchase supplies, or
not with the City Government of Valenzuela but with enter into negotiations. There has to be some added
the BFR Sec. 9 of the Fire Code. (Office of the Court reason why he should examine each voucher in such
Administrator v. Gatchalian, G.R. Nos. 230679 & detail. (Arias v. Sandiganbayan, G.R. No. 81563, 19
232228-30, 10 Feb. 2021) Dec. 1989)
Command Responsibility Doctrine (L-R-O-A-R) NOTE: It must include certification from the
(L-A-R-R-O) subordinate and the supporting documents,
otherwise Arias doctrine cannot be upheld. (Cruz v.
A superior officer is liable for the acts of his Sandiganbayan, G.R. No. 134493, 16 Aug. 2005)
subordinate in the following instances:
Presumption of good faith in the discharge of
1. The Law expressly makes him liable; official duties
2. He negligently or willfully fails to Require Every public official is entitled to the presumption
his subordinates to conform to prescribed of good faith in the discharge of official duties.
regulations; Although a public officer is the final approving
authority, and the employees who processed the
290
2023 GOLDEN NOTES
transaction were directly under his supervision, cases against the petitioners will not necessarily
personal liability does not automatically attach to result in the dismissal of the criminal complaints
him but only upon those directly responsible for the filed against them. (Regidor, Jr. v. People, G.R.
unlawful expenditures. (Dimapilis-Baldoz v. 166086-92, 13 Feb. 2009; Office of the President v.
Commission on Audit, G.R. 199114, 16 July 2013) Cataquiz, G.R. 183445, 14 Sept. 2011)
Superior public officer Good faith vs. COA disallowance
Under Sec. 38, Book I of the Administrative Code, Every public official is entitled to the presumption
civil liability may arise where there is: of good faith in the discharge of official duties, such
1. Bad faith; that, in the absence of any proof that a public officer
2. Malice; or has acted with malice or bad faith, he should not be
3. Gross negligence on the part of a superior charged with personal liability for damages that
public officer. (Vinzons-Chato v. Fortune may result from the performance of an official duty.
Tobacco Corporation, G.R. No. 141309, 19 (Lanto vs COA, G.R. No. 217189, 18 Apr. 2017)
June, 2007)
Under the circumstances, the petitioners albeit
Subordinate Public Officer officials of the MWSS, were not members of the
Board of Trustees and, as such, could not be held
Under Sec. 39 of the same Book, civil liability may personally liable for the disallowed benefits by
arise where the subordinate public officer’s act is virtue of their having had no part in the approval of
characterized by: the disallowed benefits. In sum, the recipients of the
1. Willfulness; or benefits − _officials and employees alike − _were not
2. Negligence. (Vinzons-Chato v. Fortune liable to refund the amounts received for having
Tobacco Corporation, G.R. No. 141309, 19 acted in good faith due to their honest belief that the
June 2007) grant of the benefits had legal basis. (Metropolitan
Waterworks and Sewerage System v. COA, G.R. No.
Art. 32 of the Civil Code 217189, 21 Nov. 2017)
A public officer who directly or indirectly violates 1. PREVENTIVE SUSPENSION AND

the constitutional rights of another, may be validly BACK SALARIES
sued for damages under Art. 32 of the Civil Code
even if his acts were not so tainted with malice or
Preventive Suspension
bad faith. (Cojuangco, Jr. v. Court of Appeals, G.R. No.
119398, 02 July 1999)
Preventive suspension is not a penalty by itself; it is
merely a measure of precaution so that the
Three-fold liability rule
employee who is charged may be separated from
the scene of his alleged misfeasance while the same
It is a fundamental principle in the law on public
is being investigated, to prevent him from using his
officers that administrative liability is separate from
position or office to influence prospective witnesses
and independent of criminal liability.
or tamper with the records, which may be vital in
the prosecution of the case against him. (Beja v. CA,
A simple act or omission can give rise to criminal,
G.R. No. 91749, 31 Mar. 1992)
civil or administrative liability, each independently
of the others. Thus, absolution from a criminal
It can be ordered even without a hearing because
charge is not a bar to an administrative prosecution,
this is only preliminary step in an administrative
and vice versa. The dismissal of the administrative
291
investigation. (Alonzo v. Capulong, et al., G.R. No. authority is suspension or dismissal and,
110590, 10 May 1995) after review, the respondent is exonerated.
(Aldovino v. Comelec, G.R. No. 184836, 23
NOTE: When a public officer is charged with Dec. 2009)
violation of the Anti-Graft and Corrupt Practices Act
or R.A. 3019, a pre-suspension hearing is required Preventive Suspension Pending Investigation v.
solely to determine the applicability of such law and Preventive Suspension Pending Appeal
for the accused be given a fair and adequate
opportunity to challenge the validity of the criminal PENDING PENDING
proceedings against him. This may be done through INVESTIGATION APPEAL
various pleadings. (Torres v. Garchitorena, G.R. No. As to its character
153666, 27 Dec. 2002) Not a penalty but only a
means of enabling the
Requisites of a Valid Preventive Suspension disciplinary authority Punitive in character
an unhampered
The Ombudsman Act of 1989 does not require that investigation
notice and hearing precede the preventive As to reinstatement
suspension of an erring official. After the lapse of 90
If exonerated, he
days, the law provides
should be reinstated
1. FIRST: There must be a prior that he be
with full pay for the
determination by the Ombudsman that the automatically
period of suspension
evidence of respondent’s guilt is strong; reinstated
and As to its as to payment of salaries
If during the appeal he
2. SECOND: remains suspended
a. The offense charged must involve and the penalty
dishonesty, oppression, grave During such imposed is only
misconduct or neglect in the preventive suspension, reprimand, the
performance of duty; the employee is not suspension pending
entitled to payment of appeal becomes illegal
b. The charges would warrant salaries and he is entitled to
removal from the service; or back salary
corresponding to the
c. The respondent’s continued stay in period of suspension.
the office may prejudice the case (Sec. 47, E.O. No. 292)
filed against him (Carabeo v. Court
of Appeals, G.R. Nos. 178000 & Periods of preventive suspension
178003, 04 Dec. 2009).
CASE FILED PERIOD
Kinds of preventive suspension of government Civil Service 90 days
employees charged with offenses punishable by LGC (Appointive) 60 days
removal or suspension LGC (Elective) 60 or 90 days
Ombudsman 6 months
1. Preventive suspension pending Criminal Cases 90 days by analogy
investigation; and
NOTE: Service of preventive suspension will not be
2. Preventive suspension pending appeal if credited to the penalty of suspension after having
the penalty imposed by the disciplining been found guilty because they are of different
292
2023 GOLDEN NOTES
character. If, however, the preventive suspension is Disciplinary Action
indefinite wherein his term is about to expire, and
suspension is not lifted such will be considered It is a proceeding which seeks the imposition of
unconstitutional for being violative of due process disciplinary sanction against, or the dismissal or
of law. (Layno, Sr. v. Sandiganbayan, G.R. No. L- suspension of, a public officer or employee on any of
65848, 24 May 1985) the grounds prescribed by law after due hearing.
Q: Is a public officer entitled to backwages Availability of Appeal in Administrative

during his suspension pending appeal when the Disciplinary Cases
result of the decision from such appeal does not
amount to complete exoneration but carries 1. Appeal is available if the penalty is: (D-D-S)
with it a certain number of days of suspension? a. Demotion;
b. Dismissal; or
A: NO. Although entitled to reinstatement, he is not c. Suspension for more than 30 days or fine
entitled to backwages during such suspension equivalent to more than 30-day salary. (Sec.
pending appeal. Only one who is completely 37(a), P.D. 807)
exonerated or merely reprimanded is entitled to
such backwages. (Sec. of Education v. CA. G.R. No. NOTE: Decisions are initially appealable to the
128559, 04 Oct. 2000) department heads and then to the CSC. Only the
respondent in the administrative disciplinary case,
Conditions before an employee may be entitled not the complainant, can appeal to the CSC from an
to back salaries (I-U) adverse decision. The complainant in an
administrative disciplinary case is only a witness,
1. The employee must be found Innocent of and as such, the latter cannot be considered as an
the charges; and aggrieved party entitled to appeal from an adverse
2. His suspension must be Unjustified. (CSC v. decision. (Mendez v. CSC, G. R. No. 95575, 23 Dec.
Cruz G.R. No. 187858, 09 Aug. 2011) 1991)
NOTE: The requirement that the suspension must 2. Appeal is NOT available if the penalty is:
be unjustified is automatically subsumed in the (CF-WARS)
other requirement of exoneration. (CSC v. Cruz G.R. a. Suspension for not more than 30 days;
No. 187858, 09 Aug. 2011) b. Fine not more than 30 day salary;
c. Censure;
Q: When is a suspension unjustified? d. Reprimand;
e. Admonition; or
A: If the proper penalty imposable for the offense f. When the respondent is exonerated.
actually committed does not exceed one (1) month,
then there would have been no occasion for a NOTE: In the second case, the decision becomes
suspension pending appeal since a decision final and executory by express provision of law.
imposing the penalty of suspension for not more
than 30 days or fine in an amount not exceeding 30 Salary of Respondent Pending Suspension
days salary is final and not subject to appeal. (Sec.
47(2), Book V, Administrative Code of 1997; Sec. 7, GR: The respondent official preventively suspended
Rule III, Administrative Order No. 7, Rules of from office shall receive no salary or compensation
Procedure of the Office of the Ombudsman, 10 Apr during such suspension;
1990, as amended by Administrative Order No. 17,
Sept. 15, 2003 which took effect on Nov. 19, 2003)
293
XPN: Upon subsequent exoneration and provided by law; to deny these employees their
reinstatement, he shall be paid full salary or back salaries amounts to unwarranted
compensation including such emoluments accruing punishment after they have been exonerated
during such suspension. (Sec. 64, LGC) from the charge that led to their dismissal or
suspension;
Effect of an appeal under preventive suspension
NOTE: The present legal basis for an award of
An appeal shall not prevent a decision from back salaries is Sec. 47, Book V of the
becoming final or executory. The respondent shall Administrative Code of 1987.
be considered as having been placed under
preventive suspension during the pendency of an 3. Back salaries are ordered paid to an officer or
appeal in the event he wins such appeal. In the event an employee only if he is exonerated of the
the appeal results in an exoneration, he shall be paid charge against him and his suspension or
his salary and such other emoluments during the dismissal is found and declared to be illegal;
pendency of the appeal. (Sec. 68, LGC)
4. If the exoneration of the employee is relative (as
Availability of the services of the Solicitor distinguished from complete exoneration), an
General inquiry into the factual premise of the offense
charged and of the offense committed must be
If the public official is sued for damages arising out made.
of a felony for his own account, the State is not liable
and the Solicitor General is not authorized to If the administrative offense found to have been
represent him therefore. The Solicitor General may actually committed is of lesser gravity than the
only do so in suits for damages arising not from a offense charged, the employee cannot be
crime but from the performance of a public officer’s considered exonerated if the factual premise for
duties. (Vital-Gozon v. CA, G.R No. 101428, 05 Aug. the imposition of the lesser penalty remains the
1992) same. The employee found guilty of a lesser
offense may only be entitled to back salaries
The OSG can represent the public official at the when the offense actually committed does not
preliminary investigation of his case, and that if an carry the penalty of more than one month
information is eventually filed against the said suspension or dismissal. (CSC v. Cruz, G.R. No.
public official, the said Office may no longer 187858, 09 Aug. 2011).
represent him in the litigation. (Anti-Graft League v.
Ortega, G.R. No. L-33912, 11 Sept. 1980) Good faith vs. COA disallowance
2. ILLEGAL DISMISSAL, REINSTATEMENT, AND Every public official is entitled to the presumption
BACK SALARIES of good faith in the discharge of official duties, such
that, in the absence of any proof that a public officer
has acted with malice or bad faith, he should not be
Guiding Principles
charged with personal liability for damages that
may result from the performance of an official duty.
1. Reinstatement and back salaries are separate
(Lanto v. COA, G.R. No. 217189, 18 Apr. 2017)
and distinct reliefs available to an illegally
dismissed public officer or employee;
Under the circumstances, the petitioners albeit
officials of the MWSS, were not members of the
2. Back salaries may be awarded to illegally
Board of Trustees and, as such, could not be held
dismissed based on the constitutional provision
personally liable for the disallowed benefits by
that no officer or employee in the civil service
virtue of their having had no part in the approval of
shall be removed or suspended except for cause
294
2023 GOLDEN NOTES
the disallowed benefits. In sum, the recipients of the (Philippine-Singapore Transport Services, Inc. vs.
benefits − _officials and employees alike − were not NLRC, G.R. No. 95449, 18 Aug. 1997)
liable to refund the amounts received for having
acted in good faith due to their honest belief that the No-Work-No-Pay Principle
grant of the benefits had legal basis. (Metropolitan
Waterworks and Sewerage System v. COA, G.R. No. It does not apply where it has been sufficiently
217189, 21 Nov. 2017) shown that public official was wrongfully prevented
from entering the office and carrying out his duties.
When Aspect of Reinstatement is disputed (Gloria v. CA, G.R. No. 131012 21, Apr. 1999)
In the event the aspect of reinstatement is disputed, Illegal Dismissal in Bad Faith
backwages, including separation pay, shall be
computed from the time of dismissal until the If the illegal dismissal is found to have been made in
finality of the decision ordering the separation pay. bad faith by the superior officers, then they will be
The finality of the decision cuts off the employment held personally liable for the back salaries of the
relationship and represents the final settlement of illegally dismissed employee.
the rights and obligations of the parties against each
other. Hence, backwages no longer accumulate Extent of Award of Backwages
upon the finality of the decision ordering the
payment of separation pay because the employee is The award of backwages is limited to a maximum of
no longer entitled to any compensation from the four (4) years and not to a full back salary from
employer by reason of the severance of his illegal termination up to reinstatement.
employment. (Constantino-David v. Pangandaman-Gania, G.R. No.
156039, 14 Aug. 2003)
Plainly, it does not matter if the delay caused by an
appeal was brought about by the employer or by the
employee. The rule is, if the Labor Arbiter's I. IMMUNITY OF PUBLIC OFFICERS
decision, which granted separation pay in lieu of
reinstatement, is appealed by any party, the
employer-employee relationship subsists and until
As a general rule, public officials can be held
such time when decision becomes final and
personally accountable for acts claimed to have
executory, the employee is entitled to all the
been performed in connection with official duties
monetary awards awarded by the Labor Arbiter.
where they have acted ultra vires or where there is
(C.I.C.M. Mission Seminaries (Maryhurst,
a showing of bad faith. It is also paramount that
Maryheights, Maryshore and Maryhill) School of
tortious acts or crimes committed while discharging
Theology, Inc. v. Perez, G.R. No. 220506, 18 Jan. 2017)
official functions are not covered by sovereign
immunity. An action at law or suit in equity against
When an officer was unlawfully removed and was
a government official who violates or invades the
prevented for a time by no fault of his own from
personal and property rights of a plaintiff under an
performing the duties of his office, it was held that
unconstitutional act or under an assumption of
he might recover, and that the amount that he had
authority which he does not have, with a claim to
earned in other employment during his unlawful
have acted for the State, is not a suit against the
removal should not be deducted from his unpaid
State. (Police Sr. Supt. Romeo Uy, et al. v. Sergio Jr. and
salary. He may recover the full amount
Sales V. Jacalan, G.R. No. 232814, 03 Feb. 2021)
notwithstanding that during the period of his
removal, the salary has been paid to another
A public officer is not liable for damages which a
appointed to fill the vacancy unlawfully created.
person may suffer arising from the just performance
295
of his official duties and within the scope of his technically qualified in
assigned tasks. An officer who acts within his all points of law to act.
authority to administer the affairs of the office As to the basis of holding of office
which he/she heads is not liable for damages that Holding of office rests Holding of office rests
may have been caused to another, as it would on reputation. on right.
virtually be a charge against the Republic, which is As to the means of ousting
not amenable to judgment for monetary claims Officer cannot be
without its consent. However, a public officer is by Officer may be ousted
removed through a
law not immune from damages in his/her personal in a direct proceeding
direct proceeding (quo
capacity for acts done in bad faith which, being against him.
warranto).
outside the scope of his authority, are no longer
protected by the mantle of immunity for official Effects of the acts of de facto public officers
actions. (Vinzons-Chato v. Fortune Tobacco
Corporation, G.R. No. 141309, 19 June 2007) 1. The lawful acts, so far as the rights of third
persons are concerned are, if done within
the scope and by the apparent authority of
J. DISTINGUISH: DE FACTO AND the office, are considered valid and binding;
DE JURE OFFICERS
2. The de facto officer cannot benefit from his
own status because public policy demands
De facto officer (2010, 2009, 2004, 2000 BAR) that unlawful assumption of public office be
discouraged;
A de facto officer is one who assumed office under
the color of a known appointment or election but NOTE: The general rule is that a de facto
which appointment or election is void for reasons officer cannot claim salary and other
1. that the officer was not eligible; compensations for services rendered by
2. that there was want of power in the him as such. However, the officer may
electing body; retain salaries collected by him for services
3. that there was some other defect or rendered in good faith when there is no de
irregularity in its exercise, wherein such jure officer claiming the office. (Malaluan v
ineligibility, want of power, or defect being Comelec, G.R. No. 120193, 06 Mar. 1996)
unknown to the public. (Codilla v Martinez,
G.R. No. L-14569, 23Nov. 1960) 3. The de facto officer is subject to the same
liabilities imposed on the de jure officer in
De jure officer the discharge of official duties, in addition
to whatever special damages may be due
A de jure officer is one who is in all respects legally from him because of his unlawful
appointed or elected and qualified to exercise the assumption of office; and
office. (Codilla v Martinez, G.R. No. L-14569, 23 Nov.
1960) 4. The acts of the de facto public officer,
insofar as they affect the public, are valid,
DE FACTO DE JURE binding and with full legal effect. (Arroyo v.
OFFICER OFFICER CA, G.R. No. 202860, 10 Apr. 2019)
As to the title possessed
Manner by which challenge to a de facto office is
Has possession of and
performs the duties Has lawful title to the made
under a colorable title office.
1. The incumbency may not be challenged
without being
296
2023 GOLDEN NOTES
collaterally or in an action to which the de 3. What will happen to the bills that Paulo
facto officer is not a party; alone authored and were approved by
the HoR while he was seated as
2. The challenge must be made in a direct Congressman? Reason and explain
proceeding where title to the office will be briefly.
the principal issue; and
A: The bills which Paulo alone authored and
3. The authorized proceeding is quo warranto were approved by the House of Representatives
either by the Solicitor General in the name are valid because he was a de facto officer
of the Republic or by any person claiming during his incumbency. The acts of a de facto
title to the office. (Nacionalista Party v. De officer are valid insofar as the public is
Vera, G.R. No. L-3474, 07 Dec. 1949; concerned. (Rodriguez v. Tan, G.R. No. L-3913,
Nacionalista Party v. De Vera, G.R. No. L- 07 Aug. 1952)
3474, 07 Dec. 1949; Republic v. Sereno, G.R.
No. 237428, 18 May 2018) Recovery of the salary received by a de facto
officer during a wrongful tenure
Q: Ross ran as congressman of Cagayan
province. His opponent, Paulo, however, was the As a rule, the rightful incumbent of the public office
one proclaimed as the winner by the COMELEC. may recover from a de facto officer the salaries
Ross filed seasonably a protest before the HRET. received by the latter during the time of the latter's
After two years, the HRET reversed the wrongful tenure even though he entered into the
COMELEC’s decision and Ross was proclaimed office in good faith and under a colorable title. The
finally as the duly elected Congressman. Thus, de facto officer takes the salaries at his risks and
he had only one year to serve in Congress. must therefore account to the de jure officer for the
amounts he received. However, where there is no de
1. Can Ross collect salaries and allowances jure officer, a de facto officer shall be entitled to the
from the government for the first two salaries and emoluments accruing during the period
years of his term as Congressman? when he actually discharged the duties. (Monroy v.
CA, G.R. No. L-23258, 01 July 1967)
A: NO. Ross cannot collect salaries and
allowances from the government for the first NOTE: In Monroy v. CA, the Supreme Court said that
two years of his term, because in the meanwhile the Rodriguez ruling cannot be applied for the
Paulo collected the salaries and allowances. absence of factual and legal similarities.
Paulo was a de facto officer while he was in
possession of the office. To allow Ross to collect Essence of de facto doctrine
the salaries and allowances will result in
making the government pay a second time. The de facto doctrine has been formulated, not for
the protection of the de facto officer principally, but
2. Should Paulo refund to the government rather for the protection of the public and
the salaries and allowances he had individuals who get involved in the official acts of
received as Congressman? persons discharging the duties of an office without
being lawful officers. (Monroy v. CA, G.R. No. L-23258,
A: NO. Paulo is not required to refund to the 01 July 1967)
government the salaries and allowances he
received. As a de facto officer, he is entitled to
the salaries and allowances because he
rendered services during his incumbency.
297
De facto officer vs. Usurper Where there is no de
jure public officer, the
USURPER (2000 officer de facto who in
DE FACTO OFFICER
BAR) good faith has had
As to definition possession of the office
Complies with the 3 and has discharged the
elements of a de jure duties pertaining
officer, namely: thereto, is legally
entitled to the
1. Existence of a de emoluments of the
jure office; office, and may, in an
appropriate action,
2. Must possess the recover the salary, fees
Takes possession of an
legal qualifications and other
office and does official
for the office in compensations
acts without any actual
question; and attached to the office.
or apparent authority.
(Gen. Manager,
3. Must have Philippine Ports
qualified himself Authority v. Monserate,
to perform the G.R. No. 129616, 17 Apr.
duties of such 2002)
office according to (Re: Nomination of Atty. Lynda Chaguile, A.M. No. 13-
the mode 04-03-SC, 10 Dec. 2013)
prescribed by law.
As to possession of color of right or
title to office K. TERMINATION OF OFFICIAL RELATION
Has color of right or Has neither color of
title to office. right or title to office.
As to validity of the acts performed Modes of Termination:
Acts are rendered valid
as to the public until Acts are absolutely a. Natural Causes: (R-E-D-D)
his title is adjudged void.
insufficient. 1. Expiration of the term or tenure of office
As to salary or compensation – his/her rights and duties ipso facto
GR: The rightful ceases, unless authorized to holdover;
incumbent of a public
office may recover NOTE: Tenure represents the term during
from an officer de which the incumbent actually holds office.
facto the salary The tenure may be shorter (or, in case of
received by the latter holdover, longer) than the term for reasons
Not entitled to
during the time of his within or beyond the power of the
compensation
tenure even though he incumbent. However, a term, or the time
entered into the office during which the officer may claim to hold
in good faith and the office as of right, is not affected by the
under color of title. holdover; (Valle Verde v. Africa, G.R. No.
151969, 4 Sep. 2009)
XPN:
298
2023 GOLDEN NOTES
2. Reaching the age limit (Retirement) - 65 3. Acceptance of an Incompatible office - It
years for public officers and employees; is a well-settled rule that he who, while
occupying one office, accepts another
3. Death or permanent Disability. (Nachura, incompatible with the first, ipso facto
2006) vacates the first office and his title is
thereby terminated without any other act
b. Acts or neglect of officer: (P-A-R-I) or proceeding. Public policy considerations
dictate against allowing the same
1. Prescription of Right to Office - Quo individual to perform inconsistent and
warranto is the proper remedy against a incompatible duties. The incompatibility
public officer or employee for his/her contemplated is not the mere physical
ouster from office which should be impossibility of one person’s performing
commenced within 1 year after the cause of the duties of the two offices due to a lack of
such ouster; otherwise the action shall be time or the inability to be in two places at
barred. (Nacionalista Party v. De Vera, G.R. the same moment, but that which proceeds
No. L-3474, 07 Dec. 1949; Nacionalista Party from the nature and relations of the two
v. De Vera, G.R. No. L-3474, 07 Dec. 1949; positions to each other as to give rise to
Republic v. Sereno, G.R. No. 237428, 18 May contrariety and antagonism should one
2018) person attempt to faithfully and impartially
discharge the duties of one toward the
2. Abandonment of Office - the voluntary incumbent of the other. (Canonizado v.
relinquishment of an office by the holder, Aguirre, G.R. 133132, 15 Feb. 2001)
with the intention of terminating his
possession and control thereof. There are, 4. Resignation – Formal renunciation or
therefore, two essential elements of relinquishment of office. To constitute a
abandonment: first, an intention to complete and operative act of resignation,
abandon and second, an overt or “external” the officer or employee must show a clear
act by which the intention is carried into intention to relinquish or surrender his
effect. Generally, a person holding a public position accompanied by the act of
office may abandon such office by nonuser relinquishment.
or acquiescence. Non-user refers to a
neglect to use a right or privilege or to Resignation implies an expression of the
exercise an office. However, incumbent in some form, express or
nonperformance of the duties of an office implied, of the intention to surrender,
does not constitute abandonment where renounce and relinquish the office, and its
such nonperformance results from acceptance by competent and lawful
temporary disability or from involuntary authority. (Ortiz v. COMELEC, G.R. No.
failure to perform. Abandonment may also 78957, 28 June 1988)
result from an acquiescence by the officer
in his wrongful removal or discharge, for NOTE: A “courtesy resignation” cannot
instance, after a summary removal, an properly be interpreted as resignation in
unreasonable delay by an officer illegally the legal sense for it is not necessarily a
removed in taking steps to vindicate his reflection of a public official's intention to
rights may constitute an abandonment of surrender his position. Rather, it manifests
the office. (Canonizado v. Aguirre, G.R. No. his submission to the will of the political
133132, 15 Feb. 2001) authority and the appointing power. (Ortiz
v. COMELEC, G.R. No. 78957, 28 June 1988)
299
NOTE: Cessation from office by virtue of Baldoz v. Commission on Audit, G.R. No.
intervening resignation did not warrant the 199114, 16 July 2013)
dismissal of the administrative complaint
against the public officer, for the act 5. Recall - refers to the election itself by
complained of had been committed when means of which voters decide whether they
he or she was still in the service. (Concerned should retain their local official or elect
Citizen v. Catena, A.M. OCA IPI 02-1321-P, 16 replacement.
July 2013)
NOTE: The ground for recall is “loss of
c. Acts of the government or people: (R-R-I-C-A) confidence.” A petition for recall should be
initiated by at least 25% of the total
1. Conviction of a crime - termination results number of registered voters of the
when the following penalties are imposed concerned LGU. (Sec. 74, LGC)
upon conviction by final judgment in a trial
court: 1. INVOLUNTARY RETIREMENT
a. perpetual or temporary absolute
disqualification; or
See page 301 for Re: Letter of Mrs. Ma. Cristina
b. perpetual or temporary special
Roco Corona, AM. No. 20-07-10-SC, 12 Jan. 2021.
disqualification.
Retirement
2. Abolition of office;
An impeached public officer whose civil, criminal, or
3. Impeachment - way of removing the
administrative liability was not judicially
President, Vice President, Members of the
established may be considered involuntarily retired
Supreme Court and the Constitutional
from service.
Commissions and the Ombudsman.
Retirement is the termination of one's own
4. Removal - ouster of the incumbent before
employment or career, especially upon reaching a
the expiration of his/her term.
certain age or for health reasons. To retire is to
withdraw from one's position or occupation, or to
Grounds:
conclude one's active working life or professional
career. Old age is the usual ground that retires one
a. Members of Congress – each House
from work. It is not, however, the sole reason
may punish its members for disorderly
therefor. Other reasons may permanently bar a
behavior with the concurrence of 2/3
person from returning to the workforce like serious
of ALL its members. Suspension if
physical impediments, personal choice, dissolution
imposed shall not exceed 60 days.
of the office or position, or exercise of the
employer's prerogative. The term may even refer to
b. Civil Service Officers or Employees –
judges and justices who "retire" due to permanent
for causes provided by law.
disability, whether total or partial, or who died or
were killed while in actual service. Retirement then
As a matter of law, a department
may be voluntary or involuntary.
secretary’s decision confirming the
removal of an officer under his
Retirement is voluntary when one decides upon
authority is immediately executory,
one's own unilateral and independent volition to
even pending further remedy by the
permanently cease the exercise of one's occupation.
dismissed public officer. (Dimapilis-
300
2023 GOLDEN NOTES
Retirement is deemed involuntary when one's The Court deems Chief Justice Corona to have been
profession is terminated for reasons outside the involuntarily retired from public service due to the
control and discretion of the worker. Impeachment peculiar circumstances surrounding his removal by
resulting in removal from holding office falls under impeachment, without forfeiture of his retirement
the column on involuntary retirement. benefits and other allowances.
(Re: Letter of Mrs. Ma. Cristina Roco Corona, AM. No. The OCA posits that the late Chief Justice failed to
20-07-10-SC, 12 Jan. 2021, J. Hernando) qualify under R.A. No. 9946 or An Act Granting
Additional Retirement, Survivorship, and Other
Compulsory Retirement Age Benefits to Members of the Judiciary, amending for
the Purpose Republic Act No. 910, as Amended,
Members of the 70 years old (Sec. 11, Art. Providing Funds Therefor and for Other Purposes.
judiciary VIII, 1987 Constitution) However, the Court disagrees.
Other government
65 years old (sec.13(b),
officers and Sec. 1 of R.A. No. 9946 yields two instances of
R.A. No. 8291)
employees retirement available to a magistrate — first, a
compulsory retirement at 70 years old; and second,
Re: Letter of Mrs. Ma. Cristina Roco Corona, AM. an optional retirement upon reaching 60 years of
No. 20-07-10-SC, 12 Jan. 2021 age. The following legal requisites must concur for
the optional retirement of a magistrate and the
Q: Should retirement benefits, other gratuities, consequent entitlement to the benefits under RA
and survivorship pension be accorded to Mrs. 9946:
Corona as the spouse of the late Chief Justice
Corona despite the latter's ouster by 1. That the retiree be a magistrate., a Justice of
impeachment? the Supreme Court, the Court of Appeals,
the Sandiganbayan, or of the Court of Tax
A: YES. An impeached public officer whose civil, Appeals, or a judge of the trial courts,
criminal, or administrative liability was not shari'a court, or of any other judicial court;
judicially established may be considered
involuntarily retired from service and is entitled to 2. That the retiring magistrate has rendered
the retirement benefits provided under R.A. Nos. at least 15 years of service in the judiciary,
9946 and 8291. in any other branch of the government, or
in both;
Retirement is the termination of one's own
employment or career, especially upon reaching a 3. That the retiring magistrate be at least 60
certain age or for health reasons. Retirement then years of age at the time of retirement; and
may be voluntary or involuntary. Retirement is
voluntary when one decides upon one's own 4. That the last three (3) years of public
unilateral and independent volition to permanently service by the retiring magistrate be
cease the exercise of one's occupation. Retirement continuously rendered in the Judiciary.
is deemed involuntary when one's profession is
terminated for reasons outside the control and The requirements are straightforward and have all
discretion of the worker. Impeachment resulting in been satisfactorily complied with by the late Chief
removal from holding office falls under the column Justice. (Re: Letter of Mrs. Ma. Cristina Roco Corona
on involuntary retirement. Requesting the Grant of Retirement and Other
Benefits to the Late Former Chief Justice Renato C.
Corona and her Claim For Survivorship Pension as his
301
Wife Under Republic Act No. 9946, A.M. No. 20-07-10- NOTE: Appointment to any vacancy shall be only for
SC, 12 Jan. 2021, J. Hernando) the unexpired term of the predecessor. In no case
shall any Member be appointed or designated in a
temporary or acting capacity. (Sec. 1(2), Art. IX-B,
L. THE CIVIL SERVICE 1987 Constitution)
Qualifications
1. SCOPE 1. Natural-born citizen;

2. At least 35 years old at the time of appointment;
The Civil Service embraces every branch, agency, 3. With proven capacity for public administration;
subdivision, and instrumentality of the government, and
including every GOCCs whether performing 4. Not a candidate in any election immediately
governmental or proprietary functions. (Sec. 2(1), preceding the appointment. (Sec. 1(1), Art. IX-B,
Art. IX-B, 1987 Constitution) 1987 Constitution)
Constitutional Functions of the CSC Disqualifications (L-E-A-C)
1. No candidate who has Lost in any election shall,

As the central personnel agency of the government,
within one year after such election, be
it:
appointed to any office in the Government of
any GOCC or in any of its subsidiaries; (Sec. 6,
1. Establishes a career service;
Art. IX-B, 1987 Constitution)
2. Adopts measures to promote morale, efficiency,
2. No Elective official shall be eligible for
integrity, responsiveness, progressiveness and
appointment or designation in any capacity to
courtesy in the Civil Service;
any public office or position during his tenure;
(Sec. 7(1), Art. IX-B, 1987 Constitution) (2002,
3. Strengthens the merits and rewards system;
1995 BAR)
4. Integrates all human resources and
3. Unless otherwise allowed by law or by the
development programs for all levels and ranks;
primary functions of his position, no Appointive
and
official shall hold any other office or
employment in the Government or any
5. Institutionalizes a management climate
subdivision, agency or instrumentality thereof
conducive to public accountability. (Sec. 3, Art.
including GOCCs or their subsidiaries; (Sec.
IX-B, 1987 Constitution)
7(2), Art. IX-B, 1987 Constitution) and,
Composition of the CSC
4. No officer or employee in the Civil service shall
engage, directly or indirectly, in any
1. Chairman; and
electioneering or partisan political activity.
2. Two (2) Commissioners. (Sec. 1, Art. IX-B, 1987
(Sec. 2(4), Art. IX-B, 1987 Constitution)
Constitution)
Classification
The Chairman and the Commissioners shall be
appointed by the President with the consent of the
Commission on Appointments for a term of seven 1. Career Service; and
(7) years without reappointment. (Sec. 1, Art. IX-B, 2. Non-Career Service.
1987 Constitution)
302
2023 GOLDEN NOTES
Career Service b. The holder of the position must be a
presidential appointee. (Seneres v. Sabido,
The Career Service shall be characterized by the G.R. No. 172902, 21 Oct. 2015)
following:
Requisites for a CES employee to acquire
1. Entrance based on merit and fitness to be security of tenure:
determined as far as practicable by a. CES eligibility; and
competitive examinations or based on b. Appointment to the appropriate CES rank.
highly technical qualifications; (Ibid.)
2. Opportunity for advancement to higher 4. Career officers, other than those in the Career
career positions; and Executive Service, who are appointed by the
President, such as the Foreign Service Officers
3. Security of tenure. (Sec. 7, E.O. 292) in the Department of Foreign Affairs;
The Career Service shall include 5. Commissioned officers and enlisted men of the
Armed Forces which shall maintain a separate
1. Open Career positions – those for appointment merit system;
to which prior qualification in an appropriate
examination is required; (Sec. 1, EO 292) 6. Personnel of government-owned or -controlled
corporations, whether performing
2. Closed Career positions – those which are governmental or proprietary functions, who do
scientific or highly technical in nature; these not fall under the non-career service; and
include the faculty and academic staff of state
colleges and universities, and scientific and 7. Permanent laborers, whether skilled, semi-
technical positions in scientific or research skilled, or unskilled. (Sec. 7, E.O. 292)
institutions which shall establish and maintain
their own merit systems; (Sec. 7, EO 292) Q: The Office of the President issued the
Guidelines Implementing M.C. No. 1, which
3. Positions in the Career Executive Service states that "all non-CESOs occupying CES
(CES), namely Undersecretary, Assistant positions in all agencies of the Executive Branch
Secretary, Bureau Director, Assistant Bureau shall remain in office and continue to perform
Director, Regional Director, Assistant Regional their duties and discharge their responsibilities
Director, Chief of Department Service and other until 31 July 2010 or until their resignations
officers of equivalent rank as may be identified have been accepted, and/or until their
by the Career Executive Service Board (CESB), respective replacements have been appointed
all of whom are appointed by the President; or designated, whichever comes first, unless
(Sec. 1, CESB Circular No. 1 Series of 2003) they are reappointed in the meantime."
NOTE: For a position to be considered as CES, Matibag sent a letter requesting clarification on
a. The position must be among those the coverage of OP-MC No. 1. In response, the
enumerated under Sec. 7(3), Book V, Title I, [CSC] cited the provision of Sec. 2 (3), Art. IX-B of
Subtitle A, Chapter 2, of the Administrative the 1987 Constitution which states that she
Code of 1987 or a position of equal rank as enjoys security of tenure for being a holder of an
those enumerated and identified by the appropriate Civil Service Eligibility. Thus, she
CESB to be such position of equal rank; and cannot be removed or suspended except for
cause provided for by law and after due process.
303
It appears that following letter, Undersecretary 1. Entrance on bases other than those of the usual
Edgar C. Galvante, the Acting Executive Director tests of merit and fitness utilized for the career
of the DDB, issued a Memorandum addressed to service; and
Matibag, which states that "considering that you
are a Non-CESO holder and covered by M.C. No. 2. Tenure which is limited to a period specified by
2, you are hereby notified that your designation law, or which is coterminous with that of the
as Deputy Executive Director for Operations is appointing authority or subject to his pleasure,
terminated effective this date. This is without or which is limited to the duration of a particular
prejudice to your reappointment to the position project for which purpose employment was
and/or the final resolution of the propriety of made. (Sec. 9, EO 292)
the issuance of M.C. No. 2 by the Supreme Court."
The Non-Career Service shall include:
Matibag thus filed a complaint before the CSC for
illegal dismissal. The CSC and the CA ruled that 1. Elective officials and their personal or
Matibag was illegally dismissed. Are they confidential staff;
correct?
2. Department Heads and other officials of
A: NO. The CESB has the authority to prescribe the Cabinet rank who hold positions at the
requirements for entry to the CES. Following this pleasure of the President and their personal or
clear authority of the CESB, the Court held in the confidential staff;
case of Feliciano and Gonzalez that even though
they are holders of the CSEE, they still needed to 3. Chairman and members of commissions and
comply with CESB Resolution No. 811 dated 17 Aug. boards with fixed terms of office and their
2009, which states that holders of the CSC's CSEE personal or confidential staff;
still needed to comply with the last two stages to get
CES Eligibility, which are the assessment center and 4. Contractual personnel or those whose
the performance validation. employment in the government is in
accordance with a special contract to
Here, similar to Feliciano and Gonzalez, Matibag undertake a specific work or job, requiring
only possessed the CSC's CSEE. She failed to prove special or technical skills not available in the
that she has completed the last two stages of the employing agency, to be accomplished within
examination process under CESB Resolution No. a specific period, which in no case shall exceed
811. Given this, she was not CES Eligible at the time one year, and performs or accomplishes the
she held the position of Deputy Executive Director specific work or job, under his own
for Operations, and did not enjoy security of tenure. responsibility with a minimum of direction
Her appointment was temporary. and supervision from the hiring agency; and
Similar to Feliciano and Gonzalez, Matibag's 5. Emergency and seasonal personnel.

termination from her position as Deputy Executive
Director for Operations of DDB was therefore Classes of positions in the Career Service
effective and valid. (Dangerous Drugs Board v. Maria
Belen Angelita V. Matibag, G.R. No. 210013, 22 Jan 1. Classes of positions in the career service
2020) appointment to which requires examinations
shall be grouped into three major levels as
Non-Career Service follows:
The Non-Career Service shall be characterized by a. The first level shall include clerical, trades,
crafts, and custodial service positions
304
2023 GOLDEN NOTES
which involve non-professional or sub- Principal groups of position in the Civil Service,
professional work in a non-supervisory or on the basis of appointment
supervisory capacity requiring less than
four years of collegiate studies; 1. Competitive positions – According to merit and
fitness to be determined by competitive
b. The second level shall include professional, examinations, as far as practicable; (Sec. 4, R.A.
technical, and scientific positions which No. 6040) and
involve professional, technical, or scientific
work in a non-supervisory or supervisory 2. Non-competitive positions – Do not have to
capacity requiring at least four years of consider merit and fitness. No need for
college work up to Division Chief level; and competitive examinations. (Sec. 5, R.A. No. 6040)
c. The third level shall cover positions in the a. Policy-determining – They are tasked to
Career Executive Service. formulate a method of action for the
government or any of its subdivisions.
2. Except as herein otherwise provided, entrance
to the first two levels shall be through b. Primarily confidential – Their duties are
competitive examinations, which shall be open not merely clerical but devolve upon the
to those inside and outside the service who head of an office, which, by reason of his
meet the minimum qualification requirements. numerous duties, delegates his duties to
Entrance to a higher level does not require others, the performance of which requires
previous qualification in the lower level. skill, judgment, trust and confidence.
Entrance to the third level shall be prescribed (Sec. 3, R.A. No. 6040)
by the Career Executive Service Board. (Sec. 7,
EO 292) NOTE: Proximity Rule is the test used to
determine confidentiality of a position. The
3. Within the same level, no civil service occupant of a particular position could be
examination shall be required for promotion to considered a confidential employee if the
a higher position in one or more related predominant reason why he was chosen by
occupational groups. A candidate for promotion the appointing authority was the latter’s
should, however, have previously passed the belief that he can share a close intimate
examination for that level. (Art. IV, P.D. 807) relationship with the occupant which
ensures freedom of discussion without fear
2. APPOINTMENTS TO THE CIVIL SERVICE of embarrassment or misgivings of possible
betrayals of personal trust and confidential
matters of State. (De los Santos v. Mallare,
Manner of appointment to the civil service
G.R. No. L-3881, 31 Aug. 1950)
Appointments in the civil service shall be made only

c. Highly technical – Requires technical skill
according to merit and fitness to be determined, as
or training in the highest degree. (Sec. 5,
far as practicable, and, except to positions which are
R.A. No. 6040)
policy-determining, primarily confidential, or
highly technical, by competitive examination. (Sec.
NOTE: The test to determine whether the
2(2), Art. IX-B, 1987 Constitution)
position is non-competitive is the nature of the
responsibilities, not the description given to it.
The Constitution does not exempt the above-
given positions from the operation of the
305
principle that “no officer or employee of the A: YES. In Quirog v. Aumentado (G.R. Nos. 163443 &
civil service shall be removed or suspended 163568, 11 Nov. 2008), the Court held that the ruling
except for cause provided by law.” (Philippine in De Rama v. Court of Appeals (G.R. No. 131136, 28
Amusement and Gaming Corporation v. Feb. 2001) does not mean that the raison d' etre
Rilloraza, G.R. No. 141141, 25 June 2001) behind the prohibition against midnight
Q: Who may be appointed in the civil service? appointments may not be applied to those made by
chief executives of LGUs. Indeed, the prohibition is
A: Whoever fulfills all the qualifications prescribed precisely designed to discourage, nay, even
by law for a particular position may be appointed preclude, losing candidates from issuing
therein. (Art. IX, 1987 Constitution) appointments merely for partisan purposes thereby
depriving the incoming administration of the
NOTE: The CSC cannot disapprove an appointment opportunity to make the corresponding
just because another person is better qualified, as appointments in line with its new policies.
long as the appointee is himself qualified. It cannot (Nazareno v. City of Dumaguete, G.R. No. 181559, 02
add qualifications other than those provided by law. Oct. 2009)
(Cortez v. CSC, G.R. No. 92673, 13 Mar. 1991)
Q: Governor Ibaneta of Zamboanga del Sur was
Authority to recall appointments authorized by the Sangguniang Panlalawigan to
undertake the reorganization of the provincial
The Civil Service Commission has the authority to government and to implement a new staffing
recall appointments made in disregard of the pattern, where the plantilla positions were
applicable provisions of Civil Service Law and reduced. Subsequently, Governor Ibaneta
regulations. (Sales v. Carreon Jr., G.R. No. 160791, 13 appointed new employees to the new positions
Feb. 2007) in the Government. However, some permanent
employees were not given placement
Q: The CSC issued a Resolution granting the City preference and were instead terminated
Government of Dumaguete the authority to take without valid cause and against their will. The
final action on all its appointments subject to terminated employees alleged that the
rules and regulations and within the limits and reorganization was done in bad faith. After a
restrictions of the implementing guidelines of complaint was filed, the CSC confirmed that the
the CSC Accreditation Program as amended and reorganization was done in bad faith and
subject to monthly monitoring by the Civil invalidated the new appointments made. Did
Service Field Office (CSFO). On 05, 07, and 11 the CSC err?
June 2001, Dumaguete City outgoing Mayor
Felipe Antonio B. Remollo promoted 15 city hall A: NO. Appointment, by its very nature, is a highly
employees, and regularized another 74 city hall discretionary act. However, it must be reconciled
employees, including the herein 52 petitioners. with the provisions of R.A. No. 6656 which provides
But the incoming Mayor Perdices did not honor that when reorganization is done in bad faith, the
the appointments made by former Mayor aggrieved employee, having been removed without
Remollo and he ordered the City Administrator valid cause, may demand reinstatement or
to direct the City Assistant Treasurer to refrain reappointment. Hence, there is no encroachment on
from making any cash disbursements for the discretion of the appointing authority when the
payments of petitioners' salary differentials CSC revokes an appointment on such ground. In
based on their new positions. Further, a CSC such instance, the CSC is not actually directing the
resolution was passed invalidating the appointment of another but simply ordering the
appointments of the employees. Is the CSC reinstatement of the illegally removed employee.
authorized to invalidate appointments? (Cerilles v. Civil Service Commission, G.R. No. 180845,
22 Nov. 2017)
306
2023 GOLDEN NOTES
Security of tenure Where the appointment is permanent, it is
protected by the security of tenure provision. But if
It means that no officer or employee in the civil it is temporary or in an acting capacity, which can be
service shall be suspended or dismissed except for terminated at any time, the officer cannot invoke the
cause provided by law, and after due process or security of tenure. (Matibag v. Benipayo, G.R. No.
after he shall have been given the opportunity to 149036, 02 April 2002; Achacoso v. Macaraig, G.R. No.
defend himself. (SME Bank, Inc. v. De Guzman, et. al. 93023, 13 Mar. 1991)
(G.R. No. 184517, 08 Oct. 2013)
NOTE: The holder of a temporary appointment
NOTE: One must be validly appointed to enjoy cannot claim a vested right to the station to which
security of tenure. Thus, one who is not appointed assigned, nor to security of tenure thereat. Thus, he
by the proper appointing authority does not acquire may be reassigned to any place or station. (Teotico
security of tenure. v. Agda, G.R. No. 87437, 29 May 1991)
Once an appointment is issued and completed and Attachment of Security of Tenure

the appointee assumes the position, he acquires a
legal right, not merely an equitable right to the It attaches once an appointment is issued and the
position. (Lumigued v. Exevea, G.R. No. 117565, 18 moment the appointee assumes a position in the
Nov. 1997) civil service under a completed appointment, he
acquires a legal, not merely equitable, right (to the
Regardless of the characterization of the position position) which is protected not only by statute, but
held by a government employee covered by civil also by the constitution, and cannot be taken away
service rules, be it career or non-career position, from him either by revocation of the appointment,
such employee may not be removed without just or by removal, except for cause, and with previous
cause. (Jocom v. Regalado, G.R. No. 77373, 22 Aug. notice and hearing. (Aquino v. CSC, G.R. No. 92403, 22
1991) Apr. 1992)
Bases of the Constitutional Guaranty of Security Security of tenure for Career Executive Service
of Tenure in the Civil Service (2005, 1999 BAR) (CES)
The prohibition against suspension or dismissal of Security of tenure in the CES is thus acquired with
an officer or employee of the Civil Service except for respect to rank and not to position. The guarantee
cause provided by law” is a guaranty of both of security of tenure to members of the CES does not
procedural and substantive due process. Not only extend to the particular positions to which they may
must removal or suspension be in accordance with be appointed − a concept which is applicable only to
the procedure prescribed by law, but also, they can first and second-level employees in the civil service
only be made on the basis of a valid cause provided − but to the rank to which they are appointed by the
by law. (Land Bank of the Philippines v. Rowena O. President. Within the CES, personnel can be shifted
Paden, G.R. No. 157607, 07 July 2009) from one office or position to another without
violation of their right to security of tenure because
Characteristic of Security of Tenure their status and salaries are based on their ranks
and not on their jobs. (Seneres v. Sabido, G.R. No.
It is the nature of the appointment that 172902, 21 Oct. 2015)
characterizes security of tenure and not the nature
of one’s duties or functions. (Matibag v. Benipayo, Illustration: The position of NCC (National
G.R. No. 149036, 02 April 2002) Computer Center) Director General is a CES position
equivalent to Career Executive Service Officer
307
(CESO) Rank I. Seneres is already CES eligible, but Instances where a transfer may be considered
no President has yet appointed him to any CES rank violative of employee’s security of tenure
(despite the previous recommendation of the CESB
for his appointment to CESO Rank I). Therefore, 1. When the transfer is a preliminary step
Seneres's membership in the CES is still incomplete. toward his removal, or a scheme to lure him
Falling short of one of the qualifications that would away from his permanent position; or
complete his membership in the CES, Seneres
cannot successfully interpose violation of security 2. When it is designed to indirectly terminate
of tenure. his service or force his resignation. (CSC v.
PACHEO, G.R. No. 178021, 25 Jan. 2012)
His appointment to the position of NCC Director
General could only be construed as temporary, and NOTE: Acceptance of a temporary appointment or
he could be removed any time even without cause. assignment without reservation or upon one’s own
Even assuming that he was already conferred with volition is deemed waiver of security of tenure.
a CES rank, his appointment would be permanent as (Palmera v. CSC, G.R. No. 110168, 04 Aug. 1994)
to his CES rank only but not as to his position as NCC
Director General. As member of the CES, he could be Rules Applicable to Temporary Employees vis-a-
reassigned or transferred from one position to vis Security of Tenure
another from one department, bureau, or office to
another provided that there would be no reduction 1. Not protected by security of tenure – can be
in his rank or salary and that his reassignment or removed anytime even without cause;
transfer was not oftener than every two years,
among other conditions. (Seneres v. Sabido, G.R. No. 2. If they are separated, this is considered an
172902, 21 Oct. 2015) expiration of term. But they can only be
removed by the one who appointed them; and
Security of tenure for non-competitive positions
3. Entitled to such protection as may be provided
1. Primarily confidential officers and by law. (Sec. 2(6), Art. IX-B, 1987 Constitution)
employees hold office only for so long as
confidence in them remains. If there is Q: May the courts determine the proper
genuine loss of confidence, there is no classification of a position in government? Is the
removal, but merely the expiration of the position of corporate secretary in a GOCC
term of office. primarily confidential in nature?
2. Non-career service officers and A: YES. The courts may determine the proper
employees’ security of tenure is limited to a classification of a position in government. A strict
period specified by law, coterminous with reading of the law (E.O. 292) reveals that primarily
the appointing authority or subject to his confidential positions fall under the non-career
pleasure, or which is limited to the duration service. The tenure of a confidential employee is
of a particular purpose. coterminous with that of the appointing authority
or is at the latter's pleasure. However, the
3. Political appointees in Foreign Service confidential employee may be appointed or remain
possess tenure coterminous with that of in the position even beyond the compulsory
the appointing authority or subject to his retirement age of 65 years.
pleasure.
Jurisprudence establishes that the Court is not
bound by the classification of positions in the civil
service made by the legislative or executive
308
2023 GOLDEN NOTES
branches, or even by a constitutional body like the salary without break in service involving
CSC. The Court is expected to make its own issuance of an appointment;
determination as to the nature of a particular
position, such as whether it is a primarily 4. Reinstatement – A person who has been
confidential position or not, without being bound by permanently appointed to a position in the
prior classifications made by other bodies. career service and who has, through no
delinquency or misconduct, been separated
In fine, a primarily confidential position is therefrom, may be reinstated to a position in
characterized by the close proximity of the positions the same level for which he is qualified;
of the appointer and appointee as well as the high
degree of trust and confidence inherent in their 5. Reemployment – Persons who have been
relationship. appointed permanently to positions in the
career service and who have been separated as
In the light of the instant controversy, the Court's result of reduction in force and or
view is that the greater public interest is served if reorganization shall be entered in a list from
the position of a corporate secretary is classified as which selection for reemployment shall be
primarily confidential in nature. (CSC v. Javier, G.R. made; (Sec. 26(5), Title I-A, Chapter 5, Book V,
No. 173264, 22 Feb. 2008) Revised Administrative Code of 1987)
3. PERSONNEL ACTIONS 6. Detail – A movement of an employee from one

agency to another without issuance of an
appointment and shall be allowed, only for a
Personnel Actions
limited period in the case of employees
occupying professional, technical, and scientific
Any action denoting movement or progress of
positions; (Sec. 26(6), Title I-A, Chapter 5, Book
personnel in the civil service. (City Mayor Debulgado
V, Revised Administrative Code of 1987)
v. CSC, G.R. No. 111471, 26 Sept. 1994)
7. Reassignment – An employee may be

Personnel Actions include
reassigned from one organizational unit to
another in the same agency, provided that such
1. Appointment through Certification – It is
reassignment shall not involve a reduction in
issued to a person who has been selected from
rank, status, or salary; (Sec. 26(7), Title I-A,
a list of qualified persons certified by the
Chapter 5, Book V, Revised Administrative Code
Commission from an appropriate register of
of 1987)
eligible and who meets all other requirements
of the position; (Sec. 26(2), Title I-A, Chapter 5,
8. Demotion – A movement from one position to
Book V, Revised Administrative Code of 1987)
another involving the issuance of an
appointment with diminution in duties,
2. Promotion – It is the movement from one
responsibilities, status or rank which may or
position to another with increase in duties and
may not involve reduction in salary;
responsibilities as authorized by law and
usually accompanied by an increase in pay; (Sec.
9. Secondment – It is the movement of an
26(2), Title I-A, Chapter 5, Book V, Revised
employee from one department or agency to
Administrative Code of 1987)
another which is temporary in nature. It may or
may not require the issuance of an appointment
3. Transfer – A movement from one position to
and may involve an increase in compensation
another which is of equivalent rank, level or
and benefits. Acceptance of a secondment is
309
voluntary on the part of the employee. The 2. Anti-Graft and Corrupt Practices Act;
payment of salaries of a seconded employee 3. Code of Conduct and Ethical Standards;
shall be borne by the receiving agency and the 4. Forfeiture of Unexplained Wealth Act;
seconded employee shall be on leave without 5. Civil Service Decree;
pay in his mother agency for the duration of his 6. Government Auditing Code;
secondment. (Señeres v. Sabido, G.R. No. 172902, 7. Local Government Code;
21 Oct. 2015) 8. National Internal Revenue Code; and
9. Omnibus Election Code.
M. ACCOUNTABILITY OF PUBLIC OFFICERS 2. DISCIPLINE
Disciplinary Action
Public office is a public trust. Public officers and
employees must, at all times, be accountable to the It is a proceeding which seeks the imposition of
people, serve them with utmost responsibility, disciplinary sanction against, or the dismissal or
integrity, loyalty, and efficiency; act with patriotism suspension of, a public officer or employee on any of
and justice, and lead modest lives. (Sec. 1, Art. XI, the grounds prescribed by law after due hearing.
1987 Constitution)
a) GROUNDS
1. TYPES OF ACCOUNTABILITY
The following shall be grounds for disciplinary
action:
a) ADMINISTRATIVE
1. Dishonesty;
Such violation may also lead to imposition of fine,
reprimand, suspension, or removal from office. This
2. Oppression;
administrative liability is separate and distinct from
penal and civil liabilities. (Agpalo, 2005)
3. Neglect of duty;
Any public officer who, without just cause, neglects

NOTE: Gross neglect is such neglect which,
to perform a duty within a period fixed by law or
from the gravity of the case or the frequency of
regulation, or within a reasonable period if none is
instances, becomes so serious in its character as
fixed, shall be liable for damages to the private party
to endanger or threaten the public welfare.
concerned without prejudice to such other liability
(Office of the Court Administrator v. Guan, A.M.
as may be prescribed by law. (Sec.38(b),
No. P-07-2293, 15 July 2015)
Administrative Code)
4. Misconduct;
b) CRIMINAL
5. Disgraceful and immoral conduct;

If the law has attached a penal sanction, the officer
may be punished criminally (Agpalo, 2005)
6. Being notoriously undesirable;
The mere fact that an officer is acting in an official

7. Discourtesy in the course of official duties;
capacity will not relieve him from criminal liability.
(De Leon, 2008)
8. Inefficiency and incompetence in the
performance of official duties;
Crimes Peculiar to Certain Public Officers
1. Revised Penal Code;
310
2023 GOLDEN NOTES
9. Receiving for personal use of a fee, gift or other 22. Willful failure to pay just debts or willful failure
valuable thing in the course of official duties or to pay taxes due to the government;
in connection therewith when such fee, gift, or
other valuable thing is given by any person in 23. Contracting loans of money or other property
the hope or expectation of receiving a favor or from persons with whom the office of the
better treatment than that accorded other employee concerned has business relations;
persons, or committing acts punishable under
the anti-graft laws; 24. Pursuit of private business, vocation or
profession without the permission required by
10. Conviction of a crime involving moral Civil Service rules and regulations;
turpitude;
25. Insubordination;
11. Improper or unauthorized solicitation of
contributions from subordinate employees and 26. Engaging directly or indirectly in partisan
by teachers or school officials from school political activities by one holding a non-political
children; office;
12. Violation of existing Civil Service Law and rules 27. Conduct prejudicial to the best interest of the
or reasonable office regulations; service;
13. Falsification of official document; 28. Lobbying for personal interest or gain in
legislative halls or offices without authority;
14. Frequent unauthorized absences or tardiness in
reporting for duty, loafing or frequent 29. Promoting the sale of tickets on behalf of
unauthorized absences from duty during private enterprises that are not intended for
regular office hours; charitable or public welfare purposes and even
in the latter cases if there is no prior authority;
15. Habitual drunkenness; and,
16. Gambling prohibited by law; 30. Nepotism as defined in Sec. 60 of this Title. (Sec.
46, EO 292)
17. Refusal to perform official duty or render
overtime service; NOTE: In People v. Palma Gil-Roflo, et al. (G. R. Nos.
249564 and 249568-76, 21 Mar. 2022, J. Hernando),
18. Disgraceful, immoral or dishonest conduct the Court found the element of malicious intent on
prior to entering the service; the part of accused-appellants is sorely wanting.
Accused-appellants cannot be held criminally
19. Physical or mental incapacity or disability due culpable for Falsification of Public Documents by
to immoral or vicious habits; making untruthful statements in a narration of facts
in the absence of a clear showing that they acted
20. Borrowing money by superior officers from with malicious intent when they affixed their
subordinates or lending by subordinates to signatures on the contested documents. To be sure,
superior officers; accused-appellants, were acting in good faith and in
the honest belief that they were permitted to work
21. Lending money at usurious rates of interest; outside the agency's prescribed office hours
pursuant to CSC Resolution No. 020790, and as
confirmed by the HR Department.
311
Q: Henry is the Chief of the Subsidiary and BSP's findings and also imposed the additional
Revenue Section of the DPWH whose duty was to accessory penalty of "bar from taking the Civil
supervise the recording and control of the Service Examination.” However, the appellate
Notice of Cash Allocation issued by the DBM for court partly granted Bool's Petition and
the cash requirements of the Office. He was also modified the penalty recommended by the CSC
vested with authority to sign for the chief from dismissal from service to suspension from
accountant's Requests for Obligation and office for one year. Is the appellate court
Allotment (ROAs), and Disbursement Vouchers correct?
(DVs) for payment of supplies, materials,
furniture and equipment in amounts not A: NO. The court affirms the factual findings of both
exceeding P200,000.00. A case was filed against the CSC and the CA that Bool was indeed guilty of
him for gross neglect of duty arising from gross neglect of duty. However, the court deviates
anomalous transactions involving the alleged from the conclusion of the appellate court that
emergency repair of a Nissan Pick-up. The Bool's length of service, good faith, and the fact that
amount stated in the ROA that he signed was it was his first offense served to mitigate his liability.
altered from P24,980.00 to P269,350.00 and
there were no countersignatures affixed to the Gross neglect of duty is a grave offense under
ROA. Henry claimed that he merely relied on the Section 52 (A) (2), Rule I V 19 of the Uniform Rules
presumption of regularity of performance of on Administrative Cases in the Civil Service
duty of his subordinates. The DPWH found him (Uniform Rules). The Uniform Rules prescribe the
guilty of gross neglect and dismissed him from penalty of dismissal from service for gross neglect
service. On the other hand, the CSC held found of duty even if committed for the first time.
him guilty only of simple neglect of duty. Decide.
Section 46 (A) (2), Rule 10 of the Revised Rules on
A: Henry is guilty of gross neglect of duty. Gross Administrative Cases in the Civil Service (Revised
neglect of duty or gross negligence pertains to Rules) similarly classified gross neglect of duty as a
"negligence characterized by the want of even slight grave offense. However, Section 53, Rule IV of the
care, or by acting or omitting to act in a situation Uniform Rules recognized the application of
where there is a duty to act, not inadvertently but mitigating, aggravating, or alternative
willfully and intentionally, with a conscious circumstances in the imposition of administrative
indifference to the consequences, insofar as other penalties. Notably, both provisions do not expressly
persons may be affected. The apparent absence of state that mitigating, aggravating, or alternative
the countersignature in the ROA should have circumstances should not be considered when the
caught the attention of Henry and led him to be prescribed penalty for the administrative offense is
more cautious about its approval. Henry should an indivisible penalty, such as dismissal from the
have made the necessary inquiry to determine the service.
grounds for the alteration and the author thereof
instead of merely relying on his subordinates. (Civil Duque III v. Veloso sheds light on this issue:
Service Commission v. Beray, G.R. Nos. 191946 &
191974, 10 Dec. 2019, J. Hernando) It is true that Section 53, Rule IV of the Uniform
Rules provides the application of mitigating,
Q: In the BSP Investigation Report, Nelson Bool aggravating or alternative circumstances in the
was adjudged guilty of gross neglect of duty and imposition of administrative penalties. Section 53,
was meted out the penalty of dismissal from Rule IV applies only when clear proof is shown,
service, with forfeiture of retirement benefits, using the specific standards set by law and
cancellation of civil service eligibility, and jurisprudence, that the facts in a given case justify
perpetual disqualification from reemployment the mitigation of the prescribed penalty (Bangko
in the government service. The CSC affirmed the
312
2023 GOLDEN NOTES
Sentral ng Pilipinas v. Nelson C. Bool, G.R. No. 207522. Ombudsman for Mindanao issued a Decision
28 Apr. 2021, J. Hernando). finding petitioner guilty of grave misconduct.
Q: The Office of the Court Administrator (OCA) Is the petitioner correct when it contended that
recommends that Cesare Sales be dismissed the CA failed to appreciate that there was no
from service in the Judiciary despite his 17 years substantial evidence to warrant the meting out
length of service on the ground of habitual of the extreme penalty of dismissal from
tardiness. The Report submitted shows that service?
Sales had always been tardy in going to the office
for the months of January to September 2011. In A: NO. Misconduct generally means wrongful,
addition, he was on several sick leaves, forced improper or unlawful conduct motivated by a
leaves, and vacation leaves. On the days he was premeditated, obstinate, or intentional purpose. It is
on leave, he indicated in his daily time records a transgression of some established and definite
(DTRs) "sick leave applied," "vacation leave rule of action, a forbidden act, a dereliction of duty.
applied" or "forced leave applied." In his Qualified by the term “gross,” it means conduct that
comment, Sales admitted his frequent tardiness is “out of all measure beyond allowance; flagrant;
in going to the office but pleaded that he be given shameful; such conduct as is not to be excused.” We
consideration by the Court. Should Sales be find that the evidence on record demonstrates a
dismissed from service on the ground of pattern of negligence and gross misconduct on the
habitual tardiness? part of the petitioner that fully satisfies the standard
of substantial evidence. Substantial evidence is such
A: YES. Under CSC M.C. No. 04, s. 1991, an officer or amount of relevant evidence that a reasonable mind
employee shall be considered habitually tardy if he might accept as adequate to support a conclusion.
is late for work, regardless of the number of (Hallasgo v. Commission on Audit, G.R. No. 171340, 11
minutes, 10 times a month for at least two (2) Sept. 2009)
months in a semester, or at least two (2)
consecutive months during the year. In the case of Q: In 1993, Macario Catipon filed an application
Sales, he had continuously incurred tardiness to take the Career Service Professional
during the months of January to September 2011 for Examination (CPSE), believing that the CSC still
more than 10 times each month, except during the allowed applicants to substitute the length of
month of March when he only came in late 10 times. their government service for any academic
(Re: Habitual tardiness of Cesare Sales, MTC Office of deficiency which they may have. When he
Clerk of Court, Manila, A.M. No. P-13-3171, 28 Jan. passed, he was later promoted to Senior Analyst
2014) and Officer-in-Charge Branch Head of the SSS
Bangued. In October 1995, he finally eliminated
Q: Hallasgo was the Municipal Treasurer of the his deficiency of 1.5 units in Military Science.
Municipality of Damulog, Bukidnon and was
accused before the Office of the Deputy In 2003, he was charged with Dishonesty,
Ombudsman for Mindanao of unauthorized Falsification of Official documents, Grave
withdrawal of monies of the public treasury Misconduct and Conduct Prejudicial to the Best
amounting to malversation of public funds by Interest of the Service by the CSC-CAR for
outgoing and incumbent officials of the making deliberate false entries in his CSPE
municipality. The Office of the Ombudsman for application. The CSC exonerated Catipon from
Mindanao determined that it could not make a the offense charged but found him guilty of
complete evaluation of the issues without Conduct Prejudicial to the Best Interest of
conducting an extensive audit. The Deputy Service. Catipon appealed the judgment directly
to the Court of Appeals, but the petition was
313
dismissed for violating the doctrine of short of the reasonable diligence required of him,
administrative remedies. for failing to exercise due care and prudence in
ascertaining that the printed unofficial order or its
1. Is the CA correct? soft copy in his computer files [is] already torn or
deleted after issuing the order inhibiting himself
A: YES. It is the Civil Service Commission Proper, from the DARAB case."
which shall have jurisdiction over decisions of Civil
Service Regional Offices. It is only the decision of the However, there appears to be insufficient basis for
Commission Proper that may be brought to the CA the Ombudsman's findings. Its ruling that Ancheta
on petition for review, under Sec. 50 of MC 19. "either neglected to tear or pierce the printed
Indeed, the administrative agency concerned is in unofficial order, or delete the same in his computer
the "best position to correct any previous error files after he issued the Order… inhibiting himself"
committed in its forum." (Catipon Jr. v. Japson, G.R. is mere conjecture, which is not enough to hold
No. 191787, 22 June 2015) Ancheta administratively liable especially when
coupled with the established fact, admitted by the
2. Should Catipon be exonerated of the latter Ombudsman herself, that there is no evidence
offense? linking Ancheta to the inclusion of the subject Order
in the case records before the DARAB Regional
A: YES. Catipon was negligent in filling up his CSPE Office. (Atty. Arolf M. Ancheta v. Felomino C. Villa, G.R.
application form and in failing to verify beforehand No. 229634, 15 Jan. 2020)
the specific requirements for the CSPE examination.
The claim of good faith and absence of deliberate Q: Mr. A works in the Bureau of Customs (BOC).
intent or willful desire to defy or disregard the rules Mrs. B, Mr. A’s wife, also served in the
relative to the CSPE is not a defense as to exonerate government—in the now defunct Philippine
him from the charge of conduct prejudicial to the Atomic Energy Commission. Based on the
best interest of the service. Under our legal system, Certificate of Employment and Compensation,
ignorance of the law excuses no one from Mr. and Mrs. B’s declared income during the
compliance therewith. (Catipon Jr. v. Japson, G.R. No. time they were in the government amounted to
191787, 22 June 2015) P10,841,412.28. The Ombudsman, through its
Field Investigation Office (FIO), conducted motu
Q: Felomino C. Villa filed an administrative proprio lifestyle checks on government officials
complaint against Atty. Arolf M. Ancheta, former and employees. Mr. A was among those
Provincial Agrarian Reform Adjudicator evaluated. The report found that there are other
(PARAD) for Grave Misconduct and Dishonesty properties and business interests belonging to
and for violation of R.A. No. 3019 in connection Mr. A which were not declared in his SALNs.
with Ancheta's alleged irregular issuance of an There are also properties registered under the
Order granting the quashal of a writ of execution name of Mr. A’s children, which should be
in favor of Villa. Ancheta denied the charges considered part of his undisclosed assets, in
against him, mainly arguing that Villa's claims view of the fact that during the time of the
were all hearsay and unsupported by evidence. acquisition, his children have no sources of
The Ombudsman found Ancheta guilty of simple income or means of livelihood of their own. The
neglect of duty. Is the Ombudsman correct? disputed assets amounted to P23,717,226.89.
Subsequently, the FIO filed a complaint charging
A: NO. Simple neglect of duty means the failure of an Leovigildo of Dishonesty and Grave Misconduct.
employee or official to give proper attention to a
task expected of him or her, signifying a disregard of Should Mr. A be held liable for Dishonesty and
a duty resulting from carelessness or indifference. Grave Misconduct?
In this case, the Ombudsman ruled that Ancheta "fell
314
2023 GOLDEN NOTES
A: YES, but only for dishonesty and not grave that respondent be found guilty of grave
misconduct. To constitute misconduct, the act or misconduct and dishonesty and dismissal from
omission complained of must have a direct relation service. Is the OCA correct?
to the public officer's duties and affect not only his
character as a private individual, but also, and more A: PARTLY CORRECT. Montoyo is guilty of Conduct
importantly, the performance of his official duties as Prejudicial to the Best Interest of the Service,
a public servant. However, it is not clear how the Serious Dishonesty, and Committing Acts
fact of non-declaration in the SALN would have a Punishable Under the Anti-Graft Laws under the
bearing on the performance of functions by Mr. A in 2011 Revised Rules on Administrative Cases in the
the BOC. Civil Service (2011 RRACCS) in relation to Rule 140
of the Rules of Court, as amended by A.M. No. 18-01-
With regard to the charge for Dishonesty, while 05-SC.
mere omission from or misdeclaration in one's
SALN per se do not constitute Dishonesty, an Jurisprudence instructs that where the misconduct
omission or misdeclaration qualifies as such offense committed was not in connection with the
when it is attended with malicious intent to conceal performance of duty, the proper designation of the
the truth, as Dishonesty implies a disposition to lie, offense should not be Misconduct, but rather,
cheat, deceive, or defraud. When a public officer's Conduct Prejudicial to the Best Interest of the
accumulated wealth is manifestly disproportionate Service. While there is no hard and fast rule as to
to his lawful income and such public officer fails to what acts or omissions constitute the latter offense,
properly account for or explain where such wealth jurisprudence ordains that the same deals with the
had been sourced, he becomes administratively demeanor of a public officer which tarnishes the
liable for Dishonesty. In this case, the disproportion image and integrity of his/her public office.
between Mr. and Mrs. B’s declared income
(P10,841,412.28) and the acquisition cost of the Dishonesty is a disposition to lie, cheat, deceive or
Disputed Assets (P23,717,226.89) is too stark to be defraud; untrustworthiness; lack of integrity; lack of
ignored. (Leovigildo A. De Castro v. Field honesty, probity or integrity in principle; lack of
Investigation Office, Office of The Ombudsman and fairness and straightforwardness; disposition to
The Commissioner of Customs, G.R. No. 192723, 05 defraud, deceive or betray. (Dela Flor Jr. v.s Montoyo,
June 2017) A.M. No. P-14-3242, 05 Oct. 2021)
Q: Complainant Dela Flor bought from Allan Q: In an Information filed before the
Sillador a parcel of land which bore a Sandiganbayan, Marzan and Atty. Rupisan were
memorandum of encumbrance. As condition to charged with violation of Section 3 (a) of RA
the full payment of the purchase price, he asked 3019. The Information stated that Provincial
Sillador to cause the cancellation of the Legal Officer Basilio Pascual Rupisan willfully,
encumbrance. He and Sillador went to Bago City unlawfully, and criminally persuade, induce or
Hall of Justice where he got introduced to influence accused Senior Jail Officer 3 Marzan to
Montoyo. For the cancellation, complainant relase from detention Cyrus Dulay and Wendell
agreed to pay the P10,000 that Montoyo asked Pascua without Court Order and in violation of
them. Later on, the Registrar informed the existing rules and regulations. Atty Rupisan
complainant that there could be no cancellation made representation that the commitment and
yet because what was submitted to his office was detention were unlawful since there were no
a fake court order granting the petition for warrants issued for their arrest and he had
cancellation of encumbrance and a fake obtained recognizance document which was not
certificate of finality. Montoyo denied the in proper form and without Court approval.
allegations against her. The OCA recommended
315
Marzan argued that the prosecution failed to Lastly, Marzan unlawfully released Cyrus and
prove that he allowed himself to be persuaded, Pascua. Cyrus and Pascua were lawfully detained
induced, or influenced by Atty Rupisam. He pursuant to a duly issued commitment order of a
asserts that he released them from detention court of law and yet they were released pursuant to
pursuant to the instruction of his superior, an improperly issued Recognizance, without an
Goyo, and not by virtue of Atty. Rupisan’s accompanying Court Order, in violation of the law
inducement or influence. If indeed, he was and the BJMP rules and Regulations. (Marzan v.
persuaded, induced, or influenced to release People of the Philippines, G.R. No. 226167, 11 Oct.
Cyrus and Pascua, it was through a private 2021, Second Division)
individual Ciriaco, the father of Cyrus, who was
a relative of the town’s Vice Mayor. Is the Q: The Sangguniang Panglungsod of Baguio
contention of Marzan tenable? enacted Ordinance No. 01 for the appropriation
of P700 million for reorganization or
A: NO. The elements of Section 3 (a) of RA 3019 are: restructuring of its local departments.
(1) the offender is a public officer; (2) the offender Consequently, Mayor Yassi issued an
persuades, induces, or influences another public Administrative Order 02 designating Joana
officer to perform an act or the offender allows Raizon as Acting Building Official pending
himself to be persuaded, induced, or influenced to appointment. Anton Siy, being the City Engineer
commit an act; (3) the act performed by the other at that time, filed a complaint for declaration of
public officer or committed by the offender nullity of AO 02, the City Government of Baguio
constitutes a violation of rules and regulations duly overstepped its powers of local legislation by
promulgated by competent authority or an offense not making petitioner, as then City Engineer, the
in connection with the official duty of the latter. head of CBAO. Said act is allegedly contrary to
Section 477 of the LGC which provides that the
First, it is undisputed that Marzan was a public City Engineer shall also act as the Building
officer at the time of the commission of the crime. Official. Is Siy correct?
Second, the crime of violation of Section 3 (a) of RA
3019 may be committed in either of the following A: NO. While Section 477 of the LGC states that the
modes: (1) when the offender persuades, induces, City Engineer shall also act as the Building Official,
or influences another public officer to perform an the appointment of a separate Building Official, vis-
act constituting a violation of rules and regulations a-vis the creation of the CBAO in this case, is not
duly promulgated by competent authority or an without legal basis. Sections 18, 76, and 454 of the
offense in connection with the official duties of the LGC. empowers City Governments to implement an
public officer; or (2) when the public officer allowed organizational structure and create staffing
himself to be persuaded, induced, or influenced to patterns for the effective management and
perform said act which constitutes a violation of administration of their respective offices. Along the
rules and regulations promulgated by competent same lines, the LGC also empowers the Sanguniang
authority or an offense in connection with the Panlungsod to create, through local ordinances,
official duties of the public officer. Marzan is liable other offices or consolidate the functions of any
for the second mode of Section 3 (a) for allowing office with those of another in the interest of
himself to be persuaded, induced, or influenced by efficiency and economy. In relation to the foregoing,
Atty Rupisan. The law is clear that the second mode the appointment of a Building Official separate and
merely requires that the offender who allowed distinct from a City Engineer is supported by law
himself to be persuaded, induced, or influenced, is a pursuant to the IRR of the NBC, specifically Sec. 203
public officer, such as Marzan. It is immaterial (6). (Bernardez, Jr. v. City Government of Baguio, G.R.
whether the one who induced him was likewise a No. 197559, 21 Mar. 2022, J. Hernando)
public officer or a private individual such as Ciriaco.
316
2023 GOLDEN NOTES
Q: An incident report was filed against Garra for Corona despite the latter's ouster by
violation of the House Rules concerning the impeachment?
reception of visitors at the Philippine Judicial
Academy (PHILJA) Training Center. CCTV A: YES. An impeached public officer whose civil,
footage revealed that Garra was seen entering a criminal, or administrative liability was not
room with Sampaga instead of meeting at the judicially established may be considered
lobby. Garra submitted that Sampaga was his involuntarily retired from service and is entitled to
common-law wife, but upon further the retirement benefits provided under RAs 9946
investigation, it was found that Garra was still and 8291.
legally married to a certain Osbual. Is he liable
for Disgraceful and Immoral Conduct? Retirement is the termination of one's own
employment or career, especially upon reaching a
A: YES. Disgraceful and immoral Conduct refers to certain age or for health reasons. Retirement then
an act which violates the basic norm of decency, may be voluntary or involuntary. Retirement is
morality and decorum abhorred and condemned by voluntary when one decides upon one's own
the society. Disgraceful and immoral conduct may unilateral and independent volition to permanently
be committed in a scandalous or discreet manner, cease the exercise of one's occupation. Retirement
within or out of the workplace. This Court has held is deemed involuntary when one's profession is
in a number of cases that a man having an illicit terminated for reasons outside the control and
relationship with a woman not his wife is within the discretion of the worker. Impeachment resulting in
purview of "disgraceful and immoral conduct" removal from holding office falls under the column
under Civil Service Laws. Since Garra has cohabited, on involuntary retirement.
and continues to cohabit with Sampaga, a woman
who is not his wife, with whom he begot two The Court deems Chief Justice Corona to have been
children. involuntarily retired from public service due to the
peculiar circumstances surrounding his removal by
It cannot be overstressed that — Time and again we impeachment, without forfeiture of his retirement
have stressed adherence to the principle that public benefits and other allowances.
office is a public trust. All government officials and
employees must at all times be accountable to the The OCAt posits that the late Chief Justice failed to
people, serve them with utmost responsibility, qualify under RA 9946 or An Act Granting
integrity, loyalty and efficiency, act with patriotism Additional Retirement, Survivorship, and Other
and justice, and lead modest lives. This Benefits to Members of the Judiciary, amending for
constitutional mandate should always be in the the Purpose Republic Act No. 910, as Amended,
minds of all public servants to guide them in their Providing Funds Therefor and for Other Purposes.
actions during their entire tenure in the However, the Court disagrees.
government service. (RE: Incident Report Of The
Security Division And Alleged Various Infractions Section 1 of RA 9946 yields two instances of
Committed By Mr. Cloyd D. Garra, Judicial Staff retirement available to a magistrate — first, a
Employee Ii, Mediation, Planning And Research compulsory retirement at 70 years old; and second,
Division, Philippine Mediation Center Office, an optional retirement upon reaching 60 years of
Philippine Judicial Academy, A.M. No. 2019-14-SC, 10 age. The following legal requisites must concur for
Feb. 2020, J. Hernando) the optional retirement of a magistrate and the
consequent entitlement to the benefits under RA
Q: Should retirement benefits, other gratuities, 9946:
and survivorship pension be accorded to Mrs.
Corona as the spouse of the late Chief Justice
317
(1) That the retiree be a magistrate., a to the department head and finally to the Civil
Justice of the Supreme Court, the Court of Service Commission and pending appeal, the same
Appeals, the Sandiganbayan, or of the Court shall be executory except when the penalty is
of Tax Appeals, or a judge of the trial courts, removal, in which case the same shall be executory
shari'a court, or of any other judicial court; only after confirmation by the department head.
(2) That the retiring magistrate has (Sec. 37, P.D. 807)
rendered at least fifteen (15) years of
service in the judiciary, in any other branch NOTE: Sec. 9, R.A. 4670 Magna Carta for Public
of the government, or in both; School Teachers provides that the committee to
(3) That the retiring magistrate be at least hear administrative charges against public school
sixty (60) years of age at the time of teachers must include a representative of the
retirement; and teachers’ organization. The appointment by the
(4) That the last three (3) years of public DECS Secretary of teachers to the committee does
service by the retiring magistrate be not comply with this requirement, as it is the
continuously rendered in the Judiciary. teachers’ organization which possesses the right to
indicate its choice of representative in the
The requirements are straightforward and have all committee, and the DECS Secretary cannot usurp
been satisfactorily complied with by the late Chief such right. The inclusion of a representative of the
Justice. (Re: Letter of Mrs. Ma. Cristina Roco Corona teachers’ organization in the committee is
Requesting the Grant of Retirement and Other indispensable to ensure an impartial tribunal.
Benefits to the Late Former Chief Justice Renato C. (Fabella v. Court of Appeals G.R. No. 110379, 28 Nov.
Corona and her Claim For Survivorship Pension as his 1997)
Wife Under Republic Act No. 9946, A.M. No. 20-07-10-
SC, 12 Jan. 2021, J. Hernando) Q: DD filed an Affidavit Complaint before the
Ombudsman, alleging that XX, the former
Private individuals can be liable together with Municipal Mayor, approved several
public officials if conspiracy is proven; piercing of appointments of his brother, YY, as Mechanical
the fiction of corporate veil is allowed if juridical Shop Foreman. DD alleged that 1) ZZ who is XX's
entities are used by private individuals as vehicles and YY's sister, certified the appointments in
to commit illegal acts. The issue on liability of her capacity as the former Municipal Budget
private individuals under Section 3(e) of RA 3019 Officer; and 2) that the siblings conspired to
has long been settled. (Rodrigo Deriquito Villanueva make it appear that the position is of a higher
v. People of the Philippines, G.R. No. 218652, 23 Feb. salary grade (SG 15) when in truth, the
2022, J. Hernando) Sangguniang Bayan, through Ordinance Nos.
2000-151 and 2001-157 fixed a lower Salary
b) JURISDICTION grade of 11 to the position–Consequently, YY
received a salary higher than what was provided
Disciplinary Jurisdiction of Heads of Ministries, by law, to the damage and prejudice of the
Agencies and Instrumentalities, Provinces, government.
Cities and Municipalities
Should ZZ be held liable for grave misconduct,
They have jurisdiction to investigate and decide being the local budget officer at the time of YY’s
matters involving disciplinary action against appointment?
officers and employees under their jurisdiction.
Their decision shall be final in case the penalty A: NO. In order to establish administrative liability
imposed is suspension of not more than 30 days or for misconduct, there must be a nexus between the
fine in an amount not exceeding 30 days salary. In public official's acts and the functions of his or her
other cases, the decision shall be initially appealed office. The case against ZZ revolved around her
318
2023 GOLDEN NOTES
certifications appearing in the Plantilla of Casual Disciplining Authority may designate a Special
Appointments of YY. However, a simple reading of Investigating Committee. (DTI v. Enriquez, G.R. No.
the Plantilla of Casual Appointments plainly shows 225301, 02 June 2020)
the extent of ZZ’s acts to be only with respect to
certifying that appropriations did exist for the The President as Disciplining Authority
position. It is actually the HRMO which indicated the
salary grades of the appointees in the documents, The power to discipline evidently includes the
and which determined their correctness. power to investigate. As the Disciplining Authority,
the President has the power derived from the
Hence, the specific act for which ZZ is being called to Constitution itself to investigate complaints against
account has nothing to do with budget preparations local government officials. A.O. No. 23, however,
and any act related to it leading up to the enactment delegates the power to investigate. The President
of an appropriation ordinance by the sanggunian. remains the Disciplining Authority. What is
Therefore, there is no substantial evidence to hold delegated is the power to investigate, not the power
ZZ administratively liable. (Cecilia Rejas v. Office of to discipline. (DTI v. Enriquez, G.R. No. 225301, 02
the Ombudsman, G.R. Nos. 241576 & 241623, 3 Nov. June 2020)
2020)
NOTE: A Presidential appointee is under the direct
Disciplinary Jurisdiction of Civil Service disciplinary authority of the President (Villaluz v.
Commission Zaldivar, G.R. No. L-22754, 31 Dec. 1965)
It has jurisdiction over the employees of Availability of the services of the Solicitor
Government branches, subdivisions, General
instrumentalities, and agencies, including
government-owned or –controlled corporations If the public official is sued for damages arising out
with original charters. It has the authority to hear of a felony for his own account, the State is not liable
and decide administrative disciplinary cases and the Solicitor General is not authorized to
instituted directly with it or brought to it on appeal represent him therefore. The Solicitor General may
and to enforce or order execution of its decisions, only do so in suits for damages arising not from a
resolutions or orders. (De Leon, 2014) crime but from the performance of a public officer’s
duties. (Vital-Gozon v. CA, G.R No. 101428, 05 Aug.
Jurisdiction over administrative disciplinary 1992)
actions against elective local officials.
The Office of the Solicitor General can represent the
Jurisdiction over administrative disciplinary actions public official at the preliminary investigation of his
against elective local officials is lodged in two case, and that if an information is eventually filed
authorities: the Disciplinary Authority and the against the said public official, the said Office may
Investigating Authority. (A.O. No. 23) no longer represent him in the litigation. (Anti-Graft
League v. Ortega, G.R. No. L-33912, 11 Sept. 1980)
The Disciplining Authority is the President of the
Philippines, whether acting by himself or through Availability of Appeal in Administrative
the Executive Secretary. The Secretary of the Disciplinary Cases
Interior and Local Government is the Investigating
Authority, who may act by himself or constitute an 1. Appeal is available if the penalty is: (D-D-S)
Investigating Committee. The Secretary of the DILG,
however, is not the exclusive Investigating a. Demotion;
Authority. In lieu of the DILG Secretary, the b. Dismissal; or
319
c. Suspension for more than 30 days or fine doctrine in this jurisdiction. The abandonment of
equivalent to more than 30-day salary. the condonation doctrine should be prospective in
(Sec. 37(a), P.D. 807) application for the reason that judicial decisions
applying or interpreting the laws or the
NOTE: Decisions are initially appealable to the Constitution, until reversed, shall form part of the
department heads and then to the CSC. Only the legal system of the Philippines. (Carpio-Morales v.
respondent in the administrative disciplinary CA, G.R. No. 217126-27, 10 Nov. 2015)
case, not the complainant, can appeal to the CSC
from an adverse decision. The complainant in The condonation doctrine would not apply to
an administrative disciplinary case is only a appointive officials since, as to them, there is no
witness, and as such, the latter cannot be sovereign will to disenfranchise. (Carpio-Morales v.
considered as an aggrieved party entitled to CA, ibid.)
appeal from an adverse decision. (Mendez v.
CSC, G. R. No. 95575, 23 Dec. 1991) The doctrine of condonation states that an elected
public official cannot be removed for administrative
2. Appeal is NOT available if the penalty is: misconduct committed during a prior term, since
(Su-Fi-Ce-R-A-W) his re-election to office operates as a condonation of
a. Suspension for not more than 30 days; the officer’s previous misconduct to the extent of
b. Fine not more than 30 day salary; cutting off the right to remove him therefor. It is not
c. Censure; only founded on the theory that an official's re-
d. Reprimand; election expresses the sovereign will of the
e. Admonition; or electorate to forgive or condone any act or omission
f. When the respondent is exonerated. constituting a ground for administrative discipline
which was committed during his previous term.
NOTE: In the second case, the decision becomes (Madreo v. Bayron, G.R. No. 237330, 03 Nov. 2020)
final and executory by express provision of law.
This doctrine of forgiveness or condonation cannot,
c) DISMISSAL, PREVENTIVE SUSPENSION, however, apply to criminal acts which the re-elected
REINSTATEMENT, AND BACK SALARIES official may have committed during his previous
term. (ibid.) vs
See page 294 for discussion on Illegal Dismissal,
Reinstatement, and Back Salaries. 3. IMPEACHMENT vs. QUO WARRANTO
d) CONDONATION DOCTRINE See page 301 for Re: Letter of Mrs. Ma. Cristina
Roco Corona, AM. No. 20-07-10-SC, 12 Jan. 2021.
Condonation Doctrine
Impeachment vs. Quo Warranto
The condonation doctrine connotes a complete
extinguishment of liability of a public officer or It has been already elaborated in Republic v. Sereno
“denying the right to remove one from office (G.R. No. 237428, 19 June 2018,) that while both
because of misconduct during a prior term.” impeachment and quo warranto seek the ultimate
(Aguinaldo v. Santos. G.R. No. 94115, 21 August 1992) removal of an incumbent government officer, the
two differ as to nature, jurisdiction, grounds, the
Prospective Application of the Abandonment of applicable procedural rules, and limitations.
the Condonation Doctrine
Under the new ruling, the Supreme Court simply

finds no legal authority to sustain the condonation
320
2023 GOLDEN NOTES
IMPEACHMENT Culpable violation of the Constitution
Impeachment It refers to wrongful, intentional or willful disregard

or flouting of the fundamental law. Obviously, the act
It is a method of national inquest into the conduct of must be deliberate and motivated by bad faith to
public men. It is an extraordinary means of removal constitute a ground for impeachment. Mere mistakes
exercised by the legislature over a selected number in the proper construction of the Constitution, on
of officials, the purpose being to ensure the highest which students of law may sincerely differ, cannot be
care in their indictment and conviction and the considered a valid ground for impeachment. (Art. XI,
imposition if special penalties in case of finding a 1987 Constitution)
guilt, taking into account the degree or nature of the
offense committed and the high status of the Betrayal of public trust
wrongdoers. (Cruz and Cruz, 2014)
This refers to “acts which are just short of being
Impeachable officers criminal but constitute gross faithlessness against
public trust, tyrannical abuse of power, inexcusable
1. President; negligence of duty, favoritism, and gross exercise of
2. Vice-President; discretionary powers.” Acts that should constitute
3. Members of the Supreme Court; betrayal of public trust as to warrant removal from
4. Members of the Constitutional Commissions; office may be less than criminal but must be attended
and by bad faith and of such gravity and seriousness as the
5. Ombudsman. other grounds for impeachment. (Gonzales III v. Office
of the President, G.R. No. 196231, 04 Sept. 2012)
NOTE: The enumeration is exclusive. (Sec. 2, Art. XI,
1987 Constitution) A new ground was added as a catch-all to cover all
manner of offenses unbecoming a public functionary
An impeachable officer may be ousted from office but not punishable by criminal statutes like (B-I-T):
through other means of methods, such as quo
warranto. (Republic v. Sereno, G.R. No. 237428, 11 1. Inexcusable negligence of duty
May 2018) 2. Tyrannical abuse of authority
3. Breach of official duty by malfeasance or
Grounds for impeachment (B-O-B-G-C-T) (2013, misfeasance, cronyism, favoritism, obstruction of
2012, 1999 BAR) duty. (Cruz, 2014)
1. Culpable violation of the Constitution; Steps in the impeachment process (2012 BAR)
2. Treason;
3. Bribery; Constitution provides that the House of
4. Graft and Corruption; Representatives shall have the exclusive power to
5. Other high crimes; and initiate all cases of impeachment. (Art. XI, 1987
6. Betrayal of public trust (Sec. 2, Art. XI, 1987 Constitution)
Constitution)
1. Initiating impeachment case
a. Verified complaint filed by any member of
the House of Representatives or any citizen
upon resolution of endorsement by any
member thereof;
321
NOTE: If the verified complaint is filed by at NOTE: The power to impeach is essentially a non-
least 1/3 of all its members of the House of legislative prerogative and can be exercised by
Representatives, the same shall constitute Congress only within the limits of the authority
the Articles of Impeachment, and trial by conferred upon it by the Constitution. (Gutierrez v.
the Senate shall forthwith proceed. (Sec. House of Representatives Committee on Justice, G.R.
3(4), Art. XI, 1987 Constitution) No. 193459, 15 Feb. 2011)
b. Inclusion in the order of business within 10 The Senate has the sole power to try and decide all
session days; cases of impeachment. (Sec. 3(6), Art. XI, 1987
Constitution) Hence, judgment in an impeachment
c. Referred to the proper committee within 3 proceeding is normally not subject to judicial
session days from its inclusion; review. (Gutierrez v. House of Representatives
Committee on Justice, G.R. No. 193459, 15 Feb. 2011)
d. The committee, after hearing, and by
majority vote of all its members, shall XPN: Courts may annul the proceedings if there is a
submit its report to the House of showing of a grave abuse of discretion or non-
Representatives together with the compliance with the procedural requirements of
corresponding resolution; the Constitution. (Kilusang Mayo Uno v. Aquino III,
G.R. No. 210500, 02 April 2019)
e. Placing on calendar the Committee
resolution within 10 days from submission; Determination of sufficiency of form and
f. Discussion on the floor of the report; and substance of an impeachment complaint
g. A vote of at least 1/3 of all the members of An exponent of the express constitutional grant of
the House of Representatives shall be rulemaking powers of the House of Representatives.
necessary either to affirm a favorable
resolution with the Articles of In the discharge of that power and in the exercise of
Impeachment of the committee or override its discretion, the House has formulated
its contrary resolution. (Sec. 3(2-3), Art. XI, determinable standards as to form and substance of
1987 Constitution) an impeachment complaint. Furthermore, the
impeachment rules are clear in echoing the
2. Trial and Decision in impeachment proceedings constitutional requirements in providing that there
must be a “verified complaint or resolution” and
a. The Senators take an oath or affirmation; that the substance requirement is met if there is “a
and recital of facts constituting the offense charged and
determinative of the jurisdiction of the committee.”
NOTE: When the President of the (Gutierrez v. House of Representatives Committee on
Philippines shall be impeached, the Chief Justice, G.R. No. 193459, 15 Feb. 2011)
Justice of the Supreme Court shall preside,
otherwise the Senate President shall Power of the HoR to determine the sufficiency of
preside in all other cases of impeachment. form and substance of an impeachment
(Senate Resolution No. 890) complaint
b. A decision of conviction must be concurred It is an exponent of the express constitutional grant

in by at least 2/3 of all the members of of rule-making powers of the HoR. In the discharge
Senate. of that power and in the exercise of its discretion,
the House has formulated determinable standards
322
2023 GOLDEN NOTES
as to the form and substance of an impeachment One-Year Bar Rule (2014 BAR)
complaint.
Once an impeachment complaint has been initiated
NOTE: The impeachment rules are clear in echoing in the foregoing manner, another may not be filed
the constitutional requirements in providing that against the same official within the one-year period.
there must be a “verified complaint or resolution” (Gutierrez v. House of Representatives Committee on
and that the substance requirement is met if there is Justice, G.R. No. 193459, 15 Feb. 2011)
“a recital of facts constituting the offense charged
and determinative of the jurisdiction of the NOTE: The limitation refers to the element of time,
committee”. (Gutierrez v. House of Representatives and not the number of complaints. The impeachable
Committee on Justice, G.R. No. 193459, 15 Feb. 2011) officer should defend himself in only one
impeachment proceeding, so that he will not be
Limitations imposed by the Constitution upon precluded from performing his official functions
the Initiation of Impeachment proceedings and duties. Similarly, Congress should run only one
impeachment proceeding so as not to leave it with
1. The House of Representatives shall have the little time to attend to its main work of law-making.
exclusive power to initiate all cases of (Gutierrez v. The House of Representatives
impeachment; and Committee on Justice, ibid.)
2. Not more than one impeachment proceeding Purpose of the One-year Bar Rule
shall be initiated against the same official
within a period of one year (One-year bar 1. To prevent undue or too frequent harassment;
rule). and
2. To allow the legislature to do its principal task
NOTE: An impeachment case is the legal of legislation. (Francisco v. House of Rep., G.R. No.
controversy that must be decided by the Senate 160261, 10 Nov. 2003)
while an impeachment proceeding is one that is
initiated in the House of Representatives. For The consideration behind the intended limitation
purposes of applying the one-year bar rule, the refers to the element of time, and not the number of
proceeding is initiated or begins when a complaints. The impeachable officer should defend
verified complaint is filed and referred to the himself in only one impeachment proceeding, so
Committee on Justice for action. (Francisco v. that he will not be precluded from performing his
House of Representatives, et. al., G.R. No. 160261, official functions and duties. Similarly, Congress
10 Nov. 2003) should run only one impeachment proceeding so as
not to leave it with little time to attend to its main
Impeachment is Deemed Initiated work of law-making. The doctrine laid down in
Francisco that initiation means filing and referral
A verified complaint is filed and referred to the remains congruent to the rationale of the
Committee on Justice for action. This is the initiating constitutional provision. (Gutierrez v. The House of
step that triggers the series of steps that follow. The Representatives Committee on Justice, supra)
term “to initiate” refers to the filing of the
impeachment complaint coupled with Congress’ NOTE: Congress may look into separate complaints
taking initial action on said complaint. (Francisco v. against an impeachable officer and consider the
House of Rep., G.R. No. 160261, 10 Nov. 2003) inclusion of matters raised therein, in the adoption
of the Articles of Impeachment. (Francisco v. House
of Representatives, et. al., supra)
323
Effects of Conviction in Impeachment (L-D-R) the Annex Building checking the overheated
(2012 BAR) florescent light. Executive Judge Madero found
Durban guilty of conduct prejudicial to the best
1. Party convicted shall be Liable and subject to interest of the service. After Executive Judge
prosecution, trial and punishment according to Madero's Report was forwarded to the OCA, the
law; latter concluded that, for lack of merit and
evidence, the charge of conduct prejudicial to
2. Disqualification to hold any other office under the best interest of the service may be
the Republic of the Philippines; and dismissed. Moreover, the allegation of loafing
may also be dismissed for lack of proof that
3. Removal from office. (Sec. 3(7), Art. XI, 1987 Durban committed the said act more than once.
Constitution) Is the OCA correct?
Q: Can a Supreme Court Justice be charged in a A: YES. The Court adopts the OCA's findings and
criminal case or disbarment proceeding instead recommendation with modification. While the
of an impeachment proceeding? Court agrees with dismissing the charges of conduct
A: NO, because the ultimate effect of either is to prejudicial to the best interest of the service and
remove him from office, circumventing the loafing, the investigations revealed that Durban was
provision on removal by impeachment thus in the lobby of the Hall of Justice and not in his work
violating his security of tenure. (In Re: First station during office hours. Clearly, he failed to
Indorsement from Hon. Raul Gonzalez, A.M. No. 88-4- strictly observe the prescribed working hours. As
5433, 15 Apr. 1988) shown by the transcript of stenographic notes of the
clarificatory hearing on 08 April 2015, Durban
An impeachable officer who is a member of the himself testified that he "was busy playing" with his
Philippine bar cannot be disbarred first without mobile phone and "it was already 11:30 o'clock in
being impeached. (Jarque v. Desierto, A.C. No. 4509, the morning. While he stated in his Affidavit
05 Dec. 1995) (Comment) that he was in the lobby of the Hall of
Justice at 10:40 a.m. after washing his mop and
Judicial Review in Impeachment Proceedings during the clarificatory hearing on May 24, 2018, he
testified that he was in the ground floor at 11:00
The precise role of the judiciary in impeachment a.m. after he "brought [sic] something from the sari-
cases is a matter of utmost importance to ensure the sari store outside." It is clear from all of his
effective functioning of the separate branches while statements that he was not at his work station
preserving the structure of checks and balance in during office hours.
our government. The acts of any branch or
instrumentality of the government, including those In Roman v. Fortaleza, the Court reiterated the
traditionally entrusted to the political departments, following: Court personnel must devote every
are proper subjects of judicial review if tainted with moment of official time to public service; the
grave abuse or arbitrariness. (Chief Justice v. Senate, conduct and behavior of court personnel should be
G.R. No. 200242, 17 July 2012) characterized by a high degree of professionalism
and responsibility, as they mirror the image of the
Q: Security Officer Marlino G. Agbayani filed an court; and court personnel must strictly observe
administrative complaint against Marion official time to inspire public respect for the justice
Durban, Utility Worker I of Branch 9, MTCC, system.
Iloilo City. He alleged that Durban threatened
him and shouted at him in front of many In Lopena v. Saloma, the Court stressed that public
litigants, MTCC personnel, PNP personnel, officials and employees must observe the
janitor, and two guards on duty while he was at prescribed office hours and the efficient use of every
324
2023 GOLDEN NOTES
moment thereof for public service if only to office in issue, both of which petitions are
recompense the government and ultimately the cognizable only by the Supreme Court.
people who shoulder the cost of maintaining the Impeachment proceedings seek to confirm and
judiciary. (RE: Investigation Report of Judge Enrique vindicate the breach of the trust reposed by the
Trespeces on the 25 February 2015 Incident Involving Filipino people upon the impeachable official, but
Utility Worker I Marion M. Durban, Municipal Trial quo warranto determines the legal right, title,
Court in Cities, Br. 9, Iloilo City, Iloilo, A.M. No. 15-09- eligibility, or qualifications of the incumbent to the
102-MTCC. 26 June 2019) contested public office. The end result of an
impeachment proceeding is the removal of the
QUO WARRANTO public officer, and his or her perpetual political
disqualification from holding public office. On the
See page 401 for further discussion on Quo other hand, when a quo warranto petition is
Warranto. granted, ouster from office is likewise meted, but
the Court can likewise impose upon the public
Re: Letter of Mrs. Ma. Cristina Roco Corona, AM. officer additional penalties such as reimbursement
No. 20-07-10-SC, 12 Jan. 2021 of costs pertaining to the rightful holder of the
public office and such further judgment
Q: Renato Coronado Corona was the Chief Justice determining the respective rights in and to the
of the Philippines for eight years, starting on 12 public office, position, or franchise of all the parties
May 2010. He was removed from office through to the action as justice requires. (Re: Letter of Mrs.
an impeachment by the House of Ma. Cristina Roco Corona, AM. No. 20-07-10-SC, 12
Representatives, based on allegations of January 2021)
betrayal of public trust, culpable violation of the
Constitution, and graft and corruption. Due to IMPEACHMENT QUO WARRANTO
the stress of the trial, Corona’s health declined, As to its nature
and he died in 2016. All pending criminal cases Political Judicial
for graft and corruption were dismissed. Mrs. As to the parties
Ma. Cristina Roco Corona, Corona’s widow, Instituted either by the
sought to have the Senate judgment voided and Solicitor General in
for her to receive retirement benefits and other behalf of the Republic
gratuities under R.A. No. 9946 and survivorship of the Philippines or by
pension under A.C. No. 81-2010. Will an action of Congress is the
an individual claiming
quo warranto will proceed independently of the prosecutor, the trier,
the public office in
impeachment proceedings? and the judge
issue both of which
petitions are
A: YES. It has been already elaborated in Republic v. cognizable only by the
Sereno (G.R. No. 237428, 11 May 2018) that while Supreme Court
both impeachment and quo warranto seek the As to the purpose
ultimate removal of an incumbent government Seek to confirm and
officer, the two differ as to nature, jurisdiction, Determines the legal
vindicate the breach of
grounds, the applicable procedural rules, and right, title, eligibility, or
the trust reposed by
limitations. Impeachment is political; quo warranto qualifications of the
the Filipino people
is judicial. In impeachment, the Congress is the incumbent to the
upon the impeachable
prosecutor, the trier, and the judge, whereas quo contested public office.
official
warranto petitions are instituted either by the As to the basis
Solicitor General in behalf of the Republic of the The 1987 Constitution, Quo warranto cases, on
Philippines or by an individual claiming the public as supplemented by the other hand, are
325
the internal rules of dictated by the Rules of a) FUNCTIONS
procedure of the Court.
Congress, directs the The following are the functions of the
course of impeachment Ombudsman: (2012, 2009, 2003 BAR)
proceedings.
As to the effect 1. Investigate and prosecute on its own or on
when a quo warranto complaint by any person, any act or omission of
petition is granted, any public officer or employee, office, or agency,
ouster from office is when such act or omission appears to be illegal,
likewise meted, but the unjust, improper, or inefficient. It has primary
Court can likewise jurisdiction over cases cognizable by the
impose upon the public Sandiganbayan and, in the exercise of this
The end result of an officer additional primary jurisdiction, it may take over, at any
impeachment penalties such as stage, from any investigatory agency of
proceeding is the reimbursement of Government, the investigation of such cases;
removal of the public costs pertaining to the
officer, and his or her rightful holder of the 2. Direct, upon complaint or at its own instance,
perpetual political public office and such any officer or employee of the Government, or
disqualification from further judgment of any subdivision, agency or instrumentality
holding public office. determining the thereof, as well as any GOCCs with original
respective rights in and charter, to perform and expedite any act or duty
to the public office, required by law, or to stop, prevent, and correct
position, or franchise any abuse or impropriety in the performance of
of all the parties to the duties;
action as justice
requires. 3. Direct the officer concerned:
(Re: Letter of Mrs. Ma. Cristina Roco Corona, AM. No. a. to take appropriate action against a
20-07-10-SC, 12 Jan. 2021, J. Hernando) public officer or employee at fault or
who neglect to perform an act or
discharge a duty required by law, and
4. THE OMBUDSMAN AND THE OFFICE OF THE
SPECIAL PROSECUTOR
(Secs. 5-14, Art. XI of the 1987 Constitution b. recommend his removal, suspension,
in relation to R.A. No. 6770, otherwise known as demotion, fine, censure, or prosecution,
“The Ombudsman Act of 1989”) and ensure compliance therewith; or
enforce its disciplinary authority as
Composition provided in Sec. 21 of R.A. No. 6770:
1. The Ombudsman;
The refusal by any officer without just
2. One (1) overall Deputy;
cause to comply with an order of the
3. At least one (1) Deputy each for Luzon, Visayas
Ombudsman to remove, suspend,
and Mindanao; and
demote, fine, censure, or prosecute an
4. A Deputy for the military establishment may
officer or employee who is at fault or
also be appointed. (Sec. 5, Art. XI, 1987
who neglects to perform an act or
Constitution)
discharge a duty required by law shall
be a ground for disciplinary action
against said officer; (2009 BAR)
326
2023 GOLDEN NOTES
4. Direct the officer concerned, in any performance of the powers, functions, and
appropriate case, and subject to such duties herein or hereinafter provided;
limitations as it may provide in its rules of
procedure, to furnish it with copies of 11. Investigate and initiate the proper action for
documents relating to contracts or the recovery of ill-gotten and/or unexplained
transactions entered into by his office wealth amassed after 25 Feb. 1986 and the
involving the disbursement or use of public prosecution of the parties involved therein;
funds or properties, and report any and (Sec. 15, R.A. No. 6770)
irregularity to the Commission on Audit for
appropriate action; 12. Promulgate its rules of procedure and
exercise such other powers or perform such
5. Request any government agency for functions or duties as may be provided by
assistance and information necessary in the law. (Sec. 13 (7), Art. XI, 1987 Constitution; see
discharge of its responsibilities, and to also Sec. 18, R.A. No. 6770)
examine, if necessary, pertinent records and NOTE: The Ombudsman can investigate the acts of
documents; the Supreme Court.
6. Publicize matters covered by its investigation The powers of the Ombudsman are not merely
of the matters mentioned in pars. (1), (2), (3) recommendatory. His office was given teeth to
and (4) hereof, when circumstances so render this constitutional body not merely
warrant and with due prudence: provided, functional but also effective. Under R.A. No. 6770
that the Ombudsman under its rules and and the 1987 Constitution, the Ombudsman has the
regulations may determine what cases may constitutional power to directly remove from
not be made public: provided, further, that government service an erring public official other
any publicity issued by the Ombudsman shall than a member of Congress and the Judiciary.
be balanced, fair and true; (Estarija v. Ranada, G.R. No. 159314, 26 June 2006)
7. Determine the causes of inefficiency, red tape, Effect of Charges Arising from Same Act or
mismanagement, fraud, and corruption in the Omission Lodged before the Ombudsman and
Government, and make recommendations for Regular Courts
their elimination and the observance of high
standards of ethics and efficiency; Administrative and criminal charges filed before the
Office of the Ombudsman and the trial court,
8. Administer oaths, issue subpoena and respectively, are separate and distinct from each
subpoena duces tecum, and take testimony in other even if they arise from the same act or
any investigation or inquiry, including the omission.
power to examine and have access to bank
accounts and records; ADMINISTRATIVE
CRIMINAL CASES
CASES
9. Punish for contempt in accordance with the As to the quantum of proof required
Rules of Court and under the same procedure proof beyond
substantial evidence
and with the same penalties provided reasonable doubt
therein; As to purpose
Punishment of
10. Delegate to the Deputies, or its investigators to protect the public
commission of a crime.
or representatives such authority or duty as service, based on the
Thus, even the
shall ensure the effective exercise or time-honored
dismissal of a criminal
327
case does not principle that a public The Ombudsman and his Deputies shall have the
necessarily foreclose office is a public trust. rank of Chairman and Members, respectively, of the
the administrative Constitutional Commissions, and they shall receive
action against the the same salary, which shall not be decreased
respondent during their term of office. (Sec. 10, Art. XI, 1987
(Gonzales v. Serrano., G.R. No. 175433, 11 Mar. 2015) Constitution)
Ombudsman’s Fiscal Autonomy Disqualifications and Inhibitions
The Ombudsman shall enjoy fiscal autonomy. Its 1. Shall not hold any other office or
approved annual appropriations shall be employment during their tenure;
automatically and regularly released. (Sec. 14, Art.
XI, 1987 Constitution) 2. Shall not engage in the practice of any
profession or in the active management or
Term of Office control of any business which in any way
may be affected by the functions of his
Seven (7) years without reappointment. (Sec. 11, office;
Art. XI, 1987 Constitution)
3. Shall not be financially interested, directly
Qualifications of the Ombudsman and his or indirectly, in any contract with, or in any
Deputies franchise or privilege granted by the
government, or any of its subdivisions, etc.
1. Natural born citizen of the Philippines; agencies or instrumentalities, including
2. At least 40 years of age at the time of GOCCs or their subsidiaries; and
appointment;
3. Of recognized probity and independence; 4. Shall not be qualified to run for any office in
4. Member of the Philippine Bar; the election immediately succeeding their
cessation from office. (Sec. 9, R.A. No. 6770)
5. Must not have been candidate for any
elective office in the immediately preceding Officials Subject to the Disciplinary Authority of
election; and the Ombudsman
6. For the Ombudsman: He must have been GR: The Office of the Ombudsman has disciplinary
for 10 years or more, a judge or engaged in authority over all elective and appointive officials of
the practice of law in the Philippines. (Sec. the Government and its subdivisions,
8, Art. XI, 1987 Constitution) instrumentalities, and agencies, including members
of the Cabinet, local government, GOCCs and their
NOTE: Only the Ombudsman, not his deputies, is subsidiaries. (Sec. 21, R.A. No. 6770)
impeachable. Under Sec. 2, Art. XI, of the 1987
Constitution, the impeachable officers are the XPNs:
President, the Vice-President, the members of the 1. Officials who may be removed only by
Supreme Court, the members of the Constitutional impeachment;
Commission, and the Ombudsman. The list is 2. Members of Congress; and
exclusive. (Ombudsman v. CA and Mojica, G.R. 3. Members of the Judiciary (Sec. 21, R.A. No.
146468, 04 Mar. 2005) 6770)
Rank and Salary NOTE: The Office of the Ombudsman shall have the
power to investigate any serious misconduct in
328
2023 GOLDEN NOTES
office allegedly committed by officials removable by only the power to suspend and not the power to
impeachment, for the purpose of filing a verified remove, it should not be permitted to
complaint for impeachment, if warranted. (Sec. 22, manipulate the law by usurping the power to
R.A. No. 6770) remove.” (Sangguniang Barangay v. Punong
Barangay, G.R. No. 170626, 03 Mar. 2008)
Scope of Powers
4. The Special Prosecutor may not file an
1. The Ombudsman exercises jurisdiction over information without authority from the
public officials or employees of government- Ombudsman; (Perez v. Sandiganbayan, G.R. No.
owned and controlled corporations with 166062, 26 Sept. 2006)
original charters. This being so, it can only
investigate and prosecute acts or omissions of 5. The Ombudsman has been conferred rule
the officials or employees of government making power to govern procedures under it;
corporations; (Khan, Jr v. Ombudsman, G.R. No. (Buencamino v. CA, G.R. 175895, 12 Apr. 2007)
125296, 20 July 2006)
6. A preventive suspension will only last 90 days,
2. The jurisdiction of the Ombudsman over not the entire duration of the criminal case;
disciplinary cases involving public school (Villasenor v. Sandiganbayan G.R. No. 180700, 04
teachers has been modified by Sec. 9 of R.A. 4670 Mar. 2008)
(Magna Carta for Public School Teachers) which
says that such cases must first go to an 7. Sec. 14(1) of the Ombudsman Act, which says,
investigating committee; (Ombudsman v. “No writ of injunction shall be issued by any court
Estandarte, G.R. 168670, 13 Apr. 2007) to delay an investigation being conducted by the
Ombudsman under this Act, unless there is a
NOTE: In Alcala v. Villar (G.R. 156063, 18 Nov. prima facie evidence that the subject matter of
2003 as cited in Ombudsman v. Galicia, G.R. No. the investigation is outside the jurisdiction of the
167711, 10 Oct. 2008), the Court, while Office of the Ombudsman” is declared ineffective
recognizing the jurisdiction of the committee of until SC issues a procedural rule on the matter;
the School Superintendent, nonetheless upheld and (Carpio-Morales v. CA, G.R. No. 217126-27,
the decision of the Ombudsman on the ground 10 Nov. 2015)
that the parties were afforded their right to due
process during the investigation proceedings. 8. Sec 14(2) of the Ombudsman Act, which says,
The respondent in Alcala was given sufficient “No court shall hear any appeal or application
opportunity to be heard and submit his for remedy against the decision or findings of the
defenses to the charges made against him. Thus, Ombudsman, except the Supreme Court, on pure
he is estopped from questioning the jurisdiction question of law” is unconstitutional for it
of the Ombudsman. attempts to effectively increase SC’s appellate
jurisdiction without its advice and concurrence.
3. The Ombudsman Act authorizes the (Carpio-Morales v. Binay, Jr., ibid.)
Ombudsman to impose penalties in
administrative cases; (Ombudsman v. CA, G.R. Delegability of the Powers of the Ombudsman
No. 167844, 22 Nov. 2006; Ombudsman v. Lucero,
G.R. No. 168718, 24 Nov. 2006) The power to investigate or conduct a preliminary
investigation on any Ombudsman case may be
NOTE: According to Sec. 60 of the LGC, elective exercised by an investigator or prosecutor of the
officials may be dismissed only by the proper Office of the Ombudsman, or by any Provincial or
court. “Where the disciplining authority is given City Prosecutor or their assistants, either in their
329
regular capacities or as deputized Ombudsman The Ombudsman May Investigate Despite the
prosecutors. (Honasan II v. Panel of Investigators of Private Complainant’s Lack of Sufficient
the DOJ, G.R. No. 159747, 15 June 2004) Personal Interest in the Subject Matter of
Grievance
NOTE: While the Ombudsman’s power to
investigate is primary, it is not exclusive and, under Sec. 20 of R.A. No. 6770 has been clarified by the
the Ombudsman Act of 1989, he may delegate it to Rules of Procedure of the Office of the Ombudsman.
others and take it back any time he wants to. (Acop Under, Sec 4, Rule III thereof, even if the ground
v. Ombudsman, G.R. No. 120422, 27 Sept. 1995) raised is the supposed lack of sufficient personal
interest of complainants in the subject matter of the
Power of the Ombudsman to Directly Dismiss a grievance under Sec. 20(4) of R.A. No. 6770, the
Public Officer dismissal on that ground is not mandatory and is
discretionary on the part of the Ombudsman or
The powers of the Ombudsman are not merely Deputy Ombudsman evaluating the administrative
recommendatory. Under the Ombudsman Act and complaint. The Ombudsman cannot be faulted for
the 1987 Constitution, the Ombudsman has the exercising its discretion under Sec 20 of R.A. 6770,
constitutional power to directly remove from which allows the Ombudsman to decide not to
government office an erring public official other conduct the necessary investigation of any
than a member of Congress and the Judiciary. administrative act or omission complained of, if it
(Estarija v. Ranada, G.R. No. 159314, 26 June 2006) believes that the complainant has no sufficient
personal interest in the subject matter of the
The refusal, without just cause, of any officer to grievance. (Bueno v. Office of the Ombudsman, G.R.
comply with such an order of the Ombudsman to No. 191712, 17 Sept. 2014)
penalize an erring officer or employee is a ground
for disciplinary action. Thus, there is a strong Jurisdiction of the Office of the Ombudsman
indication that the Ombudsman’s recommendation
is not merely advisory in nature but actually The Office of the Ombudsman may not conduct the
mandatory within the bounds of law. This should necessary investigation of any administrative act or
not be interpreted as usurpation of the Ombudsman omission complained of if it believes that:
of the authority of the head of office or any officer 1. The complainant has an adequate remedy
concerned. It has long been settled that the power of in another judicial or quasi-judicial body;
the Ombudsman to investigate and prosecute any
illegal act or omission of any public official is not an 2. The complaint pertains to a matter outside
exclusive authority, but a shared or concurrent the jurisdiction of the Office of the
authority in respect of the offense charged. Ombudsman. (Dormido v. Office of the
(Ledesma v. CA, G.R. No. 161629, 29 July 2005) Ombudsman, G.R. No. 198241, 24 Feb. 2020,
J. Hernando)
Power of the Military Deputy Ombudsman to
Investigate Civilian Police 3. The complaint is trivial, frivolous, vexatious
or made in bad faith;
Since the power of the Ombudsman is broad and the
Deputy Ombudsman acts under the direction of the 4. The complainant has no sufficient personal
Ombudsman, the power of the Military Deputy to interest in the subject matter of the
investigate members of the civilian police has also grievance; or
been affirmed. (Acop v. Ombudsman, G.R. No. 120422,
27 Sept. 1995) 5. The complaint was filed after one (1) year
from the occurrence of the act or omission
complained of. (Sec. 20 of R.A. No. 6770)
330
2023 GOLDEN NOTES
Q: Can the claim of confidentiality prevent the longer be proved or that their alleged conspiracy is
Ombudsman from demanding the production of already expunged. The law does not require that
documents needed for their investigation? such person must, in all instances, be indicted
together with the public officer. If circumstances
A: NO. In Almonte v. Vasquez (G.R. No. 95367, 23 May exist where the public officer may no longer be
1995), the Court said that where the claim of charged in court, as in the present case where the
confidentiality does not rest in the need to protect public officer has already died, the private person
military, diplomatic, or the national security secrets may be indicted alone. Moreover, the only thing
but on general public interest in preserving extinguished by the death of Engr. Magna Nakaw is
confidentiality, the courts have declined to find in his criminal liability. His death did not extinguish
the Constitution an absolute privilege of the the crime nor did it remove the basis of the charge
President. of conspiracy between him and private respondent.
(People v. Go, G.R. No. 168539, 25 Mar. 2014)
Allowing the Ombudsman to start an investigation
based on an anonymous letter does not violate the b) JUDICIAL REVIEW IN ADMINISTRATIVE
equal protection clause. The Office of the PROCEEDINGS
Ombudsman is different from other investigatory
and prosecutorial agencies of government because The following are the types of acts covered by the
those subject to its jurisdiction are public officials authority granted to the Ombudsman. The
who, through official pressure and influence, can Ombudsman shall act on all complaints relating, but
quash, delay, or dismiss investigations against them. not limited to acts or omissions which:
Moreover, even in cases where matters are really
confidential, inspection can be done in camera. 1. Are contrary to law or regulation;
2. Are unreasonable, unfair, oppressive or
Q: Engr. Magna Nakaw, the District Engineer of discriminatory;
the DPWH in the Province of Walang Progreso, 3. Are inconsistent with the general course of
and Mr. Pork Chop, a private contractor, were an agency's functions, though in
both charged in the Office of the Ombudsman for accordance with law;
violation of the Anti-Graft and Corrupt Practices 4. Proceed from a mistake of law or an
Act (R.A. No. 3019) under a conspiracy theory. arbitrary ascertainment of facts;
While the charges were undergoing 5. Are in the exercise of discretionary powers
investigation in the Office of the Ombudsman, but for an improper purpose; or
Engr. Magna Nakaw passed away. Mr. Pork Chop 6. Are otherwise irregular, immoral, or
immediately filed a motion to terminate the devoid of justification. (Sec. 19, R.A. No.
investigation and to dismiss the charges against 6770)
him, arguing that because he was charged in
conspiracy with the deceased, there was no In the exercise of its duties, the Ombudsman is given
longer a conspiracy to speak of and, full administrative disciplinary authority. His power
consequently, any legal ground to hold him for is not limited merely to receiving, processing
trial had been extinguished. Rule on the motion complaints, or recommending penalties. He is to
to terminate filed by Mr. Pork Chop, with brief conduct investigations, hold hearings, summon
reasons. (2017 BAR) witnesses, and require production of evidence and
place respondents under preventive suspension.
A: The motion should be denied. The death of any This includes the power to impose the penalty of
public officer with whom the respondent can be removal, suspension, demotion, fine, or censure of a
charged for the said violation does not mean that public officer or employee. (Ombudsman v. Galicia,
the allegation of conspiracy between them can no G.R. No. 167711, 10 Oct. 2008)
331
NOTE: Appeals from resolutions of the Office of the Tanodbayan, now “Special Prosecutor” under
Ombudsman in administrative disciplinary cases the 1987 Constitution
should be taken to the Court of Appeals via Petition
for Review under Rule 43 of the ROC. (Fabian v. The existing Tanodbayan (at the time of the
Desierto, G.R. No. 129742, 16 Sept.1998) adoption of the 1987 Constitution) shall hereafter
be known as the Office of the Special Prosecutor. It
c) JUDICIAL REVIEW IN PENAL PROCEEDINGS shall continue to function and exercise its powers as
now or hereafter provided by law, except those
The Court cannot review the exercise of discretion conferred on the Office of the Ombudsman created
of the Ombudsman in prosecuting or dismissing a under the Constitution. (Zaldivar v. Gonzales, G.R.
complaint filed before it. It cannot interfere with the No. 79690-707, 07 Oct. 1988)
discretion of the Ombudsman to determine the
specificity and adequacy of the averments of the The Tanodbayan (called the Special Prosecutor
offense charged. The Ombudsman may dismiss the under the 1987 Constitution) is clearly without
complaint forthwith if he finds it to be insufficient in authority to conduct preliminary investigations and
form or substance or if he otherwise finds no ground to direct the filing of criminal cases with the
to continue with the inquiry; or he may proceed Sandiganbayan, except upon orders of the
with the investigation if the complaint is, in his view, Ombudsman. The right to do so was lost when the
in due and proper form. (Ocampo v. Ombudsman, 1987 Constitution became effective on 02 Feb.
G.R. No. 103446-47, 30 Aug. 1993) 1987. (Salvador Perez v. Sandiganbayan, G.R. No.
166062, 26 Sept. 2006)
NOTE: While the Ombudsman has the full discretion
to determine whether or not a criminal case is to be In Orap v. Sandiganbayan, (G.R. No. L-50508-11, 11
filed, the Court is not precluded from reviewing the Oct. 1985), it was held that the Special Prosecutor
Ombudsman’s action when there is grave abuse of may prosecute before the Sandiganbayan judges
discretion. (Garcia-Rueda v. Pascasio, G.R. No. accused of graft and corruption, even if they come
118141, 5 Sept. 1997) under the administrative supervision of the
Supreme Court. (De Leon, 2014)
Powers of the Office of the Special Prosecutor
Pursuant to P.D. 1607, the Tanodbayan could review
The Office of the Special Prosecutor shall, under the and reverse the findings of the City Fiscal, and order
supervision and control and upon the authority of him to withdraw certain charges, inasmuch as the
the Ombudsman, have the following powers: President’s power of control (in this instance) is
exercised not by the Secretary of Justice but by the
1. To conduct preliminary investigation and Tanodbayan because the offense/s charged were
prosecute criminal cases within the allegedly committed by a public functionary in
jurisdiction of the Sandiganbayan; connection with her office. (De Leon, 2014 citing
2. To enter into plea bargaining agreements; Inting v. Tanodbayan, G.R. No. L-52446-48, 15 May
and 1980)
3. To perform such other duties assigned to it
by the Ombudsman.
Composition
The Office of the Special Prosecutor shall be

composed of the Special Prosecutor and his
prosecution staff.
332
2023 GOLDEN NOTES
5. THE SANDIGANBAYAN
Jurisdiction of Sandiganbayan
Exclusive Original
A. Violations of R.A. No. 3019, as amended, otherwise known as the Anti-Graft and Corrupt Practices Act,
R.A. No. 1379, and Chapter II, Section 2, Title VII, Book II of the RPC, where one or more of the accused are
officials occupying the following positions in the government, whether in a permanent, acting or interim
capacity, at the time of the commission of the offense: (C-O-M-M-A)
1. Officials of the executive branch occupying the positions of regional director and higher, otherwise
classified as Grade ‘27’ and higher, of the Compensation and Position Classification Act of 1989 (R.A.
No. 6758), specifically including: (P-O-C-P-O-C-Pres)
a. Provincial governors, vice-governors, members of the sangguniang panlalawigan, and provincial

treasurers, assessors, engineers, and other provincial department heads:
b. City mayors, vice-mayors, members of the sangguniang panlungsod, city treasurers, assessors,
engineers, and other city department heads;
c. Officials of the diplomatic service occupying the position of consul and higher;
d. Philippine Army and Air Force colonels, naval captains, and all officers of higher rank;
e. Officers of the Philippine National Police while occupying the position of provincial director and
those holding the rank of senior superintendent and higher;
f. City and provincial prosecutors and their assistants, and officials and prosecutors in the Office of
the Ombudsman and special prosecutor;
g. Presidents, directors or trustees, or managers of government-owned or controlled corporations,
state universities or educational institutions or foundations.
2. Members of Congress and officials thereof classified as Grade ‘27’ and higher under the Compensation
and Position Classification Act of 1989;
3. Members of the judiciary without prejudice to the provisions of the Constitution;
4. Chairmen and members of the Constitutional Commissions, without prejudice to the provisions of the
Constitution; and
5. All other national and local officials classified as Grade ‘27’ and higher under the Compensation and
Position Classification Act of 1989.
B. Other offenses or felonies whether simple or complexed with other crimes committed by the public
officials and employees mentioned in Sec. 4(a) in relation to their office.
C. Civil and criminal cases filed pursuant to and in connection with E.O. Nos. 1, 2, 14, and 14-A, issued in
1986.
NOTE: RTC shall have exclusive original jurisdiction where the information:
a. Does not allege any damage to the government or any bribery; or
b. Alleges damage to the government or bribery arising from the same or closely related transactions
or acts in an amount not exceeding P1,000,000. (Sec. 4, P.D. 1606, as amended by R.A. No. 10660)
333
Exclusive original jurisdiction thereof shall be vested in the proper RTC, MeTC, MTC and MCTC, as the case
may be, in cases where none of the accused are occupying positions corresponding to Salary Grade 27 or
higher, or military and PNP officers mentioned above. (Ibid. )
Appellate
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.
Concurrent with SC
Petitions for mandamus, prohibition, certiorari, injunctions and ancillary writs in aid of its appellate
jurisdiction including quo warranto arising or that may arise in cases filed under E.O. Nos. 1, 2, 14 and 14-A.
Concurrent with SC, CA and RTC
Petitions for the issuance of writ of amparo and writ of habeas data.
334
2023 GOLDEN NOTES
Sandiganbayan RTCs over violations of the drugs law but to
segregate from among the several RTCs of each
It is a special appellate collegial court in the judicial region some RTCs that will "exclusively try
Philippines. The special court was established by and hear cases involving violations of R.A. No.
P.D. No. 1486, as subsequently modified by P.D. No. 9165." If at all, the change introduced by the new
1606 and by R.A. Nos. 7975, 8249, and 10660. phraseology of Sec. 90, R.A. No. 9165 is not the
deprivation of the RTCs' "exclusive original
Composition of the Sandiganbayan jurisdiction" but the further restriction of this
"exclusive original jurisdiction. The exclusive
Under P.D. No. 1606, as amended by R.A. No. 8249, original jurisdiction over violations of R.A. No. 9165
further amended by R.A. No. 10660, it is composed is not transferred to the Sandiganbayan whenever
of: the accused occupies a position classified as Grade
1. Presiding Justice; and 27 or higher, regardless of whether the violation is
2. 20 Associate Justices, with the rank of alleged as committed in relation to office. The power
Justice of the Court of Appeals. of the Sandiganbayan to sit in judgment of high-
ranking government officials is not omnipotent. The
NOTE: It sits in seven (7) divisions with three (3) Sandiganbayan's jurisdiction is circumscribed by
members each. law and its limits are currently defined in R.A. No.
10660.
Nature of the Sandiganbayan
Sec. 4(b) of P.D. No. 1606, as amended by R.A. No.
It is a statutory court, not a constitutional court as it 10660, is the general law on jurisdiction of the
is created by a statute, not by the Constitution, Sandiganbayan over crimes and offenses committed
although its creation is mandated by the latter. by high-ranking public officers in relation to their
office; Sec. 90, R.A. No. 9165 is the special law
Determination of the Jurisdiction of the excluding from the Sandiganbayan's jurisdiction
Sandiganbayan violations of R.A. No. 9165 committed by such public
officers. In the latter case, jurisdiction is vested
It shall be determined by the allegations in the upon the RTCs designated by the Supreme Court as
information specifically on whether or not the acts drugs court, regardless of whether the violation of
complained of were committed in relation to the R.A. No. 9165 was committed in relation to the
official functions of the accused. It is required that public officials' office. (De Lima v. Guerrero, G.R. No.
the charge be set forth with particularity as will 229781, 10 Oct. 2017)
reasonably indicate that the exact offense which the
accused is alleged to have committed is one in When Private individuals Shall be Tried Jointly
relation to his office. (Lacson v. Executive Secretary¸ With the Public Officer or Employee
G.R. No. 128096, 20 Jan. 1999)
In case private individuals are charged as co-
Jurisdiction Over the Violation of R.A. No. 9165 principals, accomplices, or accessories with the
Committed by a Public Official with Salary Grade public officers or employees, they shall be tried
31 During Incumbency jointly with said public officers and employees. (Sec.
4, R.A. No. 1606)
A plain reading of R.A. No. 9165, as of R.A. No. 6425,
will reveal that jurisdiction over drug-related cases Private persons may be charged together with
is exclusively vested with the Regional Trial Court. public officers to avoid repeated and unnecessary
The clear intent of the legislature is not only to presentation of witnesses and exhibits against
retain the "exclusive original jurisdiction" of the conspirators in different venues, especially if the
335
issues involved are the same. It follows therefore Ill-Gotten Wealth
that if a private person may be tried jointly with
public officers, he may also be convicted jointly with Any asset, property, business enterprise or material
them. (Balmadrid v. Sandiganbayan, G.R. No. L- possession of any person within the purview of Sec.
58327, 22 Mar. 1991) 2 of R.A. No. 7080, acquired by him directly or
indirectly through dummies, nominees, agents,
Voting requirement subordinates and/or business associates by any
combination or series of the following means or
All three members of a division shall deliberate on similar schemes:
all matters submitted for judgment, decision, final
order, or resolution. 1. Through misappropriation, conversion, misuse,
or malversation of public funds or raids on the
The concurrence of a majority of the members of a public treasury;
division shall be necessary to render a judgment,
decision, or final order, or to resolve interlocutory 2. By receiving, directly or indirectly, any
or incidental motions. (Sec. 4, R.A. No. 10660) commission, gift, share, percentage, kickbacks
or any other form of pecuniary benefit from any
Mandatory Suspension of a Public Officer person and/or entity in connection with any
Against Whom a Valid Information is Filed government contract or project or by reason of
the office or position of the public officer
It is now settled that Sec. 13, R.A. No. 3019, makes it concerned;
mandatory for the Sandiganbayan to suspend any
public officer against whom a valid information 3. By the illegal or fraudulent conveyance or
charging violation of that law, or any offense disposition of assets belonging to the National
involving fraud upon the government or public Government or any of its subdivisions, agencies
funds, or property is filed. (Bolastig v. or instrumentalities or government-owned-or-
Sandiganbayan, G.R. No. 110503, 04 Aug. 1994) controlled corporations and their subsidiaries;
NOTE: Under Sec. 13, R.A. No. 3019, any public 4. By obtaining, receiving or accepting directly or
officer against whom any criminal prosecution indirectly any shares of stock, equity or any
under a valid information under this Act or under other form of interest or participation including
the provisions of the RPC on bribery is pending in promise of future employment in any business
court, shall be suspended from office. Should he be enterprise or undertaking;
convicted by final judgment, he shall lose all
retirement or gratuity benefits under any law, but if 5. By establishing agricultural, industrial or
he is acquitted, he shall be entitled to reinstatement commercial monopolies or other combinations
and to the salaries and benefits which he failed to and/or implementation of decrees and orders
receive during suspension, unless in the meantime intended to benefit particular persons or
administrative proceedings have been filed against special interests; and
him.
6. By taking undue advantage of official position,
Appeal from a decision of the Sandiganbayan to authority, relationship, connection or influence
the SC to unjustly enrich himself or themselves at the
expense and to the damage and prejudice of the
The appellate jurisdiction of the Supreme Court Filipino people and the Republic of the
over decisions and final orders of the Philippines. (R.A. No. 7080, “An Act Defining and
Sandiganbayan is limited to questions of law. Penalizing the Crime of Plunder”)
(Cabaron v. People, G.R. No. 156981, 05 Oct. 2009)
336
2023 GOLDEN NOTES
Non-Applicability of Prescription, Laches and the office (Casibang v. Aquino, G.R. No. L-38025, 20
Estoppel in Criminal Prosecution for the Aug. 1979).
Recovery of Ill-Gotten Wealth
Kinds of Terms
The provision found in Sec. 15, Art. XI of the 1987
Constitution that "the right of the State to recover 1. Term fixed by law;
properties unlawfully acquired by public officials or 2. Term dependent on good behavior until
employees, from them or from their nominees or reaching retirement age; and
transferees, shall not be barred by prescription, 3. Indefinite term, which terminates at the
laches or estoppel," has already been settled in pleasure of the appointing authority
Presidential Ad Hoc Fact-Finding Committee on (Borres v. CA, G.R. No. L-36845, 21 Aug.
Behest Loans v. Desierto (G.R. No. 130140, 13 Apr. 1998).
2011) where the Court held that the above cited
constitutional provision "applies only to civil Three-Term Limit Rule
actions for recovery of ill-gotten wealth, and NOT to
criminal cases. The term of office of elective local officials, except
barangay officials, which shall be determined by
law, shall be three years and no such official shall
N. TERM LIMITS serve for more than three consecutive terms. (Sec. 8,
Art. X, 1987 Constitution)
For the three-term limit rule for elective local

Term vs. Tenure
government officials to apply, two conditions or
requisites must concur, to wit:
TERM TENURE
As to definition
1. The official has been elected for three (3)
The time during which
consecutive terms for the same position;
the officer may claim to
and
hold the office as a Represents the period
2. He has fully served three (3) consecutive
right and fixes the during which the
terms. (Lonzanida v. COMELEC, G.R. No.
interval after which the incumbent actually
135150, 28 July 1999)
several incumbents holds the office.
shall succeed one
NOTE: The three-term limit does not apply
another.
whenever there is an involuntary break. The
As to period Constitution does not require that the interruption
It is not affected by or hiatus to be a full term of three years. What the
holding over of the law requires is for an interruption, break, or a rest
incumbent after It may be shorter than period from a candidate’s term of office “for any
expiration of the term term. length of time.” (Dizon v. COMELEC, G.R. 182008, 30
for which he was Jan. 2009)
appointed or elected.
(Alba v Evangelista, G.R. Nos. L-10360 and L-10433, Rationale For the Three-Term Limit Rule
17 Jan. 1957)
To prevent the establishment of political dynasties
NOTE: Term of office is different from the right to and to enhance the freedom of choice of the people.
hold office. The latter is the just and legal claim to (Borja, Jr. v. COMELEC, G.R. No. 133495, 03 Sept.
hold and enjoy the powers and responsibilities of 1998)
337
Voluntary Renunciation Vice President 6 years, with one re-election
6 years, with one re-election
Senators
It is an act of surrender based on the surrenderer’s if consecutive
own freely exercised will; in other words, a loss of 3 years, with two re-
Representative
title to office by conscious choice (Aldovino v. elections if consecutive
COMELEC, G.R. No. 184836, 23 Dec. 2009). 3 years, with two re-
Local Executive
elections if consecutive, in
NOTE: Voluntary renunciation of the office for any Officials
the same position
length of time shall not be considered as an
interruption in the continuity of his service for the Term of Office of an Elected Local Official
full term for which he was elected (Sec. 8, Art. X,
1987 Constitution). Three (3) years starting from noon of June 30
following the election or such date as may be
Q: Is the preventive suspension of an elected provided by law, except that of elective barangay
public official an interruption of his term of officials, for maximum of 3 consecutive terms in the
office for purposes of the three-term limit rule same position. (Sec. 43, LGC)
under Sec. 8, Art. X of the Constitution and Sec.
43(b) of R.A. No. 7160? The term of office of Barangay and Sangguniang
Kabataan elective officials, by virtue of R.A. No. 9164
A: NO. Strict adherence to the intent of the three- and R.A. No. 10742, is three (3) years.
term limit rule demands that preventive suspension
should not be considered an interruption that NOTE: The objective of imposing the three-term
allows an elective official’s stay in office beyond limit rule is to “avoid the recall of a single person
three terms. A preventive suspension cannot simply accumulating excess power over a particular
be a term interruption because the suspended territorial jurisdiction as a result of a prolonged stay
official continues to stay in office although he is in the same office”.
barred from exercising the functions and
prerogatives of the office within the suspension For the three-term rule to apply, the local official
period. The best indicator of the suspended official’s must have fully served the term and been elected
continuity in office is the absence of a permanent through regular election. (Rivera III v. COMELEC, G.R.
replacement and the lack of the authority to appoint Nos. 167591 & 170577, 09 May 2007)
one since no vacancy exists (Aldovino v. COMELEC,
G.R. No. 184836, 23 Dec. 2009). Q: From 2004 to 2007 and 2007 to 2010, Naval
had been elected as a Board Member of the
Hold-over Sangguniang Panlalawigan for the Second
District, Province of Camarines Sur. On 12 Oct.
In the absence of an express or implied 2009, the President approved R.A. No. 9716,
constitutional or statutory provision to the which reapportioned the legislative districts in
contrary, an officer is entitled to hold office until his Camarines Sur. 8 out of 10 towns were taken
successor is elected or appointed and has qualified from the old Second District to form the present
(Lecaroz v. Sandiganbayan, G.R. No. 130872, 25 Mar. Third District. The present Second District is
1999). composed of the two remaining towns, Gainza
and Milaor, merged with five towns from the old
Term Limits of Elective Officers First District. In the 2010 elections, Naval once
again won as among the members of the
ELECTIVE Sanggunian, Third District. He served until 2013.
TERM LIMITS
OFFICERS In the 2013 elections, Naval ran anew and was re-
President 6 years, without re-election elected as Member of the Sanggunian, Third
338
2023 GOLDEN NOTES
District. Nelson Julia was likewise a Sanggunian 207851, 08 July 2014)
Member candidate from the Third District in the
2013 elections. He filed before the COMELEC a Q: Atty. G. ran for Governor of the Province of
Verified Petition to Deny Due Course or to Cancel Pampanga, while his close friend, Atty. M, ran for
COC of Naval. Julia posited that Naval had fully Mayor of the Municipality of Guagua, Pampanga.
served for three consecutive terms as a member They both won convincingly. Eventually, the
of the Sanggunian, irrespective of the district he losing candidates timely filed election protests.
had been elected from. Allowing Naval to run as The losing gubernatorial candidate, Mr. A, filed
a Sanggunian member for the fourth time is his protest before the RTC of Pampanga, whereas
violative of the inflexible three-term limit rule. Is the losing mayoralty candidate, Mr. B, filed his
Julia correct? protest before the MTC of Guagua, Pampanga.
What are the term limits for the positions of Atty.
A: YES. As worded, the constitutional provision fixes G and Atty. M? (2019 BAR)
the term of a local elective office and limits an
elective official’s stay in office to no more than three A: The term of office of both positions is 3 years and
consecutive terms. The “limitation” under this first for not more than 3 consecutive terms in the same
branch of the provision is expressed in the position (Sec. 43, LGC)
negative—“no such official shall serve for more than
three consecutive terms.” This formulation—no
more than three consecutive terms—is a clear
command suggesting the existence of an inflexible
rule. This examination of the wording of the
constitutional provision and of the circumstances
surrounding its formulation impresses upon us the
clear intent to make term limitation a high priority
constitutional objective whose terms must be
strictly construed, and which cannot be defeated by,
nor sacrificed for, values of less than equal
constitutional worth.
The words of R.A. No. 9716 plainly state that the new
Second District is to be created, but the Third District
is to be renamed. The rationale behind
reapportionment is the constitutional requirement
to achieve equality of representation among the
districts. The aim of legislative apportionment is to
equalize population and voting power among
districts. The basis for districting shall be the number
of the inhabitants of a city or a province and not the
number of registered voters therein. Naval’s
ineligibility to run, by reason of violation of the
three-term limit rule, does not undermine the right
to equal representation of any of the districts in
Camarines Sur. With or without him, the renamed
Third District, which he labels as a new set of
constituents, would still be represented, albeit by
another eligible person. (Naval v. COMELEC, G.R. No.
339
Scope
II. ADMINISTRATIVE LAW
1. Fixes the administrative operation and
structure of the government;
2. Executes or enforces that which is entrusted to

A. GENERAL PRINICIPLES administrative authorities (all those public
officers and organs of the government charged
with the amplification, application and
Administrative Law execution of the law);
It is a branch of public law fixing the organization 3. Governs public officers and creates
and determines the competence of administrative administrative officers;
authorities and indicates the individual remedies
for the violation of the rights. (Nachura, 2014) 4. Provides remedies to those aggrieved by these
agencies;
All the laws and policies that regulate or control the
administrative organization and operations of the 5. Governs Judicial Review;
government through administrative agencies.
(Agra, 2023) 6. Includes rules, regulations, orders and
decisions made by administrative authorities;
GR: The Revised Administrative Code is the and
principal text that governs this branch of law. The
Code, however, does not cover the military as long 7. Includes the body of judicial doctrines on any of
as it deals with purely military affairs. They are the above. (De Leon, 2010)
governed by the Articles of War.
Classifications
XPN: If it deals with their relationship with the
civilians, still governed by the Administrative Code. As to Source
Law that controls Law made by the
Other institutions excluded administrative administrative
authorities authorities
1. Board of Pardons and Parole; General regulations
2. State Universities and Colleges; and and particular
3. Highly Urbanized Cities (HUCs). determinations;
Constitution, statutes,
constitute under
Administration judicial decisions,
delegations of power
Executive Orders,
embodied in statutory
1. As an institution –It refers to the group or Administrative
administrative law
aggregate of persons in whose hands the reins Orders, etc.
and imposing and
of government are for the time being. constantly expanding
body of law.
2. As a function –It pertains to the execution, in As to Purpose
non-judicial matters, of the law or will of the Adjective or
State as expressed by competent authority. Substantive
Procedural
(Nachura, 2014) Administrative Law
Administrative Law
Establishes the Derived from same
procedure which an sources but contents
340
2023 GOLDEN NOTES
agency must or may are different in that private parties either through adjudication or rule
follow in the pursuit of the law establishes making. (Nachura, 2014)
its legal purpose. primary rights and Manner of creation
duties.
As to Applicability 1. Constitutional provision (e.g., CSC,
General Special/ Particular COMELEC, COA, CHR);
Administrative Law Administrative Law 2. Authority of law; or
Part that is of general 3. Legislative enactment (e.g., POEA, ECC).
Part that pertains to (Nachura, 2014)
nature and common to
particular service;
all, or most,
proceeds from the Interpretation of the Powers of the
administrative
particular statute Administrative Agencies
agencies, chiefly but
creating the individual
not exclusively
agency. Administrative agencies have powers and functions
procedural law.
which may be administrative, investigatory,
Kinds regulatory, quasi-legislative, or quasi-judicial or mix
of the five, as may be conferred by the constitution
1. Statutes setting up administrative authorities; or by the statute. They have in fine only such powers
or authority as are granted or delegated, expressly
2. Body of doctrines and decisions dealing with or impliedly, by law. And in determining whether an
the creation, operation, and effect of agency has certain powers, the inquiry should be
determinations and regulations of such from the law itself. But once ascertained as existing,
administrative authorities; the authority given should be liberally construed.
(Soriano v. MTRCB, G.R. No. 165785, 29 Apr. 2009)
3. Rules, regulations, or orders of such
administrative authorities in pursuance of the Criterion
purposes, for which administrative authorities
were created or endowed; and A body or agency is administrative where its
function is primarily regulatory even if it conducts
e.g., Omnibus Rules Implementing the Labor hearings and determines controversies to carry out
Code, circulars of Central Monetary Authority. its regulatory duty. On its rule-making authority, it
is administrative when it does not have discretion
4. Determinations, decisions, and orders of such to determine what the law shall be but merely
administrative authorities in the settlement of prescribes details for the enforcement of the law.
controversies arising in their particular field. (Nachura, 2014)
e.g., Awards of NLRC with respect to money Instrumentality

claims of employees. (Nachura, 2014)
It refers to any agency of the National Government,
not integrated within the department framework,
vested with special functions or jurisdiction by law,
B. ADMINISTRATIVE AGENCIES
endowed with some, if not all, corporate powers,
administering special funds and enjoying
operational autonomy, usually through a charter. It
Definition includes regulatory agencies, chartered institutions
and GOCCs. (United Residents of Dominican Hills v.
It is an organ of the government, other than a court
and the legislature, which affects the rights of
341
Commission on the Settlement of Land Problems, G.R. may abolish an office either from a valid delegation
No. 135945, 07 Mar. 2001) from Congress, or his inherent duty to faithfully
execute the laws (Biraogo v. Philippine Truth
Nature of an Instrumentality of the National Commission of 2010, G.R. No. 192935, 07 Dec. 2010).
Government
Reasons for the Creation of Administrative
A government instrumentality may be endowed Agencies
with corporate powers and at the same time retain
its classification as a government “instrumentality” 1. Help unclog court dockets;
for all other purposes. To qualify as a GOCC, one 2. Meet the growing complexities of modern
must be organized either as a stock or non-stock society; and
corporation. Sec. 3 of the Corporation Code defines 3. Help in the regulation of ramified activities
a stock corporation as one whose “capital stock is of a developing country.
divided into shares and authorized to distribute to
the holders of such shares dividends.” (BCDA v. Elements of a Valid Abolition of Office
Commissioner of Internal Revenue, G.R. No. 205466
11 Jan. 2021, J. Hernando) 1. In good faith (good faith is presumed);
2. Not for political or personal reasons; and
Agency 3. Not in violation of law. (Roque v. Ericta, G.R.
No. L-30244, 28 Sept. 1973)
It refers to any of the various units of the
government, including a department, bureau, office, Right to Abolish an Office
instrumentality, or GOCCs, or a local government or
a distinct unit therein. (Sec. 2, E.O. 292) GR: The Congress has the right to abolish an office
even during the term for which an existing
Department incumbent may have been elected.
An executive department created by law. (Sec. 2(7), XPN: When restrained by the Constitution.
E.O. 292)
Reorganization
Bureau
Reorganization involves the reduction of personnel,
It is any principal subdivision or unit of any consolidation of offices, or abolition thereof by
department. (Sec. 2(8), E.O. 292) reason of economy or redundancy of functions. It
alters the existing structure of government offices
Office or the units therein, including the lines of control,
authority, and responsibility between them to make
It refers to any major functional unit of a the bureaucracy more responsive to the needs of the
department or bureau including regional offices. It public clientele as authorized by law. (Pan v. Peña
may also refer to any position held or occupied by G.R. No. 174244, 13 Feb. 2009)
individual persons, whose functions are defined by
law or regulation. (Sec. 2(9), E.O. 292)
Creation and Abolition of Office
The creation and abolition of public offices is

primarily a legislative function (Eugenio v. CSC, G.R.
No. 115863, 31 Mar. 1995). However, the President
342
2023 GOLDEN NOTES
Circumstances that May be Considered as of separation of powers enshrined in the
Evidence of Bad Faith in a Removal Pursuant to Constitution and must be deemed repealed
Reorganization, Thus Warranting upon the effectivity thereof.
Reinstatement or Reappointment
a. Does the creation of the PTC fall within
1. Where there is a significant increase in the the ambit of the power to reorganize as
number of positions in the new staffing pattern expressed in Sec. 31 of the Revised
of the department or agency concerned; Administrative Code?
2. Where an office is abolished and other A: NO. Reorganization refers to the reduction of
performing substantially the same functions is personnel, consolidation of offices, transfer of any
created; function and/or agency under the Office of the
President to any other Department or Agency or
3. Where incumbents are replaced by those less vice versa, or abolition thereof by reason of
qualified in terms of status of appointment, economy or redundancy of functions. This refers to
performance and merit; situations where a body or an office is already
existent but a modification or alteration thereof has
4. Where there is reclassification of offices in the to be effected. The creation of an office is nowhere
department or agency concerned and the mentioned, much less envisioned in said provision.
classified offices perform substantially the To say that the PTC is borne out of a restructuring of
same function as the original offices; and, the Office of the President under Sec. 31 is a
misplaced supposition, even in the plainest meaning
5. Where the removal violates the order of attributable to the term “restructure” and
separation provided in Sec. 3 of R.A. No. 6656. “alteration of an existing structure.” Evidently, the
(Cotiangco v. Province of Biliran, G.R. No. PTC was not part of the structure of the Office of the
157139, 19 Oct. 2011) President prior to the enactment of E.O. No. 1.
(Biraogo v. The Philippine Truth Commission of 2010,
Q: President Aquino signed E.O. No. 1 G.R. No. 192935, 07 Dec. 2010)
establishing the Philippine Truth Commission
(PTC) of 2010, an ad hoc body with the primary b. Is the creation of the PTC justified by the
task to investigate reports on graft and President’s power of control?
corruption. Biraogo asserts that the PTC is a
public office and not merely an adjunct body of A: NO. Control is essentially the power to alter or
the Office of the President. Thus, in order that modify or nullify or set aside what a subordinate
the President may create a public office he must officer had done in the performance of his duties
be empowered by the Constitution, a statute or and to substitute the judgment of the former with
an authorization vested in him by law. He claims that of the latter. Clearly, the power of control is
that Sec 31 of the Administrative Code of 1987, entirely different from the power to create public
granting the President the continuing authority offices. The former is inherent in the Executive,
to reorganize his office, cannot serve as basis for while the latter finds basis from either a valid
the creation of a truth commission considering delegation from Congress, or his inherent duty to
the aforesaid provision merely uses verbs such faithfully execute the laws. (Ibid.)
as reorganize, transfer, consolidate, merge, and
abolish. Insofar as it vests in the President the c. What then could be the justification for
plenary power to reorganize the Office of the the President’s creation of the PTC?
President to the extent of creating a public
office, Sec. 31 is inconsistent with the principle
343
A: The creation of the PTC finds justification under 3. Those set up in situations where the
Sec. 17, Art. VII of the 1987 Constitution imposing government performs some business service
upon the President the duty to ensure that the laws for the public;
are faithfully executed. The President’s power to
conduct investigations to aid him in ensuring the e.g., PNR, MWSS, NFA, NHA.
faithful execution of laws − in this case, fundamental
laws on public accountability and transparency − is 4. Those set up to function in situations where the
inherent in the President’s powers as the Chief government seeks to regulate businesses
Executive. The fact that the authority of the imbued with public interest;
President to conduct investigations and create e.g., Insurance Commission, LTFRB, NTC.
bodies to execute this power is not explicitly
mentioned in the Constitution or in statutes does 5. Those set up to function in situations where the
not mean that he is bereft of such authority. government seeks under the police power to
regulate private businesses and individuals;
The Executive is given much leeway in ensuring that
our laws are faithfully executed. The powers of the e.g., SEC, MTRCB.
President are not limited to those specific powers
under the Constitution. One of the recognized 6. Those agencies set up to function in situations
powers of the President granted pursuant to this where the government seeks to adjust
constitutionally mandated duty is the power to individual controversies because of strong
create ad hoc committees. This flows from the social policy involved; and
obvious need to ascertain facts and determine if the
laws have been faithfully executed. It should be e.g., NLRC, ECC, SEC.
stressed that the purpose of allowing ad hoc
investigating bodies to exist is to allow an inquiry 7. Bodies set up to make the government a private
into matters which the President is entitled to know party. (Nachura, 2014)
so that he can be properly advised and guided in the
performance of his duties relative to the execution e.g., GSIS.
and enforcement of the laws of the land. (Ibid.)
NOTE: The SC, however, declared the creation of C. POWERS OF ADMINISTRATIVE AGENCIES
PTC as unconstitutional for violating the equal
protection clause.
Powers of Administrative Bodies or Agencies

Kinds of Administrative Bodies or Agencies
According to their Purpose
1. Quasi-legislative (rule-making power);
2. Quasi-judicial (adjudicatory power); and
1. Those created to function in situations where
3. Determinative powers. (Nachura, 2014)
the government offers gratuity, grant, or special
privilege;
Administrative Power or Function
e.g., GSIS, SSS, PAO, Bureau of Lands

Involves the regulation and control over the
conduct and affairs of individuals for their own
2. Those set up to function in situations where the
welfare and the promulgation of rules and
government seeks to carry on certain functions
regulations to better carry out the policy of the
of government;
legislature or such as are devolved upon the
administrative agency by the organic law of its
e.g., BIR, BOC, BOI.
344
2023 GOLDEN NOTES
existence. (In re: Rodolfo U. Manzano, A.M. No. 88-7- Legislative vs. Quasi-Legislative Power
1861-RTC, 05 Oct. 1988)
LEGISLATIVE QUASI-LEGISLATIVE
Discretionary vs. Ministerial Power As to what it determines
It determines what the It determines how the
DISCRETIONARY MINISTERIAL law shall be law shall be enforced.
As to definition As to its delegability
The law imposes a duty Cannot be delegated. Can be delegated.
One which is as clear
upon a public officer,
and specific as to leave
and gives him the right Limitations to the Exercise of Quasi-Legislative
no room for the
to decide how or when Power
exercise of discretion
the duty shall be
in its performance
performed. 1. Within the limits of the powers granted to
administrative agencies;
Difference of Functions and Powers of
Administrative Agencies 2. Cannot make rules or regulations which are
inconsistent with the provision of the
Not all administrative agencies perform the same Constitution or statute;
functions or exercise the types of powers. While
some act merely as investigative or advisory bodies, 3. Cannot defeat the purpose of the statute;
most administrative agencies have investigative,
rule-making, and determinative functions, or at 4. May not amend, alter, modify, supplant,
least two of such functions. enlarge, or limit the terms of the statute;
and
1. QUASI-LEGISLATIVE (RULE-MAKING) POWER
5. A rule or regulation must be uniform in
operation, reasonable and not unfair or
Nature
discriminatory.
The exercise of delegated legislative power,
Administrative Rule
involving no discretion as to what the law shall be,
but merely the authority to fix the details in the
Any agency statement of general applicability,
execution or enforcement of a policy set out in the
which implements or interprets a law fixes and
law itself. (Nachura, 2014)
describes procedures in, or practice requirements
of, an agency, including its regulations. The term
It is the power to make rules and regulations which
includes memoranda or statements concerning the
results in delegated legislation that is within the
internal administration or management of an
confines of the granting statute and the doctrine of
agency not affecting the rights of, or procedure
non-delegability and separation of powers. (Holy
available to the public. (Sec. 2(2), E.O. 292)
Spirit Homeowners Association v. Secretary Defensor,
G.R. No. 163980, 03 Aug. 2006 as cited in Nachura,
Source of the Power to Promulgate
2014)
Administrative Rules and Regulations
Derived from the legislature, by virtue of a valid

delegation, either express or implied.
345
Doctrine of Subordinate Legislation allowed to operate as “common carriers”
licensed under said rule. Respondent assails the
Power of administrative agency to promulgate rules validity of A.O. No. 00-05 on the ground that it
and regulations on matters within their own was issued in excess of petitioner’s authority as
specialization. an administrative agency. Was respondent’s
contention valid?
With the power of subordinate legislation,
administrative bodies may implement the broad A: NO. Petitioner’s issuance of the assailed order
policies laid down in a statute by “filling in” the was well within its statutory authority.
details which the Congress may not have the Administrative agencies possess two (2) kinds of
opportunity or competence to provide. This is powers, the quasi-legislative or rule-making power,
effected by their promulgation of supplementary and the quasi-judicial or administrative
regulations, which have the force and effect of law. adjudicatory power. The first is the power to make
(The Conference of Maritime Manning Agencies, Inc. rules and regulations resulting from a valid
v. POEA, G.R. No. 114714, 21 Apr. 1995) delegated legislation that is within the confines of
the granting statute and in accord with the doctrine
Reason Behind the Delegation of non-delegability and separability of powers. The
second is the power to hear and determine
It is well established in this jurisdiction that, while questions of fact to which the legislative policy is to
the making of laws is a non-delegable activity that apply and to decide in accordance with the
corresponds exclusively to Congress, nevertheless standards laid down by the law itself in enforcing
the latter may constitutionally delegate authority to and administering the same law. Petitioner had the
promulgate rules and regulations to implement a explicit authority to fill in the details as to how to
given legislation and effectuate its policies, for the carry out or effectively implement the objectives of
reason that the legislature often finds it R.A. No. 7611 in protecting and enhancing
impracticable (if not impossible) to anticipate and Palawan's natural resources consistent with the
provide for the multifarious and complex situations SEP. In fact, the petitioner was expressly given the
that may be met in carrying the law into effect. All authority to impose penalties and sanctions in
that is required is that: relation to the implementation of the SEP and the
other provisions of R.A. No. 7611. (The Palawan
1. The regulation should be germane to the Council for Sustainable Development v. Ejercito Lim,
objects and purposes of the law; and G.R. No. 183173, 24 Aug. 2016)
2. That the regulation is not in contradiction Q: Redmont filed on 02 Jan. 2007 three (3)
with it but conforms to the standards that separate petitions for the denial of Petitioner
the law prescribes. (People of the Narra Nickel's respective Mineral Production
Philippines v. Exconde, G.R. No. L-9820, 30 Sharing Agreements (MPSAs) and/or
Aug. 1957) Exploration Permits (EPs) applications before
the Panel of Arbitrators (POA) of the DENR-
Q: Respondent was an operator of a domestic air Mines and Geosciences Bureau (MGB).
carrier primarily that of transporting live fish Redmont's primary argument was that
from Palawan to fish traders. Petitioner is the petitioners were all controlled by their common
government agency responsible for the majority stockholder, MBMI Resources, Inc.
governance, implementation, and policy (MBMI) - a 100% Canadian-owned corporation -
direction of the Strategic Environment Plan and, thus, disqualified from being grantees of
(SEP) for Palawan pursuant to which A.O. No. 00- MPSAs and/or EPs.
05 was issued. Said Order provided that only
accredited domestic air carriers shall be
346
2023 GOLDEN NOTES
Meanwhile, Redmont separately sought the under the Comprehensive Agrarian Reform
cancellation and/or revocation of the executed Program (CARP) and recipients of Certificates of
Financial or Technical Assistance Agreement Land Ownership Award (CLOA).
(FTAA) through a Petition filed before the Office
of the President (OP). Redmont asserted, among The Municipal Agrarian Reform Office (MARO)
others, that the FTAA was highly anomalous and of Mabalacat, Pampanga sent a Notice of
irregular, considering that petitioners and their Coverage and Field Investigation to SVHFI
mother company, MBMI, have a long history of informing it that its above-described property
violating and circumventing the Constitution had been identified by the Department of
and other laws, due to their questionable Agrarian Reform (DAR) as a suitable lot for the
activities in the Philippines and abroad. The OP CARP coverage under the compulsory
finding, inter alia, that petitioners acquisition scheme. The respondent sent a
misrepresented that they were Filipino letter-protest stating that the property should
corporations qualified to engage in mining be exempted from CARP coverage.
activities, cancelled and/or revoked the said Subsequently, the then DAR Secretary issued an
FTAA, and, in turn, gave due course to Order granting the application for exemption of
Redmont's EP application. On appeal, the CA SVHFI. Upon a review of the records of the
affirmed the decision of OP. application and its supporting documents, the
DAR Secretary sided with SVHFI and ruled that
Whether the CA correctly affirmed on appeal the the subject property had been reclassified to
OP's cancellation and/or revocation of the purposes other than agricultural prior to 15
FTAA? June 1988.
A: NO. Quasi-judicial or administrative adjudicatory Is the subject property owned by herein

power is the power of the administrative agency to respondent exempted from CARP coverage?
adjudicate the rights of persons before it. The OP’s
cancellation and/or revocation of the FTAA is an A: YES. DAR A.O. No. 6, s. 1994 vests the DAR
exercise of a contractual right that is purely Secretary the authority to grant or deny the
administrative in nature, and thus, cannot be issuance of exemption clearances on the basis of
treated as an adjudication. Being a government or Sec. 3(c) of RA 6657, as amended, and DOJ Opinion
public contract, the FTAA is subject to fundamental No. 44, s. of 1990. Meanwhile, DOJ Opinion No. 44, s.
contract principles, one of which is the principle of of 1990 states that all lands that have already been
mutuality of contracts which would definitely be classified as commercial, industrial or residential
violated if one were to accept the view that the OP, before 15 June 1988 no longer need any conversion
a contracting party, can adjudicate on the contract’s clearance from the DAR in order to be exempt from
own validity. Thus absent the OP’s proper exercise CARP coverage.
of a quasi-judicial function, the CA had no appellate
jurisdiction over the case, and its Decision is, To reiterate, factual findings of fact of quasi-judicial
perforce, null and void. (Narra Nickel Mining and bodies, such as the DAR, which have acquired
Development Corporation v. Redmont Consolidated expertise because their jurisdiction is confined to
Mines Corporation, G.R. No. 202877, 09 Dec. 2015) specific matters, are generally accorded not only
great respect but even finality. They are binding
Q: The respondent Santos Ventura Hocorma upon this Court unless there is a showing of grave
Foundation, Inc. (SVHFI) is the registered owner abuse of discretion or where it is clearly shown that
of a parcel of land with an area of 25.5699 they were arrived at arbitrarily or in utter disregard
hectares under TCT No. 549661-R. On the other of the evidence on record. (Garcia v. Santos Ventura
hand, petitioners allegedly farmer-beneficiaries
347
Hocorma Foundation, Inc., G.R. No. 224831, 15 Sept. or other administrative
2021, J. Hernando) agencies.
(Agra, 2023)
a) KINDS OF ADMINISTRATIVE RULES AND
REGULATIONS Administrative Issuances According to their
Nature and Substance
Kinds of Administrative Rules and Regulations
1. Legislative Rule – It is in the matter of
DEFINITION EXAMPLE subordinate legislation, designed to
Supplementary implement a primary legislation by
providing the details thereof; and
Providing incentives to
Supplies the details, all government and
2. Interpretative rule – Provides guidelines
implements and private Health
to the law which the administrative agency
supplements the law, Institutions with
is in charge of enforcing. (BPI Leasing v. CA,
and governs the public Breastfeeding
G.R. No. 127624, 18 Nov. 2003)
Practices
Procedural
Outlining the b) REQUISITES FOR VALIDITY
Outlines the
procedure for the
procedures and
disqualification of The following are the requisites for validity:
remedies
nuisance candidates (P-A-Re-N-S)
Contingent
Lowering the National 1. It must be Reasonable;
Determines the 2. Issued under Authority of law;
Tax Allotment of LGUs
existence of a fact 3. Within the Scope and purview of the law;
on the basis of a
which is specified in 4. Publication in the Official Gazette or in a
declaration of an
the law, and newspaper of general circulation, as provided
unmanageable public
operationalizes in Executive Order No. 200; and
sector deficit
Penal
Provides for the Required as a condition precedent to the
conditions and Setting the penalties effectivity of a law to inform the public of the
penalties for the for violation of rules contents of the law or rules and regulations
violation of rules as pursuant to the Fair before their rights and interests are affected
expressly allowed Election Act by the same. (Philippine International Trading
under the law Corporation v. COA, G.R. No. 132593, 25 June
Interpretative 1999)
States the official
position or opinion of Opinions of DOJ and NOTE: If not otherwise required by law, an
the administrative DILG agency shall, as far as practicable, publish or
agency circulate notices of proposed rules and afford
Internal interested parties the opportunity to submit
their views prior to the adoption of any rule.
Governs the
(Sec. 9(1), E.O. 292) (2009, 2000 BAR)
administration and
Circulars of DILG
operations of a
addressed to LGUs XPNs: the following are exempt from the
particular
publication requirement:
administrative agency
348
2023 GOLDEN NOTES
a. Interpretative regulations; Procedural
b. Internal regulations; and Express or Implied Required
c. Letters of instructions. (Tañada v. Tuvera Contingent
G.R. No. L-63915, 29 Dec. 1986) Express Required
Penal
5. Necessity for Notice and hearing. Express Required
Interpretative
GR: An administrative body need not comply Express or Implied Not Required
with the requirements of notice and hearing, in Internal
the performance of its executive or legislative
Express or Implied Not Required
functions, such as issuing rules and
(Agra, 2023)
regulations. (Corona v. United Harbor Pilots
Association of the Philippines, G.R. No. 111963,
Requisites for a Valid Delegation of Quasi-
12 Dec.1997)
Legislative or Rule-Making Power
XPNs: The legislature itself requires it and

1. Completeness Test - The statute is
mandates that the regulation shall be based on
complete in itself, setting forth the policy to
certain facts as determined at an appropriate
be executed by the agency; and
investigation. (Hon. Executive Secretary v.
Southwing Heavy Industries, Inc., G.R. No.
2. Sufficient Standard Test - Statute fixes a
164171, 22 Aug. 2006)
standard, mapping out the boundaries of
the agency’s authority to which it must
An administrative rule in the nature of
conform.
subordinate legislation is designed to
implement a law providing its details, and
A law is complete when it sets forth therein the
before it is adopted there must be a hearing
policy to be executed, carried out or implemented
under the Administrative Code of 1987. Those
by the delegate. It lays down a sufficient standard
which are merely interpretative rules need not
when it provides adequate guidelines or limitations
comply with the hearing requirement. (CIR v.
in the law to map out the boundaries of the
CA, G.R. No. 11976, 26 Aug. 1996)
delegate’s authority and prevent the delegation
from running riot. To be sufficient, the standard
Additional Requisites for Administrative Rules
must specify the limits of the delegate’s authority,
and Regulations with Penal Sanctions
announce the legislative policy, and identify the
conditions under which it is to be implemented.
Requisites to be complied with:
(ABAKADA Guro Party List v. Purisima, G.R. No.
166715, 14 Aug. 2008)
1. Law must declare the act punishable;
2. Law must define or fix the penalty; and
The administrative body may not make rules and
3. Rules must be published in the Official
regulations which are inconsistent with the
Gazette or in a newspaper of general
provisions of the Constitution or a statute,
circulation. (Hon. Secretary Perez v. LPG
particularly the statute it is administering, or which
Refillers Association of the Philippines, G.R.
created it, or which are in derogation of, or defeat,
No. 159149, 26 June 2006)
the purpose of a statute. (Dagan v. Philippine Racing
Commission G.R. No. 175220, 12 Feb. 2009)
GRANT PUBLICATION
Supplementary
Express or Implied Required
349
Filing of Copies of Administrative Rules and In the construction of a doubtful and ambiguous
Regulations Before the UPLC law, the contemporaneous construction of those
who are called upon to act under the law and were
Each agency must file with the Office of the National appointed to carry its provisions into effect (i.e., the
Administrative Register (ONAR) of the University of practice and interpretive regulations by officers,
the Philippines Law Center three (3) certified copies administrative agencies, departmental heads, and
of every rule adopted by it. Administrative other officials charged with the duty of
issuances which are not published or filed with the administering and enforcing a statute), is entitled to
ONAR are ineffective and may not be enforced. (Sec. very great respect. (Lim Hoa Ting v. Central Bank of
3, E.O. 292; GMA v. MTRCB, G.R. No. 148579, 05 the Philippines, G.R. No. L-10666, 24 Sept. 1958)
Feb.2007)
Effect of Administrative Interpretations to
However, not all rules and regulations adopted by Courts
every government agency are to be filed with the UP
Law Center. Only those of general or of permanent The construction given to a statute by an
character are to be filed. According to the UP Law administrative agency charged with the
Center’s guidelines for receiving and publication of interpretation and application of that statute should
rules and regulations, “interpretative regulations be accorded great weight by the courts unless such
and those merely internal in nature, that is, construction is clearly shown to be in sharp conflict
regulating only the personnel of the administrative with the governing statute or the Constitution and
agency and not the public,” need not be filed with other laws. (Nestle Philippines Inc. v. CA, G.R. No.
the UP Law Center. (The Board of Trustees of the GSIS 86738, 13 Nov. 1991)
v. Velasco, G.R. No. 170463, 02 Feb. 2011)
Administrative regulations enacted by
Effectivity of Administrative Rules administrative agencies to implement and interpret
the law have the force of law and enjoy the
GR: Administrative rules take effect depending on presumption of constitutionality and legality until
the date provided by it. they are set aside with finality in an appropriate
case by a competent court. (NASECORE v. MERALCO,
XPN: If the administrative rule is silent on the G.R. No. 191150, 10 Oct. 2016)
matter of its date of effectivity, it shall take effect
after 15 days following the completion of their 2. QUASI-JUDICIAL (ADJUDICATORY) POWER
publication.
Definition
Authority of Administrative Officers to
Implement and Interpret the Law
The power of administrative authorities to make
determinations of facts in the performance of their
Administrative officers are tasked to implement the
official duties and to apply the law as they construe
law and authorized to interpret it because they have
it to the facts so found. It partakes in the nature of
the expertise to do so.
judicial power but exercised by a person other than
a judge.
Contemporaneous Construction
The proceedings partake of the character of judicial

The construction placed upon the statute by an
proceedings. Administrative bodies are normally
executive or administrative officer called upon to
granted the authority to promulgate its own rules of
execute or administer such statute. They are usually
procedure, provided they do not increase, diminish,
in the form of circulars, directives, opinions, and
or modify substantive rights, and subject to
rulings.
disapproval by the Supreme Court. (Nachura, 2014)
350
2023 GOLDEN NOTES
Unless expressly granted, administrative agencies suspend or dismiss for cause any employee and/or
are bereft of quasi-judicial powers. The jurisdiction approve or disapprove the appointment, transfer,
of administrative agencies is dependent entirely or detail of employees. Further, Sec. 3(j) of P.D. No.
upon the provisions of the statutes reposing power 1986 states that the Board can prescribe the
in them; they cannot confer it upon themselves. internal and operational procedures for the exercise
(Taule v. Santos, G.R. No. 90336, 12 Aug. 1991) of its powers and functions as well as the
performance of its duties and responsibilities,
While it is a fundamental rule that an administrative including the creation and vesting of authority upon
agency has only such powers that are expressly sub-committees of the Board for the work of review
granted to it by law, it is likewise a settled rule that and other related matters. The MTRCB was likewise
an administrative agency has also such powers as authorized to promulgate rules and regulations for
are necessarily implied in the exercise of its express the implementation of P.D. No. 1986 and its
powers. (Laguna Lake Development Authority purposes and objectives.
(LLDA) v. CA, G.R. No. 110120, 16 Mar. 1994)
b. Did the petitioners lose their right to
Q: Petitioners John and Yoko were former appeal to the CSC when they wrongfully
employees of the MTRCB who were found to be filed it with the Office of the President?
responsible for the falsification of the 2005 CNA
or at least making it appear as a new CNA A: YES. The CSC's jurisdiction over civil service
covering a different period in order to secure disputes is settled. Secs. 2(1) and 3 of Art. IX-B of the
benefits from the MTRCB and were later 1987 Constitution states that the powers of the CSC
charged for violating civil service rules on as the central personnel agency of the Government,
dishonesty, grave misconduct and falsification include having jurisdiction over disputes involving
of official documents under Sec. 52(A) 1, 3 and 6 the removal and separation of all employees of
of the Uniform Rules on Administrative Cases in government branches, subdivisions,
the Civil Service. The Adjudication Committee instrumentalities, and agencies, including GOCCs
ordered the preventive suspension of with original charters. It is the sole arbiter of
petitioners and imposed the penalty of controversies relating to the civil service. When the
dismissal from service. Petitioners moved for Adjudication Committee rendered a decision
reconsideration and questioned the power and against petitioners, the applicable CSC rule was M.C.
authority of the Adjudication Committee to No. 19, as amended by Resolution No. 07-0244.
impose the penalty of dismissal, but the Following Sec. 43 as amended, petitioners had two
committee denied this as it acted and decided options: (1) appeal to the department head before
pursuant to the authority of the MTRCB and that appealing to the CSC; or (2) directly file an appeal
requiring the entire Board to decide the case with the CSC. It was a mistake for them to appeal the
lacked statutory basis. Petitioners appealed decision of the Adjudication Committee with the OP
first to the Office of the President then to the CSC, as the MTRCB had its own charter and considered a
both of which were dismissed. Then on appeal, department under M.C. No. 19, as amended by
the CA affirmed the CSC, hence this petition. Resolution No. 07-0244, making Laguardia
department head.
a. Does the Adjudication Committee have
the power or authority to order the In light of the foregoing, the Court agrees with the
dismissal of the petitioners? CA and the CSC that petitioners could no longer
question the Adjudication Committee's decision as
they have failed to appeal the same in the manner
A: NO. The Adjudication Committee had the power
prescribed by law. The decision has become final
to dismiss petitioners. Sec. 16 of the MTRCB Charter
and executory as to them and no court, not even this
provides that the MTRCB shall have the power to
351
Court, has the power to revise, review, change or (Evangelista v. Jarencio, G.R. No. L-29274, 27 Nov.
alter it. (Mina C. Nacilla v. MTRCB, G.R. No. 223449, 1975)
10 Nov 2020)
A subpoena meets the requirements for
See page 356 for discussion on Administrative enforcement if:
Appeal and Review. a. The inquiry is within the authority of the
agency;
Limited Jurisdiction of Quasi-Judicial Agencies b. The demand is not to indefinite; and
c. The information is reasonably relevant.
An administrative body could wield only such (Ibid.)
powers as are specifically granted to it by its
enabling statute. Its jurisdiction is interpreted 2. Contempt power
strictissimi juris.
Quasi-judicial agencies that have the power to cite
Conditions for the Proper Exercise of Quasi- persons for indirect contempt can only do so by
Judicial Power initiating them in the proper RTC. It is not within
their jurisdiction and competence to decide the
1. Jurisdiction must be properly acquired by indirect contempt cases. These matters are still
the administrative body; and within the province of the RTCs. (Land Bank of the
2. Due process must be observed in the Philippines v. Listana, G.R. No. 152611, 05 Aug. 2003)
conduct of the proceedings.
Two (2) ways of Charging a Person with Indirect
Quasi-Judicial Power includes the following Contempt
1. Subpoena power 1. Through a verified petition; or

2. By order or formal charge initiated by the
Subpoena is a process directed to a person requiring court motu proprio (Ibid.)
him or her to attend and to testify at the hearing or
the trial of an action, or at any investigation NOTE: In any contested case, the agency
conducted by competent authority, or for the taking shall have the power to require the
of his deposition. It may also require such person to attendance of witnesses or the production
bring with him or her any books, documents, or of books, papers, documents and other
other things under his or her control, in which case pertinent data, upon request of any party
it is called a subpoena duces tecum. (Sec. 1, Rule 21, before or during the hearing upon showing
ROC, as amended) of general relevance. Unless otherwise
provided by law, the agency may, in case of
Administrative agencies may enforce subpoenas disobedience, invoke the aid of the RTC
issued in the course of investigations, whether or within whose jurisdiction the contested
not adjudication is involved, and whether or not case being heard falls. The Court may
probable cause is shown and even before the punish contumacy or refusal as contempt.
issuance of a complaint. It is not necessary, as in the (Sec. 13, Chapter 3, Book VII, E.O. No. 292)
case of a warrant, that a specific charge or complaint
of violation of law be pending or that the order be
made pursuant to one. It is enough that the
investigation be for a lawfully authorized purpose.
The purpose of the subpoena is to discover
evidence, not to prove a pending charge, but upon to
make one if the discovered evidence so justifies.
352
2023 GOLDEN NOTES
Classifications of Adjudicatory Powers Equitable powers
The power to
DEFINITION EXAMPLES determine the law
Enabling powers upon a particular state
Power to appoint a
Permits the doing of an of facts that has the
receiver, power to
act which the law right to, and must,
issue injunctions
undertakes to regulate, consider and make
and which would be proper application of
Issuance of licenses to
unlawful without the rules of equity
engage in a particular
governmental orders. Examining powers
business
It is characterized by Issuance of subpoena.
This is also called as
the grant or denial of
investigatory power.
permit or NOTE: Power to Issue
Requires production of
authorization Subpoena Not Inherent
books, papers, etc., and
Directing powers in Administrative
the attendance of
Public utility Bodies. (Sec.
witnesses and
commissions, powers Evangelista v. Hon.
compelling the
of assessment under Jarencio, G.R. No. L-
testimony.
the revenue laws, 29274, 27 Nov. 1975)
Orders the doing or
reparations under
performing of
public utility laws, and a) ADMINISTRATIVE DUE PROCESS
particular acts to
awards under
ensure the compliance
workmen’s Nature of Administrative Proceedings
with the law and are
compensation laws,
often exercised for
and powers of abstract It is summary in nature.
corrective purposes
determination such as
definition-valuation, Inapplicability of Technical Rules of Procedure
classification and fact and Evidence in Administrative Proceedings
finding
Dispensing powers The technical rules of procedure and of evidence
Authority of zoning prevailing in courts of law and equity are not
boards to vary controlling in administrative proceedings to free
Exempt from or relax a provisions of zoning administrative boards or agencies from the
general prohibition, or ordinances, or the compulsion of technical rules so that the mere
authority to relieve authority of the admission of matter which would be deemed
from an affirmative Acceptance Board of incompetent in judicial proceedings would not
duty the Philippine Army to invalidate an administrative order.
relieve certain persons
from military training Cardinal Requirements of Due Process in
Summary powers Administrative Proceedings (1994 BAR)
Apply compulsion or
force against person or 1. Right to a hearing which includes the right to
Abatement of nuisance, present one’s case and submit evidence in
property to effectuate
summary restraint, support thereof;
a legal purpose
levy of property of
without a judicial
delinquent taxpayers 2. The tribunal must consider the evidence
warrant to authorize
such action presented;
353
3. The decision must be supported by evidence; Necessity of Notice and Hearing
4. Such evidence must be substantial; A hearing may take place after the deprivation
occurs. What the law prohibits is not the absence of
5. The decision must be rendered on the evidence previous notice but the absolute absence thereof
presented at the hearing or at least contained in and the lack of opportunity to be heard.
the record, and disclosed to the parties affected;
NOTE: There has been no denial of due process if
6. The tribunal or body or any of its judges must any irregularity in the premature issuance of the
act on its own independent consideration of the assailed decision has been remedied by an order
law and facts of the controversy in arriving at a giving the petitioners the right to participate in the
decision; and, hearing of the MR. The opportunity granted by,
technically, allowing petitioners to finally be able to
7. The board or body should render a decision in file their comment in the case, resolves the
such a manner that parties can know the procedural irregularity previously inflicted upon
various issues involved and the reasons for the petitioners. (Nasecore v. ERC, G.R. No. 190795, 06 July
decision rendered. (Ang Tibay v. CIR, G.R. No. L- 2011)
46496, 27 Feb. 1940)
NOTE: The essence of due process in administrative

proceedings is the opportunity to explain one’s side
or seek a reconsideration of the action or ruling
complained of. As long as the parties are given the
opportunity to be heard before judgment is
rendered, the demands of due process are
sufficiently met. What is offensive to due process is
the denial of the opportunity to be heard. (Flores v.
Montemayor, G.R. No. 170146, 06 June 2011)
Trial-type Hearing Not Required
Due process in an administrative context does not

require trial-type proceedings similar to those in
courts of justice. Where opportunity to be heard
either through oral arguments or through pleadings
is accorded, there is no denial of procedural due
process. The requirements are satisfied where the
parties are afforded fair and reasonable opportunity
to explain their side of the controversy at hand. It is
not violative of due process when an administrative
agency resolves cases based solely on position
papers, affidavits, or documentary evidence
submitted by the parties as affidavits of witnesses
which may take the place of their direct testimony.
(Lastimoso v. Asayo, G.R. No. 154243, 04 Dec. 2007)
354
2023 GOLDEN NOTES
Effect of Non-Observance of Notice and Hearing administrative inquiry. (Lumiqued v. Exevea, G.R No.
117565, 18 Nov. 1997)
As a rule, it will invalidate the administrative
proceedings. A failure to comply with the Quantum of Proof Required in Administrative
requirements may result in a failure to acquire Proceedings
jurisdiction.
Substantial evidence is that amount of relevant
NOTE: Right to notice may be waived. evidence that a reasonable mind might accept as
adequate to support a conclusion.
XPNs to the Requirement of Notice and Hearing
Q: The PMC released funds for “CCIE allowance”
1. Urgency of immediate action; to enlisted personnel in active duty. To cover
these, checks were issued by way of cash
2. Tentativeness of administrative action; advances, for which various documents were
submitted. Upon investigations, it was revealed
3. Grant or revocation of licenses or permits that the PMC enlisted personnel never received
to operate certain businesses affecting their CCIE allowance, and contrary to the normal
public order or morals; procedure, the proceeds were released to
Jandayan, the Assistant Chief of Staff for
4. Summary abatement of nuisance per se Personnel, instead of the disbursing officer.
which affects safety of persons or property;
FFIB-MOLEO filed an administrative and
5. Preventive suspension of public officer or criminal affidavit-complaint before the
employee facing administrative charges; Ombudsman, charging Jandayan and others for
Malversation through falsification of public
6. Cancellation of a passport of a person documents, Dishonesty, Violation of COA rules
sought for criminal prosecution; and regulations, and Violation of Sec. 3(e) of R.A.
No. 3019, showing conspiracy in the commission
7. Summary proceedings of distraint and levy of irregularities in the release of the CCIE funds,
upon property of a delinquent taxpayer; with Jandayan being held liable for issuing a
roster of troops and disbursement vouchers
8. Replacement of a temporary or acting certifying that the expenses were necessary,
appointee; and, lawful, and incurred under his direct
supervision.
9. Right was previously offered but not
claimed. Will the complaint prosper?
Inapplicability of the Right to Counsel in A: YES. While Jandayan's act of signing the roster of
Administrative Inquiries troops and disbursement voucher might seem
innocuous on its own, if taken together with the acts
The right to counsel which may not be waived, of his co-respondents, it shows a common criminal
unless in writing and in the presence of counsel, as goal to defraud the government. Consequently, a
recognized by the Constitution, is a right of a suspect reasonable mind will accept that Jandayan and his
in a custodial investigation. It is not an absolute co-respondents were acting with one aim, with each
right and may, thus, be invoked or rejected in one performing one part, and all their parts
criminal proceeding and, with more reason, in an completing their aim, which was to make it appear
355
that funds were distributed to PMC personnel when, Different Kinds of Administrative Appeal and
in reality, they were not so. Review
Citing Field Investigation Office of the Office of the 1. Inheres in the relation of administrative
Ombudsman v. Castillo (G.R. No. 221848, 30 Aug. superior to administrative subordinate;
2016), “a public office is a public trust and public
officers and employees must at all times be 2. Statutes which provide for determination
accountable to the people, serve them with utmost to be made by a particular officer or body
responsibility, integrity, loyalty, and efficiency, act subject to appeal, review or
with patriotism and justice, and lead modest lives.” redetermination by another officer or body
Jandayan signed a roster of troops and in the same agency or in the same
disbursement voucher to support the liquidation of administrative system;
the cash advance. He received the funds although he
had no authority to do so. Worse, he failed to show 3. The statute makes or attempts to make a
where the money went. His acts, taken together court a part of the administrative scheme
with that of his co-respondents show an utter by providing in terms or effect that the
disregard of the trust reposed in him as a public court, on review of the action of an
officer and for which he should be held liable. (FFIB- administrative agency;
MOLEO v. Major Jandayan, G.R. No. 218155, 22 Sept
2020) 4. The statute provides that an order made by
a division of a commission or board has the
b) ADMINISTRATIVE APPEAL AND REVIEW same force and effect as if made by the
subject to a rehearing by the commission;
Administrative Appeal
5. The statute provides for an appeal to an
It includes the review by a higher agency of officer on an appeal to the head of the
decisions rendered by an administrative agency, department or agency; and,
commenced by petition of an interested party.
6. Statutes which provide for appeal at the
NOTE: Under E.O. 292, administrative appeals from highest level namely, the president. (De
a final decision of an agency are taken to the Leon, 2010)
Department Head, unless otherwise provided by
law or executive order. Enforcement of Administrative Decisions
Administrative Review 1. As provided for by law; or

2. Through the court’s intervention.
A superior officer or department head, upon his or
her own volition, may review the decision of an c) ADMINISTRATIVE RES JUDICATA
administrative agency or that of a subordinate’s
decision pursuant to the power of control. Doctrine of Res Judicata is Not Applicable to
Purely Administrative Functions
It is, however, subject to the caveat that a final and
executory decision is not included within the power The doctrine of res judicata applies only to judicial
of control, and hence can no longer be altered by or quasi-judicial proceedings and not to the exercise
administrative review. of purely administrative functions. Administrative
proceedings are non-litigious and summary in
nature. Hence, res judicata does not apply. (Nasipit
356
2023 GOLDEN NOTES
Lumber Company, Inc. v. NLRC, G.R. No. 54424, 31 2. It must have been rendered by a court
Aug. 1989) having jurisdiction over the subject matter
and the parties;
In administrative law, a quasi-judicial proceeding
involves (a) taking and evaluating evidence; (b) 3. The disposition of the case must be a
determining facts based upon the evidence judgment on the merits; and
presented; and (c) rendering an order or decision
supported by the facts proved. The exercise of 4. There must be identity of parties, subject
quasi-judicial functions involves a determination, matter, and causes of action (Ibid.)
with respect to the matter in controversy, of what
the law is; what the legal rights and obligations of NOTE: Should identity of parties, subject matter,
the contending parties are; and based thereon and and causes of action be shown in the two cases, then
the facts obtaining, the adjudication of the res judicata in its aspect as a “bar by prior judgment”
respective rights and obligations of the parties. would apply. If as between the two cases, only
(Ligtas v. People, G.R. No. 200751, 17 Aug. 2015) identity of parties can be shown, but not identical
causes of action, then res judicata as
Two Concepts of Res Judicata “conclusiveness of judgment” applies. (Ibid.)
1. Bar by previous judgment XPNs to the Non-Applicability of Res Judicata in

Administrative Proceedings
There is “bar by previous judgment” when, as
between the first case where the judgment was 1. Naturalization proceedings or those
rendered and the second case that is sought to be involving citizenship and immigration;
barred, there is identity of parties, subject matter, 2. Labor relations; and
and causes of action. In this instance, the judgment 3. Decisions affecting family relations,
in the first case constitutes an absolute bar to the personal status or condition, and capacity
second action. (Ligtas v. People, G.R. No. 200751, 17 of persons.
Aug. 2015)
NOTE: It is well settled that findings of fact of quasi-
2. Conclusiveness of judgment judicial agencies, such as COA, are generally
accorded respect and even finality by this Court, if
If a particular point or question is in issue in the supported by substantial evidence, in recognition of
second action, and the judgment will depend on the their expertise on the specific matters under their
determination of that particular point or question, a jurisdiction. (Reyna v. COA, G.R. No. 167219, 08 Feb.
former judgment between the same parties will be 2011)
final and conclusive in the second if that same point
or question was in issue and adjudicated in the first Quasi-Legislative vs. Quasi-Judicial power
suit. Identity of cause of action is not required but
merely identity of issue. (Ibid.) QUASI-JUDICIAL QUASI-LEGISLATIVE
As to grant
Elements of Res Judicata Express Express or Implied
As to parties involved
1. The judgment sought to bar the new action Particular All / Sectors
must be final; As to whether adversarial or not
Yes No
As to existence of controversy
Exists None
357
As to prior notice and hearing requirement 4. Factual findings not supported by
Not required unless evidence;
Required law required; radical 5. Grave abuse of discretion, arbitrariness, or
change capriciousness is manifest;
As to applicability of Doctrine of Primary 6. When expressly allowed by statute; and,
Jurisdiction / Exhaustion of Remedies 7. Error in appreciation of the pleadings and
Not applicable; judicial in the interpretation of the documentary
Applicable evidence presented by the parties. (Ngei
review at first instance
As to its operation Multi-Purpose Cooperative Inc. v. Filipinas
Past or Present Future Palm Oil Plantation, Inc., G.R. No. 184950, 11
As to publication requirement Oct. 2012)
Not required Depends on type
As to applicability of res judicata Fact-Finding Quasi-Judicial Body
Applicable Not applicable
A fact-finding quasi-judicial body (e.g., LTFRB)
(Agra, 2023)
whose decisions (on questions regarding certificate
of public convenience) are influenced not only by
3. FACT-FINDING, INVESTIGATIVE, LICENSING, the facts as disclosed by the evidence in the case
AND RATE-FIXING POWERS before it but also by the reports of its field agents
and inspectors that are periodically submitted to it,
FACT-FINDING POWER has the power to take into consideration the result
of its own observation and investigation of the
Fact-Finding Power matter submitted to it for decision, in connection
with other evidence presented at the hearing of the
1. Power to declare the existence of facts case. (Pantranco South Express, Inc. v Board of
which call into operation the provisions of Transportation, G.R. No. L-49664, 22 Nov. 1990)
a statute; and
INVESTIGATIVE POWER
2. Power to ascertain and determine
appropriate facts as a basis for procedure Investigative Power
in the enforcement of particular laws.
Power to inspect, secure, or require the disclosure
NOTE: The mere fact that an officer is required by of information by means of accounts, records,
law to inquire the existence of certain facts and to reports, statements, and testimony of witnesses. It
apply the law thereto in order to determine what his is implied and not inherent in administrative
official conduct shall be and the fact that these acts agencies. (Secretary of Justice v. Hon. Lantion, G.R.
may affect private rights do not constitute an No. 139465, 18 Jan. 2000)
exercise of judicial powers. (Lovina v. Moreno, G.R.
No. L-17821, 21 Nov. 1963) Power to Issue Subpoena Not Inherent in
Administrative Bodies
XPNs to the Rule that Findings of Facts of
Administrative Agencies are Binding on the Administrative bodies may summon witnesses and
Courts require the production of evidence only when duly
allowed by law, and always only in connection with
1. Findings are vitiated by fraud, imposition, the matter they are authorized to investigate.
or collusion; (Secretary Evangelista v. Hon. Jarencio, G.R. No. L-
2. Procedure which led to factual findings is 29274, 27 Nov. 1975)
irregular;
3. Palpable errors are committed;
358
2023 GOLDEN NOTES
Power to Cite a Person in Contempt not Inherent Licensing
in Administrative Bodies
It includes agency process involving the grant,
It must be expressly conferred upon the body, and renewal, denial, revocation, suspension, annulment,
additionally, must be used only in connection with withdrawal, limitation, amendment, modification,
its quasi-judicial as distinguished from its purely or conditioning of a license. (Sec. 2(11), Book VII, E.O.
administrative or routinary functions. (In Re 292)
Contempt Proceedings against Armando Ramos v.
Ramos, G.R. No. L-17778, 30 Nov. 1962) NOTE: Except in cases of willful violation of
pertinent laws, rules and regulations or when public
NOTE: If there is no express grant, the agency must security, health, or safety requires otherwise, no
invoke the aid of the RTC under Rule 71 of the ROC. license may be withdrawn, suspended, revoked or
annulled without notice and hearing. (Sec. 17(2),
Q: May administrative agencies issue warrants Book VII, E.O. No. 292)
of arrest or administrative searches?
Nature of an Administrative Agency’s Act if it is
A: GR: NO. Under the 1987 Constitution, only a Empowered by a Statute to Revoke a License for
judge may issue warrants. Non-Compliance or Violation of Agency
Regulations
XPN: In cases of deportation of illegal and desirable
aliens, an arrest ordered by the President or his duly Where a statute empowers an agency to revoke a
authorized representatives, to carry out a final license for non-compliance with or violation of
decision of deportation, is valid. (Salazar v. agency regulations, the administrative act is of a
Achacoso, G.R. No. 81510, 14 Mar. 1990) judicial nature, since it depends upon the
ascertainment of the existence of certain past or
LICENSING POWER present facts upon which a decision is to be made
and rights and liabilities determined. (Sañado v. CA,
Licensing Power supra.)
The action of an administrative agency in granting RATE-FIXING POWERS

or denying, or in suspending or revoking, a license,
permit, franchise, or certificate of public Rate-fixing power
convenience and necessity. (Sañado v. CA, G.R. No.
108338, 17 Apr. 2007) It is the power usually delegated by the legislature
to administrative agencies for the latter to fix the
License rates which public utility companies may charge the
public. (Philippine Communications Satelliter
Includes the whole or any part of any agency’s Corporation v. Alcuaz, G.R. No. 84818, 18 Dec. 1989)
permit, certificate, passport, clearance, approval,
registration, charter, membership, statutory NOTE: The power to fix rates is essentially
exemption or other form of permission, or legislative but may be delegated. (Philippine Inter-
regulation of the exercise of a right or privilege. (Sec. Island v. CA, G.R. No. 100481, 22 Jan. 1997)
2(10), Book VII, E.O. 292)
The legislature may directly provide for these rates,
wages, or prices. But while the legislature may deal
directly with these subjects, it has been found more
advantageous to place the performance of these
359
functions in some administrative agency. The need Standard Required on Delegated Power to Fix
for dispatch, for flexibility and technical know-how Rates
is better met by entrusting the rate-fixing to an
agency other than the legislature itself. (Cortes, It is required that the rate be reasonable and just.
1963) (American Tobacco Co. v. Director of Patents, G.R. No.
L-26803, 14 Oct. 1975)
Rate
In any case, the rates must both be non-confiscatory
It means any charge to the public for a service open and must have been established in the manner
to all and upon the same terms, including individual prescribed by the legislature. Even in the absence of
or joint rates, tolls, classification, or schedules an express requirement as to reasonableness, this
thereof, as well as communication, mileage, standard may be implied. A rate-fixing order,
kilometrage and other special rates which shall be though temporary or provisional it may be, is not
imposed by law or regulation to be observed and exempt from the procedural requirements of notice
followed by a person. (Sec. 2(3), Book VII, E.O. No. and hearing when prescribed by statute, as well as
292) the requirement of reasonableness. (Philippine
Communications Satellite Corporation v. NTC, G.R.
Rate-Fixing Procedure No. 84818, 18 Dec. 1989)
The administrative agencies perform this function Redelegating Power to Fix Rates is Prohibited
either by issuing rules and regulations in the
exercise of their quasi-legislative power or by The power delegated to an administrative agency to
issuing orders affecting a specified person in the fix rates cannot, in the absence of a law authorizing
exercise of its quasi-judicial power. it, be delegated to another. This is expressed in the
maxim, potestas delagata non delegari potest.
NOTE: In the fixing of rates, no rule or final order (Kilusang Mayo Uno Labor Center v. Garcia, Jr., G.R.
shall be valid unless the proposed rates shall have No. 115381, 23 Dec. 1994)
been published in a newspaper of general
circulation at least two (2) weeks before the first POWER TO FIX POWER TO FIX RATE
hearing thereon. (Sec. 9(2), Book VII, E.O. No. 292) RATES EXERCISED EXERCISED AS A
(2009, 2000 BAR) AS A LEGISLATIVE QUASI-JUDICIAL
FUNCTION FUNCTION
Requirements for the Delegation of the Power to As to the applicability of Rules and Rates
Ascertain Facts to be Valid Rules and/or rates laid Rules and the rate
down are meant to imposed apply
The law delegating the power to determine some apply to all exclusively to a
facts or state of things upon which the law may take enterprises. particular party.
effect, or its operation suspended must provide the As to the notice and hearing requirement
standard, fix the limits within which the discretion Prior notice and
may be exercised, and define the conditions GR: Prior notice and hearing are essential to
therefor. Absent these requirements, the law and hearing to the affected the validity of such
the rules issued thereunder are void, the former parties is not a rates. But an
being an undue delegation of legislative power and requirement. administrative agency
the latter being the exercise of rulemaking without may be empowered by
legal basis. (U.S. v. Ang Tang Ho, G.R. No. L-17122, 27 XPN: where the law to approve
Feb. 1992) legislature itself provisionally, when
requires it. demanded by urgent
public need, rates of
360
2023 GOLDEN NOTES
public utilities without if determination of the issue is left to the
a hearing. administrative body.
Instances Where the Doctrine Finds No

D. JUDICIAL RECOURSE AND REVIEW Application
1. By the court's determination, the

legislature did not intend that the issues be
1. DOCTRINE OF PRIMARY ADMINISTRATIVE left solely to the initial determination of the
JURISDICTION administrative body;
2. The issues involve purely questions of law;
Doctrine of Primary Jurisdiction or Doctrine of and
Prior Resort
3. Courts and administrative bodies have
Under the principle of primary jurisdiction, courts concurrent jurisdiction.
cannot or will not determine a controversy
involving question within the jurisdiction of an XPNs to the Doctrine of Primary Jurisdiction:
administrative body prior to the decision of that (M-I-L-D D-I-E-S Quo P-O)
question by the administrative tribunal where the:
1. Where there is unreasonable Delay or
1. Question demands administrative official inaction that will irretrievably
determination requiring special prejudice the complainant;
knowledge, experience, and services of the
administrative tribunal; 2. Where the challenged administrative act is
patently Illegal, amounting to lack of
2. Question requires determination of jurisdiction;
technical and intricate issues of a fact; or
3. Where there is Estoppel on the part of the
3. Uniformity of ruling is essential to comply party invoking the doctrine;
with purposes of the regulatory statute
administered. 4. Where the amount involved is relatively
Small so as to make the rule impractical and
NOTE: In such instances, relief must first be oppressive;
obtained in administrative proceeding before a
remedy will be supplied by the courts even though 5. Where the question involved is purely
the matter is within the proper jurisdiction of a Legal and will ultimately have to be decided
court. The judicial process is accordingly suspended by the courts of justice;
pending referral of the claim to the administrative
agency for its view. 6. Where judicial Intervention is urgent;
Rationale 7. When its application may cause great and

irreparable Damage;
1. To take full advantage of administrative
expertness; and 8. When the issue of non-exhaustion of
2. To attain uniformity of application of administrative remedies has been
regulatory laws which can be secured only rendered Moot;
361
9. When there is no Other plain, speedy and (Villaflor v. Court of Appeals, G.R. No. 95694, 9 Oct.
adequate remedy; 1997)
10. When strong Public Interest is involved; Q: A civil case for the collection of sum of money
was filed by X Company against the province of
11. Where the controverted acts violate Due Batangas before the RTC. After the petitioner’s
process; presentation of evidence, the province of
Batangas moved for the dismissal of the case on
12. In Quo warranto proceedings. (The the ground that it is the Commission on Audit
Province of Aklan v. Jody King Construction which has primary jurisdiction over the matter
and Development Corp., G.R. Nos. 197592 & for it involves transactions with the province
202623, 27 Nov. 2013) which was governed by the Local Government
Code provisions and COA rules and regulations
Raising the Issue of Primary Jurisdiction on supply and property management in local
governments. Is the contention of the province
The court may motu proprio raise the issue of of Batangas correct?
primary jurisdiction and its invocation cannot be
waived by the failure of the parties to argue it, as the A: YES. It is the COA and not the RTC which has
doctrine exists for the proper distribution of power primary jurisdiction to pass upon petitioner’s
between judicial and administrative bodies and not money claim against respondent local government
for the convenience of the parties. In such case the unit. Such jurisdiction may not be waived by the
court may: parties’ failure to argue the issue nor active
participation in the proceedings. The doctrine of
1. Suspend the judicial process pending primary jurisdiction holds that if a case is such that
referral of such issues to the administrative its determination requires the expertise, specialized
body for its review; or training and knowledge of an administrative body,
relief must first be obtained in an administrative
2. If the parties would not be unfairly proceeding before resort to the courts is had even if
disadvantaged, dismiss the case without the matter may well be within their proper
prejudice. (Euro-Med Laboratories Phil. v. jurisdiction. It applies where a claim is originally
Province of Batangas, G.R No. 148106, 17 cognizable in the courts and comes into play
July 2006) whenever enforcement of the claim requires the
resolution of issues which, under a regulatory
Applicability of the Doctrine of Primary scheme, have been placed within the special
Jurisdiction competence of an administrative agency. In such a
case, the court in which the claim is sought to be
In recent years, it has been the jurisprudential trend enforced may suspend the judicial process pending
to apply this doctrine to cases involving matters that referral of such issues to the administrative body for
demand the special competence of administrative its view or, if the parties would not be unfairly
agencies even if the question involved is also judicial disadvantaged, dismiss the case without prejudice.
in character. It applies where a claim is originally (Euro-Med Laboratories Phil. Inc. v. Province of
cognizable in the courts and comes into play Batangas, G.R. No. 148106, 17 July 2006)
whenever enforcement of the claim requires the
resolution of issues which, under a regulatory Q: Petitioner university contracted the services
scheme, have been placed within the special of Stern Builders Corporation for the
competence of an administrative body; in such case, construction and renovation of its buildings in
the judicial process is suspended pending referral of UP Los Banos. In an action filed by Stern Builder
such issues to the administrative body for its view. against petitioner, the RTC rendered a favorable
362
2023 GOLDEN NOTES
judgment and granted the motion for execution authorize the claimant to elevate the matter to the
filed therewith by Stern Builders. Consequently, Supreme Court on certiorari and in effect, sue the
the sheriff served notices of garnishment on the State thereby. (University of the Philippines v. Dizon,
petitioner’s depository banks. Petitioner filed G.R. No. 171182, 23 Aug. 2012)
an urgent motion to quash the notices of
garnishment; and a motion to quash the writ of 2. DOCTRINE OF EXHAUSTION OF
execution on the ground that government funds ADMINISTRATIVE REMEDIES
and properties could not be seized by virtue of
writs of execution or garnishment except in
Doctrine of Exhaustion of Administrative
pursuance of an appropriation law or other
Remedies
specific statutory authority. However, RTC,
through respondent Judge, authorized the
It calls for resorting first to the appropriate
release of the garnished funds of petitioner. CA
administrative authorities in the resolution of a
upheld RTC’s judgment and the issuance of the
controversy falling under their jurisdiction. Such an
writ of garnishment of petitioner’s funds. Was
administrative decision must first be appealed to
the appellate court correct in sustaining RTC’s
the administrative superiors up to the highest level
jurisdiction to issue the writ of garnishment
before the same may be elevated to the courts of
against petitioner?
justice for review.
A: NO. The CA erred in ruling that petitioner’s funds

Premature invocation of court intervention is fatal
could be the proper subject of a writ of execution or
to one’s cause of action. Exhaustion of
garnishment. The settlement of the monetary claim
administrative remedies is a prerequisite for
was still subject to the primary jurisdiction of the
judicial review; it is a condition precedent which
COA despite the final decision of the RTC having
must be complied with.
already validated the claim. The funds of petitioner
are government funds that are public in character,
The doctrine of exhaustion of administrative
including any interest accruing from the deposit of
remedies is based on practical and legal reasons.
such funds in any banking institution, which
The availment of administrative remedy entails
constitute a "special trust fund," the disbursement
lesser expenses and provides for a speedier
of which should always be subject to auditing by the
disposition of controversies. Furthermore, the
COA. As such, the private claimants had no
courts of justice, for reasons of comity and
alternative except to first seek the approval of the
convenience, will shy away from a dispute until the
COA of their monetary claim. Trial judges should not
system of administrative redress has been
immediately issue writs of execution or
completed and complied with, so as to give the
garnishment against the Government or any of its
administrative agency concerned every opportunity
subdivisions, agencies and instrumentalities to
to correct its error and dispose of the case.
enforce money judgments. It is settled
jurisprudence that upon determination of State
Rationale
liability, the prosecution, enforcement or
satisfaction thereof must still be pursued in
1. To enable the administrative superiors to
accordance with the rules and procedures laid down
correct the errors committed by their
in P.D. No. 1445, otherwise known as the
subordinates;
Government Auditing Code of the Philippines which
pertains to COA’s primary jurisdiction to examine,
2. Courts should refrain from disturbing the
audit and settle all claims of any sort due from the
findings of administrative bodies in deference
Government or any of its subdivisions, agencies and
to the doctrine of separation of powers;
instrumentalities. Rejection of the claim will
363
3. Courts should not be saddled with the review of 11. When the issue of non-exhaustion of
administrative cases; administrative remedies has been rendered
Moot;
4. Judicial review of administrative cases is
usually effected through special civil actions 12. When there are circumstances indicating the
which are available only if there is no other Urgency of judicial intervention;
plain, speedy, and adequate remedy; and,
13. When it would amount to a Nullification of a
5. To avail of administrative remedy entails lesser claim; and
expenses and provides for a speedier
disposition of controversies. (Maglalang v. 14. Where the rule on Qualified political agency
PAGCOR, G.R. No. 190566, 11 Dec. 2013) applies. (Laguna CATV Network v. Maraan, G.R.
No. 139492, 19 Nov 2002)
XPNs to the Application of the Doctrine (1991,
2000, 2004 BAR): (D-I-E-P-A-I-L-R-U-N-M-U-N- Effect of Non-Exhaustion of Administrative
Q) Remedies
1. Violation of Due process; Failure to observe the doctrine of exhaustion of

administrative remedies does not affect the
2. When there is irreparable Injury; jurisdiction of the Court. The only effect of non-
compliance with this rule is that it will deprive the
3. When there is Estoppel on the part of the complainant of a cause of action, which is a ground
administrative agency concerned; for a motion to dismiss. If not invoked at the proper
time, this ground is deemed waived, and the court
4. When the subject matter is a Private land case can take cognizance of the case and try it. (Republic
proceedings; v. Sandiganbayan, G.R. Nos. 112708-09, 29 Mar.
1996)
5. When the respondent is a Department
Secretary who acts as an Alter ego of the Exhaustion of Administrative Remedies,
President bears the implied and assumed Fraudulent Qualifying Eligibility as a Public
approval of the latter; School Teacher
6. When the administrative action is patently The general rule is that before a party may seek the
Illegal amounting to lack or excess of intervention of the court, he should first avail of all
jurisdiction; the means afforded him by administrative
processes. The issues which administrative
7. When the issue involved is a purely Legal agencies are authorized to decide should not be
question; summarily taken from them and submitted to a
court without first giving such administrative
8. When the rule does not provide a plain, speedy, agency the opportunity to dispose of the same after
and adequate Remedy; due deliberation. While under Sec. 26 of RA 7836,
incumbent teachers without examination were
9. When it would be Unreasonable; originally only allowed to apply for registration
within two years from the organization of the Board,
10. When No administrative review is provided by BPT Resolution 600-1997 extended the period of
law; registration for those teachers to 19 Sept. 2000.
Failure to register by 19 Sept. 2000, shall forfeit
their privilege to practice the teaching profession
364
2023 GOLDEN NOTES
for abandonment of responsibility. Clearly, procedure and of impending harm. (Merida Water
respondents, in the case at bar, had until 19 Sept. District v. Bacarro, G.R. No. 165993, 30 Sept. 2008)
2000 to comply with the mandatory requirement to
register as professional teachers. As respondents Q: Deputy Ombudsman Katerina Sanchez was
are categorized as those not qualified to register dismissed by the Office of the President (OP) on
without examination, the law requires them to the ground of betrayal of public trust and a
register by taking and passing the licensure disciplinary proceeding against Special
examination. (Professional Regulation Commission v. Prosecutor Miranda Ramos is pending before
Alo, G.R. No. 214435, 14 Feb. 2022, J. Hernando) the OP. For this reason, Sanchez and Ramos
challenged the constitutionality of Sec. 8(2) of
Q: Alicia Water District (ALWAD), a GOCC that R.A. No. 6770 or The Ombudsman Act of 1989
operates water utility services conducted a regarding the President’s disciplinary
public hearing for the purpose of increasing the jurisdiction over a deputy ombudsman and a
water rate. Subsequently, they received a letter special prosecutor. The Supreme Court
from the Local Water Utilities Administration rendered its decision upholding the
(LWUA) confirming the proposed water rates. constitutionality of the said law and ordered the
ALWAD issued a resolution implementing a reinstatement of Sanchez. As regards Ramos, the
water rate increase of ₱90 for the first ten cubic Court ruled that the disciplinary proceeding
meters of water consumption. Because of this, against her should be continued because Sec.
consumers filed a Petition for Injunction against 8(2) of R.A. No. 6770 is not unconstitutional.
the petitioner before the RTC alleging that Only the OP, through the OSG moved for the
ALWAD violated LOI 700 by implementing a rate reconsideration of the Court’s ruling. What then
increase greater than 60% of current rate and is the effect of the absence of motion for
failing to conduct public hearing for the imposed reconsideration on the part of Sanchez and
rate of ₱90. ALWAD filed a Motion to Dismiss on Ramos?
the ground of failure to exhaust administrative
remedies under PD 198 as amended. One of the A: NONE. The omission of the filing of a motion for
respondents then questioned the legality of the reconsideration poses no obstacle for the Court’s
water rate increase before the National Water review of its ruling on the whole case since a serious
Resources Board (NWRB). RTC denied ALWAD’s constitutional question has been raised and is one of
Motion to Dismiss. On appeal, CA affirmed the the underlying bases for the validity or invalidity of
RTC. Does RTC have jurisdiction over the the presidential action. If the President does not
matter? have any constitutional authority to discipline a
Deputy Ombudsman and/or a Special Prosecutor in
A: YES. The failure to exhaust administrative the first place, then any ruling on the legal
remedy does not affect RTC’s jurisdiction. Non- correctness of the OP’s decision on the merits will
exhaustion of administrative remedies only renders be an empty one. In other words, since the validity
the action premature, that the cause of action is not of the OP’s decision on the merits of the dismissal is
ripe for judicial determination. It is incumbent upon inextricably anchored on the final and correct ruling
the party who has an administrative remedy to on the constitutional issue, the whole case –
pursue the same to its appropriate conclusion including the constitutional issue – remains alive for
before seeking judicial intervention. Although the the Court’s consideration on motion for
doctrine of exhaustion does not preclude in all cases reconsideration. (Emilio A. Gonzales III v. Office of
a party from seeking judicial relief, cases where its the President/Wendell Bareras-Sulit v. Atty. Paquito
observance has been disregarded require a strong N. Ochoa, Jr., G.R. No. 196231 and 196232, 28 Jan.
showing of the inadequacy of the prescribed 2014)
365
Q: M was appointed as City Government Q: Can hospitals be reimbursed at all times by
Department Head II of the CPDO, as issued by the PHIC despite filing or processing of claims
then Mayor G and approved by the Civil Service beyond the period permitted by law.
Commission. Eventually, M was appointed by
Mayor G as City Government Department Head A: NO. The denial of a hospital’s claims was justified
II of the CBO. It was a lateral transfer. since the hospital actively employed means or
methods to recruit cataract patients under
Mayor P was subsequently elected and conditions which are prohibited in Circular No. 19,
appointed B to M's former position as series of 2007. As per the case above, even if the
Department Head II of the CPDO. The CSC surgeries or treatments were strictly not performed
disapproved of M's appointment in the CBO due during a medical mission, it appeared that the
to a discrepancy in the appointment dates. cataract patients were actively recruited by USHH.
Hence, M was informed that her services would PHIC clearly demonstrated that USHH indeed
be terminated. Will mandamus lie to compel violated Circular Nos. 17 and 19, series of 2007
reinstatement of M as Department Head of the which would justify the denial of its reimbursement
CPDO? claims. USHH and its personnel/affiliates actively
recruited cataract patients in violation of the said
A: NO. Sec. 3, Rule 65 of the Rules of Court sets forth circulars. The hospital failed to disprove that it
the circumstances which warrant the issuance of a employed "seekers" in order to gather patients for
writ of mandamus: the free cataract screening who in turn sought
treatments in USHH by using their PhilHealth
SEC. 3. Petition for mandamus. - When any benefits, whether as members or beneficiaries
tribunal, corporation, board, officer or person (Philippine Health Insurance Corporation V.
unlawfully neglects the performance of an act Urdaneta Sacred Heart Hospital, G.R. No. 214485, 11
which the law specifically enjoins as a duty Jan. 2021, J. Hernando).
resulting from an office, trust, or station, or
unlawfully excludes another from the use and Q: The Intramuros Administration (IA) is a
enjoyment of a right or office to which such government agency created under P.D. 1616 on
other is entitled, xxx April 10, 1979. Under its charter, it is mandated
to undertake the orderly restoration and
The writ of mandamus shall only issue to compel the development of Intramuros as a monument to
performance of a ministerial act, or "one in which an the Hispanic Period of the Philippine
officer or tribunal performs in a given state of facts, history. Under the administration of Henson, IA
in a prescribed manner, in obedience to a mandate held a public bidding for the construction of
of legal authority, without regard to or the exercise three (3) houses in Plaza San Luis Cultural
of his own judgment upon the propriety or Commercial Complex. Three bidders
impropriety of an act done." Mandamus will not lie participated in the bidding. All their bids,
to compel the performance of a discretionary act. however, exceeded the Agency Approved
Estimate (AAE) of the project. But because of
As Sec. 13, Rule VI of the Omnibus Rules does not time constraints and to avoid the possible
apply given that M’s transfer is a lateral transfer, M's reversion of the funds intended for the project,
reinstatement thereto constitutes a discretionary the Bidding and Awards Committee (BAC) of IA
act which cannot be compelled through a writ of opted not to conduct a second bidding, and
mandamus. (Marey Marzan v. City Government of instead, negotiated with the lowest bidder,
Olongapo, G.R. No. 232769, 3 Nov 2020) Argus Development Corporation to reduce its
bid to P13,187,162.90. Argus agreed on the
condition that IA would supply construction
materials in the amount of not less than
366
2023 GOLDEN NOTES
P3,391,000.00 and that the architectural details Neither can Henson claim that there was no
would be downgraded. Argus completed the negligence or bad faith on her part considering that
project and was paid a total of P18,001,977.77. there were blatant violations of the rules on public
A COA audit team was created to conduct a post- bidding, which as Administrator she should have
inspection of the project and a re-examination of been aware of. (Henson v. COA, G.R. No. 230185, 07
related documents in view of the inherent and July 2020, J. Hernando)
hidden defects in the construction of the project.
A Notice of Disallowance was issued disallowing Doctrine of Primary Jurisdiction vs. Doctrine of
the amount of P2,328,186.00. Held liable were Exhaustion of Administrative Remedies
Henson for approving the payment and
Alcantara, Chief of Urban Planning and DOCTRINE OF
DOCTRINE OF
Community Development Office, for certifying EXHAUSTION OF
PRIMARY
the legality of the expenses which were incurred ADMINISTRATIVE
JURISDICTION
under his supervision. Henson invoked her right REMEDIES
to due process, for failure of COA-CP to promptly Relationship Between the Court and Admin
resolve her case within the prescribed period Agencies
under the Constitution as it took COA-CP Both deal with the proper relationships between
thirteen (13) years before finally deciding the the courts and administrative agencies.
case. She insists that she should not be held Jurisdiction
liable for the disallowed amounts considering Case is within the
that she merely relied on the findings of those concurrent jurisdiction
under her and the expertise of those in-charge. of the court and an
She also averred that she should not be held Claim is cognizable in
administrative agency,
liable in the absence of negligence or bad faith the first instance by an
but the determination
on her part. The Director of the NGAO held that administrative agency
of the case requires the
Henson’s arguments are without merit and alone.
technical expertise of
concluded that she is liable under the Notice of the administrative
Disallowance. Was the decision correct? agency.
Judicial Inference
A: YES. The essence of due process is simply the Although the matter is
opportunity to be heard, or to explain one's side, or within the jurisdiction Judicial interference is
to seek a reconsideration of the action or ruling of the court, it must withheld until the
complained of. Thus, as long as the party was yield to the jurisdiction administrative process
afforded the opportunity to defend himself/herself, of the administrative has been completed.
there is due process. Here, Henson was not denied agency.
due process as she was able to exhaust all legal
remedies available to her and that she was informed NOTE: The general rule is that before a party may
of the basis of the disallowance. As to the length of seek the intervention of the court, he should first
time that the case was pending before COA-CP, this avail of all the means afforded him by
does not in any way affect the validity of the Notice administrative processes. The issues which
of Disallowance. administrative agencies are authorized to decide
should not be summarily taken from them and
Unlike in Arias v. Sandiganbayan (G.R. Nos. 81563 submitted to a court without first giving such
and 82512, 19 Dec. 1989), Henson was the administrative agency the opportunity to dispose of
Administrator when the public bidding was the same after due deliberation. (Republic v. Lacap,
conducted up to the time when the payment was G.R. No. 158253, 02 Mar. 2007)
issued to Argus. Hence, she cannot evade liability.
367
Q: Danilo A. Lihaylihay identified himself as an question. (Danilo A. Lihaylihay v. Treasurer of the
informant under R.A. No. 2338. He sent two (2) Philippines, et al., G.R. No. 192223, 23 July 2018)
letters to the former head of the BIR-PCGG Task
Force concerning information on former Instances Where the Doctrine Finds No
President Marcos' ill-gotten wealth. Further, Application
Lihaylihay wrote to then Department of Finance
Secretary Margarito B. Teves and Treasurer of 1. Grant of relief to preserve the status quo
the Philippines Roberto C. Tan demanding his pending further action by the
entitlement to 25% informer's reward. Without administrative agency;
waiting for Secretary Teves' and Treasurer
Tan's official actions on his letters, Lihaylihay 2. Essential to the protection of the rights
filed a Petition for Mandamus and Damages, in asserted from the injuries threatened;
which he insisted on his entitlement to
informer's rewards. Is the filing of the petition 3. Administrative officer assumes to act in
proper? violation of the Constitution and other
laws;
A: NO. The availability of a more basic recourse
ahead of a Petition for Mandamus before this Court 4. Order is not reviewable in any other way
similarly demonstrates that petitioner failed to and the complainant will suffer great and
exhaust administrative remedies. Under the obvious damage if the order is carried out;
doctrine of exhaustion of administrative remedies,
recourse through court action cannot prosper until 5. Interlocutory order affects the merits of a
after all such administrative remedies have first controversy;
been exhausted. Non-observance of the doctrine of
exhaustion of administrative remedies results in 6. Order made in excess of power, contrary to
lack of cause of action. (Lihaylihay v. Tan, G.R. No, specific prohibition in the statute
192223, 23 July 2018) governing the agency and thus operating as
a deprivation of a right assured by the
In cases involving specialized disputes, the practice statute; and
has been to refer the same to an administrative
agency of special competence in observance of the 7. When review is allowed by statutory
doctrine of primary jurisdiction. The Court has provisions.
ratiocinated that it cannot or will not determine a
controversy involving a question which is within the Judicial Review
jurisdiction of the administrative tribunal prior to
the resolution of that question by the administrative It involves the re-examination or determination by
tribunal, where the question demands the exercise the courts in the exercise of their judicial power in
of sound administrative discretion requiring the an appropriate case instituted by a party aggrieved
special knowledge, experience and services of the thereby as to whether the questioned act, rule, or
administrative tribunal to determine technical and decision has been validly or invalidly issued or
intricate matters of fact, and a uniformity of ruling whether the same should be nullified, affirmed, or
is essential to comply with the premises of the modified. (Alliance for the Family Foundation
regulatory statute administered. The objective of Philippines, Inc. v. Hon. Garin, G.R. No. 217872, 26
the doctrine of primary jurisdiction is to guide a Apr. 2017)
court in determining whether it should refrain from
exercising its jurisdiction until after an NOTE: The mere silence of the law does not
administrative agency has determined some necessarily imply that judicial review is unavailable.
368
2023 GOLDEN NOTES
Requisites of Judicial Review of Administrative held that decisions of the Ombudsman in cases
Action absolving the respondent of the charge are
deemed final and unappealable, pursuant to the
1. Principle of finality of administrative Rules of Procedure of the Office of the
action - Administrative action must have Ombudsman. Is the CA correct?
been completed; (Cosmos Bottling Corp. v.
Nagrama, G.R. No. 164403, 04 Mar. 2008) A: YES. Where the respondent is absolved of the
and charge, and in case of conviction where the penalty
imposed is public censure or reprimand, suspension
2. Principle of exhaustion of administrative of not more than one (1) month, or a fine equivalent
remedies - Administrative remedies must to one (1)-month salary, the Ombudsman’s decision
have been exhausted. (Maglalang v. shall be final, executory, and unappealable.
Philippine Amusement and Gaming However, these decisions of administrative
Corporation, G.R. No. 190566, 11 Dec. 2013) agencies by law are still “subject to judicial review if
they fail the test of arbitrariness, or upon proof of
Limitations on Judicial Review grave abuse of discretion, fraud or error of law, or
when such administrative or quasi-judicial bodies
1. Final and executory decisions cannot be grossly misappreciate evidence of such nature as to
made the subject of judicial review; compel a contrary conclusion, the Court will not
hesitate to reverse the factual findings.” However,
2. Administrative acts involving a political the exception does not apply in this case (Orais v.
question are beyond judicial review, except Almirante, G.R. No. 181195, 10 June 2013).
when there is an allegation that there has
been grave abuse of discretion; and Doctrine of Ripeness for Review (2001 BAR)
3. Courts are generally bound by the findings It is similar to that of exhaustion of administrative
of fact of an administrative agency. remedies except that it applies to the rule-making
(Kilusang Mayo Uno v. Hon. Aquino III, G.R. power and to administrative action which is
No. 210500, 2 Apr. 2019) embodied neither in rules and regulations nor in
adjudication or final order. (Kilusang Mayo Uno v.
NOTE: Courts will not render a decree in advance of Aquino III, G.R. No. 210500, 02 April 2019)
administrative action. Such action would be
rendered nugatory. (Kilusang Mayo Uno v. Hon. Purposes of the Doctrine of Ripeness of Review
Aquino III, G.R. No. 210500, 2 Apr. 2019)
1. To prevent the courts, through avoidance of
It is not for the court to stop an administrative premature adjudication, from entangling
officer from performing his statutory duty for fear themselves in abstract disagreements over
that he will perform it wrongly. administrative policies; and
Q: Orais filed with the Office of the Ombudsman 2. To protect the agencies from judicial
a Complaint for corruption and grave interference until an administrative
misconduct against his superior, Dr. Almirante, decision has been formalized and its effects
for the anomalies committed using her position felt in a concrete way by the challenging
as Veterinary Quarantine Officer-Seaport. The parties. (Abbott Laboratories v. Gardner,
Office of the Ombudsman ruled in favor of 387 U.S. 136, 1967)
Almirante, and it ordered that the case be
dismissed for lack of substantial basis. The CA
369
Application of the Doctrine of Ripeness of power to review all decisions on questions of
Review law. (Ibid.)
1. When the interest of the plaintiff is 1. Mixed (law and fact) – When there is a mixed
subjected to or imminently threatened with question of law and fact and the court cannot
substantial injury; separate the elements to see clearly what and
where the mistake of law is, such question is
2. If the statute is self-executing; treated as question of fact for purposes of
review and the courts will not ordinarily review
3. When a party is immediately confronted the decision of the administrative tribunal.
with the problem of complying or violating (Metro Rail Transit Development Corporation v.
a statute and there is a risk of criminal Gammon Philippines, Inc., G.R. No. 200401, 17
penalties; or Jan. 2018)
4. When plaintiff is harmed by the vagueness 3. DOCTRINE OF FINALITY OF ADMINISTRATIVE

of the statute. ACTION
Tests to Determine Whether a Controversy is

The Doctrine of finality of conclusive action or the
Ripe for Adjudication
doctrine of conclusive finality is the comity that
courts extend to the executive branch and the
1. Fitness of the issue for judicial decision;
recognition of the expertise of administrative
and
agencies in dealing with particular questions of fact.
2. Hardship to the parties of withholding
Simply put, the appellate court may defer to the
court consideration. (Abbott Laboratories v.
factual findings of the administrative agency due to
Gardner, supra.)
comity. (Tañada and Carreon, 1962)
Questions Reviewable by the Courts

GR: Decision of an administrative agency must be
final before Judicial Review. (Agra, 2023)
1. Questions of fact
XPNs:
GR: Courts will not disturb the findings of
1. Interlocutory orders;
administrative agencies acting within the
2. Protect rights;
parameters of their own competence, special
3. Violate Constitution; and
knowledge, expertise, and experience. The
4. Excessive use of power. (Ibid.)
courts ordinarily accord respect if not finality to
factual findings of administrative tribunals.
(Tongonan Holdings and Development
Corporation v. Atty. Escana, Jr., G.R. No. 190994,
07 Sept. 2011)
XPN: If findings are not supported by

substantial evidence.
2. Questions of Law – Administrative decisions

may be appealed to the courts independently of
legislative permission. It may be appealed even
against legislative prohibition because the
judiciary cannot be deprived of its inherent
370
2023 GOLDEN NOTES
for the purpose. (Sec. 3(a), R.A. No. 6735 or The
III. ELECTION LAW Initiative and Referendum Act)
a. Initiative on the Constitution;

b. Initiative on statutes; or
c. Initiative on local legislation.
A. SUFFRAGE
3. Referendum – The power of the electorate to
approve or reject a piece of legislation through
Definition an election called for the purpose.
Suffrage is the right and obligation of qualified a. Referendum on statutes; or

citizens to vote in the election of certain local and b. Referendum on local laws.
national officers and in the determination of
questions submitted to the people. It includes 4. Recall – The mode of removal of an elective
within its scope election, plebiscite, initiative, and public officer by the people after one (1) year
referendum. (Nachura, 2014) year of assuming the office and not later than
one (1) year before the end of his term of office.
Suffrage as a Right
Election
Suffrage is a right because it is the expression of the
sovereign will of the people. In the sense of a right Election is the means by which people choose their
conferred by the Constitution, suffrage is classified officials for a definite and fixed period and to whom
as a political right, as well as a bounden duty of they entrust for the time being the exercise of the
every citizen, enabling him to participate in the powers of government. (Nachura, 2016)
process of government to assure that it truly derives
its powers solely from the consent of the governed. Stages of an Election
(De Leon, 2010)
1. Choosing or selecting candidates to public
Right of Suffrage not absolute office by popular vote;
2. Holding of electoral campaign;
The exercise of the right of suffrage is subject to 3. Conducting of the polls;
existing substantive and procedural requirements 4. Listing of votes;
embodied in our Constitution, statute books, and 5. Casting and receiving the ballots from the
other repositories of law. (Akbayan-Youth v. voters;
COMELEC, G.R. No. 147066, 26 Mar. 2001) 6. Counting the ballots;
7. Making the election returns; and
Scope of Suffrage 8. Proclaiming the winning candidates.
1. Plebiscite – The electoral process by which an Kinds of Elections

initiative on the Constitution is approved or
rejected by the people. 1. Regular election – It is an election participated
in by those who possess the right of suffrage,
2. Initiative - The power of the people to propose not otherwise disqualified by law, and are
amendments to the Constitution or to propose registered voters.
and enact legislations through election called
371
2. Special election –It is held when there is failure must not amount to qualifications. (Maquiling v.
of election on the scheduled date of regular COMELEC, G.R. No. 195649, 16 Apr. 2013)
election in a particular place or to fill a vacancy
in office before the expiration of the term for Citizenship
which the incumbent was elected.
Voters must be Filipino citizen by birth or
Rules on Construction of Election Laws naturalization. (Tan v. Crisologo, G.R. No. 193993, 08
Nov. 2017)
Laws for Conduct of Elections
Before the Election - Mandatory It is incumbent upon one who claims Philippine
After the Election - Directory citizenship to prove to the satisfaction of the court
Laws for Candidates that he is really Filipino. Any doubt regarding
Mandatory and strictly construed citizenship must be resolved in favor of the State.
Procedural Rules (Go v. Ramos, G.R. No. 167569, 04 Sept. 2009)
Liberally construed in favor of ascertaining the
will of the electorate Residence and domicile
Election Period In election cases, the Court treats domicile and

residence as synonymous terms. Both import not
GR: The period of election starts 90 days before the only an intention to reside in a fixed place but also
day of election and ends 30 days thereafter. (Sec. 9, personal presence in that place, coupled with
Art. IX-C, 1987 Constitution and Sec. 3 of B.P. 881, conduct indicative of such intention. (Pundaodaya v.
Omnibus Election Code (OEC)) COMELEC, G.R. No. 179313, 17 Sept. 2009)
XPN: Under these same provisions, the COMELEC is Effect of transfer of residence
not precluded from setting a period different from
that provided thereunder. (Aquino v. COMELEC, G.R. Any person, who transfers residence solely by
No. 211789-90, 17 Mar. 2015) reason of his occupation, profession or employment
in private or public service, education, work in
military or naval reservations, etc., shall not be
1. QUALIFICATIONS AND DISQUALIFICATION OF
deemed to have lost his original residence. (Sec.
VOTERS
117(2), Art. XII, OEC; Asistio v. Aguirre, G.R. No.
191124, 27 Apr. 2010)
Qualifications
Establishing a New Domicile
1. Citizen of the Philippines;
2. Resident of the Philippines for at least one (1) To establish a new domicile of choice, personal
year; presence in the place must be coupled with conduct
3. Not otherwise disqualified by law; indicative of this intention. (Jalover v. Osmeña, G.R.
4. At least 18 years of age; and No. 209286, 23 Sept. 2014)
5. Resident of the place where he proposes to vote
for at least six (6) months immediately Disqualifications for the Exercise of Suffrage
preceding the election. (Art. V, 1987
Constitution, Sec. 1) 1. Sentenced by final judgment to suffer
imprisonment for not less than one (1)
NOTE: These qualifications are continuing year,
requirements. Congress may not add qualifications
but can provide for procedural requirements and
disqualifications. However, the disqualifications
372
2023 GOLDEN NOTES
XPN: unless granted a plenary pardon or Double Registrant
granted amnesty;
It pertains to any person who, being a registered
2. Conviction by final judgment of any of the voter, registers anew without filing an application
following: for cancellation of his previous registration. (Sec.
261 (y) (5), Art. XXII, OEC)
a. Crime involving disloyalty to the
government; Double registrants are still qualified to vote
b. Violation against national security; or provided that COMELEC has to make a
c. Firearms laws. determination on which registration is valid, and
which is void. In a minute resolution issued by the
NOTE: The right to vote is reacquired upon COMELEC, it provides that while the first
expiration of 5 years after service of registration of any voter subsists, any subsequent
sentence referred to in the two preceding registration thereto is void ab initio. (Maruhom vs.
items. COMELEC, G.R. No. 179430, 27 July 2009)
3. Insanity or incompetence as declared by Q: Shanti filed a petition for the cancellation of

competent authority. [OEC, Art. XII, Sec. 118 the COC of Xander for Mayor of South Upi
(c)] alleging that Xander was not a registered voter
in the Municipality of South Upi since Allen
NOTE: These are the same grounds for failed to sign his application for registration,
disqualification to register as a voter under Sec. 11 thus, the unsigned application for registration
of R.A. 8189 or Voter’s Registration Act of 1996. has no legal effect. In response, Xander
asseverated that his failure to sign his
2. REGISTRATION AND DEACTIVATION OF application for registration did not affect the
VOTERS validity of his registration since he possesses the
qualifications of a voter set forth in the Omnibus
Election Code as amended by Sec. 9 of R.A. No.
REGISTRATION OF VOTERS
8189. Should Allen be disqualified?
Registration
A: YES. R.A. No. 8189 specifically provides that an
application for registration shall contain specimen
Registration is the act of accomplishing and filing a
signatures of the applicant as well as his or her
sworn application for registration by a qualified
thumbprints, among others. The evidence shows
voter before the election officer of the city or
that Allen failed to sign very important parts of the
municipality wherein he resides and including the
application, which refer to the oath which Xander
same in the book of registered voters upon approval
should have taken to validate and swear to the
by the Election Registration Board. (Sec. 3(a)R.A. No.
veracity of the contents appearing in the application
8189, Voter’s Registration Act of 1996)
for registration. Plainly, from the foregoing, the
irregularities surrounding Xander’s application for
It does not confer the right to vote; it is but a
registration eloquently proclaims that he did not
condition precedent to the exercise of the right.
comply with the minimum requirements of R.A.
Registration is a regulation, not a qualification. (Yra
8189. This leads to only one conclusion: Xander, not
v. Abano, G.R. No. 30187, 15 Nov. 1928)
having demonstrated that he duly accomplished an
application for registration, is not a registered voter.
Hence, he must be disqualified to run for mayor.
373
(Gunsi, Sr. v. COMELEC, G.R. No. 168792, 23 Feb. reactivation of voters’ registration records
2009) (VRRs). Kabataan Party-List claimed that the
law is unconstitutional because biometric
Illiterate and Disabled Voters validation is not different from the
unconstitutional requirement of literacy and
Any illiterate person may register with the property as mere non-validation already
assistance of the election officer or any member of absolutely curtails the exercise of the right of
an accredited citizen’s arms. The application for suffrage through deactivation. Is R.A. 10367
registration of a physically disabled person may be unconstitutional?
prepared by any relative within the fourth (4th)
civil degree of consanguinity or affinity or by the A: NO. The Court ruled that the right to vote is not a
election officer or any member of an accredited natural right but a right created by law. Suffrage is a
citizen’s arm using the data supplied by the privilege granted by the State to such persons or
applicant. The fact of illiteracy or disability shall be classes as are most likely to exercise it for the public
so indicated in the application. (Sec. 14, R.A. No. good. A registration requirement rises to the level of
8189) a literacy, property, or other substantive
requirement as contemplated by the framers of the
NOTE: R.A. No. 9369 (The Poll Automation Law) Constitution – that is, one which propagates a socio-
now defines a disabled voter as “a person with economic standard which is bereft of any rational
impaired capacity to use the Automated Election basis of a person's ability to intelligently cast his
System.” (Sec. 2(11), R.A. No. 9369) vote and further the public good – the same cannot
be struck down as unconstitutional. Court
Kinds of Registration System definitively characterized registration as a form of
regulation and not as a qualification for the right of
1. Continuing; and suffrage. “Biometrics refers to a quantitative
2. Computerized. analysis that provides a positive identification of an
individual such as voice, photograph, fingerprint,
System of Continuing Registration signature, iris, and/or such other identifiable
features." (Kabataan Partylist v. COMELEC, G.R. No.
GR: It is a system where the application of 189868, 16 Dec. 2009)
registration of voters shall be conducted daily in the
office hours of the election officer during regular Book of Voters
office hours.
Classified as permanent whereby each precinct
XPN: No registration shall be conducted during the shall have a permanent list of all registered voters
period starting 120 days before a regular election residing within the territorial jurisdiction of the
and 90 days before a special election. (Sec. 8, R.A. No. precinct. (Sec. 3(c), R.A. No. 8189)
8189)
Grounds for Alteration
Q: Kabataan Party-list assailed the
constitutionality of R.A. No. 10367, which 1. Deactivation or reactivation; (Sec. 27, R.A.
directs COMELEC to implement a mandatory No. 8189)
biometrics registration system for new voters, 2. Exclusion or inclusion; (Sec. 34 & 35, R.A.
and those registered voters whose biometrics No. 8189)
have not been captured shall submit themselves 3. Cancellation of registration in case of death;
for validation. In compliance, COMELEC (Sec. 29, R.A. No. 8189)
implemented rules and regulations prescribing 4. Annulment of book of voters; (Sec. 39, R.A.
the procedure for validation, deactivation, and No. 8189)
374
2023 GOLDEN NOTES
5. New voters; and 4. Any person who did not vote in the two (2)
6. Transfer of residence. (Sec. 12, R.A. No. successive preceding regular elections as
8189) shown by their voting records. For this
DEACTIVATION OF VOTERS purpose, regular elections do not include
SK elections;
Deactivation
5. Any person whose registration has been
It is the removal of the registration records from the ordered excluded by the Court; and
precinct books of voters and places the same,
properly marked and dated in indelible ink, in the 6. Any person who has lost his Filipino
inactive file after entering the cause of deactivation. citizenship. (Sec. 27(f), R.A. No. 8189)
(Sec. 27, R.A. 8189)
3. INCLUSION AND EXCLUSION PROCEEDINGS
Grounds for Deactivation
Inclusion Proceedings
1. Any person who has been sentenced by
final judgment to suffer imprisonment for
Any person whose application for registration has
not less than one year, such disability not
been disapproved by the Board or whose name has
having been removed by plenary pardon or
been stricken out from the list may file with the
amnesty;
court a petition to include his name in the
permanent list of voters in his precinct at any time
NOTE: The right to vote may be
but not within 105 days prior to a regular election
automatically reacquired upon expiration
or 75 days prior to a special election. (Sec. 34, R.A.
of five (5) years after service of sentence as
8189)
certified by the clerk of court.
Exclusion Proceedings
2. Any person who has been adjudged by a
final judgment by a competent court or
Any registered voter, representative of a political
tribunal of having caused/committed any
party or the election officer, may file with the court
crime involving disloyalty to the duly
a sworn petition for the exclusion of a voter from the
constituted government such as rebellion,
permanent list of voters giving the name, address
sedition, violation of the anti-subversion
and the precinct of the challenged voter at any time
and firearm laws, or any crime against
but not within 100 days prior to a regular election
national security, unless restored to his full
or 65 days before special election. (R.A. No. 8189,
civil and political rights in accordance with
Sec. 35)
law;
Jurisdiction of Courts
NOTE: The right to vote may be regained
automatically upon expiration of five years
1. MTC – original and exclusive; (Sec. 33, R.A.
after service of sentence.
No. 8189)
2. RTC – appellate jurisdiction; (Sec. 33, R.A.
3. Any person declared by competent
No. 8189) and
authority to be insane or incompetent
3. SC – appellate jurisdiction over RTC on
unless such disqualification has been
question of law.
subsequently removed by a declaration of a
proper authority that such person is no
longer insane or incompetent;
375
Inclusion vs. Exclusion Proceedings c) A petition shall refer only to one precinct and
shall implead the Board as respondents.
INCLUSION EXCLUSION
Who may file d) No costs shall be assessed against any party in
1. Any private these proceedings. However, if the court finds
1. Any registered
person whose that the application has been filed solely to
voter in the city or
application was harass the adverse party and cause him to incur
municipality; (Sec.
disapproved by expenses, it shall order the culpable party to
142, Omnibus
the Election pay the costs and incidental expenses.
Election Code (OEC)
Registration
Board; e) Any voter, candidate or political party affected
2. Representative of
by the proceedings may intervene and present
political party;
2. Those whose his evidence.
names were
3. Election officer;
stricken out from f) The decision shall be based on the evidence
(Sec. 39, R.A. No.
the list of voters.; presented and in no case rendered upon a
8189)
(Sec. 139, OEC) stipulation of facts. If the question is whether or
not the voter is real or fictitious, his non-
4. COMELEC.
3. COMELEC. appearance on the day set for hearing shall be
Period for filing prima facie evidence that the challenged voter
Any time except 105 Anytime except 100 is fictitious.
days before regular days before a regular
election or 75 days election or 65 days g) The petition shall be heard and decided within
before a special before a special election. 10 days from the date of its filing. Cases
election. (COMELEC (COMELEC Resolution appealed to the RTC shall be decided within 10
Resolution No. 8820). No. 9021). days from receipt of the appeal. In all cases, the
Grounds court shall decide these petitions not later than
1. Application for 15 days before the election; and the decision
registration has shall become final and executory. (Nachura.
been disapproved 1. Not qualified for 2014)
by the board; or possessing
disqualification; Res judicata not applicable
2. Name has been 2. Flying voters; or
stricken out from 3. Ghost voters. The proceedings for the exclusion or inclusion of
the list. (Sec. 34, voters in the list of voters are summary in character.
R.A. No. 8189) Except for the right to remain in the list of voters or
being excluded therefrom for the particular election
Common Rules in Inclusion and Exclusion in relation to which the proceedings had been held,
Proceedings a decision in an exclusion or inclusion proceeding,
even if final and unappealable, does not acquire the
a) Petition for inclusion, exclusion, or correction nature of res judicata. It does not operate as a bar to
of names of voters shall be filed during office any further action that a party may take concerning
hours. the subject passed upon in the proceeding. Thus, a
decision in an exclusion proceeding would neither
b) Notice of the place, date, and time of the hearing be conclusive on the voter’s political status, nor bar
of the petition shall be served upon the subsequent proceedings on his right to be
members of the Board and the challenged voter registered as a voter in any other election. (Domino
upon filing of the petition. v. COMELEC, G.R. No. 134015, 19 July 1999)
376
2023 GOLDEN NOTES
Voter Using Fake Address Not Excluded 3. Disqualifications
A citizen cannot be disenfranchised for the flimsiest a. Those who have lost their Filipino
of reasons. Only on the most serious grounds, and citizenship in accordance with Philippine
upon clear and convincing proof, may a citizen be laws;
deemed to have forfeited this precious heritage of
freedom. (Asistio v. Aguirre, G.R. No. 191124, 27 Apr. b. Those who have expressly renounced their
2010) Philippine citizenship and who have
pledged allegiance to a foreign country,
4. LOCAL AND OVERSEAS ABSENTEE VOTING except those who have reacquired or
retained their Philippine citizenship under
R.A. 9225;
Local Absentee Voting
c. Those who have committed and are

It refers to a system of voting whereby government
convicted in a final judgment by a
officials and employees, including members of the
Philippine court or tribunal of an offense
Armed Forces of the Philippines (AFP), and the
punishable by imprisonment of not less
Philippine National Police (PNP), media
than one year, such disability not having
practitioners including their technical and support
been removed by plenary pardon or
staff who are duly registered voters, are allowed to
amnesty. Provided, however, that any
vote for the national positions in places where they
person disqualified to vote under this
are not registered voters but where they are
subsection shall automatically acquire the
temporarily assigned to perform election duties on
right to vote upon the expiration of five
election day. (COMELEC Resolution No. 9637, Sec.
years after service of sentence; and
1(a), 13 Feb. 2013)
d. Any citizen of the Philippines abroad

Overseas Voting
previously declared insane or incompetent
by competent authority in the Philippines
The process by which qualified citizens of the
or abroad, as verified by the Philippine
Philippines abroad exercise their right to vote. (Sec.
embassies, consulates, or foreign Service
3(k), R.A. No. 10590 amending Sec. 3, R.A. No. 9189)
establishments concerned, unless such
competent authority subsequently certifies
1. Coverage
that such person is no longer insane or
incompetent. (Sec. 4, R.A. No. 10590)
Qualified citizens of the Philippines may vote for
President, Vice-President, Senators and Party-
List Representatives, as well as in all national 5. DETAINEE VOTING
referenda and plebiscites. (Sec. 4, R.A. No. 10590)
Detainee voting (either through the special polling
2. Qualifications place inside jails or escorted voting) may be availed
of by any registered detainee whose registration is
a. Filipino citizens abroad; not transferred/deactivated/cancelled/deleted.
b. At least 18 years of age on the day of (Sec. 1 Rule 1, COMELEC Resolution No. 9371, 06 Mar.
elections; and 2012)
c. Not otherwise disqualified by law. (Sec. 4, R.A.
No. 10590) Detainee
Refers to any person:
377
1. Confined in jail, formally charged for any c. Has not been convicted by final judgment of
crime/s and awaiting/undergoing trial; any election offense or of any other crime;
2. Serving a sentence of imprisonment for less d. Knows how to read and write Filipino,
than one (1) year; or English or the prevailing local dialect;
3. Whose conviction of a crime involving e. Is not related within the fourth civil degree
disloyalty to the duly constituted government of consanguinity or affinity to the chairman
such as rebellion, sedition, violation of the or to any member of the SBEI in the special
firearms laws or any crime against national polling place where he/she seeks
security or for any other crime is on appeal. appointment as watcher; and
(Sec. 2(a), Rule 1, COMELEC Resolution No. 9371,
06 Mar. 2012) f. Is not a jail detainee. (Sec. 9, Rule 4,
COMELEC Resolution No. 9371, 06 Mar.
Reckoning Period of Age and Residence 2012)
Detainees who shall be eighteen years of age on the Date and Time of Detainee Voting
day of election and/or are committed inside the
detention centers for at least six (6) months Voting for all qualified detainee voters shall take
immediately preceding the election day may be place on the same date the national and local
registered as a voter. (Sec. 3, Rule 2, COMELEC elections are conducted.
Resolution No. 9371, 06 Mar. 2012)
For jails provided with special polling places, the
Special Board of Election Inspectors (SBEI) and casting of the ballots must be finished at 3p.m. to
Support Staff Per Voting Center have sufficient time to bring the accomplished
ballots to detainees’ respective precincts before the
The Commission, through its Election Officer in close of voting hours on election day. (Sec. 1, Rule 6,
districts/cities/municipalities where a special COMELEC Resolution No. 9371, 06 Mar. 2012)
polling place is established, shall constitute the SBEI
in accordance with the period provided in the Manner of Voting
calendar of activities for the elections. (R.A. No.
10087) Voting shall be conducted in the following manner:
In addition, the election officer shall designate SBEI a. The detainee voter shall accomplish the
support staff for every voting center with detainee ballot, using the ballot secrecy folder, in
voters. (Sec. 1, Rule 4, COMELEC Resolution No. 9371, accordance with the General Instructions
06 Mar. 2012) for Voting;
Qualifications of Watchers b. After accomplishing his ballot, the voter

shall then approach the table where the
No person shall be appointed watcher unless he: envelope for his precinct is placed and
insert the same into the said envelope;
a. Is a registered voter of the city or c. The SBEI shall apply indelible ink at the
municipality comprising the precinct base and extending to the cuticle of the
where he is assigned; right forefinger nail of the detainee voter,
or any other nail if there be no forefinger
b. Is of good reputation; nail;
378
2023 GOLDEN NOTES
d. The voter shall affix his thumbmark on the c. No person carrying any firearm or any
corresponding space in the Election Day other deadly weapon, except those
Computerized Voters List for Detainees; expressly authorized by this Resolution or
and by the Commission, shall enter the special
polling place; and
e. The voter shall then leave the special
polling place. (Sec. 4, Rule 6, COMELEC d. There shall be no crowding of detainee
Resolution No. 9371, 06 Mar. 2012) voters and disorderly behavior inside the
special polling place. (Sec. 7, Rule 6,
Challenge Based on Certain Illegal Acts COMELEC Resolution No. 9371, 06 Mar.
2012)
Any watcher may challenge any detainee voter
offering to vote on the ground that the detainee Prohibition on Voting
voter:
a. Received or expects to receive, paid, It shall be unlawful for a detainee voter to:
offered or promised to pay, contributed, or a. Bring the ballot, ballot secrecy folder or
promised to contribute money or anything marking pen outside the polling place;
of value as consideration for his vote or for
the vote of another; or b. Speak with anyone other than as herein
provided while inside the special polling
b. Made or received a promise to influence the place;
giving or withholding of any such vote; or
c. Prepare his ballot without using the ballot
c. Made a bet or is interested directly or secrecy folder or exhibit its contents;
indirectly in a bet that depends upon the
results of the election. d. Accomplish his ballot accompanied by
another, except in the case of an illiterate or
NOTE: In such case, the challenged detainee voter detainee voter with disability/disabilities
shall take an oath before the SBEI that he has not e. Erase any printing from the ballot, or put
committed any of the acts alleged in the challenge. any distinguishing mark on the ballot;
Upon taking such oath, the challenge shall be
dismissed, and the detainee voter shall be allowed f. Use carbon paper, paraffin paper or other
to vote. In case the detainee voter refuses to take means of making a copy of the contents of
such oath, the challenge shall be sustained, and the the ballot, or otherwise make use of any
detainee voter shall not be allowed to vote. (Sec. 6, scheme to identify his vote, including the
Rule 6, COMELEC Resolution No. 9371, 06 Mar. 2012) use of digital cameras, cellular phones with
camera or similar gadgets; and
Rules to be Observed During the Voting
g. Intentionally tear or deface the ballot. (Sec.
During the voting, the SBEI shall see to it that: 8, Rule 6, COMELEC Resolution No. 9371, 06
a. Detainee voters shall vote in the order of Mar. 2012)
the arrival of the detainee ballots per voting
center; Escorted Detainee Voters
b. No watcher shall enter the place reserved The following shall avail of the escorted voting:
for the detainee voters and the SBEI nor
mingle and talk with the detainee voters;
379
a. Detainee voters who are residents or 1. QUALIFICATIONS AND DISQUALIFICATIONS
registered voters of municipalities or cities OF CANDIDATES
other than the town or city of detention;
and
QUALIFICATIONS OF CANDIDATES
b. Detainee voters in detention centers or jails

National level
where no special polling places are
established.
A. For President and Vice-President
NOTE: The detainee voter must have obtained court 1. Natural-born citizen of the Philippines;
order allowing him to vote in the polling place 2. At least 40 years old on the day of the
where he is registered. Nonetheless, it must be election;
logistically feasible on the part of the jail or prison 3. Able to read and write;
administration to escort the detainee voter to the 4. Registered voter; and
polling place where he is registered. 5. Resident of the Philippines for at least ten
(10) years immediately preceding the day
Reasonable measures shall be undertaken by the jail of the election. (Secs. 2 & 3, Art. VII, 1987
or prison administration to secure the safety of
Constitution)
detainee voters, prevent their escape, and ensure
public safety. (Sec. 1, Rule 7, COMELEC Resolution B. For Senators
No. 9371, 06 Mar. 2012)
2. At least 35 years old on the day of the
B. CANDIDACY election;
3. Able to read and write;
4. Registered voter; and
Candidate 5. Resident of the Philippines for not less
than two years immediately preceding the
Refers to any person aspiring for or seeking an day of the election. (Sec. 3, Art. VI, 1987
elective public office, who has filed a Certificate of Constitution)
Candidacy (COC) by himself or through an
accredited political party, aggroupment or coalition Local level
of parties. (Sec. 79(a), OEC)
A. For District Representatives
Any person may thus file a COC on any day within
the prescribed period for filing a COC, yet that
person shall be considered a candidate, for 1. Natural-born citizen of the Philippines;
purposes of determining one’s possible violations of 2. Registered voter in the district in which he
election laws, only during the campaign period. shall be elected;
(Penera v. COMELEC, G.R. No. 181613, 25 Nov. 2009; 3. Resident of the same district for a period
Sec. 15, R.A. No. 9369) not less than one year immediately
preceding the day of the election;
4. Able to read and write; and
5. At least 25 years old on the day of the
election. (Sec. 6, Art. VI, 1987 Constitution)
B. For Governor, Vice Governor, Mayor, Vice-

Mayor, Punong Barangay and Sangguniang
Members (2005, 1994 BAR)
380
2023 GOLDEN NOTES
1. Citizen of the Philippines; election. It is enough that he should live in the
locality, even in a rented house or that of a friend or
2. Registered voter in the barangay, relative. (Jalover v. Osmeña, ibid.)
municipality, city, or province or, in the
case of a member of the Sangguniang Q: Caballero was a natural-born Filipino who
Panlalawigan, Sangguniang Panlungsod, or had Uyugan, Batanes as his domicile of origin. He
Sangguniang Bayan, the district where he later worked in Canada and became a Canadian
intends to be elected; citizen. Notwithstanding, he frequently visited
Uyugan, Batanes during his vacation from work
3. Resident therein for at least one year in Canada. Where is his residence for the
immediately preceding the day of the purpose of elections?
election;
A: CANADA. In Coquilla v. COMELEC, the SC ruled
4. Able to read and write Filipino or any other that naturalization in a foreign country may result
local language or dialect. (Sec. 39, R.A. 7160 in an abandonment of domicile in the Philippines.
Local Government Code of the Philippines) This holds true in Caballero's case as permanent
resident status in Canada is required for the
NOTE: acquisition of Canadian citizenship. Hence,
1. Congress may not add to qualifications for Caballero had effectively abandoned his domicile in
elective officials provided in the the Philippines and transferred his domicile of
Constitution; and choice in Canada. His frequent visits to Uyugan,
Batanes during his vacation from work in Canada
2. Qualifications prescribed by law are cannot be considered as waiver of such
continuing requirements and must be abandonment. (Caballero v. COMELEC, G.R. No.
possessed for the duration of the officer’s 209835, 22 Sept. 2015)
active tenure. (Frivaldo v. COMELEC, G.R. No.
87193, 23 June 1989) DISQUALIFICATIONS OF CANDIDATES
Purpose of the residency requirement Grounds for Disqualification Under the Omnibus
Election Code (2010, 1999, 1994 BAR)
The minimum requirement under our Constitution
and election laws for the candidates' residency in 1. Declared as incompetent or insane by
the political unit they seek to represent has never competent authority;
been intended to be an empty formalistic condition.
It carries with it a very specific purpose: to prevent 2. Convicted by final judgment for subversion,
“strangers or newcomers unacquainted with the insurrection, rebellion, or any offense for which
conditions and needs of a community” from seeking he has been sentenced to a penalty of 18
elective offices in that community. (Jalover v. months of imprisonment;
Osmeña, G.R. No. 209286, 23 Sept. 2014)
3. Convicted by final judgment for a crime
Registered property as residency proof involving moral turpitude;
The fact that a candidate has no registered property 4. Election offenses under Sec. 261 of the OEC;
under his name in the locality wherein he seeks to
be elected does not belie his actual residence 5. Committing acts of terrorism to enhance
therein because property ownership is not among candidacy;
the qualifications required of candidates for local
381
6. Spending in his election campaign an amount in accessory penalty of perpetual disqualification
excess of that allowed; to hold public office as a consequence of his
dismissal from service as then Kagawad of Brgy.
7. Soliciting, receiving, or making prohibited Pulung Maragul in an order dated 10 November
contributions; 2009 by the Ombudsman. Is Dimapilis barred to
run due to his misrepresentation he committed
8. Not possessing qualifications and possessing in his CoC?
disqualifications under the LGC;
A: YES, because of the material misrepresentation
9. Sentenced by final judgment for an offense and the fact that a CoC is a formal requirement for
involving moral turpitude or for an offense eligibility to public office. A person intending to run
punishable by imprisonment of one year or for office must not only possess the required
more within two years after serving sentence; qualifications for the position for which he intends
to run but must also possess none of the grounds for
10. Removed from office as a result of an disqualification under the law. In this case,
administrative case; Dimapilis was found guilty of Grave Misconduct and
its penalty is perpetual disqualification from
11. Convicted by final judgment for violating the holding public office. The COMELEC has the legal
oath of allegiance to the Republic; duty to enforce and administer laws relative to the
conduct of an election and under Sec. 78 of the OEC,
12. Dual citizenship (more specifically, dual the COMELEC has the legal duty to cancel the CoC of
allegiance); anyone who is suffering from the penalty of special
disqualification to run for public office by virtue of
13. Fugitives from justice in criminal or non- final judgment. (Dimapilis v. COMELEC, G.R. No.
political cases here or abroad; 227158, 18 Apr. 2017)
14. Permanent residents in a foreign country or Effect of an Unsworn Renunciation of Foreign

those who have acquired the right to reside Citizenship
abroad and continue to avail of the same right;
Failure to renounce foreign citizenship in
15. Insane or feeble-minded; accordance with the exact tenor of Sec. 5(2) of R.A.
No. 9225 renders a dual citizen ineligible to run for
16. Nuisance candidate; and thus hold any elective public office. (Sobejana-
Condon v. COMELEC, G.R. No. 198742, 10 Aug. 2012)
17. Violation of Sec. 73 of the OEC with regard to
COC; or Q: Petitioner Mayor Rovelyn Echave Villamor
filed on 16 Oct. 2018 her CoC for mayor of
18. Violation of Sec. 78 on material Lagangilang, Abra. She stated therein that (a)
misrepresentation in the COC. (Sec. 12, BP. 881) she has been a resident of Lagangilang, Abra for
36 years and 8 months up to the day before 13
Q: Joseph Dimapilis was elected as Punong May 2019 election; (b) she is a Filipino citizen
Barangay of Brgy. Pulung Maragul in October and not a permanent resident of, or an
2010; and in 2013, he ran for re-election for the immigrant to, a foreign country; and (c) she is
same position and won. When he filed his CoC, eligible for the office she seeks to be elected to.
he declared under oath that he is eligible for the Rival candidate Antonio Bello Viernes filed a
office that he seeks to be elected. A petition for Petition to Deny Due Course or Cancel CoC
Disqualification was filed against Dimapilis on against Villamor due to the latter’s false
the ground that he was suffering from the representation that she is eligible for the office
382
2023 GOLDEN NOTES
of mayor. According to Viernes, Villamor was It is settled that one loses one’s Philippine domicile
neither a Filipino citizen nor a resident of their of origin after being naturalized as a citizen of a
locality for 36 years and 8 months prior to the foreign country. However, this does not mean that
election. he/she cannot, at some point, thereafter, choose to
reestablish residence in the Philippines. Villamor
Villamor won in the 2019 election and was was able to prove that she has chosen to reestablish
proclaimed mayor of Lagangilang, Abra. In her residence in the Philippines after her naturalization
answer to the allegations, she denied having as a US citizen in 2009.
committed material misrepresentations in her
CoC. She averred that although she became a In addition to regularly flying back to the
naturalized American citizen on 29 Oct. 2009, Philippines, Villamor since 2013, has acquired
she has duly complied with all the requirements additional properties in Lagangilang, Abra, declared
for the reacquisition of her Filipino citizenship them for tax purposes under her name, and paid
prior to filing her CoC. taxes thereon. Further, her Voter’s Certification in
2018 synchronized Barangay and SK elections
The COMELEC Second Division issued a evinced that she was already in Lagangilang as of 14
Resolution granting the cancellation filed by May 2018, and that she met the minimum residence
Viernes. COMELEC found that Villamor made a of at least 6 months required for voting purposes.
false material representation as to her (Villamor v. COMELEC, G.R. No. 250370, 05 Oct. 2021)
residence, considering that Villamor has
abandoned her domicile of origin when she 2. FILING OF CERTIFICATES OF CANDIDACY
became a naturalized American citizen on 29
Oct. 2009.
Certificate of Candidacy (CoC)
Is the COMELEC correct?

No person shall be eligible for any elective public
office unless he files a sworn certificate of candidacy
A: NO. COMELEC also gravely abused its discretion
within the period fixed herein. (Sec. 73, OEC)
when it ordered the cancellation of Villamor's CoC
without any prior determination of whether she had
The CoC shall be filed by the candidate personally or
intended to deceive or mislead the electorate. Secs.
by his duly authorized representative at any day
74 and 78 of the OEC govern the cancellation of, and
from the commencement of the election period but
grant or denial of due course to COCs; their
not later than the day before the beginning of the
combined application requires that the facts
campaign period. In cases of postponement or
provided by the candidate in his COC be true, under
failure of election, no additional certificate of
pain of denial or cancellation of the COC, if any false
candidacy shall be accepted except in cases of
representation of a material fact is made. Aside from
substitution of candidates. (Sec. 75, OEC)
the requirement of materiality, however, a false
representation under Sec. 78 must also consist of a
A COC is a candidate’s best evidence of statutory
deliberate attempt to mislead, misinform, or hide a
eligibility to be elected for an elective post. It is the
fact which would otherwise render a candidate
document which formally accords upon a person
ineligible. It must be made with a malicious intent to
the status of a candidate. (Tagolino v. HRET and Lucy
deceive the electorate as to the potential candidate’s
Torres-Gomez, G.R. No. 202202, 19 Mar. 2013)
qualifications for public office. Here, there is nothing
in the assailed resolutions showing COMELEC’s
NOTE: A CoC may be amended before the elections,
determination of whether Villamor had intended to
even after the date of its filing. (COMELEC Resolution
deceive or mislead the electorate.
No. 3559)
383
Provisions of the election law on CoCs are tenure, while others serve at the pleasure of the
mandatory in terms. However, after the elections, appointing authority. (Quinto v. COMELEC, G.R.
they are regarded as directory to give effect to the 189698, 01 Dec. 2009)
will of the electorate. (Saya-Ang, Sr. v. COMELEC, G.R.
No. 155087, 28 Nov. 2003) Effect of Filing Two Certificates of Candidacy
Purpose It disqualifies the person to run for both elective

positions. (Sec. 73, OEC)
1. To enable the voters to know, at least 60
days before the regular election, the However, before the expiration of the period for the
candidates among whom they have to filing of CoC, the person who has filed more than one
choose; and certificate of candidacy may declare under oath the
office for which he desires to be eligible and cancel
2. To avoid confusion and inconvenience in the COC for the other office or office/s. A person
the tabulation of the votes cast. (Miranda v. who has filed a certificate of candidacy may, prior to
Abaya, G.R. No. 136351, 28 July 1999) election, withdraw the same. The filing of a
withdrawal certificate of candidacy shall not affect
a) EFFECT OF FILING whatever civil, criminal, or administrative liabilities
a candidate may have incurred. (Sec. 1, COMELEC
Filing CoC during the Tenure of Incumbency Resolution 8678)
(2002 BAR)
b) SUBSTITUTION AND WITHDRAWAL OF
1. As to an appointive official – He/she is CANDIDATES
considered ipso facto resigned from his
office upon the filing of his CoC, and such SUBSTITUTION OF CANDIDATES
resignation is irrevocable. (Sec. 66, OEC)
Substitution
2. As to an elective official – It has no effect.
The candidate shall continue to hold office, An official candidate of a duly registered political
whether he is running for the same or a party or coalition who dies, withdraws, or is
different position. (Sec. 14 of Fair Elections disqualified for any cause after the last day for the
Act, Sec. 14, expressly repealed Sec. 67, OEC) filing of CoCs may be substituted by a candidate
belonging to, and nominated by, the same political
Q: Do the deemed-resigned provisions which are party or coalition.
applicable to appointive officials and not to
elective officials violate the equal protection NOTE: No substitute shall be allowed for any
clause of the Constitution? independent candidate.
A: NO. Substantial distinctions clearly exist between The substitute for a candidate, who died or is
elective officials and appointive officials. The former disqualified by final judgment, may file a CoC up to
occupies their office by virtue of the mandate of the mid-day of Election Day; Provided that, the
electorate. They are elected to an office for a definite substitute and the one being substituted have the
term and may be removed therefrom only upon same surnames.
stringent conditions. On the other hand, appointive
officials hold their office by virtue of their If the death or disqualification should occur
designation thereto by an appointing authority. between the day before the election and midday of
Some appointive officials hold their office in a election day, the substitute candidate may file a CoC
permanent capacity and are entitled to security of with any Board of Election Inspectors, Election
384
2023 GOLDEN NOTES
Officers, Provincial Election Supervisor, or Regional (Tagolino v. HRET and Lucy Torres-Gomez, G.R. No.
Election Director, as the case may be, in the political 202202, 19 Mar. 2013)
subdivision where such person is a candidate, or in
the case of a candidate for President, Vice-President Q: James was a candidate for vice mayor in the
or Senator, with the Law Department; Provided that, First Order City. His Certificate of Nomination
the substitute and the substituted candidate have and Acceptance (CONA) was signed by his
the same surnames. (COMELEC Resolution 9984, 18, party’s chapter president Lorena. It appears,
Aug. 2015) however, that his chapter president was not
authorized by their national party leader to sign
Requisites for Valid Substitution James’ CONA. So, COMELEC considered him an
independent candidate instead of being a
1. The substitute must belong to the same candidate by his party. Subsequently, James’
party or coalition; and party submitted proof that Romualdez was
2. The deceased disqualified or withdrawn authorized to sign James’ CONA. Few days after
candidate must have duly filed a valid CoC. filing his CoC, James died due to a heart attack.
Marcelina, James’ wife, filed her CoC to
NOTE: The second requisite is a condition substitute for her deceased husband. James,
sine qua non for a disqualified candidate to despite his demise, received twice as many votes
be validly substituted. (Tagolino v. HRET as Winston, James’ rival for the position.
and Lucy Torres-Gomez, G.R. No. 202202, 19 Winston then questioned the substitution of
Mar. 2013) Marcelina saying that an independent candidate
cannot be substituted. COMELEC agreed with
Q: Raphael and Angelo filed their CoCs for the Winston. Marcelina sought to reverse
position of Mayor of Lucena City. Angelo filed a COMELEC’s decision before the SC. Who should
petition to disqualify Raphael, alleging that the SC favor?
Raphael still filed his CoC despite knowing that
he had exceeded the three (3)-term limit as A: MARCELINA. Petitioner’s deceased husband’s
Mayor of Lucena City. COMELEC First Division name remained on the ballot notwithstanding his
disqualified Raphael. Marian, the wife of death even before the campaign period for the local
Raphael, filed her own CoC in substitution of her elections began on 29 Mar. 2013. Yet, he received
husband, Raphael. Can Marian validly substitute almost twice the number of votes as the second
for her husband? placer, private respondent, in a decisive victory.
Since the people could not have possibly meant to
A: NO. A disqualified candidate may only be waste their votes on a deceased candidate, we
substituted if he had a valid CoC in the first place conclude that petitioner was the undisputed choice
because, if the disqualified candidate did not have a of the electorate as vice mayor on the apparent
valid and seasonably filed CoC, he is and was not a belief that she may validly substitute her husband.
candidate at all. If a person was not a candidate, he That belief was not contradicted by any official or
could not be substituted under Sec. 77 of the OEC. If formal ruling by the COMELEC prior to the elections.
we were to allow the so-called "substitute" to file a
"new" and "original" CoC beyond the period for the The late submission of the authority to sign the
filing thereof, it would be a crystalline case of CONA to the COMELEC was a mere technicality that
unequal protection of the law. Thus, there was no cannot be used to defeat the will of the electorate in
valid candidate for Marian to substitute due to a fair and honest election. Non-compliance with
Raphael’s ineligibility. The existence of a valid CoC formal requirements laid down in election laws
is therefore a condition sine qua non for a when not used as a means for fraudulent practice
disqualified candidate to be validly substituted. will be considered a harmless irregularity. Allowing
385
the belated submission of the authority to sign Withdrawal of Candidacy Shall be Under Oath
CONAs will not result in the situation proscribed by
Sec. 77 of the Omnibus Election Code – that an GR: A withdrawal of candidacy which is not under
independent candidate will be invalidly substituted. oath is not a valid withdrawal and generally
In the case at bar, neither COMELEC nor private produces no legal effect, and for all legal intents and
respondent contended the deceased was not in fact purposes there is no withdrawal and he remains a
a bona fide member of his party. The record is bereft candidate.
of any allegation that the authority was inexistent,
forged or in any way defective. The only issue was XPN: When the withdrawal, which is not under
that it was not submitted within the prescribed oath, is actually made and accepted by the election
deadline (Engle v. COMELEC, G.R. No. 215995, 19 Jan. registrar, as a result of which a substitute candidate
2016). files his CoC in his place and receives the winning
number of votes.
Stray votes
NOTE: For to give no legal affect to the withdrawal
In case of valid substitutions after the official ballots because it is not under oath is to pay homage to
have been printed, the votes cast for the substituted technically, nullify the candidacy of the substitute
candidates shall be considered as stray votes but candidate, and frustrate the will of the electorate.
shall not invalidate the whole ballot. For this
purpose, the official ballots shall provide spaces c) NUISANCE CANDIDATES
where the voters may write the name of the
substitute candidates if they are voting for the Nuisance Candidate
latter.
Any registered candidate for the same office may file
NOTE: If the substitute candidate of the same family a petition to declare a duly registered candidate as a
name, this rule shall not apply. (Sec. 12, R.A. No. nuisance candidate, personally, or through duly
9006, Fair Elections Act) authorized representative with COMELEC within
five days from the last day of filing of COC. (Sec. 5,
No Candidate, No Substitution R.A. 6646, The Electoral Reforms Law of 1987)
Sec. 77, OEC requires that there be a candidate in Grounds

order for substitution to take place. Thus, if a
person’s CoC had been denied due course to and/or The COMELEC may motu proprio or upon verified
cancelled under Sec. 78, OEC, he or she cannot be petition refuse to give due course to or cancel a
validly substituted in the electoral process. Stated certificate of candidacy if shown that it was filed to:
differently, since there would be no candidate to
speak of under a denial of due course to and/or 1. Put the election process in mockery or
cancellation of a CoC case, then there would be no disrepute;
candidate to be substituted. (Tagolino v. HRET and
Lucy Torres-Gomez, G.R. No. 202202, 19 Mar. 2013) 2. Cause confusion among the voters by the
similarity of the names of the registered
WITHDRAWAL OF CANDIDATES candidates; or
Withdrawal of CoC, Required for Substitution. 3. Clearly demonstrate that the candidate has
no bona fide intention to run for the office
A person who has filed a CoC may, prior to the for which the CoC has been filed and thus
election, withdraw the same by submitting to the prevent a faithful determination of the true
office concerned a written declaration under oath. will of the electorate. (Sec. 69, OEC)
386
2023 GOLDEN NOTES
Power of COMELEC contain all the required data and in the form
prescribed by the Commission. (Sec. 7, OEC; Cerafica
GN: COMELEC may, motu proprio or upon verified v. COMELEC, G.R. No. 205136, 02 Dec. 2014)
petition of an interested party, refuse to give due
course to or cancel a CoC upon showing of the XPNs: COMELEC may go beyond the face of the CoC
above-stated circumstances. (Sec. 69, OEC) in the following:
XPN: The COMELEC cannot motu proprio deny due 1. Nuisance candidates (Sec. 69, OEC);
course to or cancel an alleged nuisance candidate’s 2. Petition to deny due course or to cancel a
CoC without providing the candidate his CoC (Sec. 78, OEC); or
opportunity to be heard. (Timbol v. COMELEC, G.R. 3. Filing of a disqualification case on any of
No. 206004, 24 Feb. 2015) the grounds enumerated in Sec. 68, OEC.
Reason for the Prohibition of Nuisance Effect of Disqualification of Certificate of

Candidates Candidacy
The prohibition against nuisance candidates is Any candidate who has been declared by final
aimed precisely at preventing uncertainty and judgment to be disqualified shall not be voted for,
confusion in ascertaining the true will of the and the votes cast for him shall not be counted.
electorate. Thus, in certain situations, final Nevertheless, if for any reason, a candidate is not
judgments declaring a nuisance candidate should declared by final judgment before an election to be
effectively cancel the CoC filed by such candidates as disqualified and he is voted for and receives the
of election day. Otherwise, potential nuisance winning number of votes in such election, his
candidates will continue to put the electoral process violation of the provisions of the preceding sections
into mockery by filing certificates of candidacy at shall not prevent his proclamation and assumption
the last minute and delaying resolution of any to office. (Sec. 72, OEC)
petition to declare them as nuisance candidates,
until elections are held, and the votes counted and COMELEC can exercise its power of contempt in
canvasses. (Celestino Martinez v. HRET, G.R. No. connection with its functions as the National
189034, 11 Jan. 2010) Board of Canvassers during the elections
Effect of Voting a Nuisance Candidate The effectiveness of a government institution

vested with quasi-judicial power hinges on its
The votes cast for a nuisance candidate are not stray authority to compel attendance of the parties
but counted in favor of the bona fide candidate. and/or their witnesses in hearings and proceedings.
(Dela Cruz v. COMELEC, G.R. No. 192221, 13 Nov. Suchlike, the COMELEC’s investigative power to
2012) punish individuals who refuse to appear during a
fact-finding investigation, despite a previous notice
d) DUTIES OF THE COMMISSION ON ELECTIONS and order to attend, cannot be withheld for it is
(COMELEC) [essential to its constitutional mandate to secure the
conduct of honest and credible elections. (Bedol v.
Ministerial Duty of Comelec to Receive COMELEC, G.R. No. 179830, 03 Dec. 2009)
Certificates
GR: The COMELEC shall have the ministerial duty to

receive and acknowledge receipt of the CoCs;
Provided, that said certificates are under oath and
387
provides that "any unlawful act or omission
C. CAMPAIGN applicable to a candidate shall take effect only upon
the start of the campaign period," does not mean
that the acts constituting premature campaigning
can only be committed for which the offender may
Election Campaign
be disqualified during the campaign period.
Also known as “partisan political activity." This
A candidate is liable for an election offense only for
refers to an act designed to promote the election or
acts done during the campaign period, not before.
defeat of a particular candidate or candidates to a
The law is clear as daylight — any election offense
public office which shall include: (F-H-M-Pub-Sol)
that may be committed by a candidate under any
election law cannot be committed before the start of
1. Forming organizations, associations, clubs,
the campaign period. (Penera v. COMELEC, G.R. No.
committees or other groups of persons for
181613, 25 Nov. 2009)
the purpose of soliciting votes and/or
undertaking any campaign for or against a
candidate; 2. PROHIBITED CONTRIBUTIONS
2. Holding political caucuses, conferences, No contribution for purposes of partisan political

meetings, rallies, parades, or other similar activity shall be made directly or indirectly by any
assemblies, for the purpose of soliciting of the following:
votes and/or undertaking any campaign or
propaganda for or against a candidate; 1. From Public or private financial
institutions
3. Making speeches, announcements or
commentaries, or holding interviews for or XPNs:
against the election of any candidate for a. The financial institutions are
public office; legally in the business of lending
money;
4. Publishing or distributing campaign b. The loan is made in accordance
literature or materials designed to support with laws and regulations; and
or oppose the election of any candidate; or c. The loan is made in the ordinary
course of business.
5. Directly or indirectly Soliciting votes,
pledges or support for or against a 2. Natural and juridical persons operating a
candidate. (Sec. 79 (b), OEC) public utility or in possession of or
exploiting any natural resources of the
1. PREMATURE CAMPAIGNING nation;
3. Natural and juridical persons who hold

Premature Campaigning
contracts or sub-contracts to supply the
government or any of its divisions,
This means electioneering conducted before the
subdivisions, or instrumentalities, with
official campaign period. (Sec. 80, OEC)
goods or services or to perform
construction or other works;
Premature Campaigning No Longer an Offense
4. Grantees of franchises, incentives,

The Court, in granting the motion for
exemptions, allocations or similar
reconsideration of Rosalinda Penera, held that, “In
privileges or concessions by the
line with Sec. 15 of R.A. No. 8436, as amended, which
388
2023 GOLDEN NOTES
government or any of its divisions, be removed within 72 hours after said
subdivisions, or instrumentalities, meeting or rally; or
including GOCCs;
4. All other forms of election propaganda not
5. Grantees, within 1 year prior to the date of prohibited by this Code as the Commission
the election, of loans or other may authorize after due notice to all
accommodations in excess of P100,000 by interested parties and hearing where all the
the government or any of its divisions, interested parties were given an equal
subdivisions or instrumentalities including opportunity to be heard: Provided, That the
GOCCs; Commission's authorization shall be
published in two (2) newspapers of general
6. Educational institutions which have circulation throughout the nation for at
received grants of public funds amounting least twice within one (1) week after the
to no less than P100,000; authorization has been granted. (Sec. 82,
OEC)
7. Officials or employees in the Civil Service,
or members of the AFP; or Prohibited Forms of Election Propaganda
8. Foreigners and foreign corporations, 1. To print, publish, post, or distribute any

including foreign governments. (Secs. 95 poster, pamphlet, circular, handbill, or
and 96, B.P. Blg. 881) printed matter urging voters to vote for or
against any candidate
3. LAWFUL AND PROHIBITED ELECTION
PROPAGANDA XPN: unless they bear the names and
addresses of the printer and payor as
required in Sec. 84;
Lawful Election Propaganda
2. To erect, put up, make use of, attach, float

1. Pamphlets, leaflets, cards, decals, stickers
or display any billboard, tinplate-poster,
or other written or printed materials of a
balloons and the like, of whatever size,
size not more than 8.5 inches in width and
shape, form or kind, advertising for or
14 inches in length;
against any candidate or political party;
2. Handwritten or printed letters urging

3. To purchase, manufacture, request,
voters to vote for or against any particular
distribute or accept electoral propaganda
candidate;
gadgets, such as pens, lighters, fans of
whatever nature, flashlights, athletic goods
3. Cloth, paper, or cardboard posters,
or materials, wallets, shirts, hats, bandanas,
whether framed or posted, with an area
matches, cigarettes and the like
exceeding two feet by three feet, except
that, at the site and on the occasion of a
XPN: Campaign supporters accompanying
public meeting or rally, or in announcing
a candidate shall be allowed to wear hats
the holding of said meeting or rally,
and/or shirts or T-shirts advertising a
streamers not exceeding three feet by eight
candidate;
feet (3 x 8 ft.) in size, shall be allowed:
Provided, That said streamers may not be
4. To show or display publicly any
displayed except one (1) week before the
advertisement or propaganda for or
date of the meeting or rally and that it shall
389
against any candidate by means of
Political parties
cinematography, audio-visual units or
other screen projections (Sec. 13, R.A. No. 7166)
XPN: telecasts which may be allowed as 5. STATEMENT OF CONTRIBUTIONS AND

hereinafter provided; and EXPENSES
5. For any radio broadcasting or television Statement of Contributions and Expenditures

station to sell or give free of charge airtime (SOCE)
for campaign and other political purposes.
(Sec. 261, Election Code of the Philippines) It is a full, true, and itemized statement of all
contributions and expenditures in connection with
XPN: except as authorized in this Code the election. Every candidate and treasurer of the
under the rules and regulations political party shall, within 30 days after the day of
promulgated by the Commission pursuant the election, file in duplicate with the offices of the
thereto. Commission. (Sec. 14 of R.A. No. 7166 or the
Synchronized Election Law)
NOTE: Any prohibited election propaganda gadget
or advertisement shall be stopped, confiscated, or GR: No person elected to any public offices shall
torn down by the representative of the Commission enter upon the duties of his office until he has filed
upon specific authority of the Commission. (Sec. 85, the SOCE herein required. The same prohibition
OEC) shall apply if the political party which nominated
the winning candidate fails to file the statement
4. LIMITATIONS ON EXPENSES required. (Sec. 14 of R.A. No.7166 or the
Synchronized Election Law)
Authorized Expenses of Candidates and Political
Parties XPN: Candidates for elective barangay office who
failed to file its SOCE will only be charged for
The agreement amount that a candidate or administrative offense wherein offenders shall be
registered political party may spend for election liable to pay an administrative fine ranging from
campaign. (Sec. 13, R.A. No. 7166) P1,000.00 to P30,000.00, at the discretion of the
Commission. (Sec. 14, R.A. No. 7166)
For Candidates
P10.00 for every voter D. REMEDIES AND JURSIDICTION

President and Vice currently registered in
President the constituency where
he filed his CoC 1. PETITION TO DENY DUE COURSE OR CANCEL
P3.00 for every voter A CERTIFICATE OF CANDIDACY
currently registered in
Other candidates
the constituency where A verified petition seeking to deny due course to a
he filed his CoC CoC may be filed by any person exclusively on the
A candidate ground that material representation contained
P5.00 for every voter
without any therein as required is false.
currently registered in
political party and
the constituency/ies
without support The petition may be filed not later than 25 days from
where it has official
from any political the time of filing of the COC, and shall be decided,
candidates
party
390
2023 GOLDEN NOTES
after due notice and hearing, not later than 15 days Final and Executory Judgment
before the election.
A decision or resolution is deemed final and
In addition, the COMELEC may motu proprio or upon executory if, in case of a division ruling, no motion
verified petition refuse to give due course to or for reconsideration is filed within the reglementary
cancel a CoC if shown that it was filed to: period, or in cases of rulings of the Commission en
banc, no restraining order is issued by the Supreme
1. Put the election process in mockery or Court within five (5) days from receipt of the
disrepute; decision or resolution. (Sec. 8, Rule 23, 2013
COMELEC Rules of Procedure, as amended by
2. Cause confusion among the voters by the COMELEC Resolution No. 9523)
similarity of the names of the registered
candidates; or Grounds for Disqualification
3. Clearly demonstrate that the candidate has 1. Any person who has been declared by
No bona fide intention to run for the office competent authority insane or incompetent, or
for which the COC has been filed and thus 2. has been sentenced by final judgment for
prevent a faithful determination of the true subversion, insurrection, rebellion, or
will of the electorate. (Sec. 69, OEC)
3. has been sentenced by final judgment for any
2. PETITION FOR DISQUALIFICATION offense for which he has been sentenced to a
penalty of more than 18 months or for a crime
involving moral turpitude (Sec. 12, OEC);
It is the remedy against any candidate:
1. Who does not possess all the qualifications
4. Any candidate who, in action or protest in
required by the Constitution or law; or
which he is a party, is declared by final decision
2. Who commits any act declared by law to be
guilty of or found by COMELEC of having:
grounds for disqualification. (Sec. 1, Rule
25, COMELEC Rules of Procedure)
a. Given money or other material
consideration to influence, induce or
Time of filing the petition for disqualification
corrupt the voters of public officials
performing electoral functions;
The petition for disqualification may be filed at any
day after the last day for filing of certificates of
b. Committed acts of terrorism to enhance
candidacy, but not later than the date of
his candidacy;
proclamation. (Sec. 3, Rule 25, COMELEC Rules of
Procedure)
c. Spent in his election campaign an amount
in excess of the allowed;
Nature of the Proceedings
d. Solicited, received or made any

The petition is heard summarily. (Sec. 4, Rule 25,
contribution prohibited under the
COMELEC Rules of Procedure) However, the
Omnibus Election Code; and
COMELEC cannot disqualify a candidate without
hearing and affording him opportunity to adduce
e. Violated any of secs. 80, 83, 85, 86 and
evidence to support his side and taking into account
261, paragraphs d, e, k, v, and cc,
such evidence.
subparagraph 6. (Sec. 68, OEC)
391
5. Any person who is a permanent resident of or proclamation of the
an immigrant to a foreign country. (Sec. 68, OEC) respondent.
The Law Department shall
XPN: unless said person has waived his status terminate the preliminary
as permanent resident or immigrant of a investigation within 30
foreign country. days from receipt of the
referral and shall submit its
NOTE: R.A. No. 9225 expressly provides for the study, report, and
conditions before those who re-acquired Submission of recommendation to the
Filipino citizenship may run for a public office recommendation Commission en banc within
in the Philippines. to Commission en five days from the
banc conclusion of the
Rules on disqualification cases preliminary investigation.
If it makes a prima facie
The Commission shall finding of guilt, it shall
determine whether the acts submit with such study the
complained of have in fact Information for filing with
Complaint filed
been committed. If so, the the appropriate court.
before election
COMELEC shall order the (Bagatsing v. COMELEC, G.R. No. 134047, 15 Dec
disqualification of the 1999)
respondent candidate.
COMELEC may motu propio Remedy If Petition for Disqualification is
Complaint not or on motion of any of the Unresolved on Election Day
resolved before parties refer the complaint
election to the Law Department of The petitioner may file a motion with the division or
the Commission. Commission en banc where the case is pending, to
The complaint shall be suspend the proclamation of the candidate
dismissed. concerned, provided that the evidence for the
Complaint filed
grounds to disqualify is strong. For this purpose, at
after election and
NOTE: The complaint shall least three (3) days prior to any election, the Clerk
proclamation of
be referred for preliminary of the Commission shall prepare a list of pending
winner
investigation to the Law cases and furnish all Commissioners copies of said
Department. the list.
The complaint shall be
dismissed. If a candidate with an existing and pending petition
to disqualify is proclaimed winner, the Commission
NOTE: The complaint shall shall continue to resolve the said petition. (Sec. 5,
be referred for preliminary Rule 25, COMELEC Rules of Procedure, as amended by
Complaint filed
investigation to the Law COMELEC Resolution 9523, 25 Sept. 2012).
after election but
Department. If the Law
before
Department makes prima
proclamation of
facie finding of guilt and the
winner
corresponding information
has been filed with the trial
court, the complainant may
file a petition for
suspension of the
392
2023 GOLDEN NOTES
Petition to Deny Due Course to or Cancel CoC vs. the concerned precinct
Petition for Disqualification or political unit.
As to Grounds
PETITION TO DENY Failure of elections Two (2) indispensable
PETITION FOR
DUE COURSE TO OR may be declared in the requisites must concur
DISQUALIFICATION
CANCEL COC following cases: to annul an election:
As to basis of the action
Based on a statement 1. The election in any 1. The illegality of the
of a material Premised on Sec. 12 of polling place has ballots must affect
representation in the OEC, or Sec. 40 of the not been held on more than 50% of
said certificate that is LGC. the date fixed on the votes cast on
false. account of force the specific
As to the status of the person / candidate majeure, violence, precinct or
The person whose terrorism, fraud, precincts sought to
certificate is cancelled A person who is or other analogous be annulled, or in
or denied due course disqualified under Sec. causes; case of the entire
under Sec. 78 is not 68 is merely prohibited municipality, more
treated as a candidate to continue as a 2. The election in any than 50% of its
at all, as if he never candidate. polling place had total precincts and
filed a CoC. been suspended the votes cast
As to substitution before the hour therein; and
A person whose CoC A candidate who is fixed by law for the
has been denied due disqualified under Sec. closing of the 2. It is impossible to
course or cancelled 68 can be validly voting on account distinguish with
under Sec. 78 cannot substituted under Sec. of force majeure, reasonable
be substituted because 77 of the OEC because violence, certainty between
he is never considered he remains a candidate terrorism, fraud, the lawful and
a candidate. until disqualified. or other analogous unlawful ballots.
causes; and (Marcos, Jr. v.
Robredo, P.E.T.
3. After the voting Case No. 005, 16
3. FAILURE OF ELECTION, CALL FOR SPECIAL
and during the Feb. 2021)
ELECTION
preparation and
transmission of
FAILURE OF ANNULMENT OF the election
ELECTION ELECTION returns or canvass
As to Nature thereof, such
In the exercise of the election results in
An incident of the
COMELEC's failure to elect on
judicial function of
administrative account of force
Electoral Tribunals.
function. majeure, violence,
As to Scope terrorism, fraud,
Electoral tribunals or analogous
The declaration of
only annul the election causes. (Banaga,
failure of elections by
results connected with Jr. v. COMELEC, G.R.
the COMELEC relates
the election contest No. 134696, 23 July
to the entire election in
before it. 2000)
393
NOTE: There is failure of elections only when the objections or claims, if any. It is only after the
will of the electorate has been muted and cannot be Tribunal has deliberated and ruled on the validity of
ascertained. (Benito v. COMELEC, G.R. No. 134913, 19 the objections or claims that a deduction or addition
Jan. 2001) of votes will take place. For this purpose, the
Tribunal relies on how the Vote Counting Machines
Requisites for Declaration of Failure of Elections (VCMs) counted the votes in order to segregate the
ballots during the revision stage. The threshold
1. No voting has taken place in the precincts used by the VCMs is not the final determinant of
concerned on the date fixed by law, or even whether a vote will be counted in favor of protestant
if there was voting, the election nonetheless or protestee. (Marcos, Jr. v. Robredo, P.E.T. Case No.
resulted in a failure to elect; and 005, 18 Sept. 2018)
2. The votes cast would affect the results of Q: Ted and Barney both ran for the position of
the election. representative of the first district of Northern
Samar. Ted won while Barney placed second.
Power to Declare Failure of Election Barney filed an election protest before the HRET
against Ted, alleging terrorism committed by
COMELEC en banc has the original and exclusive the supporters of Ted before, during, and after
jurisdiction to hear and decide petitions for the elections. Barney prayed for the annulment
declaration of failure of election or for annulment of of Ted’s election. Ted argued that HRET has no
election results. (Sec. 4, R.A. No. 7166) jurisdiction over the protest on the premise that
annulment of election returns on the ground of
Q: When candidate Boss Mariano lost in the terrorism is akin to a declaration of failure of
2016 Vice Presidential elections, he filed a elections which is under the exclusive
protest with the Presidential Electoral Tribunal jurisdiction of COMELEC. Is Ted correct?
(PET). As a result, a revision, recount, and re-
appreciation of ballots was to be conducted. The A: NO. The power of the HRET to annul elections
victorious candidate, Lara Rosales, filed a differs from the power granted to the COMELEC to
motion to apply a 25% shading threshold during declare failure of elections. The Constitution, no
the recount. The COMELEC filed a comment, in less, grants the HRET with exclusive jurisdiction to
agreement with Lara’s claim, and asserted that decide all election contests involving the members
it calibrated the automated vote counting of the HoR, which necessarily include those which
system to read marks that cover at least 25% of raise the issue of fraud, terrorism or other
the oval for each candidate. Should the irregularities committed before, during or after the
previously set 50% shading threshold in the elections. To deprive the HRET of the prerogative to
revision proceedings be set aside? annul elections would undermine its constitutional
fiat to decide election contests. The phrase “election,
A: PARTIALLY GRANTED. The setting of the returns and qualifications” should be interpreted in
threshold for the 2016 elections is the function of its totality as referring to all matters affecting the
the COMELEC. However, this is a non-issue during validity of the contestee's title. Consequently, the
the revision process. The purpose of the revision annulment of election results is but a power
proceedings is simply to conduct a physical recount concomitant to the HRET's constitutional mandate
of the ballots and thereafter provide both parties to determine the validity of the contestee's title.
the opportunity to register their objections and (Abayon v. HRET, G.R. No. 223032, 03 May 2016)
claims thereon. During the revision proceedings,
there is yet no final deduction or addition of votes.
There is merely a preliminary segregation and
classification in order to facilitate the recording of
394
2023 GOLDEN NOTES
Failure of Election vs. Postponement of Elections 4. PRE-PROCLAMATION CONTROVERSY
FAILURE OF POSTPONEMENT OF
Pre-proclamation controversy refers to any
ELECTION ELECTIONS
question pertaining to or affecting the proceedings
As to cause
of the board of canvassers (BOC), which may be
Any serious cause of:
raised by any candidate or by any registered
political party or coalition of political parties, or by
a. Force Majeure; any accredited and participating partylist group,
b. Violence;
before the Board or directly with the COMELEC.
c. Terrorism;
(Sec. 1, Rule 3, COMELEC Resolution No. 8804)
d. Loss or destruction of election
paraphernalia; or
Purpose
e. Other analogous cases
As to the effect of the cause/s To ascertain winners in the elections on basis of
Failure to elect and Serious impossibility election returns duly authenticated by the Board of
affect results of to have free and Inspectors and admitted by the BOC. (Abella v.
elections. orderly elections. Larrazabal, G.R. No. 87721-30, 21 Dec. 1989)
As to when the grounds must exist
Grounds may occur Q: Sao was an official candidate for Municipal
Grounds must exist
any time before Mayor. Que ran for the same position. Sao
before voting.
proclamation. alleged to have witnessed an anomalous activity
As to procedure that affected the integrity of several election
1. Verified petition by returns (ER). During the canvassing, Sao sought
1. Verified petition by
any interested for the exclusion of the contested ERs on the
any interested
person or motu grounds of massive fraud, illegal proceedings,
person
proprio by tampered/falsified and obviously manufactured
COMELEC en banc returns. He alleged that the oral objections were
2. Due Notice; and
timely made, and the written Petition for
2. Due notice; and Exclusion was filed with the Municipal Board of
3. Hearing.
3. Hearing. Canvassers (MBOC). Were the allegations raised
As to result by Sao on the contested ERs proper in a pre-
1. Declaration of proclamation controversy?
failure of elections;
1. Election is
and A: NO. The unsubstantiated issues raised by Sao
postponed; and
were not proper for a pre-proclamation
2. Holding of controversy. Pre-proclamation controversy is
2. Conduct elections
continuation of summary in character which must be promptly
reasonably close to
elections decided. Hence, the BOC will not investigate
elections not held,
reasonably close to allegations of irregularity that are not apparent on
but not later than
election not held, the face of ERs that appear otherwise authentic and
30 days from
but not later than duly accomplished. The Court found that there is
cessation of cause.
30 days from absolutely no indication that the contested ERs
cessation of cause. were falsified or tampered with. Claims that
contested ERs are obviously manufactured or
falsified must be evident from the face of the said
documents. As such, there was no valid ground to
delay the proclamation, since the unsubstantiated
395
issues raised by Sao were not proper for a pre- 2. No pre-proclamation cases are allowed in case
proclamation controversy. (Saño v. COMELEC, G.R. of Barangay election. (Sec. 9, R.A. No. 6679)
No. 182221, 03 Feb. 2010)
Issues that may be raised (1996 BAR)
Jurisdiction (I-C-E-S-M)
COMELEC has exclusive jurisdiction over pre- 1. Illegal composition or proceedings of the Board
proclamation cases. It may order, motu proprio or of Election Canvassers;
upon written petition, and after due notice and
hearing the partial or total suspension of the 2. Canvassed election returns are either:
proclamation of any candidate-elect or annul a. Incomplete;
partially or totally any proclamation, if one has been b. Contain material defects;
made, as the evidence shall warrant. (Sec. 242, OEC) c. Appear to be tampered with or falsified; or
d. Contain discrepancies in the same returns
Nature and Execution of Judgment or in authentic copies;
It shall be heard summarily by the COMELEC. Its 3. The Election returns were:
decision shall be executory after five (5) days from a. Prepared under duress, threats, coercion,
receipt by the losing party, unless otherwise intimidation; or
ordered. b. Obviously manufactured or not authentic;
When a Pre-Proclamation Controversy is Not 4. Substituted or fraudulent returns in

Allowed (2008 BAR) controverted polling places were canvassed,
the results of which materially affected the
1. For the positions of President, Vice President, standing of the aggrieved candidate(s); or
Senator and Member of HoR (Sec. 15, R.A. No.
7166); and 5. Manifest errors in the Certificates of Canvass or
Election Returns. (R.A. 7166, Sec. 15; Chavez v.
XPNs: COMELEC, G.R. No. 16277, 31 Aug. 2004) (Sec. 15,
a. Correction of manifest errors; R.A. No. 7166; Chavez v. Comelec, G.R. No. 16227,
31 Aug. 2004)
b. Questions affecting the composition or
proceedings of the BOC (Sec. 1, Rule 3, NOTE: The enumeration is restrictive and exclusive.
COMELEC Res. No. 8804, 22 Mar. 2010); and (Suhuri v. COMELEC, G.R. No. 181869. 02 Oct. 2009)
NOTE: However, this does not preclude the Issues that cannot be raised: (A-T-P-P-C-F)
authority of the appropriate canvassing
body, motu proprio or upon written 1. Appreciation of ballots, as this is performed
complaint of an interested person, to by the boards of election inspectors (BEI) at
correct manifest errors in the certificate of the precinct level and is not part of the
canvass or election before it; (Sec. 38, R.A. proceedings of the BOC; (Sanchez v.
No. 9369) COMELEC, G.R. No. 78461, 12 Aug. 1987)
c. Determination of the authenticity and due 2. Technical examination of the signatures

execution of certificates of canvass as and thumb marks of voters; (Matalam v.
provided in Sec. 30 of R.A. No. 7166, as COMELEC, G.R. No. 123230, 18 Apr. 1997)
amended by R.A. No. 9369.
396
2023 GOLDEN NOTES
3. Prayer for re-opening of ballot boxes; XPNs:
(Alfonso v. COMELEC, G.R. No. 107847, 02 1. When based on evidence, COMELEC
June 1994) determines that petition is meritorious;
2. The SC, in a petition for certiorari, issues a
4. That the Padding of the List of Voters may contrary order; or
constitute fraud, or that the BEI may have 3. The case is not a pre-proclamation case.
fraudulently conspired in its preparation;, (Peñaflorida v. COMELEC, G.R. No. 125950,
vote-buying; (Ututalum v. COMELEC, G.R. 18 Nov. 1997)
No. 84843-44, 22 Jan. 1990)
Q: Is the COMELEC precluded from exercising
5. Challenges directed against the BEI; powers over pre-proclamation controversies
(Ututalum v. COMELEC, G.R. No. 84843-44, when the Electoral Tribunal acquires
22 Jan. 1990) and jurisdiction?
6. Fraud, terrorism, and other illegal electoral A: GR: YES. COMELEC is precluded from exercising
practices. These are properly within the powers over pre-proclamation controversies when
office of election contests over which the Electoral Tribunal acquires jurisdiction.
electoral tribunals have sole, exclusive
jurisdiction. (Loong v. COMELEC, G.R. No. XPNs:
93986, 22 Dec. 1992) 1. BOC was improperly constituted;
2. Proclamation was null and void;
Effect of Filing of Pre-Proclamation Controversy 3. Quo warranto is not the proper remedy;
1. The period to file an election contest shall 4. What was filed was a petition to annul a
be suspended during the pendency of the proclamation, and not a quo warranto or
pre-proclamation contest in the COMELEC election protest; and
or the Supreme Court;
5. Election contest expressly made without
2. The right of the prevailing party in the pre- prejudice to pre-proclamation controversy
proclamation contest to the execution of or it was made ad cautelam. (Cerbo, Jr. v.
COMELEC’s decision does not bar the losing COMELEC, G.R. No. 168411, 15 Feb. 2007)
party from filing an election contest; and
Petition to Annul or Suspend the Proclamation
3. Despite the pendency of a pre-
proclamation contest, the COMELEC may It is a remedy where there is a manifest error on the
order the proclamation of other winning face of the transmitted returns or variance of results
candidates whose election will not be from the election returns and COC, and a winning
affected by the outcome of the controversy. candidate is about to be, or has already been
(Abayon v. COMELEC, G.R. No. 181295, 02 proclaimed on the basis thereof.
Apr. 2009)
COMELEC is required to hear the petition
Termination of Pre-Proclamation Cases immediately and the ballots may be ordered to be
manually recounted to verify the manifest errors or
GR: Pre-proclamation cases are terminated at the alleged variance.
beginning of term of the officers. (Sec. 16, R.A. No.
7166) NOTE: The filing of a petition to annul or suspend
the proclamation shall suspend the running of the
397
period within which to file an election protest or quo this Tribunal found that protestee increased her
warranto proceedings. (Villamor v. COMELEC, G.R. lead over protestant from 263,473 votes to
No. 169865, 21 July 2006) 278,566 votes. In his Memorandum, protestant
claims that the Preliminary Appreciation
5. ELECTION PROTEST Committee erred several times during its
revision and appreciation of ballots. First, he
Challenging the Election Results
Committee erred in overruling his objections to
protestee's ballots in the pilot provinces for
The results of an election may be challenged
“lack of evidence aliunde” without giving him
through different legal vehicles:
the opportunity to present evidence supporting
his pilot protest. He asserts that he was willing
1. Failure of election cases;
to present evidence to substantiate his claims,
2. Pre-proclamation petitions; and
yet his motion to set the case for preliminary
3. Election contests. (Marcos, Jr. v. Robredo,
conference was not granted, leading to an
P.E.T. Case No. 005, 16 Feb. 2021)
“unfair and unjust” situation. Protestant then
Requirement of Specificity of Allegations in
Committee erred a second time in overruling his
Election Protests
objections to the questionable ballots in
protestee's favor, which contained signatures of
Allegations in election protests must be specific.
Board of Election inspectors that were
Particularity on one's allegations, grounds, and
"glaringly different" from the signatures
bases cuts across all mechanisms for challenging
indicated in the other election documents.
election outcomes and must be present in all
Third, protestant asserts that the Preliminary
actions, regardless of the mode.
Appreciation Committee erred, yet again, when
it counted unshaded and ambiguously shaded
The requirement of specificity deters fishing
ballots in protestee's favor.
expeditions by losing candidates who, without clear
bases for challenging election outcomes, are merely
Will the action of the Protestant prosper?
gambling with probabilities. It prevents situations
in which sweeping allegations of electoral fraud are
A: NO. Allegations in election protests must be
used by defeated contenders to discover by
specific. Basic wisdom underlies the need for
happenstance surmised irregularities in elections.
specific allegations before entertaining pleas to set
(Marcos, Jr. v. Robredo, P.E.T. Case No. 005, 16 Feb.
aside election outcomes. "The power to annul an
2021)
election should be exercised with the greatest care
as it involves the free and fair expression of the
Q: An election protest was filed by protestant
popular will." A losing candidate cannot use an
Ferdinand "Bongbong" R. Marcos, Jr.
election protest as an expedient means to unseat the
(protestant), who challenges the election and
winner when they are unsure of their factual bases.
proclamation of Maria Leonor "Leni Daang
"It is only in extreme cases of fraud and under
Matuwid" G. Robredo (protestee) as vice
circumstances which demonstrate to the fullest
president in the 2016 national and local
degree a fundamental and wanton disregard of the
elections. Protestant and protestee were two of
law that elections are annulled, and then only when
six candidates for vice president during the 09
it becomes impossible to take any other step."
May 2016 elections. Protestee garnered
14,418,817 votes, while protestant received
An election protest is not an ordinary petition as it
14,155,344 votes, giving protestee a slim margin
may deprive a significant portion of the voting
of only 263,473 votes over protestant. Based on
the final tally after revision and appreciation,
398
2023 GOLDEN NOTES
population of its right to suffrage. (Marcos Jr. v. 4. House of Representatives Electoral Tribunal
Robredo, P.E.T. Case No. 005, 16 Feb. 2021) (HRET) – Against a representative; (Sec. 17, Art.
Post-Election Disputes
5. RTC – Over contests for municipal officials
These are disputes which arise or are instituted which may be appealed to COMELEC; (Rule 2,
after proclamation of winning candidates and which Sec. 1, AM. No. 07-4-15-SC); and
issues pertain to the casting and counting of votes
(election protests), or to the eligibility or disloyalty 6. MeTC or MTC – For barangay officials which
of the winning candidates (quo warranto). (Digman may be appealed to COMELEC. (Rule 2, Sec. 2,
v. COMELEC, G.R. No. L-55988, 18 Feb. 1983) AM. No. 07-4-15-SC)
Nature and Purpose of an Election Protest Grounds for the filing of Election Protests
(F-Vo-T-Pre-M-Un-D-O)
It is a special summary proceeding the object of
which is to expedite the settlement of controversies 1. Fraud;
between candidates as to who received the majority 2. Vote-buying;
of legal votes. 3. Terrorism;
4. Presence of flying voters;
NOTE: Statutes providing for election contests are 5. Misreading or misappreciation of ballots;
to be liberally construed to the end that the will of 6. Unqualified members of the Board of
the people in the choice of public officers may not be Election Inspector;
defeated by mere technical objections. It is 7. Disenfranchisement of voters; and
imperative that his claim be immediately cleared 8. Other election irregularities. (Espaldon v.
not only for the benefit of the winner but for the COMELEC, G.R. No. L-78987, 25 Aug. 1987)
sake of public interest, which can only be achieved
by brushing aside technicalities of procedure which NOTE: Pendency of election protest is not a
protract and delay the trial of an ordinary action. sufficient basis to enjoin the protestee from
(Vialogo v. COMELEC, G.R. No. 194143, 04 Oct. 2011) assuming office.
Where Election Protests can be filed (2001 BAR) Content of an Election Protest
1. COMELEC – The sole judge of all contests It must be initiated by filing a protest that must
relating to elections, returns, and qualifications contain the following allegations:
of all elective regional, provincial and city
officials (reviewable by SC under Rule 64 using 1. The protestant is a candidate who duly filed
Rule 65); (Sec. 2(2), Art. XI-C, 1987 Constitution) a CoC and was voted for in the election;
2. The protestee has been proclaimed; and
NOTE: Decisions of COMELEC en banc are 3. The petition was filed within 10 days after
appealable to SC the proclamation. (Miro v. COMELEC, G.R.
No. L-57574, 20 Apr. 1983)
2. Presidential Electoral Tribunal (PET) –
Against the President and Vice President; (Sec.
4, Art. VII, 1987 Constitution)
3. Senate Electoral Tribunal (SET) – Against a

senator; (Sec. 17, Art. VI, 1987 Constitution)
399
Protestant Abandons Their Electoral Protest “Good Reasons” (P-S-L)
Once They Accept a Permanent Appointment to
a Regular Office A combination of two or more of the following:
Acceptance of a permanent appointment to a 1. That Public interest is involved or the will

regular office during the pendency of his protest is of the electorate;
an abandonment of the electoral protest. The same
is true if a protestant voluntarily sought election to 2. The Shortness of the remaining portion of
an office whose term would extend beyond the the term of the contested office; or
expiry date of the term of the contested office, and
after winning the said election, took her oath and 3. The Length of time that the election contest
assumed office and there after continuously serves has been pending. (Ramos v. COMELEC, G.R.
it. (Santiago v. Ramos, PET Case No. 001, 13 Feb. No. 130831, 10 Feb. 1998)
1996)
NOTE: If instead of issuing a preliminary injunction
Rationale for Abandonment of Protest in place of a TRO, a court opts to decide the case on
its merits with the result that it also enjoins the
The dismissal of the protest would serve public same acts covered by its TRO, it stands to reason
interest as it would dissipate the aura of uncertainty that the decision amounts to a grant of preliminary
as to the results of the presidential election, thereby injunction. Such injunction should be deemed in
enhancing the all-to crucial political stability of the force pending any appeal from the decision. The
nation during this period of national recovery. view that execution pending appeal should still
(Santiago v. Ramos, PET Case No. 001, 13 Feb. 1996) continue notwithstanding a decision of the higher
court enjoining such execution—does not make
In assuming the office of Senator, one has effectively sense. It will render quite inutile the proceedings
abandoned or withdrawn this protest. Such before such court. (Panlilio v. COMELEC, G.R. No.
abandonment or withdrawal operates to render 184286, 26 Feb. 2010)
moot the instant protest. Moreover, the dismissal of
this protest would serve public interest as it would Election Contest
dissipate the aura of uncertainty as to the results of
the election. (Legarda v. De Castro, PET Case No. 003, An election contest is initiated by the filing of a
18 Jan. 2008) verified election protest or a verified petition for
quo warranto against a Member of the HoR. An
Requisites for an Execution Pending Appeal in election protest shall not include a petition for quo
Election Protest cases (O-M-G) warranto. Neither shall a petition for quo warranto
include an election protest. (As amended per HRET
1. It must be upon Motion by the prevailing Resolution No. 4, s. of 2019 of the Tribunal approved
party with notice to the adverse party; on 04 Apr. 2019)
2. There must be “Good Reasons” for the said It can only be filed by the candidates who obtained
execution; and the second or third highest number of votes. The
party filing the protest shall be designated as the
3. The Order granting the said execution must protestant, while the adverse party shall be known
state the good reasons. (Navarosa v. as the protestee. (Rule 17, 2015 Rules of HRET)
COMELEC, G.R. No. 157957, 18 Sept. 2003)
400
2023 GOLDEN NOTES
Best Pieces of Evidence in an Election Contest Republic of the Philippines. The issue is whether
respondent possesses all the qualifications and
1. Ballots - the best and most conclusive none of the disqualifications prescribed by law.
evidence in an election contest where the (A.M. No. 07-4-15-SC, 15 May 2007)
correctness of the number of votes of each
candidate is involved; (Delos Reyes v. Jurisdiction
COMELEC, G.R. No. 170070, 28 Feb. 2007)
and GOVERNMENT
WHERE TO FILE
POSITIONS
2. Election returns – the best evidence when Congressman-elect,
the ballots are lost, destroyed, tampered or Appropriate electoral
Senator-elect,
fake. tribunals created by
President-elect and
the Constitution.
VP-elect
Right to Withdraw
Regional, provincial or
COMELEC
A protestant has the right to withdraw his protest or city officials
drop polling places from his protest. The protestee,
Municipal officials and
in such cases, has no cause to complain because the MTCs
barangay officials
withdrawal is the exclusive prerogative of the
protestant.
Election Protests vs. Quo Warranto case under
Remedy of a Dissatisfied Party in Election Cases the OEC (2006, 2001 BAR)
Decided by the COMELEC in Division
ELECTION PROTEST QUO WARRANTO
The dissatisfied party may file a motion for As to who may file
reconsideration before the COMELEC en banc. If the By any voter who is a
en banc’s decision is still not favorable, the same, in registered voter in the
By a losing candidate
accordance with Sec. 7, Art. IX-A, “may be brought to constituency where
for the same office for
the SC on certiorari within 30 days from receipt of the winning candidate
which the winner filed
copy thereof.” (Reyes v. RTC of Oriental Mindoro, G.R. sought to be
his COC.
No. 108886, 05 May 1995) disqualified ran for
office.
NOTE: The fact that decisions, final orders or As to the issue/s
rulings of the COMELEC in contests involving Who received the
elective municipal and barangay offices are final, majority or plurality of
Whether the candidate
executory and not appealable (Sec. 2(2), Art. IX-C, the votes which were
who was proclaimed
1987 Constitution) does not preclude recourse to legally cast?
and elected should be
the SC by way of a special civil action of certiorari.
disqualified because of
(Galido v. COMELEC, G.R. No. 95346, 18 Jan. 1991) Whether there were
ineligibility or
irregularities in the
disloyalty to the
6. QUO WARRANTO conduct of the election
Philippines.
which affected its
results.
Quo Warranto Proceeding for an Elective Office
Quo warranto refers to an election contest relating

to the qualifications of an elective official on the
ground of (1) ineligibility or (2) disloyalty to the
401
Effect of Filing an Election Protest or a Petition day of June next following their election.” Thus, until
for Quo Warranto such time, COMELEC retains jurisdiction. (Reyes v.
COMELEC, G.R. No. 207264, 25 June 2013)
Generally, it bars the subsequent filing of a pre-
proclamation controversy or a Petition to Annul a) COMELEC
Proclamation. It also amounts to the abandonment
of one filed earlier, thus, depriving the COMELEC of The COMELEC seeks to ensure that the elections is
the authority to inquire into and pass upon the title truly representative of what the people want, hence
of the protestee or the validity of his proclamation. the need to ensure a freely, orderly, peaceful and
Once the competent tribunal has acquired credible elections. (Gorospe, 2016; Sec. 1 Art. IX-C,
jurisdiction over an election protest or a petition for 1987 Constitution)
Quo Warranto, all questions relative thereto will
have to be decided in the case itself and not in Composition of the COMELEC
another proceeding. (Villamor v. COMELEC, G.R. No.
169865, 21 July 2006) 1. Chairman;
2. Six (6) Commissioners.
Q: In March 2013, COMELEC First Division issued
a resolution cancelling Jeninah’s COC on the Duties of COMELEC
ground that she is not a citizen of the Philippines
because of her failure to comply with the The COMELEC shall exercise the following powers
requirements of the Citizenship Retention and and functions:
Re-acquisition Act of 2003. On 08 April 2013, a) Enforce and administer all laws and
Jeninah filed an MR claiming that she is a regulations relative to the conduct of an
natural-born Filipino citizen, but it was denied election, plebiscite, initiative, referendum,
by COMELEC on May 14 for lack of merit and and recall;
declared it final and executory. Jeninah,
however, was proclaimed the winner of the May b) Exercise exclusive original jurisdiction
2013 elections, and took her oath of office but is over all contests relating to the elections,
yet to assume office on 30 June 2013. Jeninah returns, and qualifications of all elective
contends that COMELEC lost jurisdiction regional, provincial, and city officials, and
pursuant to Sec. 17, Art. VI of the 1987 appellate jurisdiction over all contests
Constitution which states that HRET has the involving elective municipal officials
exclusive jurisdiction to be the “sole judge of all decided by trial courts of general
contests relating to the election, returns and jurisdiction, or involving elective barangay
qualifications” of the members of the HOR. Is the officials decided by trial courts of limited
contention of Jeninah correct? jurisdiction.
A: NO. The Court has invariably held that once a Decisions, final orders, or rulings of the
winning candidate has been proclaimed, taken his Commission on election contests involving
oath, and assumed office as a member of the HOR, elective municipal and barangay offices
the COMELEC's jurisdiction over election contests shall be final, executory, and not
relating to his election, returns, and qualifications appealable.
ends, and the HRET’s own jurisdiction begins. Here,
Jeninah, the winning candidate cannot be c) Decide, except those involving the right to
considered a member of the HOR because, vote, all questions affecting elections,
primarily, he has not yet assumed office. To repeat including determination of the number and
what has earlier been said, the term of office of a location of polling places, appointment of
member of the HOR begins only “at noon on the 30th
402
2023 GOLDEN NOTES
election officials and inspectors, and frauds, offenses, malpractices, and
registration of voters. nuisance candidacies.
d) Deputize, with the concurrence of the h) Recommend to the President the removal
President, law enforcement agencies and of any officer or employee it has deputized,
instrumentalities of the Government, or the imposition of any other disciplinary
including the AFP, for the exclusive action, for violation or disregard of, or
purpose of ensuring free, orderly, honest, disobedience to, its directive, order, or
peaceful, and credible elections. decision.
Register, after sufficient publication, i) Submit to the President and the Congress, a
political parties, organizations, or comprehensive report on the conduct of
coalitions which, in addition to other each election, plebiscite, initiative,
requirements, must present their platform referendum, or recall.
or program of government; and accredit
citizens' arms of the Commission on b) SENATE ELECTORAL TRIBUNAL (SET)
Elections. Religious denominations and
sects shall not be registered. Those which The SET has jurisdiction to entertain and resolve
seek to achieve their goals through violence two types of electoral contests against a Member of
or unlawful means, or refuse to uphold and the Senate:
adhere to this Constitution, or which are
supported by any foreign government shall a. Petition for quo warranto; and
likewise be refused registration. b. Election protest .
e) Financial contributions from foreign Mutually exclusive, a petition for quo warranto
governments and their agencies to political cannot include an election protest nor can an
parties, organizations, coalitions, or election protest include a petition for quo warranto.
candidates related to elections, constitute
interference in national affairs, and, when Composition
accepted, shall be an additional ground for
the cancellation of their registration with The SET is composed of nine (9) members:
the Commission, in addition to other
penalties that may be prescribed by law. a. Three (3) of whom shall be Justices of the
Supreme Court to be designated by the
f) File, upon a verified complaint, or on its Chief Justice;
own initiative, petitions in court for
inclusion or exclusion of voters; investigate b. The remaining six (6) shall be members of
and, where appropriate, prosecute cases of the Senate who shall be members of the
violations of election laws, including acts or Senate who shall be chosen on the basis of
omissions constituting election frauds, proportional representation from the
offenses, and malpractices. political parties represented therein;
g) Recommend to the Congress effective NOTE: The most senior Justice in the Tribunal shall
measures to minimize election spending, be the Chairperson. (2020 Rules of the SET)
including limitation of places where
propaganda materials shall be posted, and
to prevent and penalize all forms of election
403
c) HOUSE OF REPRESENTATIVES ELECTORAL Who May Exercise Recall
TRIBUNAL (HRET)
Registered voters of a LGU to which the local
HRET elective official subject to such recall belongs shall
exercise the power of recall for loss of confidence.
The Tribunal is the sole judge of all contests relating (Sec. 69, LGC)
to the election, returns, and qualifications of the
Members of the HoR. Q: What is/are the ground/s for recall?
Composition A: The only ground for recall of local government

officials is loss of confidence. It is not subject to
The Tribunal shall be composed of nine (9) judicial inquiry. The Court ruled that ‘loss of
Members confidence’ as a ground for recall is a political
question. (Garcia v. COMELEC, G.R. No. 111511, 05
1. Three (3) of whom shall be Justices of the Oct. 1993)
Supreme Court to be designated by the
Chief Justice, and Q: How is recall initiated?
2. Six (6) shall be members of the House A: The Recall of any elective provincial, city,
who shall be chosen on the basis of municipal or barangay official shall be commenced
proportional representation from the by a petition of a registered voter in the LGU
political parties and the parties or concerned and supported by the registered
organizations registered under the party- voters in the LGU concerned during the election in
list system represented therein. which the local official sought to be recalled was
elected subject to the following percentage
NOTE: The Senior Justice in the Tribunal shall be its requirements:
Chairperson. (Rule 4, 2015 Rules of HRET)
PERCENTAGE NO. OF PETITIONERS
7. RECALL REQUIREMENT REQUIRED
Voting population is not more than 20,000
At least 25% N/A
It is a mode of removal of a public officer, by the
people, before the end of his term. The people’s At least 20,000 but not more than 75,000
prerogative to remove a public officer is an incident At least 20% 5,000
of their sovereign power, and in the absence of At least 75,000 but not more than 300,000
constitutional restraint, the power is implied in all At least 15% 15,000
governmental operations. (Garcia v. COMELEC, G.R. Over 300,000
No. 111511, 05 Oct. 1993) At least 10% 45,000
(Sec. 70, LGC, as amended by R.A. No. 9244)
NOTE: All expenses incident to recall elections shall
be borne by the COMELEC. For this purpose, the NOTE: By virtue of R.A. No. 9244, Secs. 70 and 71
annual General Appropriations Act (GAA) shall of the LGC were amended, and the Preparatory
include a contingency fund at the disposal of the Recall Assembly has been eliminated as a mode
COMELEC for the conduct of recall elections. (Sec. of instituting recall of elective local government
75, LGC) officials.
All pending petitions for recall initiated through

the Preparatory Recall Assembly shall be
404
2023 GOLDEN NOTES
considered dismissed upon the effectivity R.A. No. provincial officials. Officials sought to be
9244. (Approved 19 Feb. 2004) recalled are automatic candidates. (Sec. 71,
LGC, as amended by R.A. No. 9244)
Recall Procedure
NOTE: The official or officials sought to be recalled
The process of recall shall be effected in accordance shall automatically be considered as duly registered
with the following procedure: candidate/s to the pertinent positions and, like other
candidates, shall be entitled to be voted upon. (Sec.
1. Petition of a registered voter in the LGU 71, LGC)
concerned, supported by percentage of
registered voters during the election in Q: When shall recall of an elective official take
which the local official sought to be recalled effect?
was elected;
A: It shall be effective only upon the election and
2. Within 15 days after filing, COMELEC must proclamation of a successor in the person of the
certify the sufficiency of the required candidate receiving the highest number of votes cast
number of signatures; during the election on recall.
NOTE: Failure to obtain required number NOTE: Should the official sought to be recalled
automatically nullifies petition. receive the highest number of votes, confidence in
him is thereby affirmed, and he shall continue in
3. Within three (3) days of certification of office. (Sec. 72, LGC)
sufficiency, COMELEC shall provide the
official sought to be recalled with copy of Q: Governor Peralta was serving his third term
petition and shall cause its publication for when he lost his governorship in a recall election.
three (3) consecutive weeks in a national
newspaper and a local newspaper of 1. Who shall succeed Governor Peralta in his
general circulation. Petition must also be office as Governor?
posted for 10 to 20 days at conspicuous
places; (Sec. 70 (b)(2), LGC as amended by A: The candidate who received the highest number of
R.A. No. 9244) votes in the recall will succeed Governor Peralta. (Sec.
72, LGC)
NOTE: Protest should be filed at this point
and ruled with finality within 15 days after 2. Can Governor Peralta run again as governor
filing. in the next election?
4. COMELEC verifies and authenticates A: YES. Governor Peralta can run again as governor.
the signature; He did not fully serve his third term, because he lost
in the recall election. His third term should not be
5. COMELEC announces acceptance of included in computing the three-term limit.
candidates; (Sec. 70, LGC as amended by (Lonzanida v. COMELEC, G.R. No. 135150, 28 July
R.A. No. 9244) and 1999)
6. COMELEC sets election within 30 days 3. Can Governor Peralta refuse to run in the
after the filing of the resolution or petition recall election and instead resign from his
for recall in the case of barangay, city, or position as governor?
municipality, and 45 days in the case of
405
A: NO. Governor Peralta cannot refuse to run in the the recall petition sufficient in form and
recall election. He is automatically considered as duly substance but suspended the funding of any and
registered candidate. (Sec. 71, LGC) He is also not all recall elections until the resolution of the
allowed to resign. The elective official sought to be funding issue. Petitioner submits that the same is
recalled shall not be allowed to resign while the a grave abdication and wanton betrayal of the
recall process is in progress. (Sec. 73, LGC) constitutional mandate of the COMELEC and a
grievous violation of the sovereign power of the
Limitations on Recall (2008 BAR) people. What Resolution Nos. 9864 and 9882
have given with one hand (the affirmation of the
1. Any elective local official may be the sufficiency of the Recall Petition), they have taken
subject of a recall election only once during away with the other (the issue of lack funding).
his term of office for loss of confidence; and The COMELEC suspended the holding of a recall
election supposedly through lack of funding. Did
2. No recall shall take place within one (1) the COMELEC gravely abuse its discretion when it
year from the date of the official’s suspended the recall election?
assumption to office or one (1) year
immediately preceding a regular election. A: YES. The COMELEC committed grave abuse of
(Sec. 74, LGC) discretion in issuing Resolution Nos. 9864 and 9882.
The 2014 GAA provides the line-item appropriation
NOTE: The Supreme Court held that the term “recall” to allow the COMELEC to perform its constitutional
referred to in the “one-year time bar rule” refers to mandate of conducting recall elections. There is no
the recall election and not the preliminary proceeding need for supplemental legislation to authorize the
to initiate recall. It is clear that the initiation of recall COMELEC to conduct recall elections for 2014.
proceeding is not prohibited within the one (1)-year Considering that there is an existing line-item
period provided in Sec. 74(b) of the LGC. (Claudio v. appropriation for the conduct of recall elections in
COMELEC, G.R. No. 140560, 04 May 2000) the 2014 GAA, we see no reason why the COMELEC is
unable to perform its constitutional mandate to
The one-year time bar will not apply where the “enforce and administer all laws and regulations
local official sought to be recalled is a mayor and the relative to the conduct of… recall.”
approaching election is a barangay election.
(Angobung v. COMELEC, G.R. No. 126576, 05 March Should the funds appropriated in the 2014 GAA be
1997) deemed insufficient, then the COMELEC Chairman
may exercise his authority to augment such line-item
Q: Sec. 74 of the LGC provides that “no recall appropriation from the COMELEC’s existing savings,
shall take place within one year immediately as this augmentation is expressly authorized in the
preceding a regular local election.” What does 2014 GAA. Resolution No. 9864 is therefore partially
the term “regular local election,” as used in this reverse and set aside insofar as it directed the
section, mean? suspension of any and all proceedings in the recall
petition. (Goh v. Bayron, G.R No. 212584, 25 Nov.
A: It means it is an election where the office held 2014)
by the local elective official sought to be recalled
will be contested and filled by the electorate.
(Paras v. COMELEC, G.R. No. 123169, 04 Nov. 1996)
Q: Goh filed before the COMELEC a recall petition

against Mayor Bayron due to loss of trust and
confidence. On 01 April 2014, the COMELEC
promulgated Resolution No. 9864 which found
406
2023 GOLDEN NOTES
(COMELEC v. Tagle, G.R. Nos. 148948 & 148951-60,
E. PROSECUTION OF ELECTION OFFENSES 17 Feb. 2003, as cited in Gorospe, 2016)
Investigation and Prosecution by COMELEC
The COMELEC is tasked to “investigate and, where

appropriate, prosecute cases of violations of
election laws, including acts or omissions
constituting election frauds, offenses, and
malpractices. And to further enhance the authority
of the COMELEC, its executive clemency may not be
extended to others without its favorable
recommendation. (Gorospe, 2016)
Concurrent Jurisdiction with the DOJ
The investigation and prosecution of election

offenses is no longer the official province of the
COMELEC. In Barangay Association for National
Advancement and Transparency (Banat Party-list v.
COMELEC, G.R. No. 179271, 21 Apr. 2009), the Court
corrected the impression that the COMELEC had
exclusive jurisdiction. (Gorospe, 2016)
“Instead of a mere delegated authority, the other

prosecuting arms of the government like the DOJ,
now exercise concurrent jurisdiction with the
COMELEC to conduct preliminary investigations of
all election offenses to prosecute the same. It is not
only the power but also the duty of the COMELEC
and DOJ to perform any act necessary to ensure the
prompt and fair investigation and prosecution of
election offenses. (Arroyo v Department of Justice,
G.R. No. 199082 19 Sept. 2012, as cited in Gorospe,
2016)
COMELEC Decides Whether to Appeal an

Adverse Ruling or Not
The COMELEC has the final say on whether to

appeal or not an adverse ruling (Sec. 10, Art. IX-C,
1987 Constitution); and the prerogative to
determine not to prosecute individuals who might
had executed affidavits attesting to the fact that they
sold their votes to one accused of vote-buying.
407
Summary
LACK OF COMMISSION OF AN MATERIAL

NUISANCE CANDIDATE
QUALIFICATIONS, ETC. ELECTION OFFENSE MISREPRESENTATION
As to the pleading
Petition to declare a
Petition to disqualify a Petition to disqualify a Petition to deny due candidate as a nuisance
candidate candidate course to or cancel a CoC candidate (or COMELEC
initiates)
As to the allegations
CoC has filed to:
1. Put the election

process in mockery
Candidate committed
any of enumerated or disrepute; or
election offenses: 2. Cause confusion
among the voters by
1. Vote buying; the similarity of
2. Terrorism; 1. Misrepresentation is names of the
1. Candidate does not
3. Unlawful material (i.e., registered
possess all
expenditures; qualification- candidates
qualifications;
4. Unlawful campaign; related);
2. Candidate possesses 5. Coercion of Candidate has no bona

Subordinates; 2. Candidate intended fide intention since
some or all of
6. Threats; to defraud voters no/not:
disqualifications; or
7. Prohibition against (deliberate); or
1. Campaign capability;
3. Candidate violated release of public
3. Candidate is not 2. Bona fide intention
rule on term limits funds;
actually qualified. to run;
8. Failure to submit
3. Track record;
statement of
4. Exposure;
contributions and
5. Platform;
expenditures in at
6. Party affiliation;
least 2 elections
7. Funds;
8. Good health; or
9. Appropriate
education.
As to where to file
COMELEC Division
As to when to file
Any time before Any time before Within 25 days from Within 5 days from last
proclamation proclamation filing of CoC day of filing of CoC
As to who files
1. Registered voter;
4. Registered voter; or 2. Registered political 1. Registered voter; or
Registered candidate for
5. Registered political party;; or 2. Registered political
the same position
party 3. COMELEC Campaign party
Finance Office, SEC-
408
2023 GOLDEN NOTES
Registered NGOs and
CSOs
As to the remedy after the period
Quo Warranto Election Offense Quo Warranto No remedy
As to the capability of being substituted after resolution
Not allowed allowed Not allowed Not allowed
(Agra 2023)
409
respectively, are among the members of an
IV. LOCAL GOVERNMENT organized criminal syndicate using a scheme
known as "pilferage scheme" committed a bank
fraud.
When BPI discovered outstanding discrepancies

A. PUBLIC CORPORATIONS in its inter-bank reconciliation statements in
BSP in the amount of P9 million made through
the bank fraud, it requested BSP to credit back
1. CONCEPT; DISTINGUISHED FROM to its demand deposit account the amount of P9
GOVERNMENT-OWNED OR CONTROLLED million with interest. It argued that BSP’s
CORPORATIONS function of operating clearing house facilities
for regional checks is proprietary in character
as the same may be assigned to and exercised by
Concept of Public Corporations
private entities. BSP, on the other hand, argues
that its operation of the clearing facility was
It is one that is created by the State, either by
purely governmental in nature. To make BSP
general or special act, for the purpose of
liable under Art. 2180 of the NCC, it must be
administration of local government or rendering
established that the injurious or tortuous act
service for public interest.
was committed while the employee was
performing his or her functions. However,
NOTE: The mere fact that a corporation has been
Manuel and Jesus were not acting within the
created by a special law does not necessarily qualify
scope of their duties when they committed the
it as a public corporation. (Philippine Society for the
bank fraud.
Prevention of Cruelty to Animals v. Commission on
Audit, G.R. No. 169752, 25 Sept. 2007)
Is BSP's contention correct?
Government-Owned or Controlled Corporations
A: YES. BSP is a corporate body performing
(GOCCs)
governmental functions. Operating a clearing house
facility for regional checks is within CBP's
It refers to any agency organized as a stock or
governmental functions and duties as the central
nonstock corporation, vested with functions
monetary authority. Undoubtedly, the function of
relating to public needs whether governmental or
the BSP as the central monetary authority is a
proprietary in nature and owned by the
purely governmental function. It bears stressing
Government of the Republic of the Philippines
that establishing clearing house facilities for the
directly through its instrumentalities either wholly
member banks is a necessary incident to its primary
or, where applicable as in the case of stock
governmental function of administering monetary,
corporations, to the extent of at least 51% of its
banking and credit system of the Philippines as per
capital stock. (Sec. 2(13), E.O. No. 292)
Sec. 107 of RA 265, as amended. Nonetheless, while
the CBP performed a governmental function in
Q: BPI and Citibank are both members of the
providing clearing house facilities, it is not immune
Clearing House established and supervised by
from suit as its Charter, by express provision,
the Bangko Sentral ng Pilipinas (BSP). Both
waived its immunity from suit.
banks-maintained demand deposit balances
with the Central Bank of the Philippines (CBP)
Anent the issue of whether BSP is liable for the torts
for their clearing transactions with other
committed by its employees Manuel and Jesus, the
commercial banks coursed through the said
test of liability depends on whether or not the
clearing facilities. BSP’s Bookkeeper and
employees, acting on behalf of CBP, were
Janitor-Messenger Manuel and Jesus,
410
2023 GOLDEN NOTES
performing governmental or proprietary functions. control over their own
The State in the performance of its governmental affairs. Vested by law with a
functions is liable only for the tortuous acts of its legal personality,
special agents. On the other hand, the State becomes They are autonomous separate and distinct
liable as an ordinary employer when performing its in the sense that they from those acting for
proprietary functions. A special agent is defined as are given more powers, and, on their behalf,
one who receives a definite and fixed order or authority, and, in general, from
commission, foreign to the exercise of the duties of responsibilities, and the people comprising
his office. resources. (Alvarez v. it. (MIAA v. CA, G.R. No.
Guingona, Jr., G.R. No. 155650, 20 July 2006)
Evidently, both Manuel and Jesus are not considered 118303, 31 Jan. 1996)
as special agents of BSP during their commission of As to Purpose
the fraudulent acts against BPI as they were regular Formed and organized
Performance of
employees performing tasks pertaining to their for purposes of
functions relating to
offices, namely, bookkeeping, and janitorial administration of the
public needs whether
messenger. Thus, BSP cannot be held liable for any local government and
governmental or
damage caused to BPI by reason of Manuel and for the greater good
proprietary in nature.
Jesus’ unlawful acts. (Bank of the Philippine Islands and welfare.
v. Central Bank of the Philippines (Now Bangko As to Conditions
Sentral ng Pilipinas) and Citibank, N.A., G.R. No. Public corporations
197593, 12 Oct. 2020, J. Hernando) are not subject to the
tests of ownership or
Public Corporations vs. GOCCs control and economic
viability;
PUBLIC
GOCCs
CORPORATIONS They are subject to a
1. Must be established
As to Who creates different criterion
for the common good;
By the State, either by relating to their public
By Congress or by and
general act or special purposes or interests
incorporators.
act. or constitutional
2. Must meet the test of
As to How Created policies and objectives
economic viability (Sec.
By special charters and their
16, Art. XII, 1987
specific to each GOCC administrative
By legislation. Constitution)
or under the relationship to the
Corporation Code. government or any of
Ownership its departments or
Owned by the offices. (Boy Scouts of
government directly or the Philippines v. COA,
Formed and organized through its G.R. No. 177131, 07 Jun
for the government of a instrumentalities 2011)
portion of the State. either wholly, or the
extent of at least 51% 2. CLASSIFICATIONS
of its capital stock.
As to Nature and Status
a) QUASI-CORPORATIONS
Political subdivisions Organized either as
of the State which stock or non-stock
Quasi-corporations, unlike the local government,
possess substantial corporations;
are created by the State, either by law or by
411
authority of law, for a specific governmental L-55963 & 61045, 27
purpose. (Martin, 1985) Feb. 1991) 2. Private or
Proprietary – by
b) MUNICIPAL CORPORATIONS acting as an agent of
the community in
Local governments or local government units the administration
(LGUs) or municipal corporations proper are of the local affairs.
referred to as “territorial and political subdivisions” As such, it acts as a
(Sec. 1, Art. X, 1987 Constitution). separate entity for
its own purposes,
LGU is a public office, a public corporation, and is and not a
classified as a municipal corporation proper. subdivision of the
State. (Bara Lidasan
(1) ELEMENTS v. COMELEC, G.R. No.
L 25039, 25 Oct.
The four (4) elements of an LGU or municipal 1967)
corporation are: (P-I-N-C)
1) Legal Creation; (3) REQUISITES FOR CREATION, CONVERSION,

2) Corporate Name; DIVISION, MERGER OR DISSOLUTION
3) Inhabitants; and
4) Place or territory. (Martin, 1985) No province, city, municipality, or barangay may be
created, divided, merged, abolished, or its boundary
(2) NATURE AND FUNCTIONS substantially altered, except in accordance with the
criteria established in the LGC and subject to
approval by a majority of the votes cast in a
Two -fold character of a municipal corporation:
plebiscite in the political units directly affected. (Sec.
10, Art. X, 1987 Constitution)
1. Government: and
2. Private.
Requisites for Creation, Conversion, Division,
Merger or Dissolution of LGUs
MUNICIPAL QUASI
CORPORATION CORPORATION
An LGU may be created, divided, merged, abolished
As to nature
or its boundaries substantially altered either by law
A body politic and
enacted by Congress in the case of a province, city,
Created as agency of corporate entity
municipality, or any other political subdivision of or
the State for a narrow endowed with powers
by ordinance passed by the Sangguniang
and limited purpose. to be exercised by it in
Panlalawigan or Sangguniang Panlungsod
conformity with law.
concerned in the case of a barangay located within
As to function
its territorial jurisdiction, subject to such limitations
Has no personal or Has dual functions:
and requirements prescribed in the Code. (Sec. 6,
private interests to be
LGC)
subserved, but is 1. Public or
simply required by the governmental - by
Requisites for the Creation of LGUs
State to do some public acting as an agent of
(S-I-P-P-O-C-E-Co)
work. (Concurring the State for the
Opinion of Justice government of the
1. Petition to be filed by the residents;
Feliciano in Fontanilla territory and its
2. Comment to be made by the City Council;
v. Maliaman, G.R. Nos. inhabitants
412
2023 GOLDEN NOTES
3. Compliance with the Indicators, namely, NOTE: HUC – Highly Urbanized City; CC –
income, population, and land area; Component City
4. Sponsorship or law to be made in the halls
of Congress; NOTE: Compliance with the foregoing indicators
5. Comment from the Land Management shall be attested by the Department of Finance
Bureau, Department of Finance, and (DOF), National Statistics Office (NSO), and Land
Philippine Statistics Authority; Management Bureau of the DENR (LMB-DENR).
6. Conduct of a Plebiscite to done 120 days (Sec. 7, LGC)
from the creation of the LGU;
7. Election of Officers; and Rules
8. Oath-taking of all the winning candidates.
(A.O. No. 270) 1. The Congress may not delegate to the
President the power to create LGUs, because
Indicators the power to create LGUs is lodged exclusively
in Congress. (Pelaez v. Auditor General, G.R. No.
1. Income - It must be sufficient based on L-23825, 24 Dec. 1965)
acceptable standards, to provide for all
essential government facilities and services, 2. The plebiscite should be conducted in the
and special functions commensurate with the entire unit and not only in the break-away unit.
size of its population, as expected of the LGU (Tan v. COMELEC, G.R. No. 73155, 11 July 1986)
concerned.
3. The 120-day requirement is only permissive
2. Population - It shall be determined as the total and not mandatory because of the publication
number of inhabitants within the territorial requirement insofar as the passage of a law
jurisdiction of the LGU concerned. creating an LGU is concerned. (Cawaling v.
COMELEC, G.R. No. 146319, 26 Oct. 2001)
3. Land Area - It must be contiguous
4. There is no need to conduct a plebiscite in a
XPN: unless it comprises of two or more islands legislative re-apportionment because there is
or is separated by an LGU independent of the actually no change in the nomenclature of the
other property identified by metes and bounds LGU. (Bagabuyo v. COMELEC, G.R. No. 176970,
with technical descriptions and sufficient to 08 Dec. 2008)
provide for such basic services and facilities to
meet the requirements of its populace. 5. COMELEC cannot abolish an LGU because a
“ghost precinct” does not necessarily mean
LAND AREA INCOME POPULATION that it should be abolished, since it does not
(Sq. KM) (Million PHP) (Thousands) cease to function. It is just that there are no
Province inhabitants or voters at present. (Sultan Usman
2000 20 250 Sarangani v. COMELEC, G.R. No. 135927, 26 June
City 2000)
HUC – 100
150 150 Q: Are the voters of a city which used to be a
CC - 50
Municipality component city (CC) of a province entitled to
50 2.5 25 vote in a plebiscite for the division of said
Barangay province, even after the city has been converted
2 Contiguous into a highly urbanized city (HUC)?
None 2
Territories
413
A: NO. HUCs, as conceptualized in our local question that the law favors devolution. (Mangune
government laws, are essentially cities that have v. Ermita, G.R. No 182604, 27 Sept. 2016)
attained a level of population growth and economic
development which the legislature has deemed Decentralization of Administration
sufficient for devolution of governmental powers as
self-contained political units. As such, these cities There is decentralization of administration when
are intended to function as first-level political and the central government delegates administrative
administrative subdivisions in their own right, on powers to political subdivisions in order to broaden
par with provinces. For this reason, Sec. 12, Art. X of the base of government power and in the process
the Constitution provides that “cities that are highly make local governments more responsive and more
urbanized, as determined by law,… shall be accountable and ensure their fullest development as
independent of the province.” This constitutionally self-reliant communities and make them more
mandated independence from provincial units is effective partners in the pursuit of national
explicitly declared in Sec. 29 of the LGC and development and social progress.
manifests itself throughout said code in three forms:
1. Exclusion from participation in provincial Decentralization of administration is the delegation
elections; of administrative powers to the local government
2. Direct Presidential supervision over HUCs unit in order to broaden the base of governmental
and their local chief executives; and powers. (Limbona v. Mangelin, G.R. No. 80391, 28
3. Other special distinctions provided in the Feb. 1989)
Code.
Hence, it can no longer be considered as a “political Decentralization of Power
unit directly affected” by the proposed division of
the province; and perforce, the qualified voters of It nvolves an abdication of political power in favor
the HUC are properly excluded from the coverage of of LGUs declared to be autonomous. The
the plebiscite. (Del Rosario v. COMELEC, G.R. No. autonomous government is free to chart its own
247610, 20 Mar. 2020) destiny and shape its future with minimum
intervention from central authorities. (Limbona vs.
Mangelin, G.R. No. 80391, 28 Feb. 1989)
B. PRINCIPLES OF LOCAL AUTONOMY
Decentralization of power is the abdication by the
National Government of governmental powers.
(Ibid.)
The principle of local autonomy essentially means
decentralization. Autonomy is either:
Control of Congress over LGUs
1. Decentralization of administration; or
The basic relationship between the national
2. Decentralization of power.
legislature and the local government units has not
been enfeebled by the new provisions in the
Decentralization
Constitution strengthening the policy of local
autonomy. Without meaning to detract from that
Decentralization is the devolution of national
policy, we here confirm that Congress retains
administration, not power, to local governments.
control of the local government units although in
One form of decentralization is devolution, which
significantly reduced degree now than under our
involves the transfer of powers, responsibility. and
previous Constitutions.
resources for the performance of certain functions
from the central government to the LGUs. It has
The power to create still includes the power to
been said that devolution is indispensable to
destroy. The power to grant still includes the power
decentralization. Because of this, there is no
414
2023 GOLDEN NOTES
to withhold or recall. By and large, however, the Presidential Power of General Supervision
national legislature is still the principal of the local
government units, which cannot defy its will or
The president’s power over LGUs is limited to
modify or violate it. (Lina v. Paño, G.R. No. 129093,
supervision, not control.
30 Aug. 2001)
Q: In 2008, the DSWD launched the "Pantawid The president exercises “general supervision” over
Pamilyang Pilipino Program" (4Ps). This the LGUs but only to “ensure that local affairs are
government intervention scheme "provides administered according to law.” It means
cash grant to extreme poor households to allow “overseeing or the authority of an officer to see that
the members of the families to meet certain the subordinate officer performs their duties. If the
human development goals." A Memorandum of subordinate officers fail or neglect to fulfill their
Agreement executed by the DSWD with each duties, the official may take such action or steps as
participating LGU outlines in detail the prescribed by law to make them perform their
obligation of both parties during the intended duties. (Pimentel, Jr., 2011)
five-year implementation. Congress, for its part,
sought to ensure the success of the 4Ps by Dual Personality of LGUs
providing it with funding. Does this encroach
upon the local autonomy of the LGUs? LGUs have a dual personality: Political and
Corporate.
A: NO. The purpose of the delegation is to make
LGUs’ PERSONALITY (DUAL IN NATURE)
governance more directly responsive and effective
at the local levels. But to enable the country to POLITICAL CORPORATE
develop as a whole, the programs and policies As a corporate entity,
Being political units of
effected locally must be integrated and coordinated they exercise powers
government and as
towards a common national goal. Thus, policy- which are proprietary
agents of the national
setting for the entire country still lies with the in nature but which
government, LGUs
President and Congress. While the Local they can perform for
exercise governmental
Government Code charges the LGUs to take on the the benefit of their
powers.
functions and responsibilities that have already constituencies.
been devolved upon them from the national (Pimentel, Jr., 2011)
agencies on the aspect of providing for basic
services and facilities in their respective Illustration
jurisdictions, the same law provides a categorical
exception of cases involving nationally funded Under Philippine laws, the City of Manila is a
projects, facilities, programs, and services. The political body corporate and as such is endowed
national government is, thus, not precluded from with the faculties of municipal corporations to be
taking a direct hand in the formulation and exercised by and through its city government in
implementation of national development programs conformity with law, and in its proper corporate
especially where it is implemented locally in name. It may sue and be sued, and contract and be
coordination with the LGUs concerned. (Pimentel, Jr. contracted with. Its powers are two-fold in
v. Executive Secretary Ochoa, G.R. No. 195770, 17 July character - public, governmental, or political on the
2012) one hand, and corporate, private, and proprietary
on the other. Governmental powers are those
exercised in administering the powers of the state
and promoting the public welfare and they include
the legislative, judicial, public and political.
415
Municipal powers on the one hand are exercised for have sufficient funds to cover the costs of
the special benefit and advantage of the community maintaining the organization, undertaking projects
and include those which are ministerial, private and for the general welfare, performing their legal
corporate. (City of Manila v. Intermediate Appellate mandates and obligations, delivering basic services
Court, G.R. No. 71159, 15 Nov. 1989) and advancing sustainable development, among
other responsibilities. On the other hand, fiscal
Local Fiscal Autonomy autonomy cannot be realized without local
autonomy in terms of usage, setting priorities, and
Fiscal autonomy means that local governments have disbursement of local funds. If there were no local
the power to create their own sources of revenue in autonomy, the exercise of discretion and wisdom on
addition to their equitable share in the national the part of local governments in accessing and
taxes released by the National Government, as well utilizing revenues would be unduly clipped. (Agra,
as the power to allocate their resources in 2019)
accordance with their own priorities. It extends to
the preparation of their budgets, and local officials,
in turn, have to work within the constraints thereof. C. AUTONOMOUS REGIONS AND THEIR
They are not formulated at the national level and RELATION TO THE NATIONAL GOVERNMENT
imposed on local governments, whether they are
relevant to local needs and resources or not.
Further, a basic feature of local fiscal autonomy is Autonomous Regions
the constitutionally mandated automatic release of
the shares of local governments in the national Consists of provinces, cities, municipalities, and
internal revenue. (Province of Batangas v. Romulo, geographical areas sharing common and distinctive
G.R. No. 152774, 27 May 2004) historical and cultural heritage, economic and social
structures, and other relevant characteristics. (Sec.
Automatic release of LGU shares 15, Art. X, 1987 Constitution)
The shares of the LGUs in the central government An Autonomous Region is a form of Local
taxes and in the proceeds of natural resources Government
within their territories shall be automatically and
directly released to them. (Pimentel, Jr., 2011) The inclusion of autonomous regions in the
enumeration of political subdivisions of the State
NOTE: A “no report, no release” policy may not be under the heading "Local Government" indicates
validly enforced against offices vested with fiscal quite clearly the constitutional intent to consider
autonomy such as Constitutional Commissions and autonomous regions as one of the forms of local
local governments. The automatic release provision governments. (Kida v. Senate, G.R. No. 196271, 28
found in the Constitution means that these local Feb. 2012)
government units cannot be required to perform
any act to receive the “just share” accruing to them Constitution Mandates the Creation of
from the national coffers. (Civil Service Commission Autonomous Regions Only in Muslim Mindanao
v. Department of Budget and Management, G.R. No. and in the Cordilleras
158791, 22 July 2005)
There shall be created autonomous regions in
There can be no genuine local autonomy Muslim Mindanao and in the Cordilleras within the
without fiscal autonomy. framework of the Constitution and the national
sovereignty as well as territorial integrity of the
In order for local governments to perform their Republic of the Philippines. (Sec. 15, Art. X, 1987
constitutional and statutory mandates, LGUs must Constitution)
416
2023 GOLDEN NOTES
The Congress shall enact an organic act for each All powers not granted by the Constitution
autonomous region. The organic act shall define the
basic structure of government for the region All powers, functions, and responsibilities not
consisting of the executive department and granted by the Constitution or by national law to the
legislative assembly, both of which shall be elective Bangsamoro Government shall be vested in the
and representative of the constituent political units. National Government. (Sec. 1, Art. V, R.A. No. 11054)
The organic acts shall likewise provide for special
courts with personal, family, and property law Autonomous Regions are Under the General
jurisdiction consistent with the provisions of this Supervision of the President
Constitution and national laws. (Sec. 18, Art. X, 1987
Constitution) The President shall exercise general supervision
General Supervision over autonomous regions
NOTE: At present (2022), there is only one Autonomous Regions to ensure that the laws are
Autonomous Region created - the Autonomous faithfully executed. (Sec. 16, Art. X, 1987
Region in Muslim Mindanao (ARMM) (replaced by Constitution)
the BARMM with the enactment of R.A. No. 11054).
Several attempts have been made in the Cordilleras The President shall exercise general supervision
to create an autonomous region but has repeatedly over the Bangsamoro Government to ensure that
failed. laws are faithfully executed. The President may
suspend the Chief Minister for a period not
The sole province of Ifugao cannot validly and exceeding six (6) months for willful violation of the
legally constitute the Cordillera Autonomous Constitution, national laws, or this Organic Law.
Region. Secs. 1 and 2, Art. III of R.A. No. 6766 provides (Sec. 1, Art. VI, R.A. No. 11054)
that Cordillera Autonomous Region is to be
administered by the Cordillera government Intergovernmental Relations
consisting of the Regional Government and LGUs. It
can be gleaned that Congress never intended that a An intergovernmental relations body was created to
single province may constitute the autonomous coordinate and resolve issues on intergovernmental
region. Otherwise, we would be faced with the relations through regular consultation and
absurd situation of having two sets of officials, a set continuing negotiation in a non-adversarial
of provincial officials and another set of regional manner. (Sec. 2, Art. VI, R.A. No. 11054)
officials exercising their executive and legislative
powers over exactly the same small area. (Ordillo v. Limitations of Powers and Functions of
COMELEC, G.R. No. 93054, 04 Dec. 1990) Autonomous Regions
Organic Law for the Bangsamoro Autonomous All powers, functions, and responsibilities not
Region in Muslim Mindanao (R.A. No. 11054) granted by the Constitution or by law to the
autonomous regions shall be vested in the National
R.A. No. 11054 abolished ARMM and placed instead Government. (Sec. 17, Art. X, 1987 Constitution)
the Bangsamoro Autonomous Region in Muslim
Mindanao (BARMM). It also created the Irreducible Legislative Powers of Autonomous
Bangsamoro Government which has exclusive Regions
powers over some matters including budgeting,
administration of justice, agriculture, disaster risk Within its territorial jurisdiction and subject to the
reduction and management, ancestral domains, provisions of this Constitution and national laws,
human rights, LGUs, public works, social services, the organic act of autonomous regions shall provide
tourism, and trade and industry. for legislative powers over: (S-P-A-C-E-P-A-R-E)
417
1. Administrative organization; exercise police power under the general welfare
2. Creation of sources of revenues; clause. (Sec. 16, LGC)
3. Ancestral domain and natural resources;
4. Personal, family, and property relations; General Welfare Clause
5. Regional urban and rural planning
development; LGUs shall exercise powers that are necessary,
6. Economic, social, and tourism appropriate, or incidental for its efficient and effective
development; governance, and those which are essential to the
7. Educational policies; promotion of general welfare. Within their respective
8. Preservation and development of the territorial jurisdiction, LGUs shall ensure and support,
cultural heritage; and among other things, the preservation and enrichment
9. Such other matters as may be authorized by of culture, promote health and safety, enhance the
law for the promotion of the general right of the people to a balanced ecology, encourage
welfare of the people of the region. (Sec. 20, and support the development of appropriate and self-
Art. X, 1987 Constitution) reliant scientific and technological capabilities,
improve public morals, enhance economic prosperity
Local Police is responsible for peace and order, and social justice, promote full employment among its
but the National Government is responsible for residents, maintain peace and order, and preserve the
Defense and Security comfort and convenience of their inhabitance. (Sec.
16, LGC)
The preservation of peace and order within the
regions shall be the responsibility of the local police Two branches of the General Welfare Clause
agencies which shall be organized, maintained,
supervised, and utilized in accordance with 1. General Legislative Power – authorizes the
applicable laws. The defense and security of the municipal council to enact ordinances and
regions shall be the responsibility of the National make regulations not repugnant to law, as
Government. (Sec. 21, Art. X, 1987 Constitution) may be necessary to carry into effect and
discharge the powers and duties conferred
upon the municipal council by law; and
D. LOCAL GOVERNMENT UNIT (LGU)
2. Police Power Proper – authorizes the
municipality to enact ordinances as may be
necessary and proper for the health and
1. POWERS safety, prosperity, morals, peace, good order,
comfort, and convenience of the municipality
Powers of LGUs (P-E-Ta-L-Clo-C) and its inhabitants, and for the protection of
their property. (Rural Bank of Makati v.
1. Police Power; Municipality of Makati, G.R. No. 150763, 02 July
2. Eminent Domain; 2004)
3. Taxation;
4. Legislative Power; Requisites or Limitations for the Proper Exercise
5. Closure and Opening of Roads; and of Police Power (M-I-N-E)
6. Corporate Powers.
1. The Interests of the public generally, as
a) POLICE POWER distinguished from those of a particular class,
require the interference of the state (Equal
Nature of General Welfare Clause or Police Power Protection Clause);
The Police Power of the LGU is not inherent. LGUs
418
2023 GOLDEN NOTES
2. The Means employed are reasonably Protection Clause. On appeal, however, the CA
necessary for the attainment of the object reversed the judgment of the RTC. Is the
sought to be accomplished and not duly ordinance valid?
oppressive (Due Process Clause);
A: NO. Requiring the respondents and other
3. Exercisable only within the territorial limits of affected individuals to comply with the
the LGU, except for protection of water supply consequences of the ban within the three (3)-
(Sec. 16, LGC); and month period under pain of penalty like fine,
imprisonment and even cancellation of business
4. Must Not be contrary to the Constitution and the permits would definitely be oppressive as to
laws. constitute abuse of Police Power.
NOTE: There must be a concurrence of a lawful The ordinance violated the Equal Protection Clause.
subject and lawful method. (Lucena Grand Central v. The imposition of the ban is too broad because the
JAC, G.R. No. 148339 23 Feb. 2005) ordinance applies irrespective of the substance to
be aerially applied and irrespective of the
Tests When Police Power is Invoked as the agricultural activity to be conducted. Such
Rational for the Valid Passage of an Ordinance imposition becomes unreasonable inasmuch as it
patently bears no relation to the purported
1. Rational relationship test – An ordinance must inconvenience, discomfort, health risk and
pass the requisites (M-I-N-E) above. environmental danger which the ordinance seeks to
address. The burden will now become more
2. Strict scrutiny test – The focus is on the onerous to various entities, including those with no
presence of compelling, rather than substantial, connection whatsoever to the intended purpose of
governmental interest and on the absence of less the ordinance. (Mosqueda v. Pilipino Banana
restrictive means for achieving that interest. Growers & Exporters Assoc., G.R. No. 189185 &
(Fernando v. St. Scholastica’s College, G.R. No. 189305, 16 Aug. 2016)
161107, 12 Mar. 2013)
Ministerial Duty of the Local Chief Executive
Q: The Sangguniang Panlungsod of Davao City
enacted an ordinance imposing a ban against The LGC imposes upon the city mayor, to “enforce all
aerial spraying as an agricultural practice by all laws and ordinances relative to the governance of
agricultural entities within Davao City. the city.” As the chief executive of the city, he has the
Pursuant to the ordinance, the ban against duty to enforce an ordinance as long as it has not
aerial spraying would be strictly enforced three been repealed by the Sanggunian or annulled by the
(3) months thereafter. The Pilipino Banana courts. He has no other choice. It is his ministerial
Growers and Exporters Association, Inc. duty to do so. (Social Justice Society v. Atienza Jr., G.R.
(PBGEA) filed a petition in the RTC to challenge No. 156052, 07 Mar. 2007)
the constitutionality of the ordinance, alleging
that the ordinance exemplified the Abatement of Nuisance without Judicial
unreasonable exercise of Police Power and Proceeding
violated the Equal Protection Clause. The RTC
declared that the ordinance is valid and The abatement of nuisance without judicial
constitutional saying that the City of Davao had proceedings applies to nuisance per se or those
validly exercised Police Power under the which affect the immediate safety of persons and
General Welfare Clause of the LGC and that the property and may be summarily abated under the
ordinance was consistent with the Equal undefined law of necessity. (Tayaban v. People,
419
G.R. No. 150194, 06 Mar. 2007) for failing to secure the necessary permits.
The LGUs have no power to declare a particular thing In the case at bar, Boracay West Cove admittedly
as a nuisance unless such a thing is a nuisance per se; failed to secure the necessary permits, clearances,
nor can they effect the extrajudicial abatement of a and exemptions before the construction, expansion,
nuisance per accidens. Those things must be resolved and operation of Boracay West Cove’s hotel in Malay,
by the courts in the ordinary course of law. (AC Aklan. To recall, Boracay West Cove declared that the
Enterprises, Inc. v. Frabelle Properties Corp., G.R. No. application for zoning compliance was still pending
166744, 02 Nov. 2006) with the office of the mayor even though
construction and operation were already ongoing at
Q: The Mayor of Malay, Aklan ordered through the same time. As such, it could no longer be denied
E.O. No. 10 the demolition of the Boracay West that it openly violated Municipal Ordinance 2000-
Cove Resort and Hotel without first conducting 131. (Aquino v. Municipality of Malay, Aklan, G.R. No.
judicial proceedings on the ground that the said 211356, 29 Sept. 2014)
hotel was built on a "no build zone" as
demarcated in Municipal Ordinance 2000-131. NOTE: Based on law and jurisprudence, the office of
The owner of the Boracay West Cove imputed the mayor has quasi-judicial powers to order the
grave abuse of discretion on the part of the closing and demolition of establishments. This
mayor. Is the owner correct? power granted by the LGC is not the same power
devolved in favor of the LGU under Sec. 17(b)(2)(ii)
A: NO. Generally, LGUs have no power to declare a of the same Code, which is subject to review by the
particular thing as a nuisance unless such a thing is a DENR.
nuisance per se. Despite the hotel’s classification as a
nuisance per accidens, however, the Court still found The fact that the building to be demolished is located
in this case that the LGU may nevertheless properly within a forestland under the administration of the
order the hotel’s demolition. This is because, in the DENR is of no moment, for what is involved herein,
exercise of Police Power and the General Welfare strictly speaking, is not an issue on environmental
Clause, property rights of individuals may be protection, conservation of natural resources, and
subjected to restraints and burdens in order to fulfill the maintenance of ecological balance, but the
the objectives of the government. legality or illegality of the structure. Rather than
treating this as an environmental issue then, focus
Otherwise stated, the government may enact should not be diverted from the root cause of this
legislation that may interfere with personal liberty, debacle-compliance. (Aquino v. Municipality of
property, lawful businesses, and occupations to Malay, Aklan, G.R. No. 211356, 29 Sept. 2014)
promote the general welfare.
Powers Deemed Implied in the Power to Grant
One such piece of legislation is the LGC, which Permits and Licenses
authorizes city and municipal governments, acting
through their local chief executives, to issue Power to issue licenses and permits includes power
demolition orders. Under existing laws, the office of to revoke, withdraw, or restrict through the
the mayor is given powers not only relative to its imposition of certain conditions. However, the
function as the executive official of the town; it has conditions must be reasonable and cannot amount
also been endowed with authority to hear issues to an arbitrary interference with the business.
involving property rights of individuals and to come (Acebedo Optical Company, Inc. v. CA, G.R. No. 100152,
out with an effective order or resolution thereon. 31 Mar. 2000)
Pertinent herein is Sec. 444 (b)(3)(vi) of the LGC,
which empowered the mayor to order the closure
and removal of illegally constructed establishments
420
2023 GOLDEN NOTES
Object of the Permit Requirement Commission (PRC) and the Board of Examiners in
Optometry. (Acebedo Optical Company, Inc. v. CA, G.R.
The object of the permit requirement is the proper No. 100152, 31 Mar. 2000)
supervision of the enumerated businesses, trades, or
occupation. NOTE: However, certain professions may be
affected by the exercise of police power. An
NOTE: The issuance of permits and licenses is a ordinance in Manila was held not to regulate the
function of the local chief executive. practice of massage, much less restrict the practice
of such profession. Instead, the end sought to be
Q: Acebedo Optical Company applied with the obtained was to prevent the commission of
Office of the City Mayor of Iligan for a business immorality under the practice of prostitution in an
permit. The City Mayor issued such permit establishment masquerading as a massage clinic
subject to special conditions that the company where the operation thereof offers to massage
cannot put up an optical clinic but only a superficial parts of the bodies of customers for
commercial store; it cannot examine patients hygienic or aesthetic purposes. (Physical Therapy
and prescribe glasses; and it cannot sell Organization of the Philippines v. Municipal Board of
eyeglasses without a prescription from an Manila, G.R. No. L-10488, 30 Aug. 1957)
independent optometrist. Samahan ng
Optometrist ng Pilipinas lodged a complaint Q: The Sangguniang Panlungsod of Marikina City
against Acebedo for violating the conditions enacted an ordinance “Regulating the
which resulted in the revocation of its permit. Construction of Fences and Walls in the City of
Did the City Mayor have the authority to impose Marikina”. The ordinance provided, among
special conditions in the grant of the business others, that fences should not be more than 1
permit? meter and fences in excess of one (1) meter shall
be 80% see-through. It further provided that in
A: NO. Police Power is essentially regulatory in no case shall walls and fences be built within the
nature and the power to issue license or grant five (5)-meter parking area allowance located
business permits, if for a regulatory purpose, is between the front monument line and the
within the ambit of this power. This power building line of commercial and industrial
necessarily includes the power to revoke and to establishments and educational and religious
impose conditions. However, the power to grant or institutions. Is the ordinance valid?
issue licenses or business permits must always be
exercised in accordance with law, with utmost A: NO. It has long been settled that the State may not,
observance of the rights of all concerned to Due under the guise of police power, permanently divest
Process and Equal Protection of the law. What is owners of the beneficial use of their property solely
sought by Acebedo from the City Mayor is a permit to preserve or enhance the aesthetic appearance of
to engage in the business of running an optical shop. the community. Compelling the respondents to
It does not purport to seek a license to engage in the construct their fence in accordance with the assailed
practice of optometry. ordinance is, thus, a clear encroachment on their
right to property, which necessarily includes their
A business permit is issued primarily to regulate the right to decide how best to protect their property.
conduct of business and the City Mayor cannot, (Fernando v. St. Scholastica’s College, G.R. No.
through the issuance of such permit, regulate the 161107, 12 Mar. 2013)
practice of a profession. Such a function is within the
exclusive domain of the administrative agency Q: Can the City Mayor of Manila validly take
specifically empowered by law to supervise the custody of several women of ill repute and
profession, in this case the Professional Regulations deport them as laborers without knowledge
421
and consent to the said deportation? exercise of police power; and it is an
unreasonable and oppressive interference in
A: NO. One can search in vain for any law, order, or their business. Is the ordinance valid?
regulation, which even hints at the right of the
Mayor of the City of Manila or the chief of police of A: NO. Individual rights may be adversely affected
that city to force citizens of the Philippine Islands— only to the extent that may fairly be required by the
and these women despite their being in a sense legitimate demands of public interest or public
lepers of society are nevertheless not chattels but welfare. However well-intentioned the Ordinance
Philippine citizens protected by the same may be, it is in effect an arbitrary and whimsical
constitutional guaranties as are other citizens—to intrusion into the rights of the establishments as
change their domicile from Manila to another well as their patrons. The Ordinance needlessly
locality. (Villavicencio v. Lukban, G.R. No. L-14369, restrains the operation of the businesses of the
25 Mar. 1919) petitioners as well as restricting the rights of their
patrons without sufficient justification. The
Q: May an LGU through an Ordinance require Ordinance rashly equates wash rates and renting
customers to fill out a prescribed form stating out a room more than twice a day with immorality
personal information such as name, gender, without accommodating innocuous intentions.
nationality, age, address, and occupation before (White Light Corp. v. City of Manila, G.R. No. 122846,
they could be admitted to a motel, hotel, or 20 Jan. 2009)
lodging house?
Q: The Sangguniang Panlungsod of Pasay City
A: YES. The Ordinance was enacted precisely to passed an ordinance requiring all disco pub
minimize certain practices hurtful to public morals owners to have all their hospitality girls tested
such as the increase in the rate of prostitution, for the AIDS virus. Both disco pub owners and the
adultery, and fornication in Manila traceable in great hospitality girls assailed the validity of the
part to the existence of motels, which “provide a ordinance for being violative of their
necessary atmosphere for clandestine entry, constitutional rights to privacy and to freely
presence, and exit” and thus become the “ideal haven choose a calling or business. Is the ordinance
for prostitutes and thrill-seekers.” To be precise, it valid? Explain.
was intended to curb the opportunity for the
immoral or legitimate use to which such premises A: YES. The ordinance is a valid exercise of police
could be and are being devoted. (Ermita-Malate Hotel power. The right to privacy yields to certain
and Motel Operations Association v. City Mayor of paramount rights of the public and defers to the
Manila, G.R. No. L-24693, 31 July 1967) exercise of police power. The ordinance is not
prohibiting the disco pub owners and the hospitality
Q: Mayor Lim signed into law, City Ordinance girls from pursuing their calling or business but is
7774, which prohibits short time admission in merely regulating it. (Social Justice Society v.
hotels, motels, lodging houses, pension houses, Dangerous Drugs Board, G.R. No. 157870, 03 Nov.
and similar establishments in the City of Manila 2008) The ordinance is a valid exercise of police
to protect public morals. Pursuant to the above power, because its purpose is to safeguard public
policy, short-time admission and rate, wash-up health. (Beltran v. Secretary of Health, G.R. No. 133640,
rate or other similarly concocted terms, are 25 Nov. 2005)
hereby prohibited in hotels, motels, inns,
lodging houses, pension houses and similar NOTE: Municipal corporations cannot prohibit the
establishments in the City of Manila. Petitioners operation of night clubs. They may be regulated, but
argued that the Ordinance is unconstitutional may not be prevented from carrying on their
and void since it violates the right to privacy and business. (Dela Cruz v. Paras, G.R. Nos. L-42571-72, 25
the freedom of movement; it is an invalid July 1983)
422
2023 GOLDEN NOTES
Q: The Quezon City Council issued Ordinance with the purity of the water which was supplied
2904 which requires the construction of arcades to Manila by the Santolan pumping station. She
for commercial buildings to be constructed in was charged with violation of Sec. 4(f) of
zones designated as business zones in the zoning Ordinance No. 149 of the City of Manila, which
plan of Quezon City, along EDSA. However, at the prohibited washing of garments in the waters of
time the ordinance was passed there was, yet no any river or water course. Manila’s municipal
building code passed by the legislature. Thus, the board adopted the same section by virtue of the
regulation of the construction of the buildings are Acts of the Philippine Commission and was
left to the discretion of the LGUs. Under this authorized to purify the source of water supply
ordinance, the city council required that the as well as the drainage area of such water
arcade is to be created in a way that building supply. Rivera contented that the municipal
owners are not allowed to construct his wall up to court of the City of Manila and the Court of First
the edge of the property line, thereby creating a Instance of the City of Manila had no jurisdiction
space under the first floor. In effect, property to try her for the crime committed. Does the CFI
owners relinquish the use of the space as an of Manila have jurisdiction over the offense,
arcade for pedestrians instead of using the considering that the washing of clothes was in
property for their own purposes. Subsequently, the Mariquina River?
Justice Gancayco sought to be exempted from the
application of the ordinance to which the City A: YES. Boundaries usually mark the limit for the
Council responded favorably in his favor. MMDA exercise of the Police Power by the municipality.
then sent a notice of demolition to Justice However, in certain instances – the performance of
Gancayco alleging that a portion of his building police functions, the preservation of public health
violates the National Building Code in relation to and acquisition of territory for water supply – the
the ordinance. municipality is granted police power beyond its
boundaries. The Santolan pumping station is a part
Is the Ordinance a valid exercise of police power of the public water supply of Manila with water
in regulating the use of property in a business taken from that part of the Mariquina River, in the
zone? waters of which Rivera washed clothes. Public
water supply is not limited to water supply owned
A: YES. In the exercise of Police Power, property and controlled by a municipal corporation but
rights of individuals may be subject to restraints and should be construed as meaning a supply of water
burdens in order to fulfill the objectives of the for public and domestic use, furnished or to be
government. Property rights must bow down to the furnished from water works. The provisions of the
primacy of Police Power because it must yield to Ordinance No. 149 of the City of Manila would be
General Welfare. It is clear that the objective of the meaningless and absurd if made applicable only to
ordinance was the health and safety of the city and its the Santolan pumping station and not to that part of
inhabitants. At the time the Ordinance was passed, the Mariquina River immediately above it and from
there was no National Building Code, thus, there was which the pumping station draws water for the use
no law which prohibits the city council from of the inhabitants of the City of Manila. (Rivera v.
regulating the construction of buildings, arcades and Campbell, G.R. No. L-11119, 23 Mar. 1916)
sidewalks in their jurisdiction. (Gancayco v. City
Government of Quezon City, G.R. No. 177807, 11 Oct. Q: Following the campaign of President Duterte
2011) to implement a nationwide curfew for minors,
Navotas City and the City of Manila started to
Q: Rivera was found washing her clothing near strictly implement their curfew ordinances on
the Santolan pumping station near Boso-Boso minors through police operations.
dam. Rivera’s act of washing clothing interfered
423
The Manila Ordinance cites only four (4) school or work. However, even with those
exemptions, namely: (a) minors accompanied safeguards, the Navotas Ordinance and, to a greater
by their parents, family members of legal age, or extent, the Manila Ordinance still do not account for
guardian; (b) those running lawful errands such the reasonable exercise of the minors' rights of
as buying of medicines, using of association, free exercise of religion, rights to
telecommunication facilities for emergency peaceably assemble, and of free expression, among
purposes and the like; (c) night school students others. The exceptions under the Manila Ordinance
and those who, by virtue of their employment, are too limited, and thus, unduly trample upon
are required in the streets or outside their protected liberties.
residence after 10:00 p.m.; and (d) those
working at night. The Navotas Ordinance is apparently more
protective of constitutional rights than the Manila
For its part, the Navotas Ordinance provides Ordinance; nonetheless, it still provides insufficient
more exceptions, to wit: (a) minors with night safeguards: First, although it allows minors to
classes; (b) those working at night; (c) those engage in school or church activities, it hinders
who attended a school or church activity, in them from engaging in legitimate non-school or
coordination with a specific barangay office; (d) non-church activities in the streets or going to and
those traveling towards home during the curfew from such activities; thus, their freedom of
hours; (e) those running errands under the association is effectively curtailed. It bears stressing
supervision of their parents, guardians, or that participation in legitimate activities of
persons of legal age having authority over them; organizations, other than school or church, also
(f) those involved in accidents, calamities, and contributes to the minors' social, emotional, and
the like. It also exempts minors from the curfew intellectual development, yet such participation is
during these specific occasions: Christmas eve, not exempted under the Navotas Ordinance.
Christmas day, New Year’s Eve, New Year's day, Second, although the Navotas Ordinance does not
the night before the barangay fiesta, the day of impose the curfew during Christmas Eve and
the fiesta, All Saints' and All Souls' Day, Holy Christmas day, it effectively prohibits minors from
Thursday, Good Friday, Black Saturday, and attending traditional religious activities (such as
Easter Sunday. simbang gabi) at night without accompanying
adults. This legitimate activity done pursuant to the
Petitioners argue that the Curfew Ordinances minors' right to freely exercise their religion is
are unconstitutional because they deprive therefore effectively curtailed. Third, the Navotas
minors of the right to liberty and the right to Ordinance does not accommodate avenues for
travel without substantive due process. Are said minors to engage in political rallies or attend city
ordinances valid? council meetings to voice out their concerns in line
with their right to peaceably assemble and to free
A: NO. The Manila and Navotas Ordinances are not expression. (SPARK, et. al. v. Quezon City, G.R. No.
valid. While rights may be restricted, the 225442, 08 Aug. 2017)
restrictions must be minimal or only to the extent
necessary to achieve the purpose or to address the Q: The City of Manila passed a Curfew Ordinance
State's compelling interest. on minors which imposes several penalties for
violators. Petitioners argue that the Curfew
The Manila and Navotas Ordinances are not Ordinance is unconstitutional because it
narrowly drawn in that their exceptions are contravenes R.A. No. 9344's express command
inadequate and therefore, run the risk of overly that no penalty shall be imposed on minors for
restricting the minors' fundamental freedoms. To be curfew violations. Is petitioners’ contention
fair, both ordinances protect the rights to education, proper?
to gainful employment, and to travel at night from
424
2023 GOLDEN NOTES
A: YES. The Manila Ordinance is in conflict with the status of a statute that cannot be annulled or
clear language of Sec. 57(a) of R.A. No. 9344, as amended by a mere ordinance. PAGCOR can set up
amended, and hence, invalid. casinos with or without the consent of the host local
government. (Magtalas v. Pryce Properties and
The law does not prohibit the enactment of PAGCOR, G.R. No. 111097, 20 July 1994)
regulations that curtail the conduct of minors, when
similar conduct of adults is not considered as an Contempt Powers
offense or penalized (i.e., status offenses). Instead,
what it prohibits is the imposition of penalties on Although the Sanggunian of a municipality may
minors for violations of these regulations. exercise certain powers under the General Welfare
Consequently, the enactment of curfew ordinances Clause, citing non-members of the Sanggunian for
on minors, without penalizing them for violations contempt or issuing subpoena to compel non-
thereof, is not violative of Sec. 57-A. members to attend public hearings or investigation is
not one of them.
As worded, the prohibition in Sec. 57-A is clear,
categorical, and unambiguous. It states that no Other Limitations for the Exercise of Police
penalty shall be imposed on children for violations Power
of juvenile status offenses. Thus, for imposing the
sanctions of reprimand, fine, and/or imprisonment The local government unit can regulate the operation
on minors for curfew violations, portions of Sec. 4 of of cable television only when it encroaches on public
the Manila Ordinance directly and irreconcilably properties, such as the use of public streets, rights of
conflict with the clear language of Sec. 57-A of R.A. ways, the founding of structures, and the parceling of
No. 9344, as amended, and hence, invalid. (SPARK, large region. Beyond these parameters, its acts, such
et. al. v. Quezon City, G.R. No. 225442, 08 Aug. 2017) as the grant of the franchise to Spacelink, would be
ultra vires. (Zoomzat v. People, G.R. No. 135535, 14
Q: The Sanggunian of Cagayan De Oro enacted Feb. 2005)
Ordinance No. 3353 prohibiting the issuance of
business permits and cancelling existing The power to regulate as an exercise of Police Power
business permits for the operation of casinos; does not include the power to impose fees for
and Ordinance Nos. 3375-93, prohibiting the revenue purposes. Fees for regulatory purposes may
operation of a casino. Z assailed the validity of only be of sufficient amount to include the expenses
the ordinances on the ground that both violated of issuing the license and the cost of the necessary
P.D. 1869 which permits the operation of inspection or police surveillance, taking into account
casinos, centralized, and regulated by PAGCOR. not only the expense of direct regulation but also
However, the Sanggunian contended that incidental expenses. (American Mail Line v. City of
pursuant to the LGC they have the police power Basilan, G.R. No. L-12647, 31 May 1961)
to prohibit the operations of casinos for the
general welfare. Was there a valid exercise of b) EMINENT DOMAIN
police power?
Definition
A: NO. P.D. 1869 creating the PAGCOR expressly
authorized it to centralize and regulate all games of The right of a government or its agent to
chance including casinos. This has not been expropriate private property for public use, in
amended by the LGC which empowers LGUs to exchange for just compensation.
prevent or suppress only those forms of gambling
prohibited by law. Casino gambling is, however, NOTE: Local government units have no inherent
authorized under P.D. 1869. This decree has the power of eminent domain. Local governments can
425
exercise such power only when expressly from its owner by the expropriator. The
authorized by the Legislature. By virtue of the Local measure is not the taker's gain, but the
Government Code, Congress conferred upon local owner's loss. It is upon the payment of just
government units the power to expropriate. compensation to be determined as of the date
(Masikip v. City of Pasig, G.R. No. 136349, 23 Jan. of the taking of the property or the filing of the
2006) complaint, whichever came first. (NTC v.
Oroville, G.R. No. 223366, 01 Aug. 2017)
Strictly speaking, the power of eminent domain
delegated to an LGU is in reality not eminent but 4. A valid and definite Offer has been
“inferior”. The national legislature is still the previously made to the owner of the property
principal of the LGUs, and the latter cannot go sought to be expropriated, but said offer was
against the principal’s will or modify the same. not accepted. (Municipality of Parañaque v. V.M.
(Beluso v. Municipality of Panay, G.R. No. 153974, 07 Realty Corporation, G.R. No. 127820, 20 July 1998)
Aug. 2006)
NOTE: The Supreme Court held “the burden is on
Requisites for the valid exercise of the Power of the LGU to prove its compliance with the
Eminent Domain (O-P-C-O) mandatory requirement of a valid and definite
offer to the owner of the property before its filing
1. An Ordinance is enacted by the local of its complaint for expropriation. Failure to
legislative council authorizing the local chief prove compliance with the mandatory
executive, on behalf of the LGU, to exercise the requirement will result in the dismissal of the
power of eminent domain or pursue complaint. (Jesus is Lord Christian School
expropriation proceeding over a particular Foundation Inc. v. Municipality (now City) of Pasig,
private property; G.R. No. 152230, 09, Aug. 2005)
NOTE: LGU cannot authorize an expropriation Due Process Requirements in Eminent

of private property through a mere resolution Domain: (W-P-R-P)
of its lawmaking body. A resolution will not
suffice as it is a mere declaration of the Offer must be in Writing specifying:
sentiment or opinion of the lawmaking body on 1. Property sought to be acquired;
a specific matter that is temporary in nature. 2. The Reason for the acquisition; and
(Holy Trinity Realty and Development 3. The Price offered.
Corporation v. Dela Cruz, G.R. 200454, 22 Oct.
2014) NOTE: If the owner accepts offer, a contract of sale
will be executed. If owner accepts but at a higher
2. It must be for Public use, purpose, or welfare price, the local chief executive shall call a conference
or for the benefit of the poor or landless; for the purpose of reaching an agreement on the
selling price; If agreed, contract of sale will be
NOTE: Property already devoted to public drawn. (Art. 35, IRR of the LGC)
use may not be taken for another public use.
(City of Manila v. Chinese Community of Elements for an Authorized Immediate Entry
Manila, G.R. No. L-14355, 31 Oct. 1919)
1. Filling of a Complaint for Expropriation which
3. There must be payment of Just Compensation; is sufficient in form and substance; and
and
2. Deposit of the amount equivalent to 15% of
NOTE: Just Compensation is defined as the the fair market value of the property to be
full and fair equivalent of the property taken expropriated based on its current tax
426
2023 GOLDEN NOTES
declaration. 2. The determination by the RTC of the just
compensation for the property sought to be
NOTE: The advance deposit required under Sec. 19 taken.
of the LGC constitutes an advance payment only in
the event the expropriation prospers. Such deposit This is done by the Court with the assistance of
also has a dual purpose: as pre-payment if the not more than three (3) commissioners. The
expropriation succeeds and as indemnity for order fixing the just compensation on the
damages if it is dismissed. This advance payment, a basis of the evidence before, and findings of, the
prerequisite for the issuance of a writ of possession, commissioners would be final. It would finally
should not be confused with payment of just dispose of the second stage of the suit and
compensation for the taking of property even if it leave nothing more to be done by the Court
could be a factor in eventually determining just regarding the issue. (Brgy. San Roque, Talisay,
compensation. If the proceedings fail, the money Cebu v. Hrs. of Francisco Pastor, G.R. No. 138896,
could be used to indemnify the owner for damages. 20 June 2000)
(City of Manila v. Alegar Corporation, G.R. No. 187604,
25 June 2012) NOTE: LGU’s prolonged occupation of private
property without the benefit of expropriation
Upon compliance, the issuance of writ of possession proceedings entitles the landowner to damages.
becomes ministerial. (City of Iloilo v. Legaspi, G.R. No. (City of Iloilo v. Judge Contreras-Besana, G.R. No.
154614, 25 Nov. 2004) 168967, 12 Feb. 2010)
Phases of Expropriation Proceedings Satisfaction of “Public Use” requirement
1. The determination of the authority of the In case only a few could actually benefit from the
plaintiff to exercise the Power of Eminent expropriation of the property, the same does not
Domain and the propriety of its exercise in diminish its public use character. It is simply not
the context of the facts involved in the suit; possible to provide for all at once, land and shelter,
for all who need them. Corollary to the expanded
NOTE: It ends with an order, if not dismissal of notion of public use, expropriation is not anymore
action, of condemnation declaring that the confined to vast tracts of land and landed estates. It
plaintiff has a lawful right to take the is therefore of no moment that the land sought to
property sought to be condemned, for the be expropriated is less than half a hectare only.
public use or purpose described in the Through the years, the public use requirement in
complaint, upon the payment of just eminent domain has evolved into a flexible concept,
compensation to be determined as of the influenced by changing conditions. Public use now
date of the filing of the complaint. includes the broader notion of indirect public
benefit or advantage including in particular urban
An order of dismissal, if this be ordained, land reform and housing. (Philippine Columbian
would be a final one, since it finally disposes Association v. Panis, G.R. No. L-106528, 21 Dec. 1993)
of the action and leaves nothing more to be
done by the Court on the merits. The order of NOTE: The passage of R.A. No. 7279, the “Urban
condemnation shall be a final one, as the Rules Development and Housing Act of 1992” introduced
expressly state, in the proceedings before the a limitation on the size of the land sought to be
Trial Court, no objection to the exercise of the expropriated for socialized housing. The law
right of condemnation (or the propriety expressly exempted “small property owners” from
thereof) shall be filed or heard. expropriation of their land for urban land reform.
427
(City of Mandaluyong v. Aguilar, G.R. No. 137152, 29 Q: Municipality of Panay issued resolutions
Jan. 2001) authorizing the municipal government through
the mayor to initiate expropriation proceedings.
Satisfaction of “Genuine Necessity” A Petition for Expropriation was filed by the
requirement Municipality of Panay. Petitioners are the owners
of parcels of land which are going to be
The right to take private property for public expropriated by the LGU. Petitioners argue that
purposes necessarily originate from “the necessity” such expropriation was based only on a
and the taking must be limited to such necessity. resolution and not on an ordinance contrary to
In City of Manila v. Chinese Community of Manila Sec. 19 of the LGC. Is the exercise of Eminent
(G.R. No. 14355, 31 Oct. 1919), it is held that Domain by the Municipality of Panay valid?
necessity must be of a public character. Moreover,
the ascertainment of the necessity must precede or A: NO. The LGC expressly requires an ordinance for
accompany and not follow the taking of the land. In the purpose of expropriation, and a resolution which
City of Manila v. Arellano Law College (G.R. No. L- merely expresses the sentiment of the municipal
2929, 28 Feb. 1950), the necessity within the rule council will not suffice. As respondent's
that the particular property to be expropriated expropriation in this case was based merely on a
must be necessary, does not mean an absolute, but resolution, such expropriation is clearly defective.
only a reasonable or practical necessity, such as While the Court is aware of the constitutional policy
would combine the greatest benefit to the public promoting local autonomy, the court cannot grant
with the least inconvenience and expense to the judicial sanction to an LGU's exercise of its delegated
condemning party and the property owner power of eminent domain in contravention of the
consistent with such benefit. (Masikip v. City of Pasig, very law giving it such power. (Beluso v. Municipality
G.R. No. 136349, 23 Jan. 2006) of Panay (Capiz), G.R. No. 153974, 07 Aug. 2006)
Q: May LGUs expropriate a property to provide Q: Sps. Yusay owned a parcel of land, half of
a right-of-way to residents of a subdivision? which they used as their residence, and the rest
they rented out to nine other families. Allegedly,
A: NO. Considering that the residents who need the land was their only property and only source
a feeder road are all subdivision lot owners, it is of income. The Sanguniang Panlungsod of
the obligation of the subdivision owner to Mandaluyong City adopted a Resolution
acquire a right-of-way for them. However, the authorizing the City Mayor to take the necessary
failure of the subdivision owner to provide an legal steps for the expropriation of the land of
access road does not shift the burden to the LGU the spouses for the purpose of developing it for
concerned. To deprive respondents of their low-cost housing for the less privileged but
property instead of compelling the subdivision deserving city inhabitants. The spouses then
owner to comply with his obligation under the filed a Petition for Certiorari and Prohibition in
law is an abuse of the Power of Eminent Domain the RTC, praying for the annulment of the
and is patently illegal. Worse, the expropriation Resolution due to its being unconstitutional,
will benefit the subdivision’s owner who will be confiscatory, and without force and effect. The
able to circumvent his commitment to provide city countered that the Resolution was a mere
road access to the subdivision in conjunction authorization. Hence, the suit of the spouses was
with his development permit and license to sell premature. Will the Petition for Certiorari and
from the Housing and Land Use Regulatory Prohibition prosper?
Board, and also be relieved of spending his own
funds for a right-of-way. (Barangay Sindalan v. A: NO. Certiorari did not lie against the Sangguniang
CA, G.R. No. 150640, 22 Mar. 2007) Panlungsod, which was not a part of the Judiciary
settling an actual controversy involving legally
428
2023 GOLDEN NOTES
demandable and enforceable rights when it adopted exercise of Police Power but Eminent Domain. It
Resolution No. 552, but a legislative and policy- deprives a person of his private property without
making body declaring its sentiment or opinion. Due Process of Law and without payment of just
Furthermore, the Remedy of Prohibition was not compensation. Instead of building or maintaining a
called for, considering that only a resolution public cemetery for this purpose, the city passes the
expressing the desire of the Sangguniang burden to private cemeteries. Police Power does not
Panlungsod to expropriate the petitioners’ property involve the taking or confiscation of property with
was issued. the exception of few cases where there is a necessity
to confiscate private property in order to destroy it
It was premature for the petitioners to mount any for the purpose of protecting the peace and order
judicial challenge, for the Power of Eminent Domain and of promoting the general welfare. (Quezon City
could be exercised by the City only through the filing v. Ericta, G.R. No. L-34915, 24 June 1983)
of a verified complaint in the proper court. Before
the City as the expropriating authority filed such Q: The municipal council of Baao, Camarines
verified complaint, no Expropriation Proceeding Sur, passed an Ordinance providing that any
could be said to exist. Until then, the petitioners as person who will construct or repair a building
the owners could not also be deprived of their should, before doing such, obtain a written
property under the Power of Eminent Domain. (Sps. permit from the Municipal Mayor and if said
Antonio and Fe v. CA, G.R. No. 156684, 06 Apr. 2011) building destroys the view of the Public Plaza or
occupies any public property, it shall be
Q: Petitioner Himlayang Pilipino filed a petition removed at the expense of the owner of the
to annul an ordinance which provides that at building or house. X filed a written request for a
least 6% of the total area of every private permit to construct a building on a parcel of land
cemetery shall be set aside for charity burial adjacent to their gasoline station. The request
grounds of deceased paupers. Petitioner alleged was denied because the proposed building
that the Ordinance is an invalid exercise of the would destroy the view or beauty of the public
Power of Eminent Domain as they were not paid plaza. X proceeded with the construction of the
just compensation. However, the City building without a permit because his former
Government of Quezon City argued that the house was destroyed by a typhoon. X was
ordinance is an exercise of Police Power, hence, charged and convicted of violating the
just compensation is not necessary. Is the Ordinance for having constructed a building
ordinance valid? that destroys the view of the public plaza
without a mayor’s permit. Is the ordinance
A: NO. The power to regulate does not include the valid?
power to prohibit. A fortiori, the power to regulate
does not include the power to confiscate. The A: NO. The Ordinance is unreasonable and
ordinance in question not only confiscates but also oppressive, in that it operates to permanently
prohibits the operation of a memorial park deprive appellants of the right to use their own
cemetery. There is no reasonable relation between property; hence, it oversteps the bounds of Police
the setting aside of at least 6% of the total area of a Power, and amounts to a taking of appellants’
private cemetery for charity burial grounds of property without just compensation. But while
deceased paupers and the promotion of health, property may be regulated in the interest of the
morals, good order, safety, or the general welfare of general welfare and, in its pursuit, the State may
the people. prohibit structures offensive to sight, the State may
not, under the guise of Police Power, permanently
Sec. 9 of the assailed Ordinance is not a mere police divest owners of the beneficial use of their property
regulation but an outright confiscation. It is not an and practically confiscate them solely to preserve or
429
assure the aesthetic appearance of the community. Ana, the streets will be widened to the
To legally achieve that result, the municipality must respective widths of 22-m. and 10 m and will
give the owners just compensation and an affect the proposed building. Was the engineer
opportunity to be heard. The ordinance was beyond correct in not issuing the permit?
the authority of said municipality to enact and is
therefore null and void. (People v. Fajardo, G.R. No. A: NO. The refusal of the city engineer to issue a
L-12172, 29 Aug. 1958) building permit to private landowners constitutes
taking when there is no law or ordinance requiring
Q: The Philippine Tourism Authority (PTA) private landowners to conform to the proposed
sought the expropriation of 282 hectares of widening of the street approved by the Urban
rolling land situated in Barangay Alubog and Commission. Where the City has not expropriated
Babag, Cebu City, under an express authority to the strip of land affected by the proposed widening
acquire by purchase or by any other means any of the street, inasmuch as there is no legislative
private land within the tourism zone. Petitioner authority to establish a building line, the denial of
contended that the taking was not for public use this permit would amount to taking of private
and that there is no specific constitutional property for public use under the Power of Eminent
provision authorizing the taking of private Power without following the procedure prescribed
property for tourism purposes. Is the contention for the exercise of such power. The city engineer
valid? required to issue the building permit upon payment
of the fees. (Hipolito v. City of Manila, G.R. No. L-3887,
A: NO. Expropriation by the PTA under P.D. 564 of 21 Aug. 1950)
land owned by the local government for promotion
of tourism is a valid exercise of the State’s Power of NOTE: Private property already devoted to public
Eminent Domain. The concept of public use is not use can still be a subject of expropriation by Congress
limited to traditional purposes. Here, as elsewhere, but not by LGUs. (City of Manila v. Chinese Community
the idea that “public use” is strictly limited to clear of Manila, G.R. No. 14355, 31 Oct. 1919)
cases of “use by the public” has been discarded. The
State’s Power of Eminent Domain extends to the c) TAXING POWER
expropriation of land for tourism purposes
although this specific objective is not expressed in Nature of the Power of Taxation of LGUs
the Constitution. The policy objectives of the
framers can be expressed only in general terms such Although the Power to Tax is inherent in the
as social justice, local autonomy, conservation and State, the same is not true for the LGUs to whom
development of the national patrimony public the power must be delegated by Congress and
interest, and general welfare, among others. (Heirs must be exercised within the guidelines and
of Ardona v. Reyes, G.R. No. L-60549, 26 Oct. 1983) limitations that Congress may provide. (Geron v.
Pilipinas Shell, G.R. No. 18763, 08 July 2015)
Q: Sps. Hipolito are the registered owners of a ARMM’s Taxing Power
parcel of land in Santa Ana, Manila. They applied
for permission to erect a strong-material The ARMM has the legislative power to create
residential building on the lot. For more than 40 sources of revenues within its territorial
days, the city engineer took no action. jurisdiction and subject to the provisions of the
Wherefore, Hipolito wrote him a letter 1987 Constitution and national laws. (Sec. 20(2),
manifesting his readiness to pay the fee and to Art. X, 1987 Constitution)
comply with existing ordinances governing the
issuance of building permits. The engineer Q: Can Local Governments tax National
declined to issue the permit as according to the Government Instrumentalities?
Urban Commission’s Adopted Plan for the Sta.
430
2023 GOLDEN NOTES
A: NO. Sec. 133 of the LGC states that “unless (FDCP). Secs 13 and 14 of R.A. No. 9167
otherwise provided in the Code, local governments provided for the tax treatment of certain
cannot tax national government instrumentalities. graded films — film producers were to be
This doctrine emanates from the “supremacy” of entitled to an incentive equivalent to the
National government over local governments. amusement tax imposed and collected by the
Otherwise, mere creatures of the State can defeat cities, subject to various rates depending on
national policies thru extermination of what local the grade of their film, to be remitted to the
authorities may perceive to be undesirable FDCP. FDCP had sent demand letters for
activities or enterprise using the Power to Tax as "a unpaid amusement tax reward with five
tool for regulation”. (Basco v. Philippine Amusements percent surcharge for each month of
and Gaming Corporation, G.R. No. 91649, 14 May delinquency due to the producers. The
1991) proprietors and cinema operators refused to
remit the amounts while Cebu City insisted
Q: The President, through A.O. 372, ordered on its claim on the amounts in question.
the withholding of 10% of the LGUs' IRA Then, Cebu City filed a Petition for
"pending the assessment and evaluation by Declaratory Relief before RTC, Branch 14,
the Development Budget Coordinating asking it to declare Secs. 13 and 14 of R.A. No.
Committee of the emerging fiscal situation" 9167 invalid and unconstitutional. Colon
in the country. Is the A.O. valid? Heritage Corporation filed a similar petition
before the RTC Branch 5, seeking to declare
A: NO. A basic feature of local fiscal autonomy is Sec. 14 unconstitutional. The RTC declared
the automatic release of the shares of LGUs in Secs. 13 and 14 of R.A. No. 9167
the national internal revenue. This is mandated unconstitutional. The RTC said what R.A. No.
by no less than the Constitution. The LGC 9167 seeks to accomplish is the segregation
specifies further that the release shall be made of amusement taxes raised and collected by
directly to the LGU concerned within five days Cebu City and its subsequent transfer to
after every quarter of the year and “shall not be FDCP. This, it said, is a confiscatory measure
subject to any lien or holdback that may be where the national government extracts
imposed by the national government for money from the local government’s coffers
whatever purpose.” As a rule, the term "shall" is and transfers it to the FDCP, a private agency,
a word of command that must be given a which in turn, will award the money to
compulsory meaning. The provision is, private persons, film producers, for having
therefore, imperative. (Pimentel Jr. v. Aguirre, produced graded films. Is the RTC correct?
G.R. No. 132988, 19 July 2000)
A: YES. Under R.A. No. 9167, covered LGUs still
Q: In 1993, Cebu City imposed amusement have the power to levy amusement taxes, albeit
taxes under Sec. 140 of the LGC and passed at the end of the day, they will derive no revenue
“Revised Omnibus Tax Ordinance of the City therefrom. The same, however, cannot be said
of Cebu.” Secs. 42 and 43, Chapter XI of the for FDCP and the producers of graded films since
City Ordinance requires proprietors, lessees the amounts thus levied by the LGUs which
or operators of theatres, cinemas, concert should rightfully accrue to them, they being the
halls, circuses, boxing stadia, and other taxing authority-will be going to their coffers. As
places of amusement, to pay an amusement a matter of fact, it is only through the exercise by
tax equivalent to 30% of the gross receipts of the LGU of said power that the funds to be used
admission fees. Meanwhile, R.A. No. 9167 for the amusement tax reward can be raised.
was enacted on 07 June 2002 creating the Without said imposition, the producers of
Film Development Council of the Philippines graded films will receive nothing from the
431
owners, proprietors and lessees of cinemas Constitution) and
operating within the territory of the covered
LGU.
NOTE: The current sharing is 40% local and 60%
national. The share cannot be reduced except if
Taking the resulting scheme into consideration,
there is unmanageable public sector deficit.
it is apparent that what Congress did in this
instance was not to exclude the authority to levy
amusement taxes from the taxing power of the Q: Mandanas, et al, allege that the insertion by
covered LGUs, but to earmark, if not altogether Congress of the words internal revenue in the
confiscate, the income to be received by the LGU phrase national taxes found in Sec. 284 of the
from the taxpayers in favor of and for LGC caused the diminution of the base for
transmittal to FDCP, instead of the taxing determining the just share of the LGUs, and
authority. This is in clear contravention of the should be declared unconstitutional as it
constitutional command that taxes levied by contravened Sec. 6, Art. X of the 1987
LGUs shall accrue exclusively to said LGU and is Constitution. Is limiting the LGU’s IRA to
repugnant to the power of LGUs to apportion national internal revenue taxes contrary to the
their resources in line with their priorities. Constitution?
It is a basic precept that the inherent legislative A: YES. Sec. 6, Art. X of the 1987 Constitution
powers of Congress, broad as they may be, are textually commands the allocation to the LGUs of a
limited and confined within the four walls of the just share in the national taxes. Carrying out the
Constitution. Accordingly, whenever the provision’s mandate, Congress enacted Sec. 284,
legislature exercises its power to enact, amend, Title III (Shares of LGUs in the Proceeds of National
and repeal laws, it should do so without going Taxes), of the LGC which says, “Sec. 284. Allotment of
beyond the parameters wrought by the organic Internal Revenue Taxes. - Local government units
law. shall have a share in the national internal revenue
taxes x x x”
In the case at bar, through the application and
enforcement of Sec. 14 of R.A. No. 9167, the
The phrase national internal revenue taxes
income from the amusement taxes levied by the
engrafted in Sec. 284 is undoubtedly more
covered LGUs did not and will under no
restrictive than the term national taxes written in
circumstance accrue to them, not even partially,
Sec. 6. As such, Congress has actually departed from
despite being the taxing authority therefor.
the letter of the 1987 Constitution stating that
Congress, therefore, clearly overstepped its
national taxes should be the base from which the
plenary legislative power, the amendment being
just share of the LGU comes. Such departure is
violative of the fundamental law's guarantee on
impermissible.
local autonomy. (Film Development Council of the
Philippines v. Colon Heritage Realty Corporation, It is clear from the foregoing clarification that the
G.R. No. 203754, 16 June 2015) exclusion of other national taxes like customs duties
from the base for determining the just share of the
Main sources of Revenues of LGUs (TFC-IRA-ES) LGUs contravened the express constitutional edict
in Sec. 6, Art. X of the 1987 Constitution. (Mandanas
v. Ochoa, G.R. No. 199802, 03 July 2018)
1. Taxes, Fees, and Charges. (Sec. 5, Art X, 1987
Constitution;
3. Equitable Share in the proceeds of the
utilization and development of the national
2. Internal Revenue Allotment – Just share in the wealth within their areas. (Sec. 7, Art X, 1987
National Taxes which shall be automatically Constitution)
released to them; (Sec. 6 Art X, 1987
432
2023 GOLDEN NOTES
Principles governing financial affairs, 10. LGUs shall ensure that their respective
transactions and operations of LGUs budgets incorporate the requirements of their
component units and provide for equitable
allocation of resources among these component
1. No money shall be paid out of the local
units;
treasury except in pursuance of an
appropriation ordinance or law;
11. National planning shall be based on local
planning to ensure that the needs and
2. Local government funds and monies shall be aspirations of the people as articulated by
spent solely for public purposes; the LGUs in their respective local
development plans are considered in the
3. Local revenue is generated only from sources formulation of budgets of national line
expressly authorized by law or ordinance, agencies or offices;
and collection thereof shall at all times
be acknowledged properly; 12. Fiscal responsibility shall be shared by all
those exercising authority over the financial
4. All monies officially received by a local affairs, transactions, and operations of
government officer in any capacity or on any LGUs; and
occasion shall be accounted for as local
funds, unless otherwise provided; 13. The LGU shall endeavor to have a balanced
budget in each fiscal year of operation. (Sec. 305,
5. Trust funds in the local treasury shall not be LGC)
paid out except in the fulfillment of the
purpose for which the trust was created or
NOTE: The general principles on taxation also apply
the funds received;
to the taxing powers of LGUs.
6. Every officer of the LGU whose duties permit
or require the possession or custody of local Procedural requirements for a valid revenue
funds shall be properly bonded, and such ordinance
officer shall be accountable and
responsible for said funds and for the 1. A prior public hearing on the measure to be
safekeeping thereof in conformity with the conducted according to the prescribed
provisions of law; rules.
7. LGUs shall formulate sound financial plans NOTE: An ordinance levying taxes, fees
and local budgets shall be based on functions, or charges shall not be enacted without
activities, and projects in terms of expected any prior public hearing conducted for
results; the purpose. (Figuerres v. CA, G.R. No.
119172, 25 Mar. 1999)
8. Local budget plans and goals shall, as far as
practicable, be harmonized with national 2. Publication of the tax ordinance, within
development plans, goals and strategies in 10 days after their approval, for 3
order to optimize the utilization of resources consecutive days in a newspaper of local
and to avoid duplication in the use of fiscal and circulation, provided that in provinces,
physical resources; cities, and municipalities where there are
no newspapers of local circulation, the
9. Local budgets shall operationalize approved same may be posted in at least two (2)
local development plans; conspicuous and publicly accessible places.
433
NOTE: If the tax ordinance or revenue days after receipt of the decision or the lapse of
measure contains penal provisions as sixty days without the Secretary of Justice acting
authorized in Art. 280of this Rule, the gist of upon the appeal, the aggrieved party may file
such tax ordinance or revenue measure shall be appropriate proceedings with a court of
published in a newspaper of general circulation competent jurisdiction (RTC). (Sec. 187, LGC)
within the province where the sanggunian
concerned belongs. (Art. 276, Implementing Tax Protest
Rules and Regulations of the Local Government
Code)
It is a formal statement, usually in writing, made by a
person who is called upon by public authority to pay
Q: The Province of Palawan passes an ordinance a sum of money, in which he declares that he does not
requiring all owners/operators of fishing vessels concede the legality or justice of the claim or his duty
that fish in waters surrounding the province to to pay it, or that he disputes the amount demanded;
invest 10% of their net profits from operations the object being to save his right to recover or
therein in any enterprise located in Palawan. reclaim the amount, which right would be lost by his
NARCO Fishing Corp., a Filipino corporation with acquiescence. Thus, taxes may be paid under
head office in Navotas, Metro Manila, challenges "protest". (Black’s Law Dictionary)
the ordinance as unconstitutional. Decide. (1991
BAR)
Requisites of a valid tax protest in a LGU (P-A-P)
A: The ordinance is invalid. The ordinance was 1. Taxpayer first Pays the taxes;
apparently enacted pursuant to Sec. 7, Art. X of the 2. There shall be Annotation on the tax receipts
Constitution, which entitles local governments to the words "paid under protest"; and
an equitable share in the proceeds of the utilization 3. The Protest in writing must be filed within
and development of the national wealth within thirty (30) days from payment of the tax to the
their respective areas. However, this should be provincial, city treasurer or municipal
made pursuant to law. A law is needed to treasurer, in the case of a municipality within
implement this provision and a local government Metropolitan Manila Area, who shall decide the
cannot constitute itself unto a law. In the absence protest within sixty (60) days from receipt.
of a law, the ordinance in question is invalid. (Sec. 252, LGC)
Authority to determine the legality or propriety NOTE: A claim for tax exemption, whether full or
of a local tax ordinance or revenue measure partial, does not deal with the authority of local
assessor to assess real property tax, but merely
It is the Secretary of Justice who shall determine raises a question of reasonableness or correctness of
questions on the legality and constitutionality of such assessment, which requires compliance with
ordinances or revenue measures. Sec. 252 of the LGC. (Camp John Hay Development
Corporation v. Central Board of Assessment Appeals,
Such questions shall be raised on appeal within G.R. No. 169234, 02 Oct. 2013)
thirty days from the effectivity thereof to the
Secretary of Justice who shall render a decision
Remedies available to the LGUs to enforce the
within 60 days from the date of receipt of the
payment of taxes (P-L-A-J)
appeal.
NOTE: Such appeal shall not have the effect of 1. Imposing Penalties (surcharges and penalty
suspending the effectivity of the ordinance and interest) in case of delinquency (Sec. 168, LGC)
the accrual and payment of the tax, fee, or charge 2. Availing local government’s Liens (Sec. 173,
levied therein: Provided, finally, that within 30 LGC)
434
2023 GOLDEN NOTES
3. Administrative action through distraint of guidelines and limitations as the Congress may
goods, chattels, and other personal property provide, consistent with the basic policy of local
and (Sec. 174(a), LGC) autonomy. Such taxes, fees, and charges shall accrue
4. Judicial action (Sec. 174(b), LGC) exclusively to the local governments.
Community tax Similarly, this is reiterated in Sec. 129 of the LGC

which provides that each local government unit
shall exercise its power to create its own sources of
It is a poll or capitation tax which is imposed upon
revenue and to levy taxes, fees, and charges subject
a person who resides within a specified territory.
to the provisions herein, consistent with the basic
policy of local autonomy. Such taxes, fees, and
Exempted from the payment of community tax charges shall accrue exclusively to the local
government units.
1. Diplomatic and consular representatives; and
2. Transient visitors when their stay in Q. What is the scope of the power of local
the Philippines does not exceed 3 months. (Sec. taxation?
159, LGC)
A: Sec. 5, Art. X, 1987 Constitution and Sec. 129 of
Elements so that the President may interfere in the LGC state that the scope of the power of local
local fiscal matters (U-C-R) taxation is taxes, fees, and charges.
1. An Unmanaged public sector deficit of Taxes vs. Fees vs. Charges

the national government;
1. Taxes - Enforced proportional
2. Consultations with the presiding officers contributions from persons and property
of the Senate and the House of levied by the law-making body of the State
Representatives and the presidents of the by virtue of its sovereignty for the support
various local leagues; and of the government and for public needs.
(Aban, 1994)
3. The corresponding Recommendation of
the secretaries of the Department of 2. Fees - a charge fixed by law or ordinance for
Finance, Interior and Local Government, the regulation or inspection of a business or
and Budget and Management (Pimentel, Jr. activity. (Sec. 131 (l), LGC)
v. Aguirre, G.R. No. 132988, 19 July 2000)
3. Charges - Refers to pecuniary liability, as
NOTE: Local taxes are taxes that are imposed and rents or fees against persons or property.
collected by the LGUs in order to raise revenues to (Sec. 131(g), LGC)
enable them to perform the functions for which they
have been organized. National Taxation vs. Local Taxation
Q: What is the basis of the exercise of the LGU of NATIONAL LOCAL

the power to impose tax? TAXATION TAXATION
As to the nature of the power
A: Sec. 5, Art. X of the 1987 Constitution provides An inherent power of Not an inherent power.
that each local government unit shall have the the state. Thus, there is Thus, there must be an
power to create its own sources of revenues and to no need for a statute enabling law for the
levy taxes, fees, and charges, subject to such for the power to be LGU to impose tax.
435
exercised. contributed to
As to the limitations the public
Subject to the good/general
following limitations to welfare.
Subject to the
be valid:
following limitations to
d) CLOSURE AND OPENING OF ROADS
be valid:
a) Inherent
limitations; An LGU may, pursuant to an ordinance,
i. Inherent
b) Constitutional permanently or temporarily close or open any local
limitations; and,
limitations; and, road, alley, park, or square falling within its
ii. Constitutional
c) Statutory jurisdiction.
limitations.
limitations. (Sec.
133, LGC) In the case of permanent closure, such ordinance
As to imposition must be approved by at least 2/3 of all members of
Imposed by the the sanggunian, and when necessary, an adequate
Imposed by the
Sanggunian through substitute for the public facility that is subject to
Congress through
passage of ordinance. closure is provided. (Sec. 21, LGC)
passage of law.
(Sec. 132, LGC)
Kinds of Road Closures
Police Power vs. Power to Tax vs. Eminent
Domain 1. Permanent Closure of Roads
POLICE EMINENT a. No permanent closure of any local road,

TAXATION street, alley, park, or square shall be
POWER DOMAIN
As to extent effected unless there exists a compelling
It regulates reason or sufficient justification.
liberty and Affects only property rights.
property b. When necessary, an adequate substitute for
As to who exercises the public facility that is subject to closure
Maybe shall be provided. No freedom park shall be
Exercised only by the exercised by closed permanently without provision for
government private its transfer or relocation to a new site.
entities
As to the nature of the property taken c. No such way or place shall be permanently
closed without making provisions for the
Property is
maintenance of a public system.
noxious or
intended for a Property is wholesome
d. Property permanently withdrawn from
noxious
public use may be used or conveyed for any
purpose.
purpose for which other real property
As to the purpose as to property taken
belonging to the local government unit
Property
concerned may be lawfully used or
taken is Property taken is for public use
conveyed.
destroyed
As to the form of compensation
e. Ordinance must be approved by at least 2/3
Intangible Fair market
Protection and of all members of the sanggunian. (Art. 44,
altruistic value of the
public IRR of the LGC)
feeling that property
improvements
one has expropriated.
436
2023 GOLDEN NOTES
2. Temporary Closure of Roads NOTE: The rule against undue delegation of
legislative powers applies to LGUs. A city ordinance
a. During fiestas for a period not exceeding 9 was declared void because it constituted undue
days. delegation of legislative power to the mayor. The
ordinance did not lay down any standard to guide
b. During agricultural or industrial fairs or the mayor in the exercise of his discretion in the
expositions for a period as may be issuance or denial of an alien employment permit.
determined to be necessary and (Villegas v. Tsai Pao Ho, G.R. No. 29646, 10 Oct. 1978)
reasonable.
The Sanggunian
c. When public works, projects, or activities
are being undertaken, for a period as may A sanggunian is a collegial body. Legislation, which
be determined necessary for the safety, is the principal function of the sanggunian, requires
security, health or welfare of the public or the participation of all its members so that they may
when such closure is necessary to facilitate not only represent the interests of their respective
completion of the projects or activities. constituents but also help in the making of
decisions, by voting upon every question put upon
d. An LGU may temporarily close and regulate the body. (Zamora v. Caballero, G.R. No. 147767, 14
the use of any local street, road, Jan. 2004)
thoroughfare, or public place where
shopping malls, Sunday market, flea or NOTE: A petition for certiorari filed against a
night market, or shopping areas may be Sangguniang Panlungsod assailing the legality of
established and where goods, merchandise, an ordinance will not lie since the sanggunian is
foodstuff, commodities, or articles of not a tribunal, board or officer exercising judicial
commerce may be sold and dispensed to or quasi-judicial functions. (Liga ng mga Barangay
the general public. National v. City Mayor of Manila, G.R. No. 154599,
21 Jan. 2004)
NOTE: No national or local road, alley, park, or
square shall be temporarily closed for athletic, No Power to Subpoena and hold Persons in
cultural, or civic activities not officially sponsored, Contempt (1993 BAR)
recognized, or approved by the LGU. (Art. 45, IRR of
the LGC) The contempt power and the subpoena power
cannot be deemed implied in the delegation of
e) LEGISLATIVE POWER certain legislative functions to local legislative
bodies. These cannot be presumed to exist in
Nature of Local Legislative Powers favor of the latter and must be considered an
exception to Sec. 4 of B.P. Blg. 337 which provides
It is a fundamental principle that municipal for liberal rules of interpretation in favor of local
ordinances are inferior in status and subordinate to autonomy. Since the existence of these powers
the laws of the State. An ordinance in conflict with a poses a potential derogation of individual rights,
state law of general character and statewide the law cannot be liberally construed to have
application is universally held to be invalid. In every impliedly granted such powers to local legislative
power to pass ordinances given to a municipality, bodies. The intention of the people, through their
there is an implied restriction that the ordinances representatives, to share these powers with the
shall be consistent with the general law. (Batangas local legislative bodies must clearly appear in
CATV v. Court of Appeals, G.R. No. 138810, 29 Sept. pertinent legislation. (Negros Oriental II Electric
2004)
437
Cooperative Inc., v. Sangguiang Panlungsod ng The creation of a temporary vacancy in the Office of
Dumaguete, G.R. No. L-72492, 05 Nov. 1987) the Governor creates a corresponding temporary
vacancy in the Office of the Vice-Governor whenever
Local Legislative Bodies and their Presiding the latter acts as Governor by virtue of such
Officers temporary vacancy. The continuity of the acting
governor’s (vice-governor) powers as presiding
Sangguiniang officer of the SP is suspended so long as he is in such
Panlalawigan Vice-Governor capacity.
(Province)
Sangguiniang Under Sec. 49(b), “in the event of the inability of the
Panlungsod City Vice-Mayor regular presiding officer to preside at the
(City) sanggunian session, the members present and
Sangguiniang constituting a quorum shall elect from among
Bayan Municipal Vice-Mayor themselves a temporary presiding officer”. (Gamboa
(Municipality) v. Aguirre, G.R. No. 134213, 20 July 1999)
Sangguiniang
Barangay Punong Barangay Quorum in the Sanggunian
(Barangay)
Quorum is defined as the number of members of a
NOTE: The presiding officer shall vote only to break body which when legally assembled in their proper
a tie. (Sec. 49(a), LGC) places, will enable the body to transact its proper
business or that number which makes a lawful body
In the absence of the regular presiding officer or his and gives it power to pass upon a law, ordinance, or
inability to preside at the sanggunian session, the any valid act. ‘Majority’, when required to constitute
members present and constituting a quorum shall a quorum, means the number greater than half or
elect from among themselves a temporary presiding more than half of any total.
officer. (Sec. 49(b), LGC; Gamboa v. Aguirre, G.R. No.
134213, 20 July 1999) Q: What is the number that would determine the
quorum of our sanggunian that has a total
Q: May an incumbent vice-governor, acting as membership of 11 including the vice-mayor?
governor, continue to preside over the sessions
of the Sangguniang Panlalawigan (SP)? If not, A: The Sangguniang Bayan is composed of 8 regular
who may preside in the meantime? members, the Liga ng mga Barangay President and
the SK Federation President as ex-officio members,
A: NO. A vice-governor who is concurrently an and the vice-mayor as presiding officer. The total
acting governor is actually a quasi-governor. For membership in a Sanggunian Bayan, therefore, is
purposes of exercising his legislative prerogatives eleven (11).
and powers, he is deemed a non-member of the SP
for the time being. Being the acting governor, the Relative thereto, Sec. 53 of the LGC of 1991 provides
vice-governor cannot continue to simultaneously that a majority of all the members of the sanggunian
exercise the duties of the latter office, since the who have been elected and qualified shall constitute
nature of the duties of the provincial governor call a quorum to transact official business. “Majority”
for a full-time occupant to discharge them. Such is has been defined as that which is greater than half
not only consistent with but also appears to be the of the membership of the body. (Santiago vs.
clear rationale of the new Code wherein the policy Guingona, et al., G.R. No. 134577, 18 Nov. 1998)
of performing dual functions in both offices has
already been abandoned. Following the said ruling, since the total
membership of the sanggunian being 11, 11 divided
438
2023 GOLDEN NOTES
by 2 will give us a quotient of 5.5. Let it be noted Fixing of Sessions
however that a fraction cannot be considered as one
whole vote, since it is physically and legally 1. Regular Sessions - By resolution on the 1st
impossible to divide a person or even his vote into a day of the session immediately following
fractional part. Accordingly, we have to go up to the the election of its members. The minimum
next whole number, which is 6. number of regular sessions shall be:
a. Once a week – for Sangguniang
In this regard, 6 is more than 5.5 and therefore, Panlalawigan, Panlungsod, and
more than 1/2 of the total membership of the Bayan; and
Sangguniang Bayan in conformity with the
jurisprudential definition of the term majority. b. Twice a month – Sangguniang
Barangay
Thus, the presence of 6 members shall already
constitute a quorum in the Sangguniang Bayan for it 2. Special Sessions - When public interest so
to conduct official sessions. (DILG Opinion No. 46- demands, a special session may be called
2007; La Carlota City et al, v. Atty. Rex Rojo, G.R. No. for by the chief executive or by a majority
181367, 24 Apr. 2012) vote of the sanggunian members.
Procedures to be Taken by the Presiding Officer Guidelines in the conduct of a Sanggunian

if There is a Question on Quorum Session
Should there be a question of quorum raised during 1. It shall be open to public unless it is a
a session, the presiding officer shall: closed-door session.
1. Immediately proceed to call the roll of the 2. No two (2) sessions, regular or special, may
members; and be held in a single day.
2. Announce the results (Sec. 53(a), LGC)
3. Minutes of the session be recorded and
Procedures to be Taken by the Presiding Officer each sanggunian shall keep a journal and
if There is No Quorum record of its proceedings which may be
published upon resolution of the
The presiding officer may: sanggunian concerned.
1. Declare a recess until such time that 4. In case of special sessions:

quorum is constituted; a. Written notice to the members must
2. Compel immediate attendance of the be served personally at least 24
members who are absent without hours before the special session is held.
justifiable cause; or
3. Declare the session adjourned for lack of b. Unless otherwise concurred in by 2/3
quorum and no business shall be votes of the sanggunian members
transacted if there is still no quorum present, there being no quorum, no
despite enforcement of attendance. (Sec. 53 other matters may be considered at
(b)(c), LGC) a special session except those stated in
the notice (Sec. 52, LGC).
Q: On its first regular session, may the

sanggunian transact business other than the
439
matter of adopting or updating its existing rules industrial facilities. EFGH filed against AAA City
or procedure? and the Sangguniang Panlungsod a Petition for
Declaration of Nullity before the RTC praying
A: YES. There is nothing in the language of the LGC that the assailed ordinance be declared null and
that restricts the matters to be taken up during the void. EFGH argues that the assailed ordinance
first regular session merely to the adoption or constitutes an invalid exercise of police power
updating of the house rules. (Malonzo v. Zamora, G.R. as it failed to meet the substantive requirements
No. 137718, 27 July 1999) for validity. Particularly, EFGH argued that the
assailed ordinance contravenes the Water Code
(1) REQUISITES OF VALID ORDINANCE of the Philippines and encroaches upon the
power of the National Water Resources Board
Ordinance (NWRB) to regulate and control the Philippines'
water resources.
As a municipal statute, it is a rule of conduct or of
action, laid down by the municipal authorities that Is the assailed ordinance valid?
must be obeyed by the citizens. It is drafted,
prepared, promulgated by such authorities for the A: NO. The requisites for a valid ordinance are well
information of all concerned, under and by virtue of established. Time and again, the Court has ruled that
powers conferred upon them by law. (United States in order for an ordinance to be valid, it must not only
v. Pablo Trinidad, G.R. No. L-3023, 16 Jan. 1907) be within the corporate powers of the concerned
LGU to enact but must also be passed in accordance
Requisites for a valid ordinance (C-U-P-P-U-G) with the procedure prescribed by law. Since LGUs
exercise delegated police power as agents of the
1. Must Not Contravene the Constitution and State, it is incumbent upon them to act in conformity
any statute; to the will of their principal, the State.
2. Must not be Unfair or oppressive;
3. Must not be Partial or discriminatory; The privilege to appropriate and use water is one
4. Must not Prohibit, but may regulate trade; which is exclusively granted and regulated by the
5. Must not be Unreasonable; and State through water permits issued by the NWRB.
6. Must be General in application and Accordingly, the assailed ordinance mandates all
Consistent with public policy. (Magtajas v. heavy industries operating along AAA Bay to use
Pryce Properties Corporation, Inc., G.R. No. seawater in the operation of their respective
111097, 20 July 1994) facilities, and install desalination plants for this
purpose. There is no doubt, therefore, that the
NOTE: The mere fact that there is already a general assailed ordinance effectively contravenes the
statute covering an act or omission is insufficient to provisions of the Water Code as it arrogates unto
negate the legislative intent to empower the AAA City the power to control and regulate the use
municipality to enact ordinances with reference to of ground water which, by virtue of the provisions
the same act or omission under the general welfare of the Water Code, pertains solely to the NWRB. By
clause of the Municipal Charter. (United States v. enacting the Assailed Ordinance, AAA City acted in
Pascual Pacis, G.R. No. 10363, 29 Sept. 1915) excess of the powers granted to it as an LGU,
rendering the Assailed Ordinance ultra vires. (City of
Q: The Sangguniang Panlungsod of AAA City Batangas v. Philippine Shell Petroleum Corporation
enacted the assailed ordinance which requires and Shell Philippines Exploration B.V., G.R. No.
heavy industries operating along the portions of 195003, 07 June 2017)
AAA Bay within the territorial jurisdiction of
AAA City to construct desalination plants to
facilitate the use of seawater as coolant for their
440
2023 GOLDEN NOTES
Ordinance vs. Resolution Veto of the Local Chief Executive (1996, 2005
BAR)
ORDINANCE RESOLUTION
As to its nature The Local Chief Executive may veto the ordinance
Merely a declaration of only once on the ground that the ordinance is ultra
the sentiment or vires and prejudicial to public welfare. The veto
Has a force and effect of
opinion of a lawmaking must be communicated to the sanggunian within:
a law
body on a specific 1. 15 days for a province; or
matter 2. 10 days for a city or municipality. (Secs. 54
As to its character and 55, LGC)
General and permanent
Temporary in nature NOTE: While to veto or not to veto involves the
character
As to the third reading requirement exercise of discretion, a mayor exceeds his/her
authority in an arbitrary manner when he/she
GR: Third is reading
vetoes a resolution where there exist sufficient
not necessary
municipal funds from which the salary of the officer
Third reading is
could be paid. The mayor’s refusal in complying
necessary for an XPN: Unless decided
with the directive of the Director of the Bureau of
ordinance otherwise by a
Local Government that the salary could be provided
majority of all the
for is oppressive. (Pilar v. Sangguniang Bayan of
sanggunian members.
Dasol, Pangasinan, G.R. No. 63216, 12 Mar. 1984)
(Roble Arrastre, Inc. v. Villaflor, G.R. No. 128509, 22
Aug. 2006)
Items that the Local Chief Executive can Veto
NOTE: It has been held that even where the statute
1. Item/s of an appropriation ordinance;
or municipal charter requires the municipality to
act by an ordinance, if a resolution is passed in the
2. Ordinance or resolution adopting local
manner and with the statutory formality required
development plan and Public investment
in the enactment of an ordinance, it will be binding
program; and
and effective as an ordinance. Such resolution may
operate regardless of the name by which it is called.
3. Ordinance directing the payment of money
(Favis v. City of Baguio, G.R. No. L-29910, 25 Apr.
or creating Liability (Sec. 55, LGC)
1969)
NOTE: Ordinances enacted by the Sangguniang
Barangay shall, upon approval by a majority of all its
Three Readings of an Ordinance is Allowed in
members be signed by the Punong Barangay. The
One Day
latter has no veto power.
There is nothing in the LGC which prohibits the
Authority of a Mayor to Enter into a Contract
three readings of a proposed ordinance from being
held in just one session day. It is not the function of
The LGC requires the local chief executive to secure
the courts to speculate that the councilors were not
prior authorization from the Sanggunian before he
given ample time for reflection and circumspection
can enter into contracts on behalf of the LGU:
before the passage of the proposed ordinance by
conducting three readings in just one day. (Malonzo
1. Prior authorization from the Sanggunian, in
v. Zamora, G.R. No. 137718, 26 July 1999)
accordance with Sec. 22(c) of the LGC.
2. The appropriation ordinance or resolution
441
authorizing or directing the payment of more specific law that applies to the Sexual
money or creating a liability, in accordance Harassment violations committed by a government
with Art. 107(g) of the IRR of the LGC. employee like Urrutia the Rules on Sexual
Harassment Cases (CSC Resolution No. 01-0940).
NOTE: A separate prior authorization under Sec. Sec. 7, Rule VI of the Rules on Sexual Harassment
22(c) of the LGC is no longer required if the specific Cases specifically provides that a Committee on
projects are covered by the appropriation ordinance. Decorum and Investigation (CODI) must be
The appropriation ordinance passed by the constituted in all national or local agencies of the
Sanggunian is the local chief executive's authority to government, state colleges and universities,
enter into a contract implementing the project. including GOCCs with original charter. In the absence
(Municipality of Corella, represented by Mayor Jose of a CODI, the head office or agency shall immediately
Nicanor D. Tocmo v. Philkonstrak Development cause the creation of the CODI in accordance with
Corporation and Vito Rapal, G.R. No. 218663, 28 Feb. law and rules.
2022, J. Hernando)
Approval of Ordinances
Void Contract of Sale
1. By affixing the signature of the local chief
The declaration of nullity of a contract which is void executive on each and every page thereof if
ab initio operated to restore things to the State and he approves the same; or
condition in which they were found before the
execution thereof. Therefore, Millonte, as an heir, 2. By overriding the veto of the local chief
could assail the validity of the Deed of Absolute Sale executive by 2/3 vote of all members of the
even years after the execution of the document, and sanggunian if the local chief executive
even if the title of the property has already been vetoed the same. (Sec. 54, LGC)
transferred in the name of the City of Tanauan. The
passage of time could not defeat the legal principle NOTE: A sanggunian may provide for a vote
that a null and void contract can be assailed anytime requirement different (not majority vote) from that
due to the imprescriptibility of the action. In like prescribed in the LGC for certain (but not all)
manner, given that the action is imprescriptible, the ordinances as in amending a zoning ordinance.
petitioner cannot invoke laches as a defense. (Casino v. Court of Appeals, G.R. No. 91192, 02 Dec.
Undeniably, Millonte is not estopped from assailing 1991)
the Deed of Absolute Sale specifically since the
signatures of the Gonzaga siblings were forged and
without any binding or legal effect. (City of Tanauan Effectivity of Ordinance or Resolution
v. Millonte, G.R. No. 219292, 28 June 2021, J.
Hernando) GR: After 10 days from the date a copy is posted in
a bulletin board at the entrance of the capitol or
Authority of the Mayor to conduct investigation city, municipal, or barangay hall and in at least two
on sexual harassment in the workplace (2) conspicuous spaces. (Sec. 59(a), LGC)
In Gatchalian v. Uruttia (G.R. No. 223595, 16 Mar. XPN: Unless otherwise stated in the ordinance or
2022, J, Hernando), the Court ruled that Gatchalian, resolution. (Sec. 59(a), LGC)
as the city mayor, has the express power to discipline
Urrutia, the Chairman of the Board of Directors of the Effect of the Enforcement of a Disapproved
City Employees Cooperative, when he committed Ordinance or Resolution
Sexual Harassment acts against Laron, in accordance
with the LGC and the Charter of Valenzuela City. The It shall be a sufficient ground for the suspension or
LGC generally applies to the case at bar. However, the dismissal of the official or employee. (Sec. 58, LGC)
442
2023 GOLDEN NOTES
Ordinances Requiring Publication for its As to its validity
Effectivity If inconsistent with the
law or city or
1. Ordinances that carry with them penal If it is beyond the municipal ordinance.
sanctions. (Sec. 59(c), LGC) power conferred on
2. Ordinances and resolutions passed by the Sangguniang Effect: Barangay
highly urbanized and independent Panlungsod or Ordinance is
component cities. (Sec. 59(d), LGC) Sangguniang Bayan suspended until such
(Sec. 56, LGC) time as the revision
Review of Ordinances or Resolutions (2009 called is effected. (Sec.
BAR) 57, LGC)
COMPONENT CITIES (2) LOCAL INITIATIVE AND REFERENDUM

AND MUNICIPAL BARANGAY
ORDINANCES OR ORDINANCES Local Initiative
RESOLUTIONS
As to Who Reviews The legal process whereby the registered voters of
Sangguniang LGU may directly propose, enact, or amend any
Sangguniang ordinance. (Sec. 120, LGC)
Panlungsod or
Panlalawigan
Sangguniang Bayan
As to When copies of ordinance or resolutions Local Referendum
be forwarded
Within 3 days after Within 10 days after The legal process whereby the registered voters of
approval its enactment the LGU may approve, amend, or reject any
As to Period to examine ordinance enacted by the sanggunian. (Sec. 126,
Within 30 days after LGC)
the receipt;
NOTE: Local initiative includes not only ordinances
1. Examine, or but also resolutions as its appropriate subjects.
(Garcia v. COMELEC, G.R. 111230, 30 Sept. 1994)
2. Transmit to the
Provincial Attorney or
Provincial Prosecutor. Limitations on Local Initiative
Within 30 days after
the receipt. 1. It shall not be exercised for more than once
If it is transmitted, the
Provincial Attorney or a year.
Prosecutor must
submit his comments 2. It shall extend only to subjects or matters
or recommendations which are within the legal powers of the
within 10 days from sanggunian to enact.
receipt of the
document. 3. If at any time before the initiative is held,
the sanggunian concerned adopts in toto
As to When declared valid
the proposition presented and the local
If no action has been If no action has been
chief executive approves the same, the
taken within 30 days taken within 30 days
initiative shall be canceled. However, those
after submission. after submission.
against such action may, if they so desire,
443
apply for initiative in the manner herein Rule of COMELEC over Local Referendum
provided. (Sec. 124, LGC)
The local referendum shall be held under the
Procedure in conducting Local Initiative control and direction of the COMELEC within:
1. Number of voters who should file petition Provinces and

60 days
with the sanggunian concerned: Cities
Municipalities 45 days
Provinces and not less than 1,000 Barangay 30 days
Cities registered voters
at least 100 registered NOTE The COMELEC shall certify and proclaim the
Municipalities
voters results of the said referendum (Sec. 126, LGC)
at least 50 registered
Barangay
voters
Rule on Repeal, Modification and Amendment of
an Ordinance
2. The sanggunian concerned has 30 days to act
on the petition. If the sanggunian does not take
Any proposition or ordinance approved through an
any favorable action, the proponents may
initiative and referendum shall not be repealed,
invoke the powers of initiative, giving notice to
modified, or amended by the sanggunian within 6
Sanggunian;
months from the date of approval thereof.
3. Proponents will have the following number of
days to collect required number of signatures; It may be amended, modified, or repealed within 3
years thereafter by a vote of 3/4 of all its members
Provinces and (Sec. 125, LGC)
90 days
Cities
Municipalities 60 days NOTE: In case of barangays, the period shall be 18
Barangay 30 days months after the approval thereof. (Sec. 125, LGC)
Q: A law converted the component city of

4. Signing of petition in a public place, before the
Malumanay, Laguna into an HUC. The LGC
election registrar or his designated
provides that the conversion “shall take effect
representatives, in the presence of a
only after it is approved by the majority of votes
representative of the proponent and of the
cast in a plebiscite to be held in the political
sanggunian concerned; and
units directly affected.”
Before the COMELEC, Mayor Xenon of
5. Date of initiative is set by COMELEC if the
Malumanay City insists that only the registered
required number of signatures has been
voters of the city should vote in the plebiscite
obtained. (Sec. 122, LGC)
because the city is the only political unit directly
affected by the conversion. Governor Yuri
Effectivity of Proposition
asserts that all the registered voters of the
entire province of Laguna should participate in
If the proposition is approved by a majority of the
the plebiscite, because when the LGC speaks of
votes cast, it will take effect 15 days after
the “qualified voters therein,” it means all the
certification by the COMELEC. If it fails to obtain said
voters of all the political units affected by such
number of votes, the proposition is considered
conversion, and that includes all the voters of
defeated. (Sec. 123, LGC)
the entire province. He argues that the income,
population, and area of Laguna will reduce.
444
2023 GOLDEN NOTES
Who, between Mayor Xenon and Governor Yuri, seals which shall be registered with the DILG.
is correct? Explain your answer. (2016 BAR) Any change of corporate seal shall also be
registered as provided hereon. (Sec 22(b), LGC)
A: GOVERNOR YURI IS CORRECT. All the
registered voters of the Province of Laguna should 4. To Acquire and convey real or personal
be included in the plebiscite as the conversion of the property;
City of Malumanay into an HUC will adversely affect 5. To enter into Contracts; and
the Province of Laguna and its residents. Not only 6. To Exercise such other powers as are granted
will it reduce the province’s territory, once the City to corporations, subject to the limitations
of Malumanay becomes a highly urbanized city, the provided in the 1991 LGC and other laws. (Sec.
Province will no longer share in the taxes collected 22, LGC).
by the City of Malumanay. Thus, to limit the
plebiscite to the voters of the City of Malumanay g) ULTRA VIRES ACTS
would nullify the principle of majority rule. (Umali
v. COMELEC, G.R. No. 203974, 22 Apr. 2014) Ultra Vires Contracts
f) CORPORATE POWERS Ultra vires contracts are those which:
Beginning of Corporate Existence 1. Are entered into beyond the express,

implied, or inherent powers of the LGU; and
When a new LGU is created, its corporate existence 2. Do not comply with the substantive
shall commence upon the election and qualification requirements of law (e.g., when
of its chief executive and a majority of the members expenditure of public funds is to be made,
of its sanggunian, unless some other time is fixed there must be an actual appropriation and
therefor by the law or ordinance creating it. (Sec. 14, certificate of availability of funds). (Land
LGC) Bank of the Philippines v. Cacayuran, G.R. No.
191667, 17 Apr. 2013)
NOTE: Qualification means that they are able to take
oath under the said office. NOTE: Ultra vires contracts are null and void and
cannot be ratified or validated. (Maria Carla
Pirovano v. De La Rama Steamship, Co., G.R. No. L-
5377, 29 Dec. 1954)
Corporate Powers of an LGU Instance when a Defective Municipal Contract

May be Ratified
Every LGU, as a corporation, shall have the following
powers: (Co-S-Co-A-C-E) Ratification of defective municipal contracts is
possible only when there is non-compliance with
1. To have Continuous succession in its corporate the requirements of authority of the officer entering
name; into the contract and/or conformity with the formal
2. To Sue and be sued; requisites of a written contract as prescribed by law.
3. To have and use a Corporate seal; Ratification may either be expressed or implied.
NOTE: LGUs may continue using, modify, or NOTE: An act attended only by an irregularity, but
change their existing corporate seals: Provided, remains within the municipality’s power, is
that newly established LGUs or those without considered as an ultra vires act subject to
corporate seals may create their own corporate ratification and/or validation.
445
Examples facilities enumerated under Sec. 17 of LGC, from
local and foreign assistance agencies without
1. Those entered into by the improper necessity of securing clearance or approval from
department, board, officer of agent. any department, agency, or office of the national
2. Those that do not comply with the formal government or from any higher LGU; Provided, that
requirements of a written contract e.g., the projects financed by such grants or assistance with
Statute of Frauds. (Land Bank of the national security implications shall be approved by
Philippines v. Cacayuran, G.R. No. 191667, 17 the national agency concerned (Sec. 23, LGC)
Apr. 2013)
Q: The City Council of Calamba issued several
Contracts Entered Into by a Local Chief resolutions authorizing Mayor Tiama to
Executive May be Subject to Constructive negotiate with landowners within the vicinity of
Ratification Barangays Real, Halang, and Uno, for a new city
hall site and to purchase several lots and to
A loan agreement entered into by the provincial execute, sign and deliver the required
governor without prior authorization from the documents. Mayor Tiama then entered into
Sangguniang Panlalawigan is unenforceable. The Memorandum of Agreement, Deed of Sale, Deed
sanggunian’s failure to impugn the contract’s of Mortgage, and Deed of Assignment.
validity despite knowledge of its infirmity is an
implied ratification that validates the contract. Thereafter, Ong, a member of the City Council,
(Ocampo III v. People, G.R. No. 156547-51 & 156382- questioned the lack of ratification by the City
85, 04 Feb. 2008) Council of the contracts, among others. Should
all the documents pertaining to the purchase of
Doctrine of estoppel does not apply against a the lots bear the ratification by the City Council
municipal corporation to validate an invalid of Calamba?
contract
A: NO. Sec. 22(c) of the LGC provides that unless
The doctrine of estoppel cannot be applied as otherwise provided in this Code, no contract may be
against a municipal corporation to validate a entered into by the local chief executive on behalf of
contract which it has no power to make, or which it the LGU without prior authorization by the
is authorized to make only under prescribed sanggunian concerned. Clearly, when the local chief
conditions, within prescribed limitations, or in a executive enters into contracts, the law speaks of
prescribed mode or manner, although the prior authorization or authority from the
corporation has accepted the benefits thereof and Sangguniang Panlungsod and not ratification. It
the other party has fully performed its part of the cannot be denied that the City Council issued
agreement or has expended large sums in Resolution 280 authorizing Mayor Tiama to
preparation for performance. A reason frequently purchase the subject lots.
assigned for this rule is that to apply the doctrine of
estoppel against a municipality in such a case would NOTE: Ratification by the City Council is not a
be to enable it to do indirectly what it cannot do condition sine qua non for a mayor to enter into
directly. (In Re: Pechueco Sons Company v. Provincial contracts. With the resolution issued by the
Board of Antique, G.R. No. L-27038, 30 Jan. 1970) Sangguniang Panlungsod, it cannot be said that
there was evident bad faith in purchasing the
Authority to Negotiate and Secure Grants subject lots. (Vergara v. Ombudsman, G.R. No.
174567, 12 Mar. 2009)
The local chief executive may, upon authority of the
sanggunian, negotiate and secure financial grants or
donations in kind, in support of the basic services or
446
2023 GOLDEN NOTES
Competitive or Public Bidding LGUs and their officials are not exempt from liability
for death or injury to persons or damage to
Refers to a method of procurement which is open to property. (Sec. 24, LGC)
participation by any interested party, and which
consists of the following processes: advertisement, Suability is Not the Same as Liability
pre-bid conference, eligibility screening of
prospective bidders, receipt and opening of bids, It is a categorical statement that LGUs do not enjoy
evaluation of bids, post-qualification, and award of absolute and unqualified immunity from suits.
contract. (Sec. 5 (h), IRR of R.A. 9184) Therefore, an LGU’s suability is something that is
recognized but their liability is subject to evidence.
Requirement of public bidding (Pimentel, Jr., 2011)
In the award of government contracts, the law Governmental vs. Proprietary Functions
requires competitive public bidding. It is aimed at
protecting the public interest by giving the public GOVERNMENTAL PROPRIETARY
the best possible advantages thru open competition. FUNCTIONS FUNCTIONS
It is a mechanism that enables the government GR: If injury is caused
agency to avoid or preclude anomalies in the in the course of the
execution of public contracts. (Garcia v. Burgos, G.R. performance of a
No. 124130, 29 June 1998) governmental function
or duty, no recovery, as
Failure of bidding a rule, can be had from
the municipality nor The settled rule is that
The BAC shall declare the bidding a failure when any from its officers, so a municipal
of the following situations take place: (N-I-F) long as they performed corporation can be
their duties honestly held liable to third
a. No bids are received; and in good faith or persons ex contractu
b. All prospective bidders are declared that they did not act or ex delicto.
Ineligible; wantonly and
c. All bids Fail to comply with all the bid maliciously.
requirements or fail post-qualification; or the
bidder with the Lowest Calculated Responsive XPN: If there is an
Bid (LCRB) or Single Calculated and existing statute on the
Responsive Bid (SCRB) refuses, without matter
justifiable cause, to accept the award of
contract, and no award is made in accordance NOTE: There can be no hard and fast rule for
with Sec. 40 of the Act and this IRR (Sec. 35, IRR purposes of determining the true nature of an
of R.A. No. 9184) undertaking or function of a municipality; the
surrounding circumstances of a particular case are
2. LIABILITY OF LGUs to be considered and will be decisive. The basic
element, however beneficial to the public the
Every LGU, as a corporation, shall have the power to undertaking may be, is that it is governmental in
sue and be sued. (Sec. 22, (a)(2), LGC) essence, otherwise, the function becomes private or
proprietary in character. (Municipality of Malasiqui
LGUs have the power to sue and be sued. Because of v. Heirs of Fontanilla, G.R. No. L-29993, 23 Oct. 1978)
the statutory waiver, LGUs are not immune from
suit. (Agra, 2016)
447
Liabilities of LGUs (1994, 2009 BAR) of funds or other causes or its refusal to abide a
temporary restraining order may result in
1. LGUs and their officials are not exempt contempt charge and fine.
from liability arising from death or injury to
persons or damage to property. (Sec. 24, 2. Liability for Contracts
LGC)
NOTE:
2. LGUs shall be liable for damages for the
a. LGU is liable provided that the contract is
death of, or injuries suffered by, any person
intra vires or it is ultra vires that is only
by reason of the defective condition of
attended by irregularities, which does not
roads, streets, bridges, public buildings,
preclude ratification or the application of
and other public works under their control
the doctrine of estoppel.
or supervision. (Art. 2189, NCC)
If it is ultra vires, which are entered into
NOTE: It is not necessary for the liability
beyond the express, implied, or inherent
established under Art. 2189 of the NCC to
powers of the LGU or do not comply with
attach that the defective roads or streets
the substantive requirements of law they
belong to the province, city or municipality
are not liable.
from which responsibility is exacted. What
said article requires is that the province,
b. A private individual who deals with a
city, or municipality have either “control or
municipal corporation is imputed with
supervision” over said street or road. (City
constructive knowledge of the extent of the
of Manila v. Teotico, G.R. No. L-23052, 29 Jan.
power or authority of the municipal
1968)
corporation to enter into contracts.
3. The State is responsible in like manner

3. Liability for Tort
when it acts through a special agent; but
not when the damage has been caused by
NOTE: Under the doctrine of respondeat
the official to whom the task done properly
superior, a municipality is responsible or liable
pertains. In which case, Art. 2180 shall be
for the negligence of its agent acting within his
applicable. (Art. 2180(6), NCC)
assigned tasks. With respect to proprietary
functions, the settled rule is that a municipal
4. When a member of a city or municipal
corporation can be held liable to third persons
police force refuses or fails to render aid or
ex contractu. (Torio v. Fontanilla, G.R. No. L-
protection to any person in case of danger
29993, 23 Oct. 1978)
to life or property, such peace officer shall
be primarily liable for damages and the city
or municipality shall be subsidiarily Doctrine of Implied Municipal Liability
responsible therefor. (Art. 34, NCC)
A municipality may become obligated, upon an
Sources of Municipal Liability (Vi-C-Tor) implied contract, to pay the reasonable value of the
benefits accepted or appropriated by it as to which
1. Liability arising from Violation of Law it has the general power to contract. The doctrine of
implied municipal liability has been said to apply to
NOTE: Liability arising from violation of law all cases where money or other property of a party
such as closing municipal streets without is received under such circumstances that the
indemnifying persons prejudiced thereby, non- general law, independent of express contract,
payment of wages to its employees due to lack implies an obligation upon the municipality to do
448
2023 GOLDEN NOTES
justice with respect to the same. (Province of Cebu v. though it may be – imposed on the municipality no
IAC, G.R. No. 72841, 29 Jan. 1987) duty to pay monetary compensation. (Municipality
of San Fernando v. Hon. Firme, G.R. No. L-52179, 8
NOTE: The obligation of a municipal corporation Apr. 1991)
upon the doctrine of an implied contract does not
connote an enforceable obligation. Some specific Q: The Municipality of Malasiqui authorized the
principle or situation of which equity takes celebration of town fiesta by way of a resolution
cognizance must be the foundation of the claim. The and appropriated an amount for the
principle of liability rests upon the theory that the construction of two stages. One of the members
obligation implied by law to pay does not originate of the group to perform a play during the fiesta
in the unlawful contract but arises from was Fontanilla. Before the dramatic part of the
considerations outside it. The measure of recovery play was reached, the stage collapsed, and
is the benefit received by the municipal corporation. Fontanilla was pinned underneath resulting to
The province cannot set up the plea that the his death. The heirs of Fontanilla filed a
contract was ultra vires and still retain benefits. complaint against the Municipality. Is the
(Province of Cebu v. IAC, ibid.) municipality liable?
Tort liability of LGUs A: YES. The town fiesta was an exercise of a private
or proprietary function of the municipality. Holding
GR: Not liable a fiesta, even if the purpose is to commemorate a
religious or historical event of the town, is in
LGU engaged in
XPN: Unless it is expressly essence an act for the special benefit of the
governmental
made liable by a statute, or community and not for the general welfare of the
function
its officers acted wantonly public performed in pursuance of a policy of the
or maliciously. State. No governmental or public policy of the state
LGU engaged in is involved in the celebration of a town fiesta.
proprietary Liable (Municipality of Malasiqui v. Heirs of Fontanilla, G.R.
function No. L-29993, 23 Oct. 1978)
(Torio v. Fontanilla, G.R. No. L-29993, 23 Oct. 1978)
Q: X was elected as Vice Mayor of Dasol,
Q: A collision between a passenger jeepney, sand Pangasinan. The Sangguniang Bayan adopted
and gravel truck, and a dump truck driven by Resolution No. 1 which increased the salaries of
Monte and owned by the Municipality of San the Mayor and Municipal Treasurer to P18,636
Fernando occurred which resulted to the death and P16,044 per annum respectively. However,
of Jessica, a passenger of the jeepney. The heirs the Resolution did not provide for an increase in
of Jessica instituted an action for damages salary of the Vice Mayor despite the fact that
against the Municipality. Is the municipality such position is entitled to an annual salary of
liable for the tort committed by its employee? P16,044. X questioned the failure of the
Sangguniang Bayan to appropriate an amount
A: NO. The driver of the dump truck was performing for the payment of his salary. The Sangguniang
duties or tasks pertaining to his office – he was on Bayan increased his salary and enacted a
his way to get a load of sand and gravel for the repair Resolution No. 2 appropriating an amount as
of San Fernando's municipal streets. The payment of the unpaid salaries. However, the
municipality cannot be held liable for the tort Resolution was vetoed by the respondent
committed by its regular employee, who was then mayor.
engaged in the discharge of governmental functions.
The death of the passenger – tragic and deplorable
449
Can X avail of damages due to the failure of the Sangguniang Panlalawigan; and
respondents to pay him his lawful salary?
3. Municipalities or component cities of different
A: YES. The Mayor alone should be held liable and provinces are jointly referred to the sanggunians
not the whole Sanggunian Bayan. Respondent concerned.
Mayor vetoed the Resolution without just cause.
While “to veto or not to veto involves the exercise of The same rule mentioned in paragraph (c) is
discretion” as contended by respondents, followed when the boundary disputes involve a
respondent Mayor, however, exceeded his authority component city or municipality, on the one hand,
in an arbitrary manner when he vetoed the and a highly urbanized city on the other, or between
resolution since there are sufficient municipal funds or among highly urbanized cities. (Pimentel Jr.,
from which the salary of the petitioner could be 2011)
paid.
Procedure for Settling Boundary Disputes
Respondent Mayor’s refusal, neglect, or omission in
complying with the directives of the Provincial Art. 17, Rule III of the Rules and Regulations of the
Budget Officer and the Director of the Bureau of LGC outlines the procedures governing boundary
Local Government that the salary of X be provided disputes, which succinctly includes the filing of the
for and paid the prescribed salary rate, is reckless proper petition, and in case of failure to amicably
and oppressive, hence, by way of example or settle, a formal trial will be conducted, and a
correction for the public good, respondent Mayor is decision will be rendered thereafter. An aggrieved
liable personally to the petitioner for exemplary or party can appeal the decision of the sanggunian to
corrective damages. (Pilar v. Sangguniang Bayan ng the appropriate RTC. (Calanza v. PICOP, G.R. No.
Dasol, Pangasinan, G.R. No. 63216, 12 Mar. 1984) 146622, 24 Apr. 2009)
3. SETTLEMENT OF BOUNDARY DISPUTES Boundary disputes between and among

municipalities in the same province may be filed
immediately with the RTC (2009 BAR)
Boundary Dispute
The statement that boundary disputes between and

When a portion or the whole of the territorial area
among municipalities in the same province may be
of an LGU is claimed by two or more LGUs.
filed immediately with the RTC is false. Under Sec.
118 of the LGC, they should be referred for
settlement to the Sangguniang Panlalawigan.
Jurisdictional Responsibility for Settlement of
(Municipality of Sta. Fe v. Municipality of Aritao, G.R.
Boundary Dispute
No. 140474, 21 Sept. 2007)
Generally, the rule is to settle boundary disputes

Rules and Regulations in Boundary Disputes
between and among LGUs amicably. Specifically,
boundary disputes involving the LGUs are referred
1. Filing of petition - The sanggunian concerned
for settlement to the sanggunians concerned.
may initiate action by filing a petition, in the form
of a resolution, with the sanggunian having
Examples of Boundary Disputes
jurisdiction over the dispute.
1. Barangays within one municipality or city are

2. Contents of petition - The petition shall state the
referred to the Sangguniang Bayan or the
grounds, reasons or justifications therefore.
Sangguniang Panlungsod;
3. Documents attached to petition

2. Municipalities within the same province to the
450
2023 GOLDEN NOTES
(Co-Ma-T-Ce-D-O) from each sanggunian. They shall elect from
among themselves a presiding officer and a
The petition shall be accompanied by: secretary. In case of disagreement, selection
shall be by drawing lot.
a. Duly authenticated Copy of the law or
statute creating the LGU or any other
7. Failure to settle - In the event the sanggunian
document showing proof of creation of
fails to amicably settle the dispute within 60
the LGU;
days from the date such dispute was referred
thereto, it shall issue a certification to the effect
b. Provincial, city, municipal, or barangay
and copies thereof shall be furnished the parties
Map, as the case may be, duly certified
concerned.
by the LMB.
8. Decision - Within 60 days from the date the

c. Technical description of the boundaries
certification was issued, the dispute shall be
of the LGUs concerned;
formally tried and decided by the sanggunian
concerned. Copies of the decision shall, within 15
d. Written Certification of the provincial,
days from the promulgation thereof, be
city, or municipal assessor, as the case
furnished the parties concerned, DILG, local
may be, as to territorial jurisdiction
assessor, COMELEC, NSO, and other NGAs
over the disputed area according to
concerned.
records in custody;
9. Appeal - Within the time and manner prescribed

e. Written Declarations or sworn
by the Rules of Court, any party may elevate the
statements of the people residing in the
decision of the sanggunian concerned to the
disputed area; and
proper RTC having jurisdiction over the dispute
by filing therewith the appropriate pleading,
f. Such Other documents or information
stating among others, the nature of the dispute,
as may be required by the sanggunian
the decision of the sanggunian concerned and
hearing the dispute.
the reasons for appealing therefrom. The RTC
shall decide the case within one (1) year from the
4. Answer of adverse party - Upon receipt by the filing thereof. Decisions on boundary disputes
sanggunian concerned of the petition together promulgated jointly by two (2) or more
with the required documents, the LGU or LGUs Sangguniang Panlalawigans shall be heard by
complained against shall be furnished copies the RTC of the province, which first took
thereof and shall be given 15 working days cognizance of the dispute.
within which to file their answers.
Q: There was a boundary dispute between
5. Hearing - Within 5 working days after receipt of Dueñas, a municipality, and Passi, an
the answer of the adverse party, the sanggunian independent component city, both of the same
shall hear the case and allow the parties province. State how the two LGUs should settle
concerned to present their respective evidences. their boundary dispute.
6. Joint hearing - When two or more sanggunians A: Since Passi is an independent component city,
jointly hear a case, they may sit en banc or while Duenas is a municipality, the procedure in Sec.
designate their respective representatives. 118 of the LGC does not apply to them. Since there
Where representatives are designated, there is no law providing for the jurisdiction of any court
shall be an equal number of representatives or quasi-judicial agency over the settlement of their
451
boundary dispute, the RTC has jurisdiction to better lots for that purpose. Resolve the case
adjudicate it. Under Sec. 19(6) of the Judiciary with reasons.
Reorganization Act, the RTC has exclusive original
jurisdiction in all cases not within the exclusive A: The limitations on the power of eminent domain
jurisdiction of any court or quasi-judicial agency. are that the use must be public, compensation must
(Municipality of Kananga v. Madron, G.R. No. 141375, be made, and due process of law must be observed.
30 Apr. 2003) The necessity of exercising eminent domain must be
genuine and of a public character. Government may
Q: The Sangguniang Bayan of the Municipality of not capriciously choose what private property
Santa, Ilocos Sur passed Resolution No. 1 should be taken. Should it be proven that better lots
authorizing its mayor to initiate a petition for the exist suited for the purpose of expropriation, the
expropriation of a lot owned by Christina as site complaint for eminent domain should be dismissed.
for its municipal sports center. This was (Moday v CA, GR No. 107916, 20 Feb. 1997)
approved by the mayor. However, the
Sangguniang Panlalawigan of Ilocos Sur 4. VACANCIES AND SUCCESSION OF LOCAL
disapproved the Resolution as there might still OFFICIALS
be other available lots in Santa for a sports
center. Nonetheless, the Municipality of Santa,
Vacancy in LGUs
through its Mayor, filed a complaint for eminent
domain. Christina opposed this on the following
Absence should be reasonably construed to mean
grounds: (2005 BAR)
‘effective’ absence, that is, one that renders the
officer concerned powerless, for the time being, to
a) The Municipality of Santa has no power to
discharge the powers and prerogatives of his/her
expropriate;
office. There is no vacancy whenever the office is
occupied by a legally qualified incumbent. A sensu
A: The Municipality of Santa has the power to
contrario, there is a vacancy when there is no person
expropriate for the power of eminent domain is
lawfully authorized to assume and exercise at
granted by the LGC to all local government units.
present the duties of the office. (Gamboa, Jr. v.
However, the Code requires an ordinance and not a
Aguirre, G.R. No. 134213, 20 July 1999)
resolution for the exercise of the power of eminent
domain. (Heirs of Alberto Suguitan v. City of
Classes of vacancies in the elective post
Mandaluyong, GR No. 135087, 14 Mar. 2000)
1. Permanent; and
b) Resolution No. 1 has been voided since the
2. Temporary.
Sangguniang Panlalawigan disapproved it
for being arbitrary; and
PERMANENT TEMPORARY
Arises when an Arises when an elected
A: The Sangguniang Panlalawigan of Ilocos Sur was
elected local official: official is temporarily
without the authority to disapprove Resolution No. 1
(H-D-P-A-R-Vo-Q) incapacitated to
for the Municipality of Santa clearly has the power to
perform his duties due
exercise the right of eminent domain. The provincial
1. Fills a Higher to legal or physical
board’s disapproval of any resolution, ordinance, or
vacant office; or reason such as:
order must be premised specifically upon the fact
2. Refuses to (P-LOA-T-S)
that such resolution, ordinance, or order is outside
Assume office; or
the scope of the legal powers conferred by law.
3. Fails to Qualify; 1. Physical sickness;
(Moday v. CA, GR No. 107916, 20 Feb 1997)
or 2. Leave Of Absence;
4. Dies; or 3. Travel abroad; or
c) The Municipality of Santa has other and
5. Removed from
452
2023 GOLDEN NOTES
office; or 4. Suspension from a. Highest ranking Sanggunian
office. (Sec. 46, member; in case of the
6. Voluntarily LGC) permanent disability of
resigns; or Office of the highest ranking Sanggunian
Vice member;
7. Permanently Governor
incapacitated to b. Second highest ranking
discharge the Sanggunian member in case
functions of his of permanent inability of (a)
office. (Sec. 44,
LGC) NOTE: The highest-ranking
municipal councilor’s
Filling of Vacancy succession to the office of vice-
Office of the mayor cannot be considered a
1. Automatic succession; or Vice Mayor voluntary renunciation of his
2. By appointment. (Sec. 45, LGC) office as councilor, since it
occurred by operation of law.
Rules of succession in case of permanent (Montebon v. COMELEC, G.R. No.
vacancies (1995, 1996, 2002 BAR) 180444, 8 Apr. 2008)
a. Highest ranking Sanggunian
a. Vice-Governor; in his member; in case of the
absence, permanent disability of
Office of the
highest ranking Sanggunian
Punong
b. Highest ranking Sanggunian member;
Barangay
member; in case of the
Office of the
permanent disability of b. Second highest ranking
Governor
highest ranking Sanggunian Sanggunian member
member,
NOTE: For purposes of succession, ranking in
c. Second highest ranking the Sanggunian shall be determined on the
Sanggunian member basis of the proportion of the votes obtained
a. Vice-Mayor; in his absence, by each winning candidate to the total number
of registered voters in each district in the
b. Highest ranking Sanggunian immediately preceding local election. (Sec.
member; in case of the 44(d)(3), LGC)
Office of the permanent disability of In case automatic succession is not applicable
Mayor highest ranking Sanggunian and there is vacancy in the membership of the
member, sanggunian,
c. Second highest ranking it shall be filled up by appointment in the following

Sanggunian member manner:
1. The President, through the Executive

Secretary, shall appoint the political
nominee of the local chief executive for the
Sanggunian Panlalawigan and Panlungsod
453
of highly urbanized cities and independent A: YES, he may run again for the position of
component cities; (Sec. 45(a)(1), LGC) Municipal Councilor. If the official runs again for the
same position prior to his assumption of the higher
2. The Governor shall appoint the political office, his succession to said position is by operation
nominees for the Sangguniang Panlungsod of law and is considered involuntary severance or
of component cities and the Sangguniang interruption. (Abundo Sr. v. COMELEC, G.R. No.
Bayan concerned; (Sec. 45(a)(2), LGC) 201716, 08 Jan. 2013)
3. The city or municipal mayor shall appoint Hold-over status

the recommendation of the Sangguniang
Barangay concerned. (Sec. 45(a)(3), LGC) In case of failure of elections involving barangay
officials, the incumbent officials shall remain in
GR: The successor (by appointment) should come office in a hold-over capacity pursuant to R.A. 9164.
from the same political party as the sanggunian (Adap v. COMELEC, G.R. No. 161984, 21 Feb. 2007)
member whose position has become vacant.
The “last vacancy” in the Sanggunian
XPN: In the case of vacancy in the Sangguniang
Barangay. It refers to the vacancy created by the elevation of
the member formerly occupying the next higher in
NOTE: The reason for the rule is to maintain the rank, which in turn also had become vacant by any
party representation as willed by the people in the of the causes enumerated. (Navarro and Tamayo v.
election. CA, G.R. No. 141307, 28 Mar. 2001)
Q: R was elected as Municipal Councilor for Q: In the 1997 local elections Calimlim was
three (3) consecutive terms. Before the end of elected as Mayor, Aquino as Vice-Mayor and
the third term, Vice Mayor S died, rendering his Tamayo as the highest-ranking member of the
post vacant. Since R was the highest-ranking Sanggunian. In 1999, Mayor Calimlim died, thus
Municipal Councilor, he assumed the office of Vice-Mayor Aquino succeeded him as Mayor.
the Vice Mayor. One of his constituents, T, Accordingly, the highest-ranking member of the
assailed R’s assumption of office, arguing that Sanggunian, Tamayo, was elevated to the
elections should have been conducted to fill the position of the Vice-Mayor. Since a vacancy
vacancy following the death of Vice Mayor S. occurred in the Sangguniang Bayan by the
(2019 BAR) elevation of petitioner Tamayo to the office of
the Vice-Mayor, Governor Agbayani appointed
a. Is T’s contention correct? Explain. Navarro as Member of the Sangguniang Bayan.
Navarro belonged to the same political party as
A: NO, T’s contention is incorrect. Under the rule on that of Tamayo.
succession of elective officials, if a permanent
vacancy occurs in the office of the vice-mayor, the Respondents argue that it was the former vice-
highest ranking sanggunian member or, in case of mayor Aquino who created the permanent
his permanent inability, the second highest vacancy in the Sanggunian and thus, the
sanggunian member, shall become the vice-mayor. appointee must come from the former vice
(Sec. 44, LGC) mayor’s political party. Petitioners, however,
b. Assuming that R validly assumed S’s contend that it was the elevation of Tamayo to
post, at the end of R’s term as Vice the position of vice-mayor which resulted in a
Mayor, may he run, once more, for the permanent vacancy and thus, the person to be
position of Municipal Councilor? Or is he appointed to the vacated position should come
proscribed to do so under the LGC? from the same political party as that of Tamayo,
Explain.
454
2023 GOLDEN NOTES
in this case Navarro. Are the respondents the position by anyone.
correct?
GR: The acting Governor or Mayor cannot
A: NO. With the elevation of Tamayo to the position exercise the power to appoint, suspend or
of Vice-Mayor, a vacancy occurred in the dismiss employees.
Sanggunian that should be filled up with someone
who should belong to the political party of XPN: If the period of temporary incapacity
petitioner Tamayo. Under Sec 44 of the LGC, a exceeds 30 working days.
permanent vacancy arises when an elective official
fills a higher vacant office, refuses to assume office, 2. If travelling outside his jurisdiction but within
fails to qualify, dies, is removed from office, the country for a period not exceeding 3 days, the
voluntarily resigns, or is otherwise permanently local chief executive may designate in writing the
incapacitated to discharge the functions of his office. officer-in-charge of their respective offices. The
Sec 45 (b) of the same law provides that “only the OIC cannot exercise the power to appoint,
nominee of the political party under which the suspend or dismiss employee.
Sanggunian member concerned has been elected
and whose elevation to the position next higher in If no designation was made, then the vice
rank created the last vacancy in the Sanggunian governor, vice mayor, or in his absence, the
shall be appointed in the manner herein provided. highest-ranking member of the sanggunian is
The appointee shall come from the political party as authorized to assume the office on the 4th day of
that of the Sanggunian member who caused the absence of the local chief executive.
vacancy. The term “last vacancy” is thus used in Sec.
45(b) to differentiate it from the other vacancy 3. If the local chief executive’s travel exceeds 3
previously created. The term “by no means” refers days, the Vice-Governor or Vice-Mayor, or in his
to the vacancy in the No. 8 position which occurred absence, the highest ranking Sanggunian
with the elevation of 8th placer to the 7th position member assumes the office of the local chief
in the Sanggunian. Such construction will result in executive. (Sec. 46, LGC)
absurdity (Navarro v. CA, G.R. No. 141307, 28 Mar.
2001) Termination of temporary incapacity
1. Upon submission to the appropriate

NOTE: In case of vacancy in the representation of
sanggunian of a written declaration by the
the youth and the barangay in the Sanggunian
local chief executive concerned that he
sanggunian, it shall be filled automatically by the
has reported back to office, if the temporary
official next in rank of the organization concerned.
incapacity was due to:
(Sec. 45(d), LGC)
a. Leave of absence;
Rules on temporary vacancies (2002 BAR)
b. Travel abroad; and
1. In case of temporary vacancy of the post of the c. Suspension.
Governor, City or Municipal Mayor, or Punong
Barangay (leave of absence, travel abroad, and 2. Upon submission by the local chief
suspension): the Vice- Governor, City or executive of the necessary documents
Municipal Vice Mayor, or the highest ranking showing that the legal causes no longer
Sangguniang Barangay shall automatically exist, if the temporary incapacity was due
exercise the powers and perform the duties to legal reasons. (Sec. 46(b), LGC)
and functions of the local chief executive
concerned. Such automatic exercise means
that they no longer have to be appointed to
455
Rules on consecutiveness of terms and/or term of three years or for the major part of the 3-
involuntary interruption year term; an interruption for any length of time,
provided the cause is involuntary, is sufficient to
1. When a permanent vacancy occurs in an elective break the continuity of service.
position and the official merely assumed the
position pursuant to the rules on succession 6. When an official is defeated in an election protest
under the LGC, then his service for the unexpired and said decision becomes final after said official
portion of the term of the replaced official cannot had served the full term for said office, then his
be treated as one full term as contemplated loss in the election contest does not constitute an
under the subject constitutional and statutory interruption since he has managed to serve the
provision that service cannot be counted in the term from start to finish. His full service, despite
application of any term limit. If the official runs the defeat, should be counted in the application
again for the same position he held prior to his of term limits because the nullification of his
assumption of the higher office, then his proclamation came after the expiration of the
succession to said position is by operation of law term. (Abundo v. COMELEC, G.R. No. 201716, 08
and is considered an involuntary severance or Jan. 2013)
interruption.
Q: The petitioner was duly elected as Governor
2. An elective official, who has served for three of the Province of Camarines Norte in the 2010,
consecutive terms and who did not seek the 2013 and 2016 elections. He fully served his
elective position for what could be his fourth 2010-2013 and 2013-2016 terms. It is the turn
term, but later won in a recall election, had an of events in respect of the petitioner’s 2016-
interruption in the continuity of the official’s 2019 term that has spawned the controversy
service. For, he had become in the interim, i.e., under review. In 2013, one Edgardo Gonzales
from the end of the 3rd term up to the recall filed in the OMB an administrative complaint
election, a private citizen. charging the petitioner with grave misconduct,
oppression or grave abuse of authority. While
3. The abolition of an elective local office due to the the case was pending, the petitioner won as
conversion of a municipality to a city does not, by Governor in the 2013 elections. While he was
itself, work to interrupt the incumbent official’s serving his 2013-2016 term, the OMB found and
continuity of service. declared him administratively liable and
imposed upon him the penalty of suspension for
4. Preventive suspension is not a term- one year which suspension was immediately
interrupting event as the elective officer’s implemented by the Department of Interior and
continued stay and entitlement to the office Local Government (DILG). Also, several persons
remain unaffected during the period of initiated the second OMB case against the
suspension, although he is barred from petitioner. In the decision and approved by then
exercising the functions of his office during this Ombudsman Conchita Carpio Morales, the OMB
period. held the petitioner guilty of grave misconduct
and oppression/abuse of authority and ordered
5. When a candidate is proclaimed as winner for an his dismissal from the service.
elective position and assumes office, his term is
interrupted when he loses in an election protest Although the petitioner appealed to the CA, the
and is ousted from office, thus disenabling him DILG implemented the OMB decision in 2018 by
from serving what would otherwise be the ordering the petitioner to vacate his position as
unexpired portion of his term of office had the Governor. On the same date, the DILG issued
protest been dismissed (Lonzanida and Dizon). another memorandum addressed to then Vice
The break or interruption need not be for a full Governor Jonah Pedro G. Pimentel (Pimentel)
456
2023 GOLDEN NOTES
directing him to assume as Governor of
Camarines Norte. In the meanwhile, on October
15, 2018, the petitioner filed his Certificate of
Candidacy (COC) for Governor of Camarines
Norte for the May 2019 elections. In 2019, a
resolution by the COMELEC granted the
petitions and ordered the cancellation of the
petitioner’s COC. The petitioner contends that
his third term as Governor of Camarines Norte
was involuntarily interrupted when the
Ombudsman’s dismissal orders were
implemented, thereby preventing the
application of the three-term limit rule. Is the
contention of the Petitioner, correct?
A: NO. When an elective local public officer is

administratively dismissed by the OMB and his
penalty subsequently modified to another penalty,
like herein petitioner, the period of dismissal cannot
just be nonchalantly dismissed as a period for
preventive suspension considering that, in fact, his
term is effectively interrupted. During said period,
petitioner cannot claim to be Governor as his title is
stripped of him, despite the pendency of his appeal.
Neither does he exercise the power of the office.
Said title and power are already passed to the Vice
Governor. He also cannot claim that the exercise of
his power is merely suspended since it is not.
(Tallado v. COMELEC, G.R. No. 246679 (Resolution),
02 Mar. 2021)
5. RECALL
See page 404 for discussion on Recall.
6. TERM LIMITS
See page 337 for further discussion on term

limits.
457
f. To a certain extent, individuals.
PART TWO: PUBLIC INTERNATIONAL LAW
2. Indirect subjects
a. International organizations;
Public International Law (PIL)
b. Individuals; and
c. Corporations.
It is a body of legal principles, norms, and processes
which regulates the relations of States and other
3. Incomplete subjects
international persons and governs their conduct
affecting the interest of the international a. Protectorates;
community as a whole. (Magallona, 2005) i. Autonomous States
ii. Vassal States
Private International Law (PRIL) or Conflict of iii. Semi-Sovereign
Laws iv. Dependent States
It is that part of law which comes into play when the b. Federal states;
issue before the court affects some fact, event or c. Mandated and trust territories;
transaction that is so clearly connected with a d. Taiwan;
foreign system of law as to necessitate recourse to e. The Sovereign State of Malta; and
that system. (Sempio-Diy, 1947) f. The Holy See and Vatican City (Bernas,
2009)
Grand Divisions of PIL (P-War-N)
A subject of international law is an entity that has
1. Laws of Peace - They govern normal relations rights and responsibilities under that law. It has an
between States in the absence of war. international personality in that it can directly
2. Laws of War - They govern relations between assert rights and be held directly responsible under
hostile or belligerent states during wartime. the law of nations. It meant that it can be a proper
3. Laws of Neutrality - They govern relations party in transactions involving the application of the
between a non-participant State and a law of nations among members of the international
participant State during wartime or among community. (Cruz, 2003)
non-participating States. (Cruz, 2000)
The Objects of International Law
The Subjects of International Law:
They are those who indirectly have rights under or
a. States are beneficiaries of international law through
b. International Organizations subjects of international law. (Bernas, 2009)
c. Insurgents
d. National Liberation Movements Subject vs. Object of International Law
e. Individuals (Bernas, 2009)
SUBJECT OBJECT
1. Direct subjects As to Definition
Person or thing in
a. States; Entity that has rights
respect of which rights
b. Colonies and dependencies; and responsibilities
are held and
c. Mandates and trust territories (2003 Bar); under that law. (Cruz,
obligations assumed
belligerent communities; 2000)
by the subject.
d. The Vatican;
As to Applicable law
e. The United Nations (UN); international
Has international Not directly governed
administrative bodies; and
458
2023 GOLDEN NOTES
personality that it can by the rules of bring a claim on the individual’s behalf. Even then, it
directly assert rights international law. is not the individual’s rights that are being asserted,
and can be held but rather, the state’s own rights.
responsible under the
law of nations. The question whether the Philippine government
As to Capacity to Enter into Transactions should espouse claims of its nationals against a
It can be a proper party foreign government is a foreign relations matter,
in transactions Its rights are received, the authority for which is demonstrably committed
involving the and its responsibilities by our Constitution not to the courts but to the
application of the law imposed indirectly political branches. In this case, the Executive
of nations among through the Department has already decided that it is to the best
members of instrumentality of an interest of the country to waive all claims of its
international intermediate agency. nationals for reparations against Japan in the Treaty
communities. of Peace of 1951.
(Cruz, 2000)
The State is the sole judge to decide whether its
NOTE: Under the traditional concept, only states protection will be granted, to what extent it is
are considered subjects of international law. granted, and when it will cease. It retains, a
However, under the contemporary concept, discretionary power the exercise of which may be
individuals and international organizations are also determined by considerations of a political or other
subjects because they have rights and duties under nature, unrelated to the particular case. The
international law. (Cruz, 2000) International Law Commissions (ILCs) Draft
Articles on Diplomatic Protection fully support this
Q: Malaya Lolas have approached the Executive traditional view. They (i) state that "the right of
Department through the DOJ, DFA, and OSG, diplomatic protection belongs to or vests in the
requesting assistance in filing a claim against State, (ii) affirm its discretionary nature by
the Japanese officials and military officers who clarifying that diplomatic protection is a "sovereign
ordered the establishment of the “comfort prerogative" of the State; and (iii) stress that the
women” stations in the Philippines. But officials state "has the right to exercise diplomatic
of the Executive Department declined to assist protection on behalf of a national. It is under no duty
the petitioners and took the position that the or obligation to do so. (Vinuya v. Romulo, G.R. No.
individual claims of the comfort women for 162230, 28 Apr. 2010)
compensation had already been fully satisfied
by Japan’s compliance with the Peace Treaty International Community
between the Philippines and Japan. May we
force the government to pursue the claims of It is the body of juridical entities which are
comfort women under the doctrine of jus governed by the law of nations.
cogens?
NOTE: Under the modern concept, it is composed
A: NO, the Philippines is not under any international not only of States but also of such other
obligation to espouse petitioners’ claims. international persons such as the UN, the Vatican
City, colonies and dependencies, mandates and trust
From a domestic law perspective, the Executive territories, international administrative bodies,
Department has the exclusive prerogative to belligerent communities and even individuals.
determine whether to espouse petitioner’s claims
against Japan. In the international sphere, the only
means available for individuals to bring a claim
within the international legal system has been when
the individual is able to persuade a government to
459
unwritten agreements and to agreements
I. SOURCES OF OBLIGATIONS between States and international
organizations and between international
organizations. (Kaczorowska, 2010)
Primary Sources (2012 BAR)

Provisions of a Treaty
1. International conventions or treaties;
2. International custom; and Many treaties, particularly those of a multilateral
3. The general principles of law recognized by nature designed to establish general rules of
civilized nations. common application, exhibit a mixture of
‘legislative’ characteristics. A provision of a treaty
Subsidiary Sources may:
1. Judicial decisions; and 1. Purport to codify existing rules of

2. Teachings of the most highly qualified customary law, e.g., Art. 55 of the 1982
publicists of various nations. Convention on the Law of the Sea which
provides for the recognition of the EEZ;
NOTE: While primary sources create law, the
subsidiary sources constitute evidence of what the 2. Crystallize a developing rule of law, firmly
law is. establishing a legal footing a situation
which has previously been part of the
practice of a limited number of States; or
A. TREATIES
3. Generate rules of law independently of the
previous practice of State, e.g., prohibition
Treaty (2003 BAR) on the threat or use of force in international
relations. (Kaczorowska, 2010)
A treaty is generally defined as agreements between
and among States, by which parties obligate Requisites for Validity of a Treaty
themselves to act, or refrain from acting, according (T-Co-Co-La-Ra)
to the terms of the treaty. (Art. 2, Vienna Convention
on the Law of Treaties) 1. Treaty-making capacity - Every State possesses
the capacity to conclude treaties, as an attribute
However, under the Vienna Convention on the Law of sovereignty;
of Treaties (VCLT), a treaty has been defined as “an
international agreement concluded between States 2. Competence of the representative concluding
in written form and governed by international law, the treaty;
whether embodied in a single instrument or in two
or more related instruments and whatever its 3. Parties must freely give their Consent;
particular designation.”
4. Object and subject matter must be Lawful;
Essential Characteristics of Treaties
5. Ratification must be in accordance with the
1. It becomes binding on the parties to it by constitutional processes of the parties
virtue of their consent; and concerned. (Nachura, 2014)
2. While treaties will, in most cases, be
written instruments concluded between
States, the term applies equally to
460
2023 GOLDEN NOTES
Two Kinds of a Treaty Doctrine of Unequal Treaties
1. Law-making treaties (normative treaties); and Treaties which have been imposed through
2. Treaty contracts (Kaczorowska, 2010) coercion or duress by a State of unequal character
are void. (Nachura, 2014)
Law-making Treaties or Normative Treaties
Vienna Convention on the Law of Treaties
Treaties which are concluded by a large number of (VCLT) (2012 BAR)
States for purposes of:
The law of treaties is the body of rules which govern
1. Declaring, confirming, or defining there what is a treaty, how it is made and brought into
understanding of what the law is on a particular force, amended, terminated, and generally operates.
subject; Apart from issues of jus cogens, it is not concerned
with the substance of a treaty (the rights and
2. Stipulating or laying down new general rules obligations created by it), which is known as treaty
for future international conduct; and, law. Although the VCLT does not occupy the whole
ground of the law of treaties, it covers the most
3. Creating new international institutions. important areas and is the indispensable starting
point for any description of the law. For good
It lays down rules of general or universal reason, the VCLT has been called the treaty on
application and are intended for future and treaties. (Aust, 2006)
continuing observance.
It was adopted on May 22, 1969 and opened for
Treaty Contracts signature on May 23, 1969. The Convention entered
into force on January 27, 1980. (Vienna Convention
Resemble contracts in that they are concluded to on the Law of Treaties)
perform contractual rather than normative
functions. It usually concerns the regulation of a Scope of the VCLT
narrow area of practice between two States (e.g.
trade agreements). Such treaties may lead to the 1. The VCLT sets out the law and procedure for the
formation of general international law through the making, operation, and termination of a treaty;
operation of the principles governing the
development of customary rules in the following 2. It does not apply to all treaties, only those
ways: between States (Art. 1, VCLT). Nor is it
concerned with the substance of a treaty as
1. A series of treaties each of which lay down such. That is a matter for the negotiating States;
similar rules may produce a rule of customary
international law to the same effect. 3. The VCLT as a treaty does not apply
retroactively to treaties concluded before its
2. A rule contained in a treaty originally concluded entry into force. Only rules in the VCLT that
between a limited number of parties may codify or reflect rules of CIL apply; and
subsequently be accepted or imitated as a
general rule. 4. Because the VCLT resulted from a codification
project, many of its rules are consistent with
3. A treaty may have evidential value as to the otherwise applicable rules of CIL. (Vienna
existence of a rule which has crystallized into Convention on the Law of Treaties)
law by an independent process of development.
461
Fundamental Principles of the Law of Treaties Exclusions
1. The principle of free consent – A state cannot 1. Those concluded between states and other
be bound by treaty to which it has not subjects of IL;
consented. Free consent is vital for initial 2. Agreements not in writing; and,
adoption and subsequent development of a 3. Those which are governed by the national law
particular treaty as it ensures that a State system chosen by the parties.
remains in control of the commitments it has
made under the relevant treaty; Usual Steps in the Treaty-making Process
(Ne-S- R-A-R-E)
2. The principle of pacta sunt servanda –
Literally means agreements must be kept.
1. Negotiation – Conducted by the parties to reach
Embodied in Art. 26 VCLT, which states that;
an agreement on its terms;
‘Every treaty in force is binding upon the parties
to it and must be performed by them in good
2. Signature – The signing of the text of the
faith. Therefore, a contracting party will be held
instrument agreed upon by the parties;
responsible for breach of a treaty.’ Applies only
to treaties which are in force, not to invalid,
3. Ratification – The act by which the provisions of
suspended or terminated treaties; and
a treaty are formally confirmed and approved
by the State; (Vienna Convention on the Law of
3. The principle of good faith – Recognized as the
the Treaties)
foundation of international legal order. States
and non-State actors are required to comply
NOTE: In our jurisdiction, the power to ratify is
with binding obligations imposed upon them by
vested in the President. The role of the Senate is
international law, irrespective of whether such
limited only to giving or withholding its consent, or
obligations derive from treaties, customary
concurrence, to the ratification. (Sec. 21, Art. VII,
rules, or any other source of international law.
1987 Constitution)
It is all encompassing as it even imposes
obligations on a State in the pre-ratification
Constitutional Provisions on Concurrence of the
stage.
Senate on Treaties
It applies throughout the life of a treaty, from its

There are two constitutional provisions that require
negotiation, through its performance to its
the concurrence of the Senate on treaties or
termination.
international agreements:
Each time a State is in breach of the principle of

SEC. 25,
pacta sunt servanda it also violates the principle of SEC. 21, ART. VII
ART. XVIII
good faith. (Kaczorowska, 2010)
It deals with treaties This is a special
or international provision that applies to
Essential Requisites of a Valid Treaty
agreements in treaties which involve
general, in which the presence of foreign
1. It must be a written instrument or instruments
case, the concurrence military bases, troops, or
between two or more parties;
of at least two-thirds facilities in the
2. The parties must be States within the meaning
(2/3) of all the Philippines.
of international law (IL);
Members of the
3. It must be governed by IL; and
Senate is required to Under this provision, the
4. It must be intended to create legal obligations.
make the subject concurrence of the
treaty, or Senate is only one of the
462
2023 GOLDEN NOTES
international requisites to render Traditional Methods of Expressing Consent to a
agreement, valid and compliance with the Treaty
binding on the part of constitutional
the Philippines. This requirements and to 1. Signature – The legal effects of signature are as
means it forms part of consider the agreement follows:
Philippine law by binding on the
virtue of Philippines. a. The signing of a treaty may represent
transformation. simply an authentication of its text. Where
Sec. 25, Art. XVIII further signature is subject to ratification,
requires that "foreign acceptance or approval, signature does not
military bases, troops, or establish consent to be bound;
facilities'' may be (Kaczorowska, 2010)
allowed in the
Philippines only by NOTE: The act of signing a treaty creates an
virtue of a treaty duly obligation of good faith on the part of the
concurred in by the signatory: to refrain from acts calculated to
Senate, ratified by a frustrate the objects of the treaty and to submit
majority of the votes the treaty to the appropriate constitutional
cast in a national machinery for approval. Signature does not,
referendum held for that however, create an obligation to ratify.
purpose if so, required (Kaczorowska, 2015)
by Congress, and
recognized as such by b. In the case of a treaty which is only to
the other contracting become binding upon ratification,
state. (BAYAN v. Zamora, acceptance or approval, that treaty, unless
G.R. No. 138570, 10 Oct. declaratory of customary law, will not be
2000) enforceable against a party until one of
those steps is taken; and
NOTE: The involvement of the Senate in the treaty-
making process manifests the adherence of the c. Where a treaty is not subject to ratification,
Philippine system of government to the principle of acceptance or approval, but a State’s
checks and balances. This indispensable signature will signify consent to be bound.
participation of the legislative branch by way of The consent of a State to be bound by a
concurrence provides the “check” to the ratification treaty is expressed by the signature of its
of the treaty by the executive branch. (BAYAN vs. representatives when:
Zamora, G.R. No. 138570, 10 Oct. 2000)
i. The treaty provides that signature
4. Accession – A State can accede to a treaty only
shall have that effect;
if invited or permitted to do so by the
contracting parties. Such invitation or
ii. It is otherwise established that the
permission is usually given in the accession
negotiating states were agreed that
clause of the treaty itself;
signature should have that effect; or
5. Registration with the United Nations; and

iii. The intention of the State to give
effect to the signature appears from
6. Exchange of instruments of ratification. (Vienna
the full powers of the representative
Convention on the Law of the Treaties)
or was expressed during the
negotiations.
463
(Art. 12, Vienna Convention on the Law of the Accession or Adherence or Adhesion
Treaties)
Occurs when a State, which did not participate in the
2. Ratification – A formal act whereby one State negotiating and signing of the relevant treaty,
declares its acceptance of the terms of the treaty and formally accepts its provisions. It may occur before
undertakes to observe them. Ratification is used to or after a treaty has entered into force. It is only
describe two distinct procedural acts: possible if it is provided for in the treaty, or if all the
parties to the treaty agree that the acceding State
a. Ratification in municipal law. It is the formal should be allowed to accede. (Kaczorowska, 2010)
act of the appropriate organ of the State
affected in accord with national constitutional Ratification within the Powers of the President
law.
Q: A petition for mandamus was filed in the SC to
compel the Office of the Executive Secretary and
b. Ratification in international law. Ratification
the Department of Foreign Affairs to transmit
is a procedure which brings a treaty into force
(even without the signature of the President)
for the State concerned by establishing its
the signed copy of the Rome Statute of the
definitive consent to be bound by the particular
International Criminal Court (ICC) to the Senate
treaty. International law is not concerned with
of the Philippines for its concurrence or
the requirements of its constitutional law.
ratification – in accordance with Sec. 21, Art. VII
(Kaczorowska, 2010)
of the 1987 Constitution.
NOTE: Despite the fact that a treaty may be ratified

Petitioners contend that ratification of a treaty,
by nothing more than the signature of the relevant
under both domestic law and international law,
State’s representative, in many cases, States insist
is a function of the Senate. Under treaty law and
upon a ratification procedure consisting of more
customary international law, the Philippines
formal steps. (Kaczorowska, 2010)
has a ministerial duty to ratify the Rome Statute.
Respondents on the other hand, argued that the
Ratification is so required when under Art.
executive department has no duty to transmit
14(1) of the VCLT:
the Rome Statute to the Senate for concurrence.
Decide.
1. A treaty provides for such consent to be
expressed by means of ratification.
A: The power to ratify treaties does not belong to
the Senate.
2. It is otherwise established that the negotiating
States agreed that ratification should be
Under the Constitution the power to ratify is vested
required.
in the President subject to the concurrence of the
Senate. The President has the discretion even after
3. The representative of the State has signed the
the signing of the treaty by the Philippine
treaty subject to ratification.
representative whether or not to ratify a treaty. The
signature of the representative does not signify final
5. The intention of the State to sign the treaty
consent, it is ratification that binds the state to the
subject to ratification appears from the full
provisions of the treaty and renders it effective.
powers of its representative or was expressed
during the negotiation. (Vienna Convention on
The role of the Senate is limited only to giving or
the Law of Treaties)
withholding its consent, concurrence to the
ratification. It is within the President to refuse to
submit a treaty to the Senate or having secured its
consent for its ratification, refuse to ratify it. Such
464
2023 GOLDEN NOTES
decision is within the competence of the President including those concluded with non-members
alone, which cannot be encroached by this Court via (United Nations Charter);
writ of mandamus. (Pimentel v. Executive Secretary,
G.R. No. 158088, 06 July 2005) 3. The treaty itself may expressly extend its
benefits to non-signatory States; and
Interpretation of Treaties
4. Parties to apparently unrelated treaties may
A treaty shall be interpreted in good faith, in also be linked by the most-favored nation
accordance with the ordinary meaning given to the clause.
terms of the treaty in their context and in the light
of its objects and purposes. (Kaczorowska, 2010) Effectivity Date of a Treaty
Amendment or Modification of Treaties 1. In such manner and upon such date as it may
provide or as the negotiating States may agree;
To amend or modify provisions of the treaty, the or,
consent of all the parties is required. However, if
allowed by the treaty itself, two States may modify a 2. Failing any such provision or agreement, a
provision only insofar as they are concerned. (Art. treaty enters into force as soon as consent to be
31, Vienna Convention on the Law of Treaties) bound by the treaty has been established for all
the negotiating States. (Art. 24, Vienna
Protocol de Clôture Convention on the Law of Treaties)
It is a final act and an instrument which records the NOTE:

winding up of the proceedings of a diplomatic
conference and usually includes a reproduction of GR: A State may not invoke the fact that its consent
the texts of treaties, conventions, recommendations to the treaty was obtained in violation of its internal
and other acts agreed upon and signed by the law. (Art. 46, Vienna Convention on the Law of
plenipotentiaries attending the conference. Treaties)
(Tañada, et al. v. Angara, et al., G.R. No. 118295, 02
May 1997) XPN: If the violation was manifest and concerned a
rule of its internal law of fundamental importance.
Instances when a third State who is a non- (Art. 46, Vienna Convention on the Law of Treaties)
signatory may be bound by a treaty
A violation is manifest if it would be objectively
1. When a treaty is a mere formal expression of evident to any State conducting itself in the matter
customary international law, which, as such is in accordance with normal practice and in good
enforceable on all civilized states because of faith. (Kaczorowska, 2010)
their membership in the family of nations
(Bayan Muna v. Romulo, G.R. No. 159618, 01 Feb. Judicial Review of Treaties
2011);
Even after ratification, the Supreme Court has the
2. Under Art. 2 of its charter, the UN shall ensure power of judicial review over the constitutionality
that non-member States act in accordance with of any treaty, international or executive agreement
the principles of the Charter so far as may be and must hear such case en banc. (Sec. 5(2)(1), Art.
necessary for the maintenance of international VIII, 1987 Constitution)
peace and security. Under Art. 103, obligations
of member-states shall prevail in case of conflict
with any other international agreement
465
Rules in case of conflict between a treaty and a Q: Enhanced Defense Cooperation Agreement
custom (EDCA) authorizes the U.S. military forces to
have access to and conduct activities within
1. If the treaty comes after a particular custom- certain "Agreed Locations" in the country. It was
treaty prevails, as between the parties to the not transmitted to the Senate on the Executive's
treaty. understanding that to do so was no longer
necessary. Accordingly, in June 2014, the DFA
2. If the custom develops after the treaty- and the U.S. Embassy exchanged diplomatic
custom prevails it being an expression of a later notes confirming the completion of all necessary
will. internal requirements for the agreement to
enter into force in the two countries. Is the
Treaty vs. Executive Agreement (2015 BAR) Executive branch of government correct?
EXECUTIVE A: YES. The EDCA need not be submitted to the

TREATY
AGREEMENT Senate for concurrence because it is in the form of a
As to subject matter mere executive agreement, not a treaty. Under the
It involves: (T-I-T-A) Constitution, the President is empowered to enter
into executive agreements on foreign military bases,
1. arrangements of troops, or facilities if (1) such agreement is not the
Temporary instrument that allows the entry of such, and (2) if
It involves: (P-N-P) nature; it merely aims to implement an existing law or
2. Implementation of treaty.
1. basic Political treaties and
issues; statutes; EDCA is in the form of an executive agreement since
2. changes in 3. Transitory it merely involves “adjustments in detail” in the
National policy; effectivity; and implementation of the Mutual Defense Treaty and
and 4. Adjustment of the Visiting Forces Agreement. These are existing
3. agreements of a details carrying treaties between the Philippines and the U.S. that
Permanent out established have already been concurred in by the Philippine
character. national policies Senate and have thereby met the requirements of
and traditions. the Constitution under Art XVIII, Sec. 25. Because of
(Saguisag, et al. v. the status of these prior agreements, EDCA need not
Executive Secretary, et (Statement of the be transmitted to the Senate. (Saguisag v. Executive
al., G.R. No. 212426, 12 Philippines, The Rule of Secretary, G.R. No. 212426, 12 Jan. 2016)
Jan. 2016) Law at the National and
International Level on Applicable rules when there is conflict between
United Nations General a treaty and a domestic legislation
Assembly, 05-06
October 2016) The rule will depend on which court is deciding.
As to permanence
Permanent 1. International Court- will uphold treaty
Merely temporary
international obligation in general.
arrangements.
agreements.
Concurrence of Senate NOTE: However, Art. 46 of the VCLT states that:
It needs the It needs no
concurrence of 2/3 of concurrence from the a. A State may not invoke the fact that its
the Senate. Senate. consent to be bound by a treaty has been
expressed in violation of a provision of its
466
2023 GOLDEN NOTES
internal law regarding competence to conflicts with jus cogens, it is void. (2008 BAR)
conclude treaties as invalidating its consent
unless that violation was manifest and
concerned a rule of its internal law of
fundamental importance.
b. A violation is manifest if it would be

objectively evident to any State conducting
itself in the matter in accordance with
normal practice and in good faith.
2. Domestic Court
a. Treaty vs. Constitution – The

Constitution will always prevail.
b. Treaty vs. Statute - When the two
instruments relate to the same
subject, try to give effect to both; if
inconsistent, legal techniques on
statutory construction would be
employed. Some of such rules say that
the “later in time prevails” or that the
“specific law prevails over the general”.
Modification of a treaty
GR: A treaty may not be modified without the

consent of all the parties.
XPN: If allowed by the treaty itself, two states may

modify a provision only insofar as their countries
are concerned. (Alina, 2010)
1. CONCEPT OF JUS COGENS (PEREMPTORY

NORMS OF INTERNATIONAL LAW)
Jus Cogens
Also referred to as ‘peremptory norm of general

international law’. It literally means “compelling
law.” It is a norm accepted and recognized by the
international community of States as a whole as a
norm from which no derogation is permitted and
which can be modified only by a subsequent norm
of general international law having the same
character. (Art. 53, Vienna Convention on the Law of
Treaties)
NOTE: If a treaty at the time of its conclusion,
467
Elements of Jus Cogens Effects of Reservation and of Objections to
Reservations
1. A norm accepted and recognized by
international community of states as a whole; 1. Modifies, for the reserving State in its relations
2. No derogation is permitted; and with that other party, the provisions of the
3. Which can only be modified by a subsequent treaty to which the reservation relates to the
norm having the same character. extent of the reservation;
(Art. 53, Vienna Convention on the Law of Treaties) 2. Modifies those provisions to the same extent for
that other party in its relations with the
Examples or Norms with Jus Cogens in character reserving State;
1. Laws on genocide; 3. The reservation does not modify the provisions

2. Principle of self-determination; of the treaty for the other parties to the treaty
3. Principle of racial non-discrimination; inter se; and
4. Crimes against humanity;
5. Prohibition against slavery and slave trade; 4. When a State objecting to a reservation has not
6. Piracy; and opposed the entry into force of the treaty
7. Torture. between itself and the reserving State, the
provisions to which the reservation relates do
(United Nations Report of the International Law not apply as between the two States to the
Commission, 74th Session, A/74/10, 2019) extent of the reservation. (Art. 21, Vienna
Convention on the Law of Treaties)
2. RESERVATIONS, WITHDRAWAL,
TERMINATION, AND REBUS SIC STANTIBUS Grounds of Nullity Affecting the Consent of a
Party to a Treaty
Reservation
1. Corruption of a representative of a State.
“Corruption” must be a substantial influence. A
It is a unilateral statement, however phrased or
small courtesy or favor shown to a
named, made by a State, when signing, ratifying,
representative will be insufficient.
accepting, approving, or acceding to a treaty,
whereby it purports to exclude or modify the legal
2. Coercion of a representative of a State. It must
effect of certain provisions of the treaty in their
be directed at the representative personally or
application to that State. (Art. 19, Vienna Convention
his/her family.
on the Law of Treaties)
3. Coercion of a State. It must be shown that the

When reservation is NOT applicable (P-S-I)
conclusion of a treaty has been procured by the
threat or use of force.
1. The reservation is Prohibited by the treaty;
4. Fraud.
2. The treaty provides that only Specified
reservations, which do not include the
5. Manifest violation of its internal law. The
reservation in question, may be made; or
alleged violation of a domestic law must concern
fundamental provisions which relate to the
3. The reservation is Incompatible with the object
State’s treaty-making power and must be
and purpose of the treaty. (Art. 19, Vienna
evident to any State acting by normal practice
and good faith.
468
2023 GOLDEN NOTES
6. Essential error. An error, whether unilateral or Grounds for Termination of a Treaty
mutual, must neither concern a question of law
nor the wording of text of a treaty agreed by the A party in the following situations has a choice
parties. It must relate to a fact or situation which either to suspend or terminate the relevant treaty:
was assumed at the time when a treaty was
concluded and formed an essential basis of its 1. All contracting parties to an earlier treaty are
consent. Further, a State will not be able to claim also parties to a later treaty and the two treaties
error if by its own conduct it contributed to it. relate to the same subject matter. (Sec. 3, Art. 59,
7. Violations of restrictions on the competence Vienna Convention on the Law of Treaties)
of the representative of a State. The
restrictions on the competence must have been 2. Material breach of a treaty (Sec. 3, Art. 60,
notified to the other parties. Vienna Convention on the Law of Treaties)
(Kaczorowska, 2010) 3. Impossible for a party to perform its obligations

(Sec.3, Art. 61, Vienna Convention on the Law of
Grounds of Nullity which Lead to Nullity of a Treaties)
Treaty for all Contracting Parties
4. Rebus sic stantibus (Sec.3, Art. 62, Vienna
1. A treaty is void if at the time of its conclusion Convention on the Law of Treaties)
it conflicts with a rule of jus cogens;
NOTE: Additionally, a treaty can be terminated:
2. If a new jus cogens emerges, any existing
treaty which is in conflict with that rule 1. When the termination of a treaty is in
becomes void and terminates. (International accordance with the terms of the treaty. (Sec. 3,
Law Commission, United Nations, 2017) Art. 54(a), Vienna Convention on the Law of
Treaties)
Grounds for the Suspension of a Treaty
2. Parties to the relevant treaty agreed to
A treaty may be suspended in six situations. Two of terminate the treaty. (Sec. 3, Art. 54 (b), Vienna
them are: Convention on the Law of Treaties)
1. Where all contracting parties agree to suspend 3. If the treaty is in conflict with the emergence of
the operation of a treaty, or some of its a new peremptory norm of general
provisions; international law. (Sec. 3, Art. 64, Vienna
2. Where two or more parties agree to suspend its
operation temporarily between themselves Termination vs. Suspension
provided this is either allowed under the
relevant treaty or not prohibited. When a treaty is suspended, it is still valid, but its
operation is suspended temporarily, either for all
(Vienna Convention Law Treaties) the parties or some of them. On the other hand,
when a treaty is terminated, it is no longer in force
NOTE: The remaining situations are set out in Arts. as it has ended its existence.
59-62 of the VCLT and are the same as for
termination of a treaty. Doctrine of Rebus Sic Stantibus
It states that a fundamental change of circumstances

which determined the parties to accept a treaty, if it
has resulted in a radical transformation of the
469
extent of the obligations imposed by it, may under Termination of Treaties
certain conditions, afford the party affected a
ground to invoke the termination of the treaty. (Art, The following are among the grounds/causes for
62(1), Vienna Convention on the Law of Treaties; termination of treaties:
Saguisag v. Ochoa, Jr., G.R. No. 212426, 12 Jan. 2016)
1. Expiration of the term, or withdrawal of a party
Requisites of Rebus Sic Stantibus (Not I-R, Must in accordance with the treaty.
U-R-I-S)
2. Extinction of one of the parties to the treaty (in
1. The change must Not have been caused by the case of bipartite treaties), when the rights and
party Invoking the doctrine. (Art, 62(2) (b), obligations under the treaty would not devolve
Vienna Convention on the Law of Treaties) upon the State that may succeed the extinct
State.
2. The doctrine cannot operate Retroactively, i.e.,
it must not adversely affect provisions which 3. Mutual agreement of all the parties.
have already been complied with prior to the
vital change in the situation. 4. Denunciation or desistance by one of the
parties. The right to give notice of termination
3. The change Must have been Unforeseen or or withdrawal is known as the right of
unforeseeable at the time of the perfection of the denunciation.
treaty. (Art, 62 (1), Vienna Convention on the
Law of Treaties) 5. Supervening impossibility of performance.
4. The doctrine must be invoked within a 6. Conclusion of a subsequent inconsistent treaty

Reasonable time. between the parties.
5. The duration of the treaty must be Indefinite. 7. Loss of the subject matter.
6. The change must be so Substantial that the 8. Material breach or violation of the treaty.
foundation of the treaty must have altogether
disappeared. 9. The application of the doctrine of rebus sic
stantibus.
Limitation on the Application of the Principle of
Rebus sic stantibus 10. The outbreak of war between the parties unless
the treaty precisely relates to the conduct of the
The principle of rebus sic stantibus cannot be war.
invoked as a ground for terminating or withdrawing
from a treaty if: 11. Severance of diplomatic relations, only if the
existence of such relationship is indispensable
1. The treaty establishes a boundary; or for the application of the treaty.
2. The fundamental change is the result of a
breach by the party invoking it of an obligation 12. The doctrine of jus cogens, or the emergence of
under the treaty or of any other obligation owed a new peremptory norm of general
to any other party to the treaty. (Art, 62(2), international law which renders void any
Vienna Convention on the Law of Treaties) existing treaty conflicting with such norm.
(Nachura, 2014)
470
2023 GOLDEN NOTES
NOTE: The House of Representatives (HoR) cannot international law system for the first time after a
take active part in the conduct of foreign relations, practice has become customary law is bound by
particularly in entering into treaties and such practice. (Alina, 2010; Crawford, 2012; Shaw,
international agreements. (Nachura, 2014) 2017)
As held in US v. Curtiss-Wright Export Corporation Persistent Objector Rule

(299 US 304), it is the President alone who can act as
the representative of the nation in the conduct of If during the formative stage of a rule of customary
foreign affairs. Although the Senate has the power international law, a State persistently objects to
to concur in treaties, the President alone can that developing rule it will not be bound by it. Once
negotiate treaties and Congress is powerless to a customary rule has come into existence, it will
intrude into this. apply to all States except any persistent objectors.
However, if the matter involves a treaty or an (Kaczorowska, 2015)
executive agreement, the HoR may pass a resolution
expressing its views on the matter. However, an objecting State, in order to rely on the
persistent objector rule, must:
B. CUSTOMARY INTERNATIONAL LAW 1. raise its objection at the formative stage of

the rule in question;
2. be consistent in maintaining its objection;
and,
International Conventions or Treaties
3. inform other States of its objection.
(Kaczorowska, 2015)
A treaty is an international agreement concluded
between states in written form and governed by
This is particularly important with regard to a rule
international law, whether embodied in a single
which has been almost universally accepted. If a
instrument or in two or more related instruments
State remains silent, its silence will be interpreted
and whatever its particular designation. (Art.
as acquiescence to the new rule. (Kaczorowska,
2(1)(a), Vienna Convention on the Law of Treaties)
2015)
International Custom or Customary

NOTE: The burden of proof is on the objecting State.
International Law (CIL)
The persistent objector rule does not apply if the CIL
has already evolved into a jus cogens rule. (Alina,
A custom is a practice which has grown between
2010)
states and has come to be accepted as binding by the
mere fact of persistent usage over a long period of
The relationship between Treaties and
time. (Cruz, 2003)
International Custom
Binding Effect of International Customs

They co-exist, develop each other and, sometimes,
clash. If there is a clash between a customary rule
GR: All States are bound by international customs,
and a provision of a treaty because they are of equal
including Dissenting States.
authority (except when the customary rule involved
is of a jus cogens nature whereupon being superior
XPN: Dissenting States are not bound by
it will prevail), the one which is identified as being
international customs if they had consistently
the lex specialis will prevail. The lex specialis will be
objected to it while the project was merely in the
determined contextually. (Alina, 2010; Shaw, 2017)
process of formation (Persistent Objector Rule).
Dissent, however, protects only the dissenter and

does not apply to other States. A State joining the
471
Treaties resulting to rules of Customary Law existence of the two elements of custom is manifest.
(North Sea Continental Shelf Cases, ICJ, 1969)
Treaties may give rise to rules of customary law
when the following conditions are present: The Objective Element – General Practice
1. The provisions of the treaty should be This is normally constituted by the repetition of
fundamentally norm-creating in character; certain behavior on the part of a State for a certain
length of time which manifests a certain attitude,
2. Participation in the treaty or convention must without ambiguity, regarding a particular matter.
include those States whose interest would be Evidence of state practice may include a codifying
affected by the provision in question; and, treaty, if a sufficient number of states sign, ratify, or
accede.
3. Within the period of time since the adoption of
the treaty or convention, State practice must However, as no particular duration is required for
have been both extensive and uniform. (Alina, practice to become law, on some occasions, instant
2010) customs come into existence. For that reason, a few
repetitions over a short period of time may suffice
NOTE: The party invoking the rule must be the one or many over a long period of time or even no
to prove that the rule meets all the requirements for repetition at all in so far as an instant custom is
the creation of customary law. (Alina, 2010) concerned. However, the shorter the time, the more
extensive the practice would have to be to become
The treaty may also reflect a custom in three ways: law.
1. It may be declarative of a custom; or, Practice must be constant and uniform, in particular
2. It may crystallize a rule of custom in statu with regard to the affected States, but complete
nascendi; or, uniformity is not required. It would suffice that
3. It may serve to generate a rule of customary conduct is generally consistent with the rule and
law in the future. (Alina, 2010) that instances of practice inconsistent with the rule
are treated as breaches of that practice concerned,
1. ELEMENTS this will usually mean widespread but not
necessarily universal adherence to the rule.
A Customary Rule requires the presence of two

Indeed, custom may be either general or regional.
elements:
General customs apply to the international
community as a whole. Local or regional customs
1. An objective element (general practice)
apply to a group of States or just two States in their
consisting of a relatively uniform and constant
relations inter se. (Alina, 2010)
State practice; and
The Subjective Element – Opinio Juris Sive

2. A psychological element consisting of
Necessitates
subjective conviction of a State that it is legally
bound to behave in a particular way in respect of
To assume the status of CIL, the rule in question
a particular type of situation. This element is
must be regarded by States as being binding in law,
usually referred to as the opinio juris sive
i.e., that they are under a legal obligation to obey it.
necessitates. (North Sea Continental Shelf Cases,
(Bernas, 2009)
ICJ, 1969)
The main purpose of the opinio juris sive necessitates

No particular length of time is required for the
is to distinguish between customary rule and mere
formation of customary norms so long as the
472
2023 GOLDEN NOTES
usage followed out of courtesy or habit. Usage, while omnes obligations are rules of jus cogens.
also a long-established way of doing things, is not
coupled with opinio juris (conviction that it is 2. With regard to jus cogens obligations, the
obligatory and right). (Shaw, 2017) emphasis is on their recognition by the
international community ‘as a whole,’ whilst
NOTE: In the North Sea Continental Shelf Cases, the with regard to obligations erga omnes, the
ICJ stated that the party asserting a rule of emphasis is on their nature.
customary international law bears the burden of
proving it meets both requirements (objective and 3. The legal consequences of violations or rules
psychological elements). (North Sea Continental creating erga omnes obligations differ from
Shelf as cited in Mijares v. Ranada, G.R. No. 139325, those of breach of the rules of jus cogens in that
12 Apr. 2005) in addition to the consequences deriving from a
breach of erga omnes obligations further
2. OBLIGATIONS ERGA OMNES consequences, specified in Art. 53 of the Vienna
Convention on the Law of Treaties (VCLT), follow
from violations of the rules of jus cogens.
Obligations Erga Omnes
NOTE: Under Art. 53 of the VCLT, a treaty is void if,

An obligation of every State towards the
at the time of its conclusion, it conflicts with a jus
international community as a whole. All states have
cogens norm. Also, if a new jus cogens rule emerges,
a legal interest in its compliance, and thus all States
any existing treaty which is in conflict with the rule
are entitled to invoke responsibility for breach of
becomes void and terminates.
such an obligation. (Case Concerning the Barcelona
Traction, ICJ 1970)
Ex Aequo Et Bono
NOTE: Such obligations derive, for example, in
The concept of ex aequo et bono literally means
contemporary international law, from the
“according to the right and good” or “from equity
outlawing of acts of aggression, and of genocide, as
and conscience.” (Brownlie, 2003)
also from the principles and rules concerning the
basic rights of the human person, including
It is a judgment based on considerations of
protection from slavery and racial discrimination.
fairness, not on considerations of existing law, that
Some of the corresponding rights of protection have
is, to simply decide the case based upon a balancing
entered into the body of general international law
of the equities. (Brownlie, 2003)
others are conferred by international instruments
of universal or quasi-universal character. (Vinuya v.
NOTE: Under Art. 38 (1)(c) of the Statute of the
Romulo, G.R. No. 162230, 28 Apr. 2010)
International Court of Justice (ICJ), equity is
referred to as: 1) a general principle of
Examples of Obligations Erga Omnes
international law; and 2) a way of infusing
elements of reasonableness and
1. Outlawing of acts of aggression;
“individualized” justice whenever a law leaves a
2. Outlawing of genocide;
margin of discretion to a Court in deciding a case.
3. Basic human rights; and
If the principle of equity is accepted, customary law
4. Protection from slavery and racial
may be supplemented or modified in order to
discrimination.
achieve justice. (Kaczorowska, 2010)
Distinguish Jus Cogens from Erga Omnes

Under Art. 38(2) of the Statute of the ICJ, a decision
Obligation
may be made ex aequo et bono, i.e. the court should
decide the case not on legal considerations but
1. All jus cogens rules create erga omnes
solely on what is fair and reasonable in the
obligations while only some rules creating erga
473
circumstances of the case (equity contralegem). Judicial Decisions
However, the parties must expressly authorize the
court to decide a case ex aequo et bono. As there is no binding authority of precedent in
international law, international court and tribunal
Art. 33 of the United Nations Commission on cases do not make law. Judicial decisions are,
International Trade Law’s Arbitration Rules (1976) therefore, strictly speaking not a formal source of
provides that the arbitrators shall consider only law. However, they clarify the existing law on the
the applicable law, unless the arbitral agreement topic and may, in some circumstances, create a new
allows the arbitrators to consider ex aequo et bono, principle in international law. They can also be
or amiable compositeur. considered evidence of State practice.
(Kaczorowska, 2010)
C. GENERAL PRINCIPLES OF LAW Judicial decisions, whether from international

tribunals or from domestic courts, are useful to the
extent they address international law directly or
demonstrate a general principle. (Pelc, 2014)
General Principles of Law
Art. 59 of the Statute of the ICJ, provides that

The general principles of law are mostly derived
“decisions of the courts have no binding force,
from the law of nature and are observed by the
except for the parties and in respect of the case
majority of states because they are believed to be
concerned.”
good and just. (Cruz, 2003)
Thus, this provision shows that: (1) the Decision of

Reference to such principles is to both those which
the ICJ has no binding authority; and (2) the ICJ does
are inferred from municipal laws and those which
not make law. (Kaczorowska, 2010)
have no counterparts in municipal law and are
inferred from the nature of the international
NOTE: In practice, the ICJ will follow the previous
community. If there is no treaty relevant to a
decisions so as to have judicial consistency, or if it
dispute, or if there is no rule of CIL that can be
does not follow, the court will distinguish its
applied to it, the ICJ is directed, under Article 38 of
previous decisions from the case actually being
its Statute, to apply general principles of law.
heard. (Interpretation of Peace Treaties, 1950)
(Kaczorowska, 2010)
Teachings of Highly Qualified Publicists

NOTE: The main objective of inserting the third
source in Art. 38 is to fill in gaps in treaty and
This source generally only constitutes evidence of
customary law and to meet the possibility of a non
customary law. However, learned writings can also
liquet. (Nachura, 2014)
play a subsidiary role in developing new rules of
law.
Non Liquet; definition
Writings of highly qualified publicists are

Non liquet means the possibility that a court or
documents with the closest interpretation of the law
tribunal could not decide a case because of a ‘gap’ in
in its spirit which are only persuasive in nature.
law. (Shaw, 2017; Alina, 2010)
Although the ICJ has made scarce reference to the

e.g., Burden of proof, admissibility of evidence,
writings of the most highly qualified publicists
waiver, estoppel, unclean hands, necessity, and
either individually or as a group, their role in
force majeure. (Shaw, 2017; Alina, 2010)
determining the content of international law should
not be undermined. International and municipal
474
2023 GOLDEN NOTES
courts often consult their works in deciding a case. Soft Law (2009 BAR)
(Kaczorowska, 2010)
These are non-binding rules of international law.
Teachings of Authoritative Publicists (Including Soft law is of relevance and importance to the
Learned Writers) development of international law because it:
“Teachings” refer simply to the writings of learned 1. Has the potential of law-making, i.e. It may be a
scholars. However, Art. 38(1)(d) of the ICJ is starting point for later ‘hardening’ of non-
expressly limited to teachings of “the most highly binding provisions (e.g. UNGA resolutions may
qualified publicists.” be translated into binding treaties);
Such works are resorted to by judicial tribunals not 2. May provide evidence of an existing customary
for the speculation of their authors concerning rule;
what the law ought to be, but for trustworthy 3. May be formative of the opinio juris or of state
evidence of what the law really is. (Justice Gray in practice that creates a new customary rule;
Paquete Habana case, 175 U.S. 677)
4. May be helpful as a means of a purposive
Requisites to be a Most Highly Qualified interpretation of international law;
Publicist:
5. May be incorporated within binding treaties
1. His/her writings must be fair and impartial but in provisions which the parties do not
representation of law; and, intend to be binding; and
2. He/she acknowledged authority in the field.
6. May in other ways assist in the development
Burdens of Proof and application of general international law.
In the Corfu Channel Case (U.K. v. Albania, 1949), the NOTE: The importance of soft law is emphasized by
ICJ set out the burdens of proof applicable to cases the fact that not only States, but also non-State
before it. actors participate in the international law-making
process through the creation of soft law.
The Applicant normally carries the burden of proof Nevertheless, soft law is made up of rules lacking
with respect to factual allegations contained in its binding force, and the general view is that it should
claim by a preponderance of the evidence. not be considered as an independent, formal source
of international law despite the fact that it may
The burden falls on the Respondent with respect to produce significant legal effects. (Pharmaceutical
factual allegations contained in a crossclaim. and Health Care Association of the Philippines v.
However, the Court may draw an adverse inference Duque III, G.R. No. 173034, 09 Oct. 2007; Alina, 2010)
if evidence is solely in the control of one party that
refuses to produce it. (U.K. v. Albania, 1949) Q: Ang Ladlad was incorporated in 2003, and
first applied for registration with the COMELEC
Hard Law (2009 BAR) in 2006. The application for accreditation was
denied on the ground that the organization had
Means binding laws; to constitute law, a rule, no substantial membership base. On August 17,
instrument, or decision must be authoritative and 2009, Ang Ladlad again filed a Petition for
prescriptive. In international law, hard law includes registration with the COMELEC. On November
treaties or international agreements, as well as 11, 2009, after admitting the petitioner’s
customary laws. These instruments result in legally evidence, the COMELEC (Second Division)
enforceable commitments for countries (states) and dismissed the Petition on moral grounds. In this
other international subjects. Petition before the Court, Ang Ladlad invokes
475
that the Yogyakarta Principles - a set of Effect of Security Council Resolutions
international principles relating to sexual
orientation and gender identity, intended to Pursuant to Art. 25 of the UN Charter, all members of
address documented evidence of abuse of rights the UN agree to accept and carry out the decisions
of lesbian, gay, bisexual, and transgender of the Security Council. While other organs of the
(LGBT) individuals, reflects binding principles United Nations make recommendations to member
of international law. Can the Court consider states, only the Security Council has the power to
these principles as binding under international make decisions that member states are then
law? obligated to implement under the Charter.
A: NO, the Court cannot rely on the application of Effects of actions of Organs of International
the Yogyakarta Principle. Organizations created by a Treaty
There are declarations and obligations outlined in Although international organizations have
said Principles which are not reflective of the personality in international law, their powers and
current state of international law, and do not find privileges are by no means like those of States. Their
basis in any of the sources of international law powers and privileges are limited by the constituent
enumerated under Art. 38(1) of the Statute of the instrument that created them. (Bernas, 2009)
International Court of Justice. Petitioner also has not
undertaken any objective and rigorous analysis of The Court goes on to point out that international
these alleged principles of international law to organizations are subject of international law which
ascertain their true status. do not, unlike States, possess a general competence.
International organizations are governed by the
International law is full of principles that promote principle of speciality, that is to say, they are
international cooperation, harmony, and respect for invested by the States which create them with
human rights, most of which amount to no more powers, the limits of which are a function of the
than well-meaning desires, without the support of common interests whose promotion those States
either State practice or opinio juris. These principles entrust to them. (ICJ Advisory Opinion on the Use of
are at best - de lege ferenda - and do not constitute Nuclear Weapons)
binding obligations on the Philippines. Much of
contemporary international law is characterized by
the soft law nomenclature. (Ang Ladlad LGBT Party D. APPLICATION OF INTERNATIONAL LAW BY
v. COMELEC, G.R. No. 190582, 08 Apr. 2010) DOMESTIC COURTS
Effect of United Nations

Declarations/Resolutions
1. MONISM
United Nations General Assembly (UNGA)
resolutions are formal expressions of the opinion or Monism (Monistic Theory)
will of United Nations organs. UNGA resolutions are
merely recommendations, not laws, and thus not Both international law and domestic law are part of
binding on member states. (Bernas, 2009) a single legal order; international law is
automatically incorporated into each nation’s legal
But if they are supported by all the States, they are system and international law is supreme over
expression of opinio juris communis. Resolutions can domestic law.
also be a reflection of what has become customary
law. (Bernas, 2009) Here, international laws or norms are applicable
within the municipal system even without a positive
act of the state. (Bernas, 2009; Crawford, 2012)
476
2023 GOLDEN NOTES
2. DUALISM Scope of Responsibility
Collective
responsibility
Dualism (Dualist or Pluralist Theory) Individual
Reason: because it
responsibility. (Bernas,
attaches directly to the
This affirms that the international law and 2009)
state and not to its
municipal law are distinct and separate; each is
nationals. (Bernas,
supreme in its own sphere and level of operation.
2009)
An international norm or law must first be Role in International Tribunals
transformed or adopted into the municipal system Not subject to judicial
through a positive act of the state. (Bernas, 2009; notice before
Crawford, 2012) international tribunals
Subject to judicial (Art. 27, Vienna
International Law vs. Municipal Law notice before Convention on the Law
international tribunals. of Treaties; Permanent
(Bernas, 2009) Court of International
INTERNATIONAL LAW MUNICIPAL LAW Justice, 1931, Polish
Enacting Authority Nationals in Danzig
Issued by a political Case).
Adopted by states as a
superior for
common rule of action. Doctrine of Incorporation
observance. (Bernas,
(Bernas, 2009)
2009)
Purpose It means that the rules of international law form
Regulate relations of part of the law of the land and no further legislative
Regulate relations of action is needed to make such rules applicable in the
individuals among
states and other domestic sphere. It is opposed to the doctrine of
themselves or with their
international persons. transformation, which states that international law
own states. (Bernas,
(Bernas, 2009) only forms a part of municipal law if accepted as
2009)
Scope of Application such by statute or judicial decisions. (Sec. 21, Art. VII,
1987 Constitution; Government of the United States
Applies to the conduct
of America v. Purganan, G.R. No. 148571, 17 Dec.
of States and Applies to a single
2002; Bernas, 2009; Shaw, 2017)
international country or nation and
organizations, their within a determined
NOTE: The doctrine of incorporation is adopted in
relations with each territory and to its
our Constitution under Art. II, Sec. 2 which states
other or, their relations inhabitants. (Bernas,
that the Philippines adopts the generally accepted
with persons, natural or 2009)
principles of international law as part of the law of
juridical. (Bernas, 2009)
the land. (Sec. 2, Art. II, 1987 Constitution)
Source(s)
Derived principally Consists mainly of Examples of “Generally Accepted Principles of
from treaties, enactments from the International Law”
international customs, lawmaking authority of
and general principles each state. (Bernas, 1. Pacta sunt servanda (agreements must be kept);
of law. (Bernas, 2009) 2009)
Remedy in case of violation 2. Rebus sic stantibus (things standing thus);
Redressed thru local
Resolved thru state-to-
administrative and a. Things remain as they are
state transactions.
judicial processes. b. Opposite of pacta sunt servanda
(Bernas, 2009)
(Bernas, 2009)
477
3. Par in parem non habet imperium (equals have no the parties. A state which has contracted a valid
sovereignty over each other); international agreement is bound to make in its
legislation such modification as may be necessary to
a. All states are sovereign equals. ensure fulfillment of the obligation undertaken.
b. An equal state cannot assume jurisdiction
over another equal state. Principle of Auto-Limitation (2006 BAR)
4. State Immunity from Suit; It is the doctrine where a state adheres to

principles of international law as a
a. A state, and its agents acting within their limitation/restriction to the exercise of its
official capacity, cannot be sued without its sovereignty.
consent.
NOTE: While sovereignty has traditionally been
5. Right of states to self-defense; and deemed absolute and all-encompassing on the
domestic level, it is however subject to restrictions
6. Right to self-determination of people. and limitations voluntarily agreed to by the
Philippines, expressly or impliedly, as a member of
Doctrine of Transformation the family of nations. By the doctrine of
incorporation, the country is bound by generally
It provides that the generally accepted rules of accepted principles of international law, which are
international law are not per se binding upon the considered to be automatically part of our own laws.
state but must first be embodied in legislation Thus, sovereignty of a state is not absolute on an
enacted by the lawmaking body and so transformed international level.
into municipal law. (Cruz, 2003)
Corollary, a state has agreed to surrender some of
Through the treaty-making power of the President, its sovereign rights in exchange for greater benefits
rules and principles embodied in a treaty in force that it may derive by being a member of the family
would be transformed into Philippine law and shall of nations or by virtue of treaty stipulations.
become valid and effective upon concurrence of at
least two-thirds of all the Members of the Senate. Correlation of Reciprocity and the Principle of
(Sec. 21, Art. VII, 1987 Constitution) Auto-Limitation
Types of Transformation Theories When the Philippines enters into treaties,

necessarily, these international agreements may
1. Hard Transformation Theory. Only contain limitations on Philippine sovereignty. The
legislation can transform international law into consideration in this partial surrender of
domestic law. Courts may apply international sovereignty is the reciprocal commitment of other
law only when authorized by legislation; and, contracting States in granting the same privilege
and immunities to the Philippines. (Tañada v.
2. Soft Transformation Theory. Either a judicial Angara, G.R. No. 118295, 02 May 1997)
or legislative act of a state can transform
International Law into domestic law. NOTE: For example, this kind of reciprocity in
relation to the principle of auto-limitation
Pacta Sunt Servanda (2000 BAR) characterizes the Philippine commitments under
WTO-GATT. (Tañada v. Angara, G.R. No. 118295, 02
International agreements must be performed in May 1997)
good faith. A treaty engagement is not a mere moral
obligation but creates a legally binding obligation on
478
2023 GOLDEN NOTES
3. INVERTED MONISM are not superior to, national legislative enactments.
Accordingly, when the principle of lex posterior
derogat priori takes effect – a treaty may repeal a
Inverse Monism
statute and a statute may repeal a treaty.
A species of monism in the reverse, asserting that

In states where the Constitution is the highest law
municipal law has primacy over international law in
of the land, such as the Republic of the Philippines,
both international and municipal decisions.
both statutes and treaties may be invalidated if they
(O'Connell, International Law, 1970)
are in conflict with the Constitution. (Secretary of
Justice v. Hon. Ralph C. Lantion, G.R. No. 139465, 18
4. HARMONIZATION Jan. 2000)
Harmonization
Radically rejects the supposition of conflict between

international law and municipal law altogether.
Harmonization questions the overall soundness of

monist and dualist positions by arguing that the
attempt to resolve conflict by asserting the
automatic superiority of one legal order over the
other does not reflect the reality. (O'Connell,
International Law, 1970)
Rules to be observed in case there is conflict

between international law and domestic law
Efforts should first be exerted to harmonize them,

so as to give effect to both since it is to be presumed
that municipal law was enacted with proper regard
for the generally accepted principles of
international law in observance of the
Incorporation Clause in Sec. 2, Art. II of the
Constitution.
In a situation however, where the conflict is

irreconcilable, and a choice has to be made between
a rule of international law and municipal law,
jurisprudence dictates that municipal law should be
upheld by the municipal courts for the reason that
such courts are organs of municipal law and are
accordingly bound by it in all circumstances. The
fact that international law has been made part of the
law of the land does not pertain to or imply the
primacy of international law over national or
municipal law in the municipal sphere.
The doctrine of incorporation decrees that rules of

international law are given equal standing with, but
479
to provide for its own well-being and
II. INTERNATIONAL LEGAL PERSON development free from the domination of
other states, providing it does not impair or
violate their legitimate rights. As a right, it
means the right to exercise within its
portion of the globe, to the exclusion of
A. STATES others, the functions of a state. However,
restrictions upon a state’s liberty arising
either from customary law or from treaties
Definition do not deprive a state of independence.
Flowing from this right are the rights of
It is a community of persons, more or less
jurisdiction over its territory and
numerous, permanently occupying a definite
permanent population, the right to self-
portion of territory, independent of external
defense and the right of legation.
control, and possessing an organized government to
which the great body of inhabitants render habitual
2. Equality - refers to equality of legal rights
obedience. (Bernas, 2009)
irrespective of the size or power of the
state.
Doctrine of Equality of States
3. Peaceful co-existence - includes mutual

All states are equal in international law despite their
respect for each other’s territorial integrity
obvious factual inequalities as to size, population,
and sovereignty, mutual non-aggression,
wealth, strength, or degree of civilization.
non-interference in each other’s affairs and
(Sarmiento, 2007)
the principle of equality. (Bernas, 2009)
Principle of State Continuity
Extinguishment of a State
From the moment of its creation, the state continues
as a juristic being notwithstanding changes in its
The radical impairment of actual loss of one or more
circumstances provided only that they do not result
of the essential elements of the state will result in its
in the loss of any of its essential elements. (Sapphire
extinction. (Cruz, 2003)
Case, 11 Wall. 164 in Cruz, 2003)
Succession
Q: If State sovereignty is said to be absolute, how
is it related to the independence of other States
State succession takes place when one state
and to their equality on the international plane?
assumes the rights and some of the obligations of
another because of certain changes in the condition
A: From the standpoint of the national legal order,
of the latter. This holds true in the event that a state
State sovereignty is the supreme legal authority in
is extinguished or is created. (Cruz, 2000)
relation to subjects within its territorial domain.
This is the traditional context in referring to
It is the replacement of one State by another in the
sovereignty as absolute. However, in the
responsibility for the international relations of
international sphere, sovereignty realizes itself in
territory. (Art. 2(b), Vienna Convention on Succession
the existence of a large number of sovereignties,
of States in respect of Treaties)
such that there prevails in fact co-existence of
sovereignties under conditions of independence
A succession of States does not as such affect: (a) a
and equality. (Magallona, 2004)
boundary established by a treaty; or (b) obligations
Fundamental Rights of a State and rights established by a treaty and relating to the
regime of a boundary. (Art. 11(a)(b), Vienna
1. Independence - is the capacity of the state
480
2023 GOLDEN NOTES
Convention on Succession of States in respect of 3. As to public debts – the agreement between
Treaties) predecessor and successor State govern;
otherwise:
“Clean Slate” Rule
A newly independent State is not bound to maintain a. Where a part of the territory of a State
in force, or to become a party to, any treaty by becomes part of the territory of another
reason only of the fact that at the date of the State, local public debt and the rights and
succession of States the treaty was in force in obligations of the predecessor State under
respect of the territory to which the succession of contracts relating to that territory are
States relates. (Art. 16, 1978 Vienna Convention on transferred to the successor State;
the Succession of States with Respect to Treaties)
b. Where a State is absorbed by another State,
XPNs: public debt and the rights and obligations
under contracts of the absorbed State pass
1. When the new State agrees to be bound by the to the absorbing State;
treaties made by its predecessor;
2. Treaties affecting boundary regime (uti c. Where a part of a State becomes a separate
possidetis); and State, local public debt and the rights and
3. Customary international law. (Bernas, 2009) obligations of the predecessor State under
contracts relating to that territory are
Rules on State Succession transferred to the successor State. (Bernas,
2009)
1. As to territory – The capacities, rights and
duties of the predecessor State with respect to 4. As to treaties
that territory terminate and are assumed by the
successor State. (Bernas, 2009)
a. When part of the territory of a State
becomes the territory of another State, the
2. As to State property – The agreement between
international agreements of the
the predecessor and the successor State govern;
predecessor State cease to have effect in
otherwise:
respect of the territory and international
agreements of the successor State come
a. Where a part of the territory of a State into force there. (Bernas, 2009)
becomes part of the territory of another
State, property of the predecessor State NOTE: “Moving Treaty or Moving
located in that territory passes to the Boundaries” Rule – A third State may seek
successor State; relief from the treaty on ground of rebus sic
stantibus.
b. Where a State is absorbed by another State,
property of the absorbed State, wherever When a State is absorbed by another State,
located, passes to the absorbing State; or the international agreements of the
absorbed State are terminated, and the
c. Where a part of a State becomes a separate international agreements of the absorbing
State, property of the predecessor State State become applicable to the territory of
located in the territory of the new State the absorbed State. (Bernas, 2009)
passes to the new State. (Bernas, 2009)
NOTE: “Moving Treaty or Moving
Boundaries” Rule may apply.
481
a. When a part of a State becomes a new State, PEOPLE
the new State does not succeed to the
international agreements to which the Permanent Population
predecessor State was a party, unless,
expressly or by implication, it accepts such It refers to an aggregate of individuals of both sexes,
agreements and the other party or parties who live together as a community despite racial or
thereto agree or acquiesce; or, cultural differences. (Cruz, 2020)
Nation
b. Pre-existing boundary and other territorial
agreements continue to be binding It is defined as a body of people more or less of the
notwithstanding (Uti possidetis rule). same race, language, religion, and historical
(Bernas, 2009) traditions. (Sarmiento, 2007)
1. ELEMENTS GOVERNMENT
Elements of a State: Effective Government
The state as a person of international law should It is the agency through which the will of the state is
possess the following qualifications (Te-Perm- formulated, expressed, and realized. It is the entity
Effect-Ca) that represents the state in its relations with other
states. (Cruz, 2020)
1. have a defined Territory
2. a Permanent population When may a State exist without an effective
3. an Effective government; and Government
4. the Capacity to enter into relations with other
states/independence (Art. 1, The Montevideo 1. A State may temporarily lack an effective
Convention) government as a result of civil war, newly
gained independence or similar upheavals;
Other suggested elements of a State
2. A simple change in regime and even conflicting
1. Civilization claims of governmental authority alone will not
2. Recognition (Cruz, 2014) disqualify an entity from statehood; or
TERRITORY 3. A State occupied by an enemy in times of war

continues to be a State as long as allies are
Defined Territory fighting on its behalf against its enemy. (Malone,
47; Sarmiento, 2007)
It refers to the fixed portion of the earth’s surface
which the inhabitants occupy. It is necessary for Succession of Government
jurisdictional reasons an in order to provide for the
needs of the people. (Cruz, 2020) There is a succession of government where one
government replaces another either peacefully or
See further discussion on B. Title to Territory – by violent methods. The integrity of the state is not
page 495. affected; the state continues as the same
international person except only that its lawful
representative is changed. (Ibid.)
482
2023 GOLDEN NOTES
Effects of a Change of Government The political laws of the former sovereign are not
merely suspended but abrogated. As they regulate
1. If the change is peaceful, the new the relations between the ruler and the ruled, these
government assumes the rights and laws fall to the ground ipso facto unless they are
responsibilities of the old government. retained or re-enacted by a positive act of the new
sovereign.
2. If the change was effected through a
violence, a distinction must be made. Non-political laws, by contrast, continue in
a. Acts of political complexion may be operation, for the reason also that they regulate
denounced; and, private relations only, unless they are changed by
b. Routinary acts of mere governmental the new sovereign or are contrary to its institutions.
administration continue to be (Cruz, 2014)
effective. (Ibid.)
Status of allegiance during Japanese occupation
SOVEREIGNTY
There was no case of suspended allegiance during
Capacity to enter into relations with other States the Japanese occupation. Adoption of the theory of
suspended allegiance would lead to disastrous
It is the power of a state to manage its external consequences for small and weak nations or states
affairs without direction or interference from and would be repugnant to the laws of humanity
another state. (Cruz, 2020) and requirements of public conscience, for it would
allow invaders to legally recruit or enlist the
State sovereignty as defined in international law
quisling inhabitants of the occupied territory to
fight against their own government without the
It is the right to exercise in a definite portion of the
latter incurring the risk of being prosecuted for
globe the functions of a State to the exclusion of
treason. To allow suspension is to commit political
another State. Sovereignty in the relations between
suicide. (Laurel v. Misa, G.R. No. L-409, 30 Jan. 1947)
States signifies independence. Independence in
regard to a portion of the globe is the right to
NOTE: An inhabitant of a conquered State may be
exercise therein to the exclusion of any other State,
convicted of treason against the legitimate
the functions of a State. (Island of Palmas case: USA
sovereign committed during the existence of
v. the Netherlands, 04 Apr. 1928)
belligerency. Although the penal code is a non-
Effects of a change of sovereignty on municipal political law, it is applicable to treason committed
laws against the national security of the legitimate
government, because the inhabitants of the
1. Laws partaking of a political complexion are occupied territory were still bound by their
abrogated automatically; and allegiance to the latter during the enemy’s
2. Laws regulating private and domestic rights occupation. Since the preservation of the allegiance
continue in force until changed or abrogated. or the obligation of fidelity and obedience of a
(Bernas, 2009) citizen or subject to his government or sovereign
does not demand from him a positive action, but
NOTE: It is a general principle of the public law that only passive attitude or forbearance from adhering
on acquisition of territory the previous political to the enemy by giving the latter aid and comfort,
relations of the ceded region are totally abrogated. the occupant has no power, as a corollary of the
(People v. Perfector, G.R. No. L-18463, 04 Oct. 1922) preceding consideration, to repeal or suspend the
operation of the law of treason. (Laurel v. Misa, ibid)
Effect of change of sovereignty when Spain
ceded the Philippines to the US
483
2. RECOGNITION OF STATES AND exercise of these rights has no other limitation than
GOVERNMENTS the exercise of the rights of other states according to
international law. (Art. 3, Montevideo Convention on
Recognition the Rights and Duties of States)
It is the acknowledgment extended by a State to: NOTE: The acknowledgment by a State is coupled
1. Another State; with an indication of its willingness to deal with the
2. Government; or entity as such under international law.
3. Belligerent community. (Cruz, 2000)
1. To treat the new State as such;
Recognition of States
2. To accept the new government as having
Recognition of States is the act of acknowledging the authority to represent the State it purports to
capacity of an entity to exercise belonging to govern and maintain diplomatic relations with
statehood. (Bernas, 2009) it; and,
Theories on Recognition of States 3. To recognize in case of insurgents that they are

entitled to exercise belligerent rights
1. Declaratory Theory – the recognition is (Hackworth, 166)
merely “declaratory” of the existence of the
state and that its being a state depends upon Kinds of Recognition
its possession of the required elements and
not upon recognition. A recognizing state 1. Express Recognition. This may be verbal or in
merely accepts an already existing situation; writing. It may be extended through:
and
a. Formal proclamation or announcement;
2. Constitutive Theory – the recognition b. Stipulation in a treaty;
“constitutes” a state, that is, it is what makes a c. Letter or telegram; or,
state a state and confers personality on the d. Official call or conference.
entity. In effect, this merely emphasizes the
point that states are under no obligation to 2. Implied Recognition. It is when the
enter into bilateral relations. (Bernas, 2009) recognizing state enters into official intercourse
with the new member by:
Recognition of Government
a. Exchanging diplomatic representatives
Recognition of Government is the act of with it;
acknowledging the capacity of an entity to exercise b. Bipartite treaty;
powers of government of a state. (Bernas, 2009) c. Acknowledging its flag; or,
d. Entering into formal relations with it.
Recognition is not an element of the State.
(Fenwick, 137)
The political existence of the state is independent of
recognition by the other states. Even before Theories of Recognition of a State (2004 BAR)
recognition, the state has the right to defend its (Con-Dec)
integrity and independence to provide for its
conservation and prosperity, and consequently to 1. Constitutive Theory. Recognition is the last
organize itself as it sees fit, to legislate upon its indispensable element that converts the state
interests, administer its services, and to define the
jurisdiction and competence of its courts. The
484
2023 GOLDEN NOTES
being recognized into an international person; Islands.
and
The associated state arrangement has usually been
2. Declaratory Theory. Recognition is merely an used as a transitional device of former colonies on
acknowledgment of the pre-existing fact that their way to full independence. (Province of North
the state being recognized is an international Cotabato v. GRP, G.R. No. 183591, 14 Oct. 2008)
person. (Cruz, 2003)
e.g., Antigua, St. Kitts-Nevis-Anguilla, Dominica, St.
NOTE: The prevailing theory is the Declaratory Lucia, St. Vincent, and Grenada. (Province of North
Theory. (Cruz, 2003) Cotabato v. GRP, G.R. No. 183591, 14 Oct. 2008)
Authority to Recognize Q: Formal peace talks between the Philippine

Government and MILF resulted in the crafting of
It is to be determined according to the municipal the GRP-MILF Tripoli Agreement on Peace
law of each State. (Cruz, 2003) (Tripoli Agreement 2001) which consists of
three (3) aspects: a.) security aspect; b.)
In Philippine setting: It is the President who rehabilitation aspect; and c.) ancestral domain
determines the question of recognition and his aspect.
decisions on this matter are considered acts of state
which are, therefore, not subject to judicial review. Various negotiations were held which led to the
(Pimentel v. Romulo, G.R. No. 158088, 06 July 2005) finalization of the Memorandum of Agreement
on the Ancestral Domain (MOA-AD). In its body,
Basis of Authority of the President (T-Ri-M-P) it grants “the authority and jurisdiction over the
Ancestral Domain and Ancestral Lands of the
1. Treaty-making power; Bangsamoro” to the Bangsamoro Juridical Entity
2. Right in general to act as the foreign policy (BJE). The latter, in addition, has the freedom to
spokesman of the nation; enter into any economic cooperation and trade
3. Military power; and, relation with foreign countries.
4. Power to send and receive diplomatic
representatives. (Pimentel v. Romulo, G.R. No. The MOA-AD further provides for the extent of
158088, 06 July 2005) the territory of the Bangsamoro. With regard to
governance, on the other hand, a shared
NOTE: Being essentially discretionary, the exercise responsibility and authority between the
of these powers may not be compelled. (ibid.) Central Government and BJE was provided. The
relationship was described as “associative.”
Doctrine of Association (2010 BAR) Does the MOA-AD violate the Constitution and
the laws?
It is formed when two states of unequal power
voluntarily establish durable links. In the basic A: YES. The concept of association is not recognized
model, one state, the associate, delegates certain under the present Constitution. Indeed, the concept
responsibilities to the other, the principal, while implies powers that go beyond anything ever
maintaining its international status as a state. Free granted by the Constitution to any local or regional
association represents a middle ground between government. It also implies the recognition of the
integration and independence. (Province of North associated entity as a state. The Constitution,
Cotabato v. GRP, G.R. No. 183591, 14 Oct. 2008) however, does not contemplate any state in this
jurisdiction other than the Philippine State, much
NOTE: Republic of the Marshall Islands and the less does it provide for a transitory status that aims
Federated States of Micronesia are formerly part of to prepare any part of Philippine territory for
the U.S. Administered Trust Territory of the Pacific independence.
485
Tests in Recognizing a New Government
The provisions of the MOA indicate that the parties
aimed to vest in the BJE the status of an associated 1. Objective Test - Here, the government must be
state or, at any rate, a status closely approximating able to maintain order within the state and
it. (The Province of North Cotabato v. GRP, G.R. No. repel external aggression.
183591, 14 Oct. 2008)
2. Subjective Test - The government is willing to
Recognition of State vs. Recognition of comply with its international obligations.
Government (Fenwick, 159-162)
STATE GOVERNMENT Tobar or Wilson Doctrine (2004 BAR)

As to extent
On a definite territory Recognition shall not be extended to any
of human society government established by revolution, civil war,
politically organized, coup d’état or other forms of internal violence until
independent and the freely elected representatives of the people have
capable of observing organized a constitutional government. (Cruz, 2000)
Person or a group of
the obligations of
persons capable of
international law. Stimson Doctrine
binding the state they
It carries with it the
claim to represent.
recognition of It provides that there is no recognition of a
government. (Cruz, government established through external
It does not carry with it
2003) aggression. (Nachura, 2009)
the recognition of
State. (Cruz, 2003)
Reason: The State Estrada Doctrine (2004 BAR)
recognized has all the
essential requisites of a It involves a policy of never issuing any declaration
State at the time giving recognition to governments and of accepting
recognition is extended. whatever government is in effective control without
As to its revocability raising the issue of recognition. An inquiry into
Revocable. (if brought legitimacy would be an intervention in the internal
Irrevocable. affairs of another State.
about by violent or
(Hackworth, 166;
unconstitutional
Fenwick, 157) Wilson Doctrine vs. Estrada Doctrine
means). (Cruz, 2003)
Requirements for Recognition of Government In the Wilson or Tobar Doctrine, a government

established by means revolution, civil war, coup
1. The government is stable and effective, with no d’état or other forms of internal violence will not be
substantial resistance to its authority; recognized until the freely elected representatives
of the people have organized a constitutional
2. The government must show willingness and government, while in the Estrada Doctrine any
ability to discharge its international diplomatic representatives in a country where an
obligations; and, upheaval has taken place will deal or not deal with
whatever government is in control therein at the
3. The government must enjoy popular consent or time and either action shall not be taken as a
approval of the people. judgment on the legitimacy of the said government.
486
2023 GOLDEN NOTES
De jure Recognition vs. De facto Recognition Two (2) Senses of Belligerency:
(1998 BAR)
1. It may refer to the state of war between two (2)
RECOGNITION DE RECOGNITION DE or more states. In which case, the states of war
JURE FACTO are referred to as the belligerent states; and
Duration ii.
Provisional. (e.g.: 1. Actual hostilities amounting to civil war within
Relatively permanent. duration of armed a single state. (Nachura, 2014)
struggle)
Entitlement to properties Requisites in Recognizing Belligerency
Does not vest title to (O-S-S-O)
Vests title to properties
properties of the
of government abroad. 1. There must be an Organized civil government
government abroad.
Scope of Diplomatic Power directing the rebel forces;
Brings about full Limited to certain 2. The rebels must occupy a Substantial portion of
diplomatic relations. juridical relations. the territory of the state;
3. The conflict between the legitimate
Effects of Recognition: (F-I-P-A) government and the rebels must be Serious,
making the outcome certain; and
1. Full diplomatic relations are established; 4. The rebels must be willing and able to Observe
the laws of war. (Nachura, 2014)
XPN: Where the government recognized is de
facto NOTE: Absence of any of the foregoing conditions
will result merely in insurgency which is rarely
2. Immunity from jurisdiction of courts of law of recognized. (Nachura, 2014)
recognizing State;
Legal Consequences of Belligerency
3. Right to Possession of the properties of its
predecessor in the territory of the recognizing PERIOD EFFECT
State; and Before It is the legitimate government
Recognition that is responsible for the acts of
NOTE: This is not applicable as to Recognition of the the rebels affecting foreign
of State. parent state nationals and their properties.
4. All Acts of the recognized state or government 1. The belligerent community

are validated retroactively, preventing the is considered a separate
recognizing state from passing upon their state for the purposes of the
legality in its own courts. (Oppenheim- conflict it is waging against
Lauterpacht, 136-137) the legitimate government;
Belligerency After 2. Their relations for the

recognition duration of hostilities be
It exists when the inhabitants of a State rise up in of the governed by the laws of
arms for the purpose of overthrowing the legitimate parent state war;
government or when there is a state of war between
two states. 3. Troops of other belligerent
when captured, shall be
treated as prisoners of war;
487
4. Parent state shall no a state of war between the central government and
longer be liable for any a portion of that state. (Nachura, 2014)
damage that may be caused
to third parties by rebel Effects of Recognition of Belligerency
government;
1. Responsibility for acts of rebels resulting in
5. Both belligerents may injury to nationals of the recognizing state
exercise the right to visit shall be shifted to rebel government;
and search upon neutral
merchant vessels; and, 2. The legitimate government recognizing the
rebels shall observe the laws of war in
6. Both the rebel and the conducting hostilities;
legitimate government shall
be entitled to full war 3. Third states recognizing belligerency shall
status. maintain neutrality; and
They are under obligation to
As to third observe strict neutrality and 4. Recognition is only provisional and only for
States abide by the consequences the purpose of the hostilities. (Nachura,
arising from that position. 2014)
(Nachura, 2014)
Q: When does belligerency exist?
Insurgency vs. Belligerency
A: Belligerency exists when a sizable portion of the
INSURGENCY BELLIGERENCY territory of a state is under the effective control of
As to nature an insurgent community which is seeking to
More serious and establish a separate government and the insurgents
widespread and are in de facto control of a portion of the territory
presupposes the and population, have a political organization, and
A mere initial stage of are able to maintain such control and conduct
existence of war
war. It involves a rebel themselves according to the laws of war. For
between two or more
movement and is example, Great Britain recognized a state of
states (first sense) or
usually not recognized. belligerency in the United States during the Civil
actual civil war within
a single state (second War. (Cruz, 2000)
sense).
As to the applicable law
Belligerency is B. NON-STATE ENTITIES
Sanctions to insurgency governed by the rules
are governed by on international law
municipal law – as the belligerents What are Non-state Entities
Revised Penal Code, i.e., may be given
rebellion. international A non-state actor or entity is an individual or entity
personality. not acting under the lawful authority of any State in
(Nachura, 2014) conducting activities which come within the scope
of Reolution 1540. (Lapas, 2010 citing UNSC
Recognition of Belligerency Resolution 1540, 28 Apr. 2004)
Recognition of belligerency is the formal

acknowledgment by a third party of the existence of
488
2023 GOLDEN NOTES
Resolution 1540 international legal personality such that they are
capable of exercising specific rights, duties and
Resolution 1540 was adopted by the UN Security powers. They are organized mainly as a means for
Council on April 28, 2004. It was a measure aimed conducting general international business in which
at preventing non-state actors from acquiring the member states have an interest.
nuclear, biological, and chemical weapons, their
means of delivery and related materials. IOs are governed by the Principle of Specialty, that is,
(Davenport, 2021) they are invested by the States which create them
with powers, the limits of which are a function of the
Insurgency common interest whose promotion those States
entrust to them. (Nachura, Outline Reviewer in
They are non-international armed conflicts which Political Law, p. 656)
take place in the territory of a High Contracting
Party between its armed forces and dissident armed "Specialized agencies" are international
forces or other organized armed groups. (First organizations having functions in particular fields.
Protocol of the 1977 Geneva Convention). (ICMC vs. Calleja, G.R. No. 85750, 28 Sept. 1990)
National Liberation Movements An entity is considered an IO if it meets the

following criteria:
They are organized groups fighting on behalf of a
whole people for freedom from colonial powers. 1. A permanent association of states, with lawful
They are “peoples fighting against colonial objects, equipped with organs;
domination and alien occupation and against racist
regimes in the exercise of their right of self- 2. A distinction, in terms of legal powers and
determination, as enshrined in the Charter of the purposes, between the organization and its
United Nations”. (First Protocol of the 1977 Geneva member states; and
Convention).
3. The existence of legal powers exercisable on the
international plane and not solely within the
C. INTERNATIONAL ORGANIZATIONS national system of one or more states.
Q: What does the term “auxiliary status” of some

international organizations entail?
Definition
A: The term “auxiliary status” of some international

These are bodies created by sovereign states and
organizations, such as the Red Cross Society, means
whose functioning is regulated by international law,
that it is at one and the same time a private
not the law of any given country. They have a
institution and a public service organization
functional personality which is limited to what is
because the very nature of its work implies
necessary to carry out their functions as found in
cooperation with the state. The PNRC, as a National
the instruments of the organization. It is set up by a
Society of the International Red Cross and Red
treaty among two or more states. It enjoys
Crescent Movement, can neither be “classified as an
immunity which is based on the need for effective
instrumentality of the state, so as not to lose its
exercise of its functions and is derived from the
character of neutrality” as well as its independence,
treaty creating it. (Bernas, 2009)
nor strictly as a private corporation since it is
regulated by international humanitarian law and is
It is generally used to describe an organization set
treated as an auxiliary of the state. (Liban v. Gordon,
up by an agreement between two or more states.
G.R. No. 175352, 18 Jan. 2011)
Under contemporary international law, such
organizations are endowed with some degree of
489
Q: There has been an assassination on 17 Sept.
1948, by Jewish terrorist organizations, of the D. STATUS OF INDIVIDUALS AND
UN’s chief truce negotiator, a Swedish national, CORPORATIONS
Count Folke Bernardotte, and of the UN
observer, a Frenchman, Colonel André Sérot,
while on an official mission for the UN. They
Recognition of Individuals in International Law
were murdered in the eastern part of Jerusalem,
which was under Israeli control, at the time
In international law, individuals were objects or at
when Israel had proclaimed its independence best “beneficiaries” of international law. With the
but had not yet been admitted to the UN. The UN
greater global awareness of human rights
considered that Israel had neglected to prevent
individuals have now come to be recognized as
or punish the murderers and wished to make a
possessing albeit limited rights and obligations in
claim for compensation under international
international law. (Bernas, 2009)
law. The UN General Assembly sought the advice
of the ICJ as to the legal capacity of the UN to
The modern trend in public international law is the
make such a claim. Does the UN have a legal
primacy placed on the worth of the individual
personality to make a claim?
person and the sanctity of human rights. Slowly, the
recognition that the individual person may properly
A: YES, the UN has a legal personality. The Court
be a subject of international law is now taking root.
held that the UN possessed a judicial personality on The vulnerable doctrine that the subjects of
the international plane and was therefore capable of
international law are limited only to states was
presenting such a claim with a view of obtaining
dramatically eroded towards the second half of the
reparation due in respect of the damage caused to past century. Significant events show that the
both its assets and its agents (the so-called
individual person is now a valid subject of
functional protection) – an objective international
international law. (Government of Hong Kong Special
legal personality operates erga omnes. Administrative Region v. Hon. Olalia, G.R. No. 153675,
19 Apr. 2007)
Though the UN Charter did not expressly clothe the
UN with the capacity to bring an international claim
Internal Self-Determination vs. External Self-
for reparations, the UN nevertheless possessed
Determination
functional personality.
INTERNAL SELF- EXTERNAL SELF-
The Court has come to the conclusion that the
DETERMINATION DETERMINATION
organization is an international person. That is not
People of a states' Establishment of a
the same thing as saying that it is a State, which it
pursuit of its political, sovereign and
certainly is not, or that its legal personality and
economic, social and independent State, the
rights and duties are the same as those of a State.
cultural development free association or
Still less is it the same thing as saying that it is a
within the integration with an
‘super-state’, whatever that expression may mean.
framework of an independent State or the
It does not even imply that all its rights and duties
existing State. emergence into any other
must be upon that plane. What it does mean is that
political status freely
it is a subject of international law and capable of
NOTE: Recognized determined by a people
possessing international rights and duties, and that
sources of which constitute modes of
it has capacity to maintain its rights by bringing
international law implementing the right of
international claims. (The Reparations for Injuries
establish that the self-determination by that
Suffered in the Service of the United Nations, 1949)
right to self- people.
determination of a
people is normally NOTE: Arises only in the
490
2023 GOLDEN NOTES
fulfilled through most extreme cases and,
internal self- even then, under carefully
determination. defined circumstances.
(Bernas, 2009) (Bernas, 2009)
Exceptional cases in which the right to external

self-determination can arise, namely:
1. Where a State is under colonial rule;

2. Subject to foreign domination or
exploitation outside a colonial context; and
3. Blocked from the meaningful exercise of its
right to internal self-determination. (The
Province of North Cotabato v. GRP, G.R. No.
183591, 14 Oct. 2008)
NOTE: The people’s right to self-determination does

not extend to a unilateral right of secession. (Bernas,
2009)
Right to Internal Self-Determination of

Indigenous Peoples
Indigenous peoples situated within States do not

have a general right to independence or secession
from those states under international law, but they
do have the right amounting to the right to internal
self-determination. Such right is recognized by the
UN General Assembly by adopting the United
Nations Declaration on the Rights of Indigenous
Peoples (UNDRIP). (The Province of North Cotabato
v. GRP, ibid)
NOTE: The UNDRIP, while upholding the right of

indigenous peoples to autonomy, does not obligate
States to grant indigenous peoples the near
independent status of an associated state. There is
no requirement that States now guarantee
indigenous peoples their own police and internal
security force, nor is there an acknowledgment of
the right of indigenous peoples to the aerial domain
and atmospheric space. But what it upholds is the
right of indigenous peoples to the lands, territories
and resources, which they have traditionally owned,
occupied or otherwise used or acquired. (Province
of North Cotabato v. GRP, ibid.)
491
7. Patrimonial Sea - It is also known as the
III. JURISDICTION exclusive economic zone. All living and non-
living resources found therein belong
exclusively to the coastal state.
Concept
8. Open seas - A state may exercise jurisdiction on
It is the competence of a State under international the open seas in the following: (a) over its
law to prescribe and enforce norms of law, as well vessels; (b) over pirates; (c) in the exercise of
as adjudicate over persons, property, events, and the right of visit and search; and (d) under the
relations on the basis of those norms within its doctrine of hot pursuit.
territory. (Magallona, 2005)
9. Aerial jurisdiction - The local state has
Kinds of Jurisdictions jurisdiction over the airspace above it to an
unlimited height.
1. Personal jurisdiction - It refers to the power
exercised by a state over its nationals. 10. Other territories - A state may, by virtue of
customary or conventional international law,
2. Territorial jurisdiction - It is the jurisdiction extend its jurisdiction beyond its territory and
of a state over all persons and property within over territory not falling under its sovereignty.
its territory.
(Cruz, 2003)
3. Land jurisdiction - It is the jurisdiction of a
state over everything found within the
terrestrial domain of the state. A. BASIS OF JURISDICTION
4. Maritime and fluvial jurisdiction. - The

internal waters of a state are assimilated to the
(T-N-A-P-Un-Pa)
land mass and subjected to the same degree of
jurisdiction exercised over the terrestrial
1. Territoriality Principle
domain (i.e. enclosed waters such as the land-
2. Nationality Principle and Statelessness
locked lakes, national rivers and man-made
3. Protective Principle
canals).
4. Universality Principle; and
5. Passive Personality Principle. (Cruz, 2003)
5. Contiguous zone - States have claimed
“protective jurisdiction” over contiguous zone
or a zone of the high seas contiguous to its NOTE: The leading principles of jurisdiction in
territorial sea to: (a) prevent infringement of its Philippine law are the territoriality principle,
customs, fiscal, immigration or sanitary nationality principle, and the protective principle.
regulations within its territory or territorial (Cruz, 2003)
sea; and (b) punish infringement of the above
regulations within its territory or territorial
1. TERRITORIALITY PRINICPLE
sea.
6. Continental shelf - The coastal state has the Territoriality Principle

sovereign right to explore the continental shelf The territoriality principle is derived from the
and to exploit its natural resources and for this concept of State sovereignty. It means that a State
purpose it may erect on it such installations and has the primary jurisdiction over all events taking
equipment as may be necessary. place in its territory regardless of the nationality of
492
2023 GOLDEN NOTES
the person responsible. It is the dominant ground of NOTE: Foreign embassies retain their status as
jurisdiction in International Law. All other State native soil. They are still subject to Philippine
must respect the supremacy of the State over its authority. Its jurisdiction may be diminished, but it
territory, and consequently must not interfere does not disappear. So, it is with the bases under
neither in its internal affairs nor in its territorial lease to the American armed forces by the military
jurisdiction. base’s agreement of 1947. They are not and cannot
be considered as foreign territory.
The territorial jurisdiction of State extends over its
land, its national airspace, its internal water, its Also, if an attaché commits an offense within the
territorial sea, its national aircrafts, and its national precincts of an embassy, his immunity from
vessels. It encompasses not only crimes committed prosecution is not because he has not violated the
on its territory but also crimes that have effects local law, but rather because the individual is
within its territory. In such a case, a concurrent exempt from prosecution. If a person not so exempt,
jurisdiction occurs, a subjective territorial or whose immunity is waived, similarly commits a
jurisdiction may be exercised by the State in whose crime therein, the territorial sovereign, if it secures
territory the crime was committed, and an objective custody of the offender, may subject him to
territorial jurisdiction may be exercised by the State prosecution. It is not believed, therefore, that an
in whose territory the crime had its effect. ambassador himself possesses the right to exercise
jurisdiction, contrary to the will of the State of his
Under subjective territorial jurisdiction a State will sojourn, even within his embassy with respect to
have jurisdiction over conduct that commences acts there committed. Nor is there apparent at the
within the State but is completed abroad. Objective present time any tendency on the part of States to
territorial jurisdiction concerns conduct that acquiesce in their exercise of it. (William C. Reagan
commences outside the State and is completed v. CIR, G.R. No. L-26379, 27 Dec. 1969)
within it.
2. NATIONALITY PRINICIPLE
NOTE: A State has absolute, but not necessarily
exclusive, power to prescribe, adjudicate and
Nationality Principle
enforce rules of conduct that occur within its
territory, without regard to the nationality of the A State may exercise jurisdiction over its nationals,
person responsible. (2009, 2005 BAR) with respect to their conduct, whether within or
outside its territory. It is based upon the notion that
This is illustrated by Art. 14 of the New Civil Code, the link between the State and its nationals is a
thus: “Penal laws and those of public security and personal one independent of location.
safety shall be obligatory upon all who live or
sojourn in the Philippine territory, subject to the NOTE: This is illustrated by Art. 15 of the New Civil
principles of public international law and to treaty Code, thus: “Laws relating to family rights and
stipulations.” duties, or to the status, condition and legal capacity
of persons are binding upon citizens of the
GR: A State has criminal jurisdiction only over Philippines, even though living abroad.”
offenses committed within its territory.
Statelessness
XPNs:
1. Continuing Offenses It is the condition or status of an individual who is
2. Acts prejudicial to the national security or either a De jure stateless person or a De facto
vital interests of the State stateless person. (Frivaldo v. COMELEC, G.R. No.
3. Universal crimes 123755, 28 June 1996)
4. Offenses covered by special agreements
(this is now obsolete) (Nachura, 2014)
493
3. PROTECTIVE PRINCIPLE may prosecute and punish that person on behalf of

the international community regardless of the
nationality of the offender or victim or where the
Protective Principle (2009 BAR)
crime was committed. The perpetrator is regard as
a Hostis humani generis ("enemy of mankind")
Any State has the right to punish acts even if
(2005 BAR)
committed outside its territory, when such acts
constitute attacks against its security, as long as that
This is based on the nature of the crime, not on any
conduct is generally recognized as criminal by
nexus between the forum State and the matter
states in the international community.
under consideration. It is normally relied upon in
criminal law context to prosecute core international
By reason of this principle, the Philippines takes
crimes such as piracy, slave trading, genocide,
jurisdiction over persons who committed acts
crimes against humanity, war crimes and torture. In
outside the territorial jurisdiction but with
recent years, crimes such as hijacking of aircraft,
consequences prejudicial to its interests or inimical
violation of human rights and terrorism, have been
to its security.
added to the list of international crimes.
(Kaczorowska, 2010)
This principle underlies Art. 2 of the Revised Penal
Code which declares that its provisions “shall be
Today under the universality principle, each State
enforced not only within the Philippine
and every State has jurisdiction over any of the
Archipelago…, but also outside of its jurisdiction,”
international crimes committed by anyone
against those who:
anywhere.
1. Should commit an offense while on a Philippine

Q: Prior to the outbreak of WWII, Adolf
ship or airship;
Eichmann was an Austrian by birth who
volunteered to work for the Security Service in
2. Should forge or counterfeit any coin or currency
Berlin. He rose through the ranks and
note of the Philippine Islands or obligations and
eventually occupied the position of Referant for
securities issued by the Government of the
Jewish Affairs. He oversaw the transport and
Philippine Islands;
deportation of Jewish persons and explored the
possibility of setting up a slave Jewish state in
3. Should be liable for acts connected with the
Madagascar.
introduction into these islands of the
obligations and securities mentioned in the
He was captured by Israeli Security Forces in
presiding number;
Argentina and handed over to the District Court
of Jerusalem to stand for war crimes against
4. While being public officers or employees,
humanity and crimes against the Jewish people.
should commit an offense in the exercise of
He was convicted of all 15 counts and sentenced
their functions; or
to death.
5. Should commit any of the crimes against

Does the District Court of Jerusalem have
national security and the law of nations, defined
jurisdiction to try the case in light of the fact that
in Title One of Book Two of this Code.
Eichmann is a foreign national and crimes were
(Magallona, 2005)
committed on foreign territory?
Universality Principle
A: YES. The principle of territorial sovereignty
merely requires that the State exercises its power to
Certain offenses are so heinous and so widely
punish within its own borders, not outside them;
condemned that any state that captures an offender
494
2023 GOLDEN NOTES
that subject to this restriction every State may placed under the sovereignty of the
exercise a wide discretion as to the application of its discovering state.
laws and the jurisdiction of its courts in respect of
acts committed outside the State; and that only Note: The territory need not be
insofar as it is possible to point to a specific rule uninhabited provided it can be established
prohibiting the exercise of this discretion. That view that the natives are not sufficiently civilized
was based on the following two grounds: (1) It is and can be considered as possessing not
precisely the conception of State sovereignty which rights of sovereignty but only rights of
demands the preclusion of any presumption that habitation. (Cruz, 2000)
there is a restriction on its independence; and (2)
Even if it is true that the principle of the territorial Discovery of terra nullius is not enough to
character of criminal law is firmly established in establish sovereignty. It must be
various States, it is no less true that in almost of such accompanied by effective control as held in
States criminal jurisdiction has been extended so as the Las Palmas Case. (Permanent Court of
to embrace offenses committed outside its territory. Arbitration, 1928) (Bernas, 2009)
However, it is the universal character of the crimes Effective control is relative and may
in question which vests in every State the power to depend on the nature of the case – e.g.,
try those who participated in the preparation of whether the territory is inhabited or not
such crimes, and to punish them, therefore. It and how fierce the occupants are. Where
follows that the State which prosecutes and there are two or more claimants to a
punishes a person for that offense acts solely as the territory, effective control is also relative to
organ and agent of the international community and the strength of claims. (Eastern Greenland
metes out punishment to the offender for his breach Case PCIJ 1933) (Bernas, 2009)
of the prohibition imposed by the law of nations.
(Attorney-General of the Government of Israel v. Hinterland Doctrine
Eichmann, Israel Sup. Ct. 1962)
The state that discovers and occupies the coast shall
4. PASSIVE PERSONALITY PRINCIPLE also have an exclusive right to occupy the
hinterland, i.e., the inland region lying behind a port.
(Sarmiento, 2007)
It authorizes states to assert jurisdiction over
offenses committed against their citizens abroad. It
Doctrine of Inchoate Title
recognizes that each state has a legitimate interest
in protecting the safety of its citizens when they
It means that since an effective occupation must
journey outside national boundaries.
usually be a gradual process it is considered that
some weight should be given to mere discovery, and
it is regarded therefore as giving an “inchoate title”,
B. TITLE TO TERRITORY that is to say, a temporary right to exclude other
states until the State of the discoverer has had a
reasonable time within which to make an effective
Modes of acquiring and losing territory occupation, or a sort of option to occupy which
other states must respect while it lasts. (Briely, 154)
1. Acquisition (Ibid.)
a. Discovery and occupation – An original b. Prescription – Like occupation, it requires

mode of acquisition by which territory not effective control. But unlike occupation, the
belonging to any state, or terra nullius, is object of prescription is not terra nullius.
495
Thus, the required length of effective instance from the action of a volcano.
control is longer than in occupation. [Bernas, 2009]
Prescription might be negated by a 2. Loss

demonstrated lack of acquiescence by the
prior occupant. A title that is inchoate a. Abandonment or dereliction – Territory is
cannot prevail over a definite title found on lost by dereliction when the state
the continuous and peaceful display of exercising sovereignty over it physically
sovereignty. The peaceful and continuous withdraws from it with the intention of
display of territorial sovereignty is as good abandoning it altogether. Two conditions
as title. However, discovery alone without must concur:
subsequent act cannot suffice to prove i. The act of withdrawal; and
sovereignty over the island. (US v. ii. The intention to abandon.
Netherlands, 2 RIAA 829) (Bernas, 2009)
b. Cession – A method by which territory is
c. Cession – occurs when the acquiring transferred from one state to another by
sovereign derives its title to a new territory agreement between them. It being
by the ceding sovereign’s transferring to it essentially consensual, transfer of title is
the supreme power over that territory. effected upon the meeting of the minds of
the parties and does not have to bide the
Sovereigns can effect cession only in a actual delivery of the ceded territory to the
treaty between the ceding and acquiring acquiring state.
sovereigns. Cession requires possession or
occupation by the acquiring sovereign. c. Subjugation
d. Prescription
When such occupation takes place, the e. Erosion
subjects domiciled in the newly acquired f. Revolution
insular area become nationals of the g. Natural causes (Cruz, 2000)
acquiring sovereign. (Perl, 13) (Sarmiento,
2007)
C. ADJACENT MARITIME SEAS
d. Subjugation – Territory is deemed
acquired by subjugation when, having been
previously conquered or occupied in the
Maritime Zones under UNCLOS
course of war by the enemy, it is formally
annexed to it at the end of that war.
Q: What are the rights of the Philippines within
the following areas: (a) Contiguous zone; and (b)
Conquest alone confers only an inchoate
Exclusive economic zone? (2019 BAR)
right on the occupying state; it is the formal
act of annexation that completes the
RIGHTS OF THE
acquisition. (Cruz, 2000) AREA
PHILIPPINES
As to Territorial Sea
e. Accretion and Avulsion – These can also
It is included in the national
lead to sovereignty over territory. This is
territory of the Philippines.
sovereignty by operation of nature.
12 nautical miles
Accretion is the gradual increase of
from baseline The Philippines may
territory by the action of nature while
exercise its sovereignty
avulsion is a sudden change resulting for
within its territorial sea.
496
2023 GOLDEN NOTES
As to Contiguous zone ii. marine scientific
The coastal State may research;
exercise the control iii. the protection and
necessary to: preservation of the
marine
a. prevent infringement environment;
of its customs, fiscal,
immigration or (c) other rights and duties
sanitary laws and provided for in this
Up to 24 nautical
regulations within its Convention. (Art. 56 of
miles from the
territory or territorial UNCLOS)
outer edge of
territorial sea sea; As to the Extended Continental Shelf
The coastal State exercises
b. punish infringement of control over the
the above laws and Up to 350 continental shelf sovereign
regulations committed nautical miles rights for the purpose of
within its territory or from baseline exploring it and exploiting
territorial sea. (Art. 33 its natural resources (Art.
of UNCLOS) 77 (1), UNCLOS)
As to High Seas
As to Exclusive Economic Zone (EEZ) Not included in No State may validly
The coastal State has: the EEZ, the purport to subject any part
territorial sea or of the high seas to its
(a) sovereign rights for the in the internal sovereignty. (Art. 89 of
purpose of exploring and waters of a State, UNCLOS)
exploiting, conserving and or in the
managing the natural archipelagic The high seas are open to
resources, whether living waters of an all States, whether coastal
or non- living, of the waters archipelagic or land locked. (Art. 87 of
superjacent to the seabed State. UNCLOS)
and of the seabed and its
subsoil, and with regard to Straight Baseline Method
other activities for the
Up to 200 economic exploitation and Imaginary straight lines are drawn joining the
nautical miles exploration of the zone, outermost points of the outermost islands of the
from baseline such as the production of archipelago enclosing an area the ratio of which
energy from the water, should not be more than 9:1 (water to land);
currents and winds; provided that the drawing of baselines shall not
depart to any appreciable extent, from the general
(b) jurisdiction as provided configuration of the archipelago. The waters within
for in the relevant the baselines shall be considered internal waters;
provisions of this while the breadth of the territorial sea, the
Convention with regard to: contiguous zone, the exclusive economic zone and
i. the establishment the continental shelf shall then be measured from
and use of artificial the baselines. (Art. 48, UNCLOS)
islands,
installations and
structures;
497
Normal Baseline Method As to Measurement
As defined in the Outermost points of
The baseline is drawn following the low-water line Convention on the Law our archipelago which
along the coast as marked on large-scale charts of the Sea, has a are connected with
officially recognized by the coastal State. This line uniform breadth of 12 baselines and all
follows the curvatures of the coast and therefore miles measured from waters comprised
would normally not consist of straight lines. the lower water mark therein.A
(Bernas, 2009) of the coast.
1. TERRITORIAL SEA
Methods used in defining territorial sea
Territorial Sea
1. Normal baseline method – The territorial
The Territorial Sea is a belt of sea outwards from the sea is simply drawn from the low-water
baseline and up to 12 nautical miles beyond. Where, mark of the coast to the breadth claimed,
however the application of the twelve-mile rule to following its sinuousness and curvatures
neighboring littoral states would result in but excluding the internal waters in the
overlapping, the rule now established is that the bays and gulfs (UNCLOS, Art. 5); and,
dividing line is a median line equidistant from the
opposite baselines. But the equidistance rule does 2. Straight baseline method – Where the
not apply where historic title or other special coastline is deeply indented and cut into, or
circumstances require a different measurement. if there is a fringe of islands along the coast
(Art. 15, 1982 LOS) in its immediate vicinity, the method of
straight baselines joining appropriate
Breadth of the Territorial Sea (2004, 2015 BAR) points may be employed in drawing the
baseline from which the breadth of the
Every State has the right to establish the breadth of territorial sea is measured. (Art. 7, UNCLOS)
the territorial sea up to a limit not exceeding 12
nautical miles, measured from baselines. (Art. 3, NOTE: The Philippines uses this method in
UNCLOS) drawing baselines.
Outer Limit of the Territorial Sea Sovereignty over the territorial sea (2015 BAR)
It is the line every point of which is at a distance Coastal states exercise sovereignty over Territorial
from the nearest point of the baseline equal to the Sea and it extends to the airspace over the territorial
breadth of the territorial sea. (Art. 4, UNCLOS) sea and to its seabed and subsoil. (Magallona, 2005)
Territorial sea vs. Internal waters of the NOTE: The sovereignty over the territorial sea is
Philippines subject to the right of innocent passage on the part
of ships of all states. (Magallona, 2005)
TERRITORIAL SEA INTERNAL WATERS
Right of Innocent Passage (1991 BAR)
As to Basis
It means navigation through the territorial sea of a

Defined by historic Defined by the State for the purpose of traversing the sea without
right or treaty limits. archipelagic doctrine. entering internal waters, or of proceeding to
internal waters, or making for the high seas from
internal waters, as long as it is not prejudicial to the
498
2023 GOLDEN NOTES
peace, good order or security of the coastal State. 5. The launching, landing or taking on board of
(Arts. 18(1)(2), 19(1), UNCLOS) any Aircraft;
NOTE: The right of innocent passage only applies to 6. The launching, landing or taking on board of
foreign vessels. Aircraft in flight are not entitled to any Military device;
innocent passage and thus aircraft must remain
onboard vessels during innocent passage. 7. The loading or unloading of any Commodity,
currency or person contrary to the customs,
Applicability of the right of innocent passage in fiscal, immigration or sanitary laws and
the internal waters and territorial sea regulations of the coastal State;
In the territorial sea, a foreign State can claim for its 8. Any act of willful and serious Pollution contrary
ships the right of innocent passage, whereas in the the Convention;
internal waters of a State no such right exists.
9. Any Fishing activities;
NOTE: A coastal state may extend its internal
waters by applying the straight baseline method in 10. The carrying out of Research or survey
such a way as to enclose as its internal waters areas activities;
which are previously part of the territorial sea. It
also applies to straits used for international 11. Any act aimed at Interfering with any systems
navigation converted into internal waters by of communication or any other facilities or
applying the straight baselines method. Thus, the installations of the coastal State; or
right of innocent passage continues to exist in the
“extended” internal waters. (Art. 8(2), UNCLOS) 12. Any Other activity not having a direct bearing
on passage. (Art. 19(2) UNCLOS)
Right of innocent passage is considered
prejudicial if the foreign ship engages in the Laws and regulations of the coastal State
following activities relating to innocent passage
(U-W-I-P-A-Mi-Co-Po-Fi-R-I-O) The coastal state may adopt laws and regulations in

respect of all or any of the following:
1. Any threat or Use of force against the
sovereignty, territorial integrity or political 1. Safety of navigation and the regulation of
independence of the coastal State, or in any maritime traffic;
other manner in violation of the principles of 2. Protection of navigational aids and facilities and
international law embodied in the Charter of other facilities or installations;
the United Nations; 3. Protection of cables and pipelines;
4. Conservation of the living resources of the sea;
2. Any exercise or practice with Weapons of any 5. Prevention of infringement of the fisheries laws
kind; and regulations of the coastal State;
6. Preservation of the environment of the coastal
3. Any act aimed at collecting Information to the State and the prevention, reduction and control
prejudice of the defense or security of the of pollution thereof;
coastal State; 7. Marine Scientific research and hydrographic
surveys; or
4. Any act of Propaganda aimed at affecting the 8. Prevention of infringement of the customs,
defense or security of the coastal State; fiscal, immigration or sanitary laws and
regulations of the coastal State. (Art.. 21(1)
UNCLOS)
499
NOTE: It shall not, however, apply to the design, Warship
construction, manning or equipment of foreign
ships unless they are giving effect to generally It is a ship belonging to the armed forces of a State
accepted international rules or standards. (Art. bearing the external marks distinguishing such
21(2), UNCLOS) ships of its nationality, under the command of an
officer duly commissioned by the government of the
Rules when traversing the territorial sea State and whose name appears in the appropriate
through the right of innocent passage service list or its equivalent, and manned by a crew
which is under regular armed forces discipline. (Art.
1. Submarines and other underwater vehicles – 29, UNCLOS)
They are required to navigate on the surface
and to show their flag (Art. 20, UNCLOS); NOTE: The right of innocent passage pertains to all
ships, including warships.
2. Foreign nuclear-powered ships and ships
carrying nuclear or other inherently Duties of the coastal State with regard to
dangerous or noxious substances – They must innocent passage of foreign ships (H-I-D-A)
carry documents and observe special
precautionary measures established for such The coastal State shall:
ships by international agreements. They may be
required to confine their passage on sea lanes 1. Not hamper the innocent passage of the foreign
prescribed by the coastal State (Art. 23, ships through its territorial sea;
UNCLOS);
2. Not impose requirements on foreign ships
3. Warships – which have the practical effect of denying or
impairing the right of innocent passage;
a. Coastal State may require that it leave the
territorial sea immediately when it does 3. Not discriminate in form or in fact against the
not comply with the laws and regulations of ships of any State or against ships carrying
the coastal State and disregards cargoes to, from or on behalf of any State; and
compliance (Art. 30, UNCLOS);
4. Give appropriate publicity to any danger to
b. Flag State shall bear international navigation, of which it has knowledge, within its
responsibility for any loss or damage to the territorial sea. (Art. 24, UNCLOS)
coastal State resulting from non-
compliance with the laws and regulations Rights of the coastal state relating to innocent
of the coastal State concerning passage passage through the territorial sea: (Pa-B-S)
(Art. 31, UNCLOS); and
The coastal State may:
c. Submarines in innocent passage are
required to navigate on the surface and to 1. Take the necessary steps in its territorial sea to
show their flag. (Art. 20, UNCLOS) prevent Passage which is not innocent (Art. 25
(1), UNCLOS);
NOTE: This will not affect the immunities of
warships and other government ships operated 2. Take the necessary steps to prevent any breach
for non-commercial purposes. (Art. 32, of the conditions to which admission of ships to
UNCLOS) internal waters or such a call is subject (Art. 25
(2), UNCLOS);
500
2023 GOLDEN NOTES
3. Without discrimination in form or in fact among diplomatic agent or consular officer of the
foreign ships, suspend temporarily in specified flag State; or
areas of its territorial sea the innocent passage
of foreign ships if such suspension is essential 4. Measures are necessary for the
for the protection of its security, including suppression of illicit traffic in narcotic
weapon exercises. (Art. 25(3), UNCLOS); drugs or psychotropic substances. (Art.
27(1), UNCLOS)
NOTE: No charge may be levied upon foreign ships
by reason only of their passage through the NOTE: Such does not affect the right of the coastal
territorial sea. (Art. 26(1), UNCLOS) state to take any steps authorized by its laws for the
purpose of an arrest or investigation on board a
Charges may be levied only as payment for specific foreign ship passing through the territorial sea after
services rendered to the ship which shall be levied leaving internal waters. (Art. 27(2), UNCLOS)
without discrimination. (Art. 26(2), UNCLOS)
Exercise of civil jurisdiction over foreign ships
Right of the coastal state to suspend innocent passing through the territorial sea of the coastal
passage in specified areas state
The coastal state may, without discrimination in The coastal state may exercise civil jurisdiction,
form or in fact among foreign ships, suspend subject to the following exceptions:
temporarily in specified areas of its territorial sea
the innocent passage of foreign ships if such 1. It should not stop or divert a foreign ship
suspension is essential for the protection of its passing through the territorial sea for the
security, including weapons exercises. Such purpose of exercising civil jurisdiction in
suspension shall take effect only after having been relation to a person on board the ship (Art.
duly published. (Art. 25 (3), UNCLOS) 28(1), UNCLOS)
Exercise of criminal jurisdiction of the coastal 2. It may not levy execution against or arrest
state the ship for the purpose of any civil
proceedings, save only in respect of
GR: Criminal jurisdiction of the coastal state should obligations or liabilities assumed or
not be exercised on board a foreign ship passing incurred by the ship itself in the course or
through the territorial sea to arrest any person or to for the purpose of its voyage through the
conduct any investigation in connection with any waters of the coastal State (Art. 28(2),
crime committed on board the ship during its UNCLOS)
passage.
NOTE: It is without prejudice to the right of the
XPNs: coastal State, in accordance with its laws, to levy
execution against or to arrest, for the purpose
1. Consequence of the crime extend to the of any civil proceedings, a foreign ship lying in
coastal state; the territorial sea, or passing through the
territorial sea after leaving internal waters.
2. Crime is of a kind to disturb the peace of the (Art. 28(3), UNCLOS)
country or the good order of the territorial
sea;
3. Assistance of local authorities has been

requested by the master of the ship or by a
501
2. CONTIGUOUS ZONE conditions of entry to that State. (Art. 38(2),

UNCLOS)
Contiguous Zone
NOTE: The right of transit passage is not applicable
if there exists seaward of the island a route through
It is the zone adjacent to the territorial sea, which
the high seas or through an exclusive economic zone
the coastal State may exercise such control as is
of similar convenience with respect to navigational
necessary to:
and hydrographical characteristics. (Art. 38(1),
UNCLOS)
1. Prevent infringement of its customs, fiscal,
immigration, or sanitary laws within its
Vessels entitled to right of transit passage
territory or its territorial sea; or
All ships and aircraft enjoy the right of transit

2. Punish such infringement.
passage. (Sec. 2(1), Art. 38, UNCLOS)
It is the area of water not exceeding 24 nautical

miles from the baseline. It thus extends 12 nautical
Right of innocent passage vs. Transit passage
miles from the edge of the territorial sea. (Art. 33(1)
(2), UNCLOS)
INNOCENT
TRANSIT PASSAGE
PASSAGE
Contiguous zone does not automatically belong
As to scope
to the territory of the coastal state
Covers navigation Covers navigation and

The coastal state must make a claim to its
only. (Sec. 3, Art. overflight by aircrafts.
Contiguous Zone for pertinent rights to exist. Art. 33
of the UNCLOS speaks in permissive terms, i.e., “the 45(1), UNCLOS) (Sec. 2, Art. 38(2),
UNCLOS)
coastal state may exercise the control necessary” for
definite purposes. (Magallona, 2005) As to submarines
Requires submarine No requirement
Extent of the Contiguous Zone and other specially applicable to
underwater vehicles submarines.
The coastal State may not extend its Contiguous to navigate on the
Zone beyond the 24 nautical miles from the baseline surface and to show
(from which the breadth of the territorial sea is their flag. (Sec. 3(a),
measured). (Art. 33(2), UNCLOS) Art. 20, UNCLOS)
As to suspension
Right of transit passage There shall be no There shall be no
suspension of suspension of transit
It is the right to exercise freedom of navigation and innocent passage passage. (Sec. 2, Art. 44,
overflight solely for the purpose of continuous and through such straits. UNCLOS)
expeditious transit through the straits used for (Sec. 3, Art. 45(2),
international navigation, i.e., between two areas of UNCLOS)
the high seas or between two exclusive economic As to designation of sea lanes
zones. In the designation of Designation of sea
sea lanes and traffic lanes and traffic
The requirement of continuous and expeditious separation schemes, separation schemes is
transit does not preclude passage through the strait the coastal State shall subject to a proposal
for the purpose of entering, leaving or returning only take into and agreement
from a State bordering the strait, subject to the account the between States
502
2023 GOLDEN NOTES
recommendations of bordering the straits a. For the purpose of exploring and
a competent and its subsequent exploiting, conserving and managing the
international adoption by a living and non-living resources in the super
organization. (Sec. competent adjacent waters of the sea-bed and the
3(a), Art. 22, international resources of the sea-bed and subsoil; and
UNCLOS) organization. (Sec. 2,
Art. 41, UNCLOS) b. With respect to the other activities for the
economic exploitation and exploration of
Thalweg Doctrine the EEZ, such as production of energy from
water, currents and winds;
It is a modern rule of international law which
divides boundary rivers between states by the main 2. Jurisdictional rights; and
channel of navigation, if there is one, rather than by
the geographical center. It is applicable between a. With respect to establishment and use of
states of the Union where the boundary in question artificial islands;
has not been fixed in some other way, as by b. As to protection and preservation of the
agreement, practical location, prescription, and it marine environment; and
applies even as between states that existed before c. Over marine scientific research
the doctrine became fully established in
international law. (New Jersey v. Delaware, 291 U.S. 3. Other rights and duties provided for in the Law
361, 05 Feb. 1934) of the Sea Convention. (Art. 56, UNCLOS)
3. EXCLUSIVE ECONOMIC ZONE NOTE: The coastal State has no sovereignty over the
EEZ. What the coastal State only has are sovereign
rights, jurisdictional rights, and other rights0 under
Exclusive Economic Zone (EEZ)
the Law of the Sea Convention. (Bernas, 2009)
It refers to the body of water extending up to 200

The coastal state may inspect and arrest ship’s
nautical miles beyond the baseline, within which the
crew in its EEZ
State may exercise sovereign rights to explore,
exploit, conserve, and manage the natural
The coastal State may board, and inspect a ship,
resources. (Magallona, 2005)
arrest a ship and its crew and institute judicial
proceedings against them. Arrested vessels and
It gives the coastal State sovereign rights overall
their crews may be required to post reasonable
economic resources of the sea, seabed and subsoil
bond or any other form of security. However, they
in an area extending not more than 200 nautical
must be promptly released upon posting of bond.
miles beyond the baseline from which the territorial
(Art. 73, UNCLOS)
sea is measured. (Arts. 55 & 57, UNCLOS)
In the absence of agreement to the contrary by the
NOTE: The provisions on the exclusive economic
States concerned, UNCLOS does not allow
zone are both a grant of right to and imposition of
imprisonment or any other form of corporal
obligations on coastal states relative to the
punishment. However, in cases of arrest and
exploitation, management, and preservation of the
detention of foreign vessels, it shall promptly notify
resources found within the zone. (Magallona, 2005)
the flag state of the action taken. (ibid.)
Rights of the Coastal State in the EEZ (2005,

2004 BAR)
1. Sovereign rights;
503
Primary obligations of coastal states over the If the coastal state sets the allowable catch at the
EEZ same level as its harvesting capacity, then no
surplus is left. The result is that the access by other
1. Proper conservation and management states to surplus stocks may prove to be illusory.
measures that the living resources of the EEZ (Magallona, 2005)
are not subjected to over-exploitation; and,
Matters that the coastal state may regulate in
NOTE: The UNCLOS does not set a limit, except regard to fishing by the nationals of other states
by the duty of the coastal state not to in the EEZ
overexploit. (Magallona, 2005)
1. Licensing of fishermen, fishing vessels and
2. Promote the objective of “optimum equipment, and the payment of fishing;
utilization” of the living resources, and to this
end, to determine the maximum allowable 2. Determining the species which may be caught
catch of such resources in relation to its and fixing the quotas to catch;
capacity to harvest the allowable catch. (Art.
61(1), 62(1), UNCLOS) 3. Regulation of seasons and areas of fishing, the
types, sizes and amount of gear and fishing
Objectives of conservation of living resources in vessels that may be used;
the EEZ
4. Fixing the age and size of fish that may be
1. The determination of the allowable catch of the caught;
living resources;
5. Information required of fishing vessels,
2. The maintenance of the living resources in such including catch and effort statistics and vessel
a way that they are not endangered by over- position reports;
exploitation;
6. The conduct of fisheries research programs;
3. The maintenance or restoration of population 7. The placing of observers and trainees by the
of harvested species at levels which can coastal state on board foreign vessels;
produce the maximum sustainable yield; and 8. The landing of the catch by foreign vessels in
(Art. 61, UNCLOS); and the ports of the coastal state;
9. The terms and conditions of joint ventures or
4. The maintenance of associated or dependent cooperative arrangements;
species above levels at which their 10. Training of personnel and transfer of fisheries
reproduction may become seriously technology; and,
threatened. (Art. 61, UNCLOS) 11. Enforcement procedures. (Magallona, 2005)
NOTE: The coastal state must determine its capacity NOTE: The nationals of other states granted access
to harvest the living resources of the EEZ. If it does to the EEZ must comply with conservation
not have capacity to harvest the allowable catch, it measures and other conditions provided in these
shall give other states access to the surplus of the laws and regulations. (Art. 62, UNCLOS)
allowable catch by means of agreements or
arrangements consistent with the UNCLOS. For this
purpose, the coastal state may establish terms and
conditions by laws and regulations. (Art. 62,
UNCLOS)
504
2023 GOLDEN NOTES
Contiguous Zone vs. EEZ (2004 BAR)
CONTIGUOUS ZONE EEZ

As to Measurement
Known as the Ends at the 200th
protective jurisdiction nautical mile from the
and starts from the 12th baseline.
nautical mile from low
water from the
baseline.
As to Extent of Control
Coastal state may No state really has the
exercise the control exclusive ownership of
necessary to (1) it, but the state which
prevent infringement has a valid claim on it
of its customs, fiscal, according to the Geological Continental Shelf
immigration, or UNCLOS has the right
sanitary laws within its to explore and exploit It comprises the entire prolongation of the coastal
territory or its its natural resources. state’s land mass and extends up to the outer edge
territorial sea or (2) of the continental margin.
punish such
infringement. It starts from the baseline from which the territorial
sea is measured and has its outer limit at the outer
4. CONTINENTAL SHELF edge of the continental margin which may extend
beyond the 200 nautical miles from the baseline or
Continental Shelf may fall short of that distance. (Art. 76(4)(a),
UNCLOS)
The Continental Shelf refers to the seabed and
subsoil of the submarine areas adjacent to the Continental shelf (Juridical/Legal Continental
coastal State but outside the territorial sea, to a Shelf)
depth of 200 meters or beyond that limit, to where
the depth allow exploitation; and the seabed and It comprises the seabed and subsoil of the
subsoil or areas adjacent to islands. submarine areas that extend beyond its territorial
sea throughout the natural prolongation of its land
Otherwise known as archipelagic or insular shelf for territory to the outer edge of the continental margin
archipelagos, refers to a) the seabed and subsoil of or to a distance of 200 nautical miles beyond the
the submarine areas adjacent to the meters or, baselines from which the breadth of the territorial
beyond that limit, to where the depth allows sea is measured if the edge of the continental margin
exploitation, and b) the seabed and subsoil of areas does not extend up to that distance. (Art. 76 (1),
adjacent to islands. (Magallona, 2005) UNCLOS)
Categories of Continental shelf NOTE: The rights of the coastal state over the
continental shelf do not depend on occupation,
1. Continental shelf; and effective or notional, or on any express
a. Geological continental shelf; and proclamation. (Art. 77(3), UNCLOS)
b. Juridical/Legal Continental Shelf
The UNCLOS unifies the continental and the
2. Extended Continental Shelf. (Magallona, 2005) extended continental shelves into one by providing
that the continental shelf extends to the breadth of
505
either shelf, whichever is the farthest. (Art. 76(1)(4), Extended Continental Shelf
(UNCLOS)
It is the portion of the continental shelf that lies
Continental margin beyond the 200 nautical miles limit in the
juridical/legal continental Shelf. (Ibid)
It is the submerged prolongations of the land mass
of the coastal state, consisting of the continental Benham Plateau
shelf proper, the continental slope and the
continental rise. It does not include the deep ocean It is now known as the Philippine Rise. It is an
floor with its ocean ridges or the subsoil. (Art. 76(3), undersea feature which has an area approximately
UNCLOS) 24 million hectares in size, located within the
Philippine exclusive economic zone and continental
NOTE: The coastal State shall establish the outer shelf as well as the outer limits of the continental
edge of the continental margin wherever the margin shelf in accordance with the recommendations of
extends beyond the 200 nautical miles from the the Commission on the Limits of the Continental
baselines. In establishing the Continental Margin, it Shelf issued on April 12, 2012. (Changing the Name
shall either use: of Benham Rise to Philippine Rise, and for other
purposes, E.O. No. 25, 16 May 2017)
1. A line drawn by reference to points no more
than 60 nautical miles from the foot of the Limitation on the rights of coastal state over the
continental slope; or continental shelf
2. A line drawn by reference to points at which the Rights of the coastal State over the continental shelf
thickness of sediments is less than one percent do not affect the legal status of the superjacent
of the distance to the base of the continental waters or of the air space above those waters and
slope. (Art. 76(4), UNCLOS) such exercise of right must not infringe or result in
unjustifiable interference with navigation and other
Permissible breadth of the continental shelf rights and freedoms of other States. (Art. 78(1)(2),
UNCLOS)
Under the UN Convention, it extends to a distance
not extending 200 nautical miles from the baselines. Island
However, if the coastal State succeeds in its
application for an extended continental shelf, it may It is a naturally formed area of land, surrounded by
extend to not more than 350 nautical miles. (Art. 76 water, which is above water at high tide. (Art.
(1)(5), UNCLOS) 121(1), UNCLOS)
NOTE: Under Presidential Proclamation 370, the NOTE: It can have its own territorial sea, exclusive
continental shelf has no such legal limit. It extends economic zone and continental shelf. (Art. 121(2),
outside the area of the territorial sea “to where the UNCLOS)
depth of the superjacent waters admits of the
exploitation of such natural resources.” In this case, The continental shelf of an island is recognized.
exploitation of resources may go beyond the 200 However, rocks which cannot sustain human
nautical miles. habitation or economic life shall have no continental
shelf or EEZ. (Art. 121(3), UNCLOS)
506
2023 GOLDEN NOTES
High or Open seas XPN: However, the arrest or boarding of a vessel
sailing in the high seas may be made by a State,
The waters, which do not constitute the internal other than the flag-State of such vessel, in the
waters, archipelagic waters, territorial sea and following instances:
exclusive economic zone of a state. They are beyond
the jurisdiction and sovereign rights of states. (Art. 1. A foreign merchant ship by the coastal State in
86, UNCLOS) its internal waters, the territorial sea and the
contiguous zones for any violation of its laws;
It is treated as res communes or res nullius, and thus, (Art. 2 (5), UNCLOS)
are not part of the territory of a particular State.
(Art. 89, UNCLOS) 2. A foreign merchant ship for piracy; (Art. 105,
UNCLOS)
Freedoms on the high seas 3. Any ship engaged in the slave trade; (Art. 99,
UNCLOS)
These are the freedom of: (N-O-L-A-F-S) 4. Any ship engaged in unauthorized
broadcasting; (Art. 109, UNCLOS) or
1. Navigation; 5. A ship without nationality or flying a false flag
2. Overflight; or refusing to show its flag. (Art. 110, UNCLOS)
3. To Lay submarine cables and pipelines;
4. To construct Artificial islands and other Flag of Convenience (2004 BAR)
installations permitted under international
law; Refers to a state with which a vessel is registered for
5. Fishing; and various reasons such as low or non-existent
6. Scientific research. (Art. 87(1), in relation to Art. taxation or low operating costs although the ship
90, UNCLOS) has no genuine link with that state (Harris, 1998)
NOTE: This is open to all States and shall be

exercised with due regard for the interests of other Jurisdiction over crimes committed on board a
States in their exercise of the freedom of the high foreign private vessel anchored in a coastal state
seas. (Art. 87(2) UNCLOS)
In the French rule, it recognizes the jurisdiction of
Flag State the flag state over crimes committed on board the
vessel except if the crime disturbs the peace, order
It refers to the State whose nationality the ship and security of the host country. In English rule, the
possesses; for it is nationality which gives the right host country has jurisdiction over the crimes
to fly a country’s flag. In the high seas, a state has committed on board the vessel unless they involve
exclusive jurisdiction over ships sailing under its the internal management of the vessel. (Reyes, 2017)
flag. It is required however, that there exists a
genuine link between the State and the ship. (Arts. Instances when a State may exercise jurisdiction
91(1) & 92(2), UNCLOS) on open seas
Applicable laws to vessels sailing on the high 1. Slave trade (Art. 99, UNCLOS);
seas 2. Hot pursuit (Art. 111, UNCLOS);
3. Right of approach (Art. 110, UNCLOS); and
GR: Vessels sailing on the high seas are subject only 4. Piracy (Art.101, UNCLOS)
to international law and to the laws of the flag State.
(Art. 91, UNCLOS)
507
Doctrine of Hot Pursuit legitimate activities of
All waters (part of the the immediately
It provides that the pursuit of a vessel maybe sea, rivers, lakes, etc.) adjacent neighboring
undertaken by the coastal State which has good landwards from the States.
reason to believe that the ship has violated the laws baseline of the
and regulations of that State. (Art. 111, UNCLOS) territory. Sovereignty 3. Existing submarine
over these waters is cables laid by other
The pursuit must start when the foreign vessel is the same extent as States and “passing
within the internal waters, the archipelagic waters, sovereignty over through its waters
the territorial waters or the contiguous zone of the land, and it is not without making a
pursuing state. It may be carried out only by subject to the rights windfall” as well as
warships or military aircraft, or any other ship or of innocent passage. the maintenance and
aircraft properly marked for that purpose. (ibid.) replacement of such
cables upon being
Elements of the Doctrine of Hot Pursuit notified of their
location and the
1. The pursuit must be commenced when the ship intention to repair or
is within the internal waters, territorial sea or replace them.
the contiguous zone of the pursuing State, and Territorial Sea
may only be continued outside if the pursuit has Territorial Seas are
not been interrupted; defined by historic
right or treaty limits.
Coastal states exercise
2. It is continuous and unabated; and
sovereignty over
As defined in the
Territorial Sea and it
3. Pursuit conducted by a warship, military Convention on the
extends to the airspace
aircraft, or government ships authorized to that Law of the Sea, it has
over the territorial sea
effect. (Art. 111, UNCLOS) a uniform breadth of
and to its seabed and
12 miles measured
subsoil.
from the lower
Arrival under Stress water mark of the
coast.
It refers to involuntary entrance of a foreign vessel Contiguous Zone
on another state’s territory which may be due to The coastal state does
lack of provisions, well-founded fear of seizure, not have sovereignty
privateers or pirates, or by reason of any accident of It is the zone adjacent over the contiguous
the sea disabling navigation. (Art. 819, Code of to the territorial sea. zone because the
Commerce) The contiguous zone contiguous zone is a
may not extend more zone of jurisdiction for a
EXTENT AND RIGHTS AND than 24 nautical particular purpose, not
DEFINITION POWERS OF STATES miles beyond the of sovereignty.
Internal Waters baseline from which
These are waters 1. Rights under existing the breadth of the State may exercise
enclosed by the agreement on the part territorial sea is control as is necessary
archipelagic of the third states measured 12 nautical to:
baselines, regardless should be respected. miles from the 1. Prevent
of their depth or territorial sea. infringement of its
distance from the 2. The traditional fishing customs, fiscal,
coast. rights and other immigration, or
508
2023 GOLDEN NOTES
sanitary laws within A diplomatic agent shall enjoy immunity from the
its territory or its criminal jurisdiction of the receiving State. He shall
territorial sea; or also enjoy immunity from its civil and
administrative jurisdiction, except in the case of:
2. Punish such
infringement. 1. a real action relating to private immovable
Exclusive Economic Zones property situated in the territory of the
States may exercise; (So- receiving State, unless he holds it on behalf
It gives the coastal
J-OR) of the sending State for the purposes of the
State sovereign rights
mission;
overall economic
1. Sovereign rights;
resources of the sea,
2. Jurisdictional rights; 2. an action relating to succession in which
seabed and subsoil in
and the diplomatic agent is involved as
an area extending
3. Other Rights and executor, administrator, heir or legatee as a
not more than 200
duties provided for private person and not on behalf of the
nautical miles
in the Law of the Sea sending State;
beyond the baseline
Convention.
from which the
(Please see discussion on 3. an action relating to any professional or
territorial sea is
rights of the coastal state commercial activity exercised by the
measured.
in the EEZ – page 503) diplomatic agent in the receiving State
High Seas outside his official functions. (Supra.)
They are beyond the
They are all parts of jurisdiction and b) EXTRADITION
the sea that are not sovereign rights of state.
included in the It is the removal of a person from a requested state
territorial sea or in It is treated as res to a requesting state for criminal prosecution or
the internal waters of communes or res nullius, punishment. Put differently, to extradite is to
a state. (Art. 1, Geneva and thus, are not part of surrender, or obtain surrender of, a fugitive from
Convention) the territory of a one jurisdiction to another. (U.S. v. Alvarez-Machain,
particular State. 504 US 655, 15 June 1992)
Basis of Extradition
D. JURISDICTION OVER PERSONS AND
ECONOMIC ACTIVITY The extradition of a person is required only if there
is a treaty between the State of refuge and the State
of origin. In the absence of such treaty, the local
state has every right to grant asylum to the fugitive
1. CRIMINAL JURISDICTION and not refuse to deliver him back to the latter state
even if he is its national. As a gesture of comity,
a) GENERAL THEORY however, the surrender requested is may still be
effected by the state of asylum. Furthermore, even
A diplomatic agent enjoys immunity from criminal with a treaty, crimes which are political in character
jurisdiction of the receiving State. (Art. 31, Vienna are exempted.
Convention on Diplomatic Relations)
Fundamental Principles
He may not be arrested, prosecuted, or punished for
any offense he may commit, unless his immunity is 1. Based on the consent of the State expressed
waived. in a treaty (or manifested in an act of
goodwill);
509
2. Principle of specialty – A fugitive who is Procedure
extradited may be tried only for the crime
specified in the request for extradition and 1. File/issue request through diplomatic
included in the list of offenses in the representative with:
extradition treaty, unless the requested
State does not object to the trial of such a. Criminal charge and warrant of arrest;
person for the unlisted offense (1993 b. Recital of facts;
BAR); c. Text of applicable law designating the
offense;
3. Any person may be extradited, whether he d. Pertinent papers; and,
is a national of the requesting State, of the e. Decision of conviction. (Sec. 4, P.D. No.
State of refuge or of another State. He need 1069, Philippine Extradition Law)
not be a citizen of the requesting State;
2. The DFA forwards request to the DOJ.(Sec.
4. Political or religious offenders are 5 (1), P.D. No. 1069)
generally not subject to extradition (2002
BAR). It has been held that “in order to 3. The DOJ files petition for extradition with
constitute an offense of a political the RTC. (Sec. 5 (2), P.D. No. 1069)
character, there must be two or more
parties in the state, each seeking to impose 4. Upon receipt of a petition for extradition
the government of their own choice.” and its supporting documents, the judge
must study them and make, as soon as
NOTE: Attentat clause is a provision in an possible, a prima facie finding whether:
extradition treaty which states that the
murder of the head of state or any member a. They are sufficient in form and
of his family is not to be regarded as a substance;
political offense and therefore extraditable.
b. They show compliance with the
5. The offense must have been committed Extradition Treaty and Law; and
within the territory of the requesting State
or against its interest; and, c. The person sought is
extraditable. (Government of the U.S.A.
6. Double criminality rule – The act for which v. Hon. Purganan, G.R. No. 148571, 24
the extradition is sought must be Sept. 2002)
punishable in both the requesting and
requested States. (2007, 1991 BAR) At his discretion, the judge may require the
submission of further documentation or may
Common bars to Extradition personally examine the affiants and witnesses
of the petitioner. If, in spite of this study and
1. Failure to fulfill dual criminality; examination, no prima facie finding is possible,
2. Political nature of the alleged crime; the petition may be dismissed at the discretion
3. Possibility of certain forms of punishment; of the judge. (ibid.)
4. Jurisdiction; ands
5. Citizenship of the person in question. 5. On the other hand, if the presence of a
prima facie case is determined, then the
magistrate must immediately issue a
warrant for the arrest of the extraditee,
who is at the same time summoned to
510
2023 GOLDEN NOTES
answer the petition and to appear at arguments. Arrest subsequent to a hearing can no
scheduled summary hearings;(ibid.) longer be considered “immediate.” The law could
not have intended the word as a mere superfluity
6. Hearing (provide counsel de officio if but, on the whole, as a means of imparting a sense
necessary) ;(Sec. 7, P.D. No. 1069) of urgency and swiftness in the determination of
whether a warrant of arrest should be issued.
7. Appeal within 10 days to the CA, whose
decision shall be final and executory; (Sec. The court is expected merely to get a good first
12 (1), P.D. No. 1069) impression, a prima facie finding, sufficient to make
a speedy initial determination as regards the arrest
8. Decision forwarded to the DFA through the and detention of the accused.
DOJ; (Sec. 14, P.D. No. 1069) and
2. On the Basis of the Constitution
9. Individual placed at the disposal of the
authorities of the requesting State, which Even Sec. 2 of Art. III of the 1987 Constitution does
shall shoulder costs and expenses. (Sec.16, not require a notice or a hearing before the issuance
P.D. No. 1069) of a warrant of arrest. To determine probable cause
for the issuance of arrest warrants, the Constitution
Extradition vs. Deportation (1993 BAR) itself requires only the examination, under oath or
affirmation, of the complainants and the witnesses
EXTRADITION DEPORTATION they may produce. There is no requirement to notify
As to Authority and hear the accused before the issuance of
Effected at the request Unilateral act of the warrants of arrest. (U.S. v. Purganan, G.R. No.
of the State of origin. local State. 148571, 24 Sept. 2002)
As to Cause
Based on offense Based on causes Q: Does an extraditee have a right of access to
committed in the State arising in the local the evidence against him?
of origin. State.
As to Effect A: It depends. During the executive phase of an
Undesirable alien may extradition proceeding, an extraditee does not have
Calls of the return of the right of access to evidence in the hands of the
be deported to a State
the fugitive to the State government. But during the judicial phase he has.
other than his own or
of origin. (Secretary of Justice v. Judge Lantion, G.R. No 139465,
the State of origin.
Due process in extradition proceeding 17 Oct. 2000)
Q: Is a respondent in an extradition proceeding Nature of extradition proceeding

entitled to notice and hearing before the
issuance of a warrant of arrest? Extradition proceeding is sui generis. It is not a
criminal proceeding which will call into operation
A: YES all the rights of an accused as guaranteed by the Bill
of Rights. (Secretary of Justice v. Lantion, G.R. No.
1. On the Basis of the Extradition Law 139465, 18 Jan. 2000)
Under Sec. 6 of P.D. 1069, Extradition Law uses the Validity of a petition for bail in extradition cases
word “immediate” to qualify the arrest of the
accused. Hearing entails sending notices to the Sec. 11, Art. II of the 1987 Constitution provides: “The
opposing parties, receiving facts and State values the dignity of every human person and
arguments from them, and giving them time to guaranteed full respect for human rights.” The
prepare and present such facts and Philippines, therefore, has the responsibility of
511
protecting and promoting the right of every person The Treaty is neither a piece of criminal legislation
to liberty and due process, ensuring that those nor a criminal procedural statute. It merely
detained or arrested can participate in the provided for the extradition of persons wanted for
proceedings before a court, to enable it to decide offenses already committed at the time the treaty
without delay on the legality of the detention and was ratified.
order their release if justified.
2. CIVIL JURISDICTION
The Philippine authorities are under obligation to
make available to every person under detention
International law limits itself to criminal rather than
such remedies which safeguard their fundamental
civil jurisdiction which is a subject for private
right to liberty. These remedies include the right to
international law or conflicts of law.
be admitted to bail. (Government of Hong Kong
Special Administrative Region v. Olalia, Jr., G.R. No.
Privileges or immunities of diplomatic envoys
153675, 19 Apr. 2007)
and consular officers from civil jurisdiction of
the receiving State
Requisites for granting bail in extradition cases
Diplomatic envoys shall enjoy immunity from civil

The possible extraditee must show upon a clear and
jurisdiction, except in the cases of:
convincing evidence that:
1. a real action relating to private immovable

1. He will not be a flight risk or a danger to the
property situated in the territory of the
community; and,
receiving State;
2. There exist special, humanitarian and
compelling circumstances.
2. an action relating to succession in which
they are involved as a private person and
Rights of a person arrested and detained in
not on behalf of the sending State; or
another State
3. an action relating to any professional or
1. Right to have his request complied with by the
commercial activity exercised by the
receiving State to so inform the consular post of
diplomatic envoys in the receiving State
his condition;
outside their official functions. (VCDR, Art
31)
2. Right to have his communication addressed to
the consular post forwarded by the receiving
Consular officers also enjoy immunity from civil
State accordingly; and
jurisdiction, except in respect of a civil action either:
3. Right to be informed by the competent

1. arising out of a contract concluded by a
authorities of the receiving State without delay
consular officer in which the officer acted in
his rights as mentioned above.
his personal capacity; or
Q: Is the retroactive application of the

2. by a third party for damage arising from an
extradition treaty amounting to an ex post facto
accident in the receiving State caused by a
law?
vehicle, vessel or aircraft. (VCCR, Art 43)
A: NO. In Wright v. Court of Appeals (G.R. No. 113213,

16 Aug. 1994), it was held that the retroactive
application of the Treaty of Extradition does not
violate the prohibition against ex post facto laws.
512
2023 GOLDEN NOTES
3. IMMUNITY FROM JURISDICTION its own territory. Redress of grievances by reason of
such acts must be obtained through the means open
to be availed of by sovereign powers as between
a) SOVEREIGN IMMUNITY
themselves. (Underhill v. Hernandez, 168 U.S. 250)
Doctrine of State Immunity

NOTE: Act of State Doctrine is similar to but
different from the doctrine of sovereign immunity.
The State may not be sued without its consent.
(Sec. 3, Art. XVI, 1987 Constitution)
What characterized Act of State Doctrine as a rule
not of international law but of judicial restraint in
Remedy of a person who feels aggrieved by the
domestic law whereby courts refrain from making
acts of a foreign government
decisions in deference to the executive who is the
principal architect of foreign relations. (Banco
Under both Public International Law and
National de Cuba v. Sabbatino, 376 U.S. 398, 22 Oct.
Transnational Law, a person who feels aggrieved by
1963)
the acts of a foreign sovereign can ask his own
government to espouse his cause through
Constitutional underpinnings of Act of State
diplomatic channels. (Holy See v. Rosario, G.R. No.
Doctrine
101949, 01 Dec. 1994)
a. Arises out of the basic relationships

Act of State Doctrine
between branches of government in a
system of separation of powers.
A State should not inquire into the legal validity of
the public acts of another State done within the
b. It concerns the competency of dissimilar
territory of the latter. (Nachura, 2009)
institutions to make and implement
particular kinds of decisions in the area of
Q: May the acts of a sovereign power be
international relations.
impugned in the courts of another sovereign
country?
c. Doctrine is formulated in past decisions
expresses the strong sense of the Judicial
A: NO. It is the doctrine that protects the
Branch that its engagement in the task of
sovereignty of states by judicial deference to the
passing on the validity of foreign acts of
public acts of foreign state done on that sate’s
state may hinder rather than further this
territory. Under this doctrine, “the courts of one
country’s pursuit of goals both for itself
country will not sit in judgment on the acts of the
and for the community of nations as a
government of another, done within its own
whole in the international sphere.
territory”. (Underhill v. Hernandez 168 U.S. 250, 29
Nov. 1897)
b) DIPLOMATIC AND CONSULAR IMMUNITY
Nature of the Act of State Doctrine
Diplomatic Immunity (2005, 2001 BAR)

It is a rule not of international law but of judicial
restraint in domestic law whereby courts refrain
Diplomatic immunity is a principle of international
from making decisions in deference to the executive
law by which certain foreign government officials
who is the principal architect of foreign relations.
are not subject to the jurisdiction of local courts and
(Bernas, 2009)
other authorities for both their official and, to a
large extent, their personal activities.
Every sovereign state is bound to respect the
independence of every other sovereign state, and
the courts of one country will not sit in judgment on
the acts of the government of another, done within
513
Purpose 4. Diplomatic agents are immune from
criminal, civil or administrative liability;
Not to benefit individuals but to ensure the efficient
performance of the functions of diplomatic missions 5. Receiving State shall protect official
as representing States. communication and official
correspondence of diplomatic mission;
Role of the DFA and the Courts
6. Receiving State shall ensure all members of
Courts cannot blindly adhere and take on its face the diplomatic mission freedom of movement
communication from the DFA that petitioner is and travel;
covered by any immunity. The DFA's determination
that a certain person is covered by immunity is only 7. A diplomatic agent is exempted to give
preliminary which has no binding effect in evidence as a witness;
courts. (Liang vs. People, G.R. No. 125865, Jan. 28,
2000) 8. Exemption from general duties and taxes
including custom duties with certain
Q: Besides the head of the mission, who can exceptions; and
enjoy diplomatic immunities and privileges?
9. Use of flag and emblem of sending State
A: Diplomatic suite or retinue which consists of: on premises of receiving State.
Official staff- it is made up of the administrative and Exceptions

technical personnel of the mission, including those
performing clerical work, and the member of their 1. Any real action relating to private
respective families; and, immovables situated in the territory of the
receiving State unless the envoy holds the
Non-official staff- composed of the household help, property on behalf of the sending State;
such as the domestic servants, butlers, and cooks
and chauffeurs employed by the mission. 2. Actions relating to succession where
diplomatic agent is involved as executor,
NOTE: As a rule, however, domestic servants enjoy administrator, heirs or legatee as a private
immunities and privileges only to the extent person and not on behalf of the sending
admitted by the receiving State and insofar as they State; and
are connected with the performance of their duties.
3. An action relating to any professional or
Privileges and Immunities of Diplomatic commercial activity exercised by the
Mission diplomatic agent in the receiving State
outside his official functions. (Art. 31,
1. Personal inviolability – Members of Diplomatic Convention)
diplomatic mission shall not be liable for
any form of arrest or imprisonment; Modes of Waiving Diplomatic Immunity and
Privileges
2. Inviolability of premises – Premises,
furnishings and means of transport shall be 1. Expressly by the sending State; or,
immune from search, seizure, attachment
or execution; 2. Impliedly, as when the person entitled to the
3. Archives or documents shall be inviolable; immunity from jurisdiction commences
litigation in the local courts and thereby opens
himself to any counterclaim directly
514
2023 GOLDEN NOTES
connected with the principal claim. (Art. 32, some other way. Therefore, the refusal of the
Diplomatic Convention) Register of Deeds to register the sale and the
issuance of TCT in the name of State X is unjustified.
NOTE: Waiver of immunity from jurisdiction with (Art. 21 of the Vienna Convention on Diplomatic
regard to civil and administrative proceedings shall Relations and Optional Protocols)
not be held to mean implied waiver of the immunity
with respect to the execution of judgment, for which However, in so far as the house and lot to be used as
a separate waiver shall be necessary. quarters of the nationals of State X who are studying
in the University of Santo Tomas are concerned, the
Q: The U.S. Ambassador from the Philippines Register of Deeds correctly refused registration.
and the American Consul General also in the Here, the prohibition in the constitution against the
Philippines quarreled in the lobby of Manila transfer of properties to parties other than the
Hotel and shot each other. May Philippine courts Filipino citizens or corporation 60% of the capital of
take jurisdiction over them for trial and which is owned by such citizens should be followed.
punishment for the crime they may have (Art. 21 of the Vienna Convention on Diplomatic
committed? Relations and Optional Protocols)
A: The Philippine courts can take jurisdiction over Q: Huefeng is an economist working with the
the Consul but not over the Ambassador. The Asian Development Bank (ADB). He was charged
Ambassador is immune from prosecution for all with grave oral defamation before the MeTC for
crimes committed by him whether officially or in his allegedly uttering defamatory words to his co-
private capacity. The consul is immune from worker. The MeTC judge received an “office of
criminal prosecution only for acts committed by protocol” from the DFA stating that petitioner is
him in connection with his official functions. covered by immunity from legal process under
(Schneckenburger v. Moran, G.R. No. L- 44896, 31 July the Agreement between the ADB and the
1936) Philippine Government. As a result, the judge
dismissed the cases filed against the petitioner.
Q: The Ambassador of State X to the Philippines However, upon petition for certiorari and
bought, in the name of his government, two mandamus before the RTC, the decision of the
houses and lots at Forbes Park, Makati. One lower court was reversed and set aside. Is
house is used as the chancery and residence of Huefeng covered by immunity provided under
the ambassador, and the other as quarters for the agreement?
nationals of State X who are studying in the
University of Santo Tomas. The Registrar of A: NO. He cannot invoke his immunity under the
Deeds refused to register the sale and to issue agreement. Under the Agreement, the immunity
Transfer Certificates of Title in the name of State mentioned therein is not absolute, but subject to the
X on the ground of the prohibition of the exception that the act was done in "official capacity."
Constitution against the alienation of lands in
favor of aliens. Is his refusal justified? Slandering a person could not possibly be covered
by the immunity agreement because our laws do not
A: The prohibition in the Constitution against allow the commission of a crime, such as
alienation of lands in favor of aliens does not apply defamation, in the name of official duty. It is well-
to alienation of the same in favor of foreign settled principle of law that a public official may be
governments to be used as chancery and residence liable in his personal private capacity for whatever
of its diplomatic representatives. The receiving damage he may have caused by his act done with
State is under obligation to facilitate the acquisition malice or in bad faith or beyond the scope of his
on its territory, in accordance with its laws, by the authority or jurisdiction (Liang vs. People, G.R. No.
sending State of premises necessary for its mission, 125865, 28 Jan. 2000)
or to assist the latter in obtaining accommodation in
515
NOTE: Courts cannot blindly adhere and take on its Ranks of Consuls
face the communication from the DFA that
petitioner is covered by any immunity. The DFAs 1. Consul-general – Heads several consular
determination that a certain person is covered by districts, or one exceptionally large consular
immunity is only preliminary which has no binding district;
effect in courts. xxx At any rate, it has been ruled
that the mere invocation of the immunity clause 2. Consul – Takes charge of a small district or
does not ipso facto result in the dropping of the town or port;
charges (Liang v. People, G.R. No. 125865, 28 Jan.
2000) 3. Vice-consul – Assist the consul; and
Exequatur (1991 Bar) 4. Consular agent – Usually entrusted with the

performance of certain functions by the
An authorization from the receiving State admitting consul. (Art. 9 of the Vienna Convention on
the head of a consular post to the exercise of his Consular Relations)
functions. Thus, an appointee cannot start
performing his function unless the receiving State Duties of Consuls (P-Ob- Prom-Is-Su)
issues an exequatur to him. (Art. 12, Vienna
Convention on Consular Relations) 1. Protection of the interests of the sending State
and its nationals in the receiving State;
Diplomats vs. Consuls
2. Promotion of the commercial, economic,
DIPLOMATS CONSULS cultural, and scientific relations of the sending
They are not and receiving States;
concerned with
They are concerned
political matters and 3. Observation of the conditions and
with political relations
attend rather to developments in the receiving State and
of States.
administrative and report the same to the sending State;
economic issues.
4. Issuance of passports and other travel
Kinds of Consuls documents to nationals of the sending State
and visas or appropriate documents to
1. Consules missi – Professional or career consuls persons wishing to travel to the sending State;
who are nationals of the sending State and are and
required to devote their full time to the
discharge of their duties; and 5. Supervision and inspection of vessels and
aircraft of the sending State.
2. Consules electi – May or may not be nationals Sources of Authority of Consuls
of the sending State and perform their consular
functions only in addition to their regular 1. Letter patent or letter ‘de provision – Which
callings. is the commission issued by the sending State,
and
NOTE: Examples of regular callings include acting
as notary, civil registrar and similar administrative 2. Exequatur – Which is the permission given
capacities and protecting and assisting the nationals them by the receiving State to perform their
of the sending State. functions therein. (Art. 12, Vienna Convention
on Consular Relations)
516
2023 GOLDEN NOTES
Immunity of Consuls Vienna Convention on Consular Relations and
Optional Protocols)
Consuls enjoy their own immunities and privileges
but not to the same extent as those enjoyed by the Diplomatic Immunity vs. Consular Immunity
diplomats. Like diplomats, consuls are entitled to:
DIPLOMATIC CONSULAR
1. Inviolability of their correspondence, IMMUNITY IMMUNITY
archives and other documents Scope as to buildings and premises
2. Freedom of movement and travel Premises of the Consular premises
3. Immunity from jurisdiction for acts mission includes the includes the buildings
performed in their official capacity; and building or parts of or parts of buildings
4. Exemption from certain taxes and building and the land and the land
customs duties. (Arts. 32, 33, 34, 35 of the irrespective of the irrespective of
Vienna Convention on Consular Relations) ownership used for the ownership used
purpose of the mission exclusively for the
Liabilities of Consuls including the residence purposes of consular
of the head of mission. posts.
1. Arrest and punishment for grave offenses; On entry of agents of the receiving State
and GR: The agents of the
2. May be required to give testimony, subject receiving state may not
to certain exceptions. enter the consular
GR: The agents of the
premises.
NOTE: Members of a consular post are under no receiving state may not
obligation to give evidence on the following enter the premises of
XPN: Consent of the
situations: the mission.
head of the consular
post. Consent is
A. Concerning matters connected with the XPN: Consent of the
assumed in case of fire
exercise of their functions; head of the mission.
or other disasters
B. To produce official correspondence and
requiring prompt
documents; and,
protective action.
C. To give evidence as expert witness with
As to inviolability of baggage
regard to the law of the sending State
Consular baggage shall
Immunity of Consular Offices not be opened. It may
be requested that the
They are immune only with respect to that part baggage be opened in
where the consular work is being performed. their presence by an
authorized
Q: May consular offices be subject to Personal baggage of a representative of the
expropriation by the receiving State? diplomatic agent shall receiving state if they
not be opened. have serious reason to
A: YES. For purposes of national defense or public believe that the
utility. baggage contains
objects of other
NOTE: With respect to expropriation by the articles, documents,
receiving State, steps shall be taken to avoid correspondence, or
impeding the performance of consular functions, articles.
and prompt, adequate and effective compensation As a witness before the court
shall be paid by the sending State. (Art. 31 of the Not obliged to give May be called upon to
evidence as a witness. attend as a witness; if
517
declined, no coercive 2. By a third party for damages arising from
measure or penalty an accident in the receiving State caused by
may be applied. a vehicle, vessel, or aircraft. (Arts. 41 and
(Bernas, 2009) 43, Vienna Convention on the Consular
Relations)
Differences in the privileges or immunities of
diplomatic envoys and consular officers from Grounds for Termination of Consular Office
the civil and criminal jurisdiction of the
receiving State 1. Death of consular officer;
2. Recall;
1. A diplomatic agent shall enjoy immunity from 3. Dismissal;
the criminal jurisdiction of the receiving State.
He shall also enjoy immunity from its civil and 4. Notification by the receiving State to the
administrative jurisdiction; while sending State that it has ceased to consider as
member of the consular staff;
XPNs:
a. A real action relating to private 5. Withdrawal of his exequatur by the receiving
immovable property situated in the State; and
territory of the receiving State, unless he
holds it on behalf of the sending State for 6. War – outbreak of war between his home State
the purpose of the mission; and the receiving State.
b. An action relating to succession in Immunity of International Organizations

which the diplomatic agent is involved
as executor, administrator, heir or Q: Trade Union of the Philippines and Allied
legatee as private person and not on Services (TUPAS) filed with then Ministry of
behalf of the sending State; and Labor and Employment a Petition for
Certification Election among the rank and file
c. An action relating to any professional or members employed by International Catholic
commercial activity exercised by the Migration Commission (ICMC), an international
diplomatic agent in the receiving State organization rendering voluntary humanitarian
outside of his official functions. (Art. 31, services in the Philippines. ICMC opposed the
Vienna Convention of Diplomatic petition of TUPAS on the ground that it is an
Relations) international organization registered with the
United Nations, hence, enjoys diplomatic
2. A consular officer does not enjoy immunity immunity. Meanwhile, International Rice
from the criminal jurisdiction of the receiving Research Institute, Inc (IRRI), which was
State and are not amenable to the jurisdiction of intended to be an autonomous, philanthropic,
the judicial or administrative authorities of the tax-free, non- profit, non-stock organization
receiving State in respect of acts performed in designed to carry out the principal objective of
the exercise of consular functions. conducting basic research on rice plant. IRRI has
an existing local union, the Kapisanan ng
However, this does not apply in respect of a civil Manggagawa at TAC sa IRRI (Kapisanan), which
action either: filed a petition for direct certification election
with the DOLE. The latter dismissed the petition
1. Arising out of a contract concluded by a on the ground that P.D. No. 1620 conferred upon
consular officer in which he did not enter it the status of an international organization and
expressly or impliedly; and granting it immunity from all civil, criminal and
administrative proceedings under Philippine
518
2023 GOLDEN NOTES
laws. Do ICMC and IRRI enjoy diplomatic institutions from national control and to enable
immunity? them to discharge their responsibilities
impartially on behalf of all their members. The
A: YES. P.D. 1620 is constitutional. There can be no raison d'etre for these immunities is the
question that diplomatic immunity has been assurance of unimpeded performance of their
granted to ICMC and IRRI. The grant of immunity functions by the agencies concerned. (ICMC vs.
from local jurisdiction to ICMC and IRRI is clearly Calleja, G.R. No. 85750, 28 Sept. 1990)
necessitated by their international character and
respective purposes. The objective is to avoid the Grounds for Termination of Diplomatic
danger of partiality and interference by the host Relations under Municipal Law (R-A-D-A-R)
country in their internal workings. The exercise of
jurisdiction by the Department of Labor in these 1. Resignation;
instances would defeat the very purpose of 2. Accomplishment of the purpose;
immunity, which is to shield the affairs of 3. Death;
international organizations, in accordance with 4. Abolition of the office; and
international practice, from political pressure or 5. Removal.
control by the host country to the prejudice of
member States of the organization, and to ensure Grounds for Termination of Diplomatic Relation
the unhampered performance of their functions. under International Law
(ICMC vs. Calleja, G.R. No. 85750, 28 Sept. 1990)
1. War – Outbreak between the sending and the
NOTE: There are basically three propositions receiving State;
underlying the grant of international immunities to 2. Extinction of either the sending State or the
international organizations. These principles, receiving State; and
contained in the ILO Memorandum are stated thus: 3. Recall – Demanded by the receiving State when
the foreign diplomat becomes persona non
1. International institutions should have a status grata.
which protects them against control or
interference by any one government in the Termination of diplomatic relations does not
performance of functions for the effective terminate consular relations between the sending
discharge of which they are responsible to and receiving States.
democratically constituted international bodies
in which all the nations concerned are Consuls belong to a class of State agents distinct
represented; from that of diplomatic officers. They are not
clothed with diplomatic character and are not
2. No country should derive any national financial accredited to the government of the country where
advantage by levying fiscal charges on common they exercised their consular functions; they deal
international funds; and directly with local authorities.
3. The international organization should, as a They do not represent their State in its relations
collectivity of States members, be accorded the with foreign States and are not intermediaries
facilities for the conduct of its official business through whom matters of State are discussed
customarily extended to each other by its between governments. Consuls look mainly after
individual member States. The theory behind the commercial interest of their own State in the
all three propositions is said to be essentially territory of a foreign State.
institutional in character. "It is not concerned
with the status, dignity or privileges of
individuals, but with the elements of functional
independence necessary to free international
519
International Organizations and its Officers the lower court was reversed and set aside. Is
Huefeng covered by immunity provided under
The immunity of International Governmental the agreement?
Organizations (IGOs) is not based on international
customary law but derives from the terms of A: NO. He cannot invoke his immunity. Under the
particular treaty creating the IGO. These treaties, Agreement, the immunity mentioned therein is not
almost without exception, specify privileges and absolute, but subject to the exception that the act
immunities accorded to the IGO which are shaped was done in "official capacity."
by the function that the relevant IGO is aimed to
fulfill. The founding treaties usually impose an Slandering a person could not possibly be covered
obligation on the contracting parties to enact by the immunity agreement because our laws do not
national legislation granting the relevant allow the commission of a crime, such as
international organization and its representatives defamation, in the name of official duty. It is a well-
specific immunities and privileges. Normally, a settled principle of law that a public official may be
headquarters agreement is concluded between the liable in his personal private capacity for whatever
relevant organization and its host member State damage he may have caused by his act done with
which regulates the extent of immunities and malice or in bad faith or beyond the scope of his
privileges granted to the organization in the authority or jurisdiction. (Liang vs. People, G.R. No.
national territory. (Kaczorowska, 2010) 125865, 28 Jan. 2000)
NOTE: The reason for the grant of immunities and NOTE: Courts cannot blindly adhere and take on its
privileges to international organizations is to avoid face the communication from the DFA that
the danger of partiality and interference by the host petitioner is covered by any immunity. The DFA’s
country in their internal workings. The very determination that a certain person is covered by
purpose of immunity in accordance with immunity is only preliminary, which has no binding
international practice is to shield the affairs of effect in courts. xxx At any rate, it has been ruled
international organizations from political pressure that the mere invocation of the immunity clause
or control by the host country to the prejudice of does not ipso facto result in the dropping of the
member States of the organization, and to ensure charges. (Liang vs. People, G.R. No. 125865, 28 Jan.
the unhampered performance of their functions. 2000)
(Callado vs. IRRI, G.R. No. 106483 22 May 1995)
Accordingly, if a State is not a member of a GR: A diplomatic agent shall enjoy immunity from
particular international organization it is not civil and administrative jurisdiction.
obliged under international law to grant immunity
to that IGO. (Kaczorowska, 2010) XPNS:
1. A real action relating to private immovable
Q: Huefeng is an economist working with the property situated in the territory of the receiving
Asian Development Bank (ADB). He was State, unless he holds it on behalf of the sending
charged with grave oral defamation before the State for the purposes of the mission;
MeTC for allegedly uttering defamatory words 2. An action relating to succession in which the
to his co-worker. The MeTC judge received an diplomatic agent is involved as executor,
"office of protocol” from the DFA stating that the administrator, heir or legatee as a private person
petitioner is covered by immunity from legal and not on behalf of the sending State; and
process under the Agreement between the ADB 3. An action relating to any professional or
and the Philippine Government. As a result, the commercial activity exercised by the diplomatic
judge dismissed the cases filed against the agent in the receiving State outside his official
petitioner. However, upon petition for certiorari functions. (Art. 31, Vienna Convention on Diplomatic
and mandamus before the RTC, the decision of Relations)
520
2023 GOLDEN NOTES
4. AREAS NOT SUBJECT TO JURISDICTION TO Baselines may either be: (a) normal; or (b) straight.
INDIVIDUAL STATES
a) HIGH SEAS
High Seas
All the part of the sea that are not included in the
territorial sea or in the internal waters of a state.
(Art. 1, Geneva Conventions)
No State may validly purport to subject any part of

the high seas to its sovereignty. (Art. 89, United
Nations Convention on the Law of the Sea)
Six freedoms in the High Seas
1. Freedom of navigation ;
2. Freedom of overflight (both civilian and
military aircraft);
3. Freedom of fishing;
4. Freedom to lay submarines and pipelines;
5. Freedom to construct artificial islands or
structure; and
6. Freedom of scientific research.
Baseline
It is a line from which the breadth of the territorial

sea, the contiguous zone and the exclusive economic
zone is measured in order to determine the
maritime boundary of the coastal State.
It is the “low-water line along the coast as marked

on large scale charts officially recognized by the
coastal State”. (Sec. 2, Art. 5, UNCLOS)
Two ways to draw baselines
1. Normal Baseline
Is one drawn following the “low-water line along the

coast as marked on large-scale charts officially
recognized by the coastal state”. The line follows the
curvature of the coast and therefore would normally
not consist of straight lines. (Sec. 2, Art. 5, UNCLOS)
521
2. Straight Baseline surrounded by waters or a body of water studded
with islands.
Instead of following the curvatures of the coast,
straight lines are drawn connecting selected points Straight Archipelagic Baselines vs. Archipelagic
on the coast without appreciable departure from State (2016 BAR)
the general shape of the coast. (Sec. 2, Art. 7,
UNCLOS) An archipelagic State may draw straight
archipelagic baselines by joining the outermost
Archipelagic State points of the outermost islands and drying reefs of
the archipelago provided that within such baselines
A state constituted wholly by one or more are included the main islands and an area in which
archipelagos and may include other islands. (Art. 46, the ration of the water to the area of the land,
UNCLOS) including atolls, is between 1 to 1 and 9 to 1. (Art.
47, UNCLOS)
Archipelagic Doctrine (2016 BAR)
Guidelines in drawing archipelagic baselines
The waters around, between, and connecting the
islands of the archipelago, regardless of their 1. The length of such baselines shall not exceed
breadth and dimensions, form part of the internal 100 nautical miles, except that up to 3 percent
waters of the Philippines. (Sec. 1, Art. I, 1987 of the total number of baselines enclosing any
Constitution) archipelago may exceed that length, up to a
maximum length of 125 nautical miles. (Art. 47
The archipelagic doctrine is based on the principle (2), UNCLOS)
that an archipelago, which consists of a number of
islands separated by bodies of water, should be 2. The drawing of such baselines shall not depart
treated as one integral unit, and the waters inside to any appreciable extent from the general
the baselines are considered internal waters. configuration of the archipelago. (Art. 47(3)
(Department of Foreign Affairs – MANAMo 2022) UNCLOS)
An archipelago is a group of islands, including parts 3. Such baselines shall not be drawn to and from
of islands, interconnecting waters, and other low tide elevations. (Art. 47(4) UNCLOS)
natural features which are closely interrelated in
such islands, waters and other natural features, NOTE: Unless lighthouses or similar
form an intrinsic geographical, economic and installations which are permanently above sea
political entity, or which historically have been level have been built on them or where a low-
regarded as such. (Art. 46, UNCLOS) tide elevation is situated wholly or partly at
distances not exceeding the breadth of the
Art. I, Sec. 1 of the 1987 Constitution adopts the territorial sea from the nearest island. (Ibid)
archipelagic doctrine. It provides that the national
territory of the Philippines includes the Philippine 4. It shall not be applied in such a manner as to cut
archipelago, with all the islands and waters off from the high seas or the exclusive economic
embraced therein; and the waters around, between zone the territorial sea of another State. (Art. 47
and connecting the islands of the archipelago, (5), UNCLOS)
regardless of their breadth and dimensions form
part of the internal waters of the Philippines. 5. If a part of the archipelagic water of an
archipelagic State lies between two parts of an
It emphasizes the unity of land and waters by immediately adjacent neighboring State,
defining an archipelago either as a group of islands existing rights, and all other legitimate interests
522
2023 GOLDEN NOTES
which the latter State has traditionally The traditional fishing rights and other
exercised in such waters and all rights legitimate activities of the immediately
stipulated by agreement between those States adjacent neighboring States (Ibid); and
shall continue and be respected. (Art. 47(6)
UNCLOS) 2. Existing submarine cables laid by other States
and “passing through its waters without making
NOTE: The breadth of the territorial sea, the a windfall” as well as the maintenance and
contiguous zone, the exclusive economic zone, and replacement of such cables upon being notified
the continental shelf are measured from the of their location and the intention to repair or
archipelagic baselines drawn in accordance with replace them. (Art. 51(2), UNCLOS)
Art. 47. (Art. 48, UNCLOS)
Applicability of the Right of Innocent Passage in
Sovereignty of the archipelagic states Archipelagic Waters
It extends to the waters enclosed by the archipelagic GR: As a rule, ships of all States enjoy the right of
baselines (archipelagic waters), regardless of their innocent passage through archipelagic waters. (Art.
depth or distance from the coast to the air space 52(1), UNCLOS)
over the archipelagic waters, as well as to their bed
and subsoil and the resources contained therein. XPN: Right of Innocent Passage may be suspended
in some areas of its archipelagic waters. But such
The sovereignty extends to the archipelagic waters suspension must be:
but is subject to the right of innocent passage which
is the same nature as the right of innocent passage 1. The suspension is made without discrimination
in the territorial sea. (Art. 49(1) in relation to Art. in form or in fact among foreign ships;
52(1), UNCLOS) 2. Suspension is merely temporary;
3. It must specify the areas of it archipelagic
NOTE: The regime of archipelagic sea lanes passage waters where innocent passage shall not be
shall not in other respects affect the status of the allowed;
archipelagic waters, including the sea lanes, or the 4. Such suspension is essential for the protection
exercise by the archipelagic State of its sovereignty of its security; and
over such waters and their air space, bed and 5. Such suspension shall take effect only after
subsoil and the resources contained therein. (Art. having been duly published. (Art. 52(2),
49(4), UNCLOS) UNCLOS)
Archipelagic Waters Q: Does R.A. No. 9522 (Philippine Archipelagic

Baseline Law) converting internal waters into
These are waters enclosed by the archipelagic archipelagic waters, violate the Constitution in
baselines, regardless of their depth or distance from subjecting these waters to the right of innocent
the coast. (Art. 49(1), UNCLOS) and sea lanes passage including overflight?
(2015, 2004 BAR)
Rights by which Archipelagic Waters are subject
to: A: NO. Whether referred to as Philippine “internal
waters” under Art. I of the Constitution or as
1. Rights under existing agreement on the part of “archipelagic waters” under Art. 49(1) UNCLOS III
the third states should be respected (Art. 52(1) the Philippines exercises sovereignty over the body
UNCLOS); of water lying landward of the baselines, including
the air space over it and the submarine areas
underneath.
523
The fact of sovereignty, however, does not preclude Archipelagic Sea Lanes Passage
the operation of municipal and international law
norms subjecting the territorial sea or archipelagic All ships are entitled to the right of archipelagic sea
waters to necessary, if not marginal, burdens in the lanes passage. Submarines are not required to
interest of maintaining unimpeded, expeditious surface in the course of its passage unlike the
international navigation, consistent with the exercise of right of innocent passage in the
international law principle of freedom of navigation. territorial sea. (Art. 20 in relation to Art 53(3),
UNCLOS)
Thus, domestically, the political branches of the
Philippine government, in the competent discharge The right is the same as Transit Passage. Both define
of their constitutional powers, may pass legislation the rights of navigation and overflight in the normal
designating routes within the archipelagic waters to mode solely for the purpose of “continuous,
regulate innocent and sea lanes passage. (Magallona expeditious and unobstructed transit.” In both
v. Ermita, G.R. No. 187167, 16 Aug. 2011) cases, the archipelagic state cannot suspend
passage. (Arts. 44 & 54, UNCLOS)
NOTE: In the absence of municipal legislation,
international law norms, now codified in UNCLOS NOTE: The right of archipelagic sea lanes passage
III, operate to grant innocent passage rights over the may be exercised through the routes normally used
territorial sea or archipelagic waters, subject to the for international navigation. (Art. 53(12), UNCLOS)
treaty’s limitations and conditions for their
exercise. Significantly, the right of innocent passage Regime of Islands
is a customary international law, thus automatically
incorporated in the corpus of Philippine law. No 1. An island is a naturally formed area of land,
modern State can validly invoke its sovereignty to surrounded by water, which is above water at
absolutely forbid innocent passage that is exercised high tide;
in accordance with customary international law
without risking retaliatory measures from the 2. Except as provided for in paragraph 3, the
international community. territorial sea, the contiguous zone and the
continental shelf of an island are determined in
The imposition of these passage rights through accordance with the provisions of the
archipelagic waters under UNCLOS III was a Convention applicable to other land territory;
concession by archipelagic States, in exchange for and
their right to claim all the waters landward of their
baselines, regardless of their depth or distance from 3. Rocks which cannot sustain human habitation
the coast, as archipelagic waters subject to their or economic life of their own shall have no
territorial sovereignty. More importantly, the exclusive economic zone or continental shelf.
recognition of archipelagic States’ archipelago and (Art. 121, UNCLOS)
the waters enclosed by their baselines as one
cohesive entity prevents the treatment of their NOTE: Islands can be very important because of the
islands as separate islands under UNCLOS III. possibility of exploiting oil and gas resources
Separate islands generate their own maritime around them. This explains the controversy over
zones, placing the waters between islands Spratlys. It is noteworthy that islands can have their
separated by more than 24 nautical miles beyond own territorial sea, exclusive economic zone and
the States’ territorial sovereignty, subjecting these continental shelf. However, rocks “which cannot
waters to the rights of other States under UNCLOS sustain human habitation or economic life” only
III. (Magallona v. Ermita, ibid.) have a territorial sea. But there is no clear
international law definition of “economic life”
referred to in no. 3. (Bernas, 2009)
524
2023 GOLDEN NOTES
Artificial islands or installations are not “islands” in dispute concerning the interpretation or application
the sense of Art. 121 of the UNCLOS. However, of the Convention, and over all matters specifically
coastal states may establish safety zones around provided for in any other agreement which confers
artificial islands and prescribe safety measures jurisdiction on the Tribunal. Disputes relating to the
around them. (Ibid, citing UNCLOS, Art. 60(4) and Convention may concern the delimitation of
(5)) maritime zones, navigation, conservation and
management of the living resources of the sea,
Regime of Islands under Philippine Laws protection and preservation of the
marine environment and marine scientific research.
The baseline in the following areas over which the
Philippines likewise exercises sovereignty and Part XV of the 1982 UN Convention on the Law of the
jurisdiction shall be determined as "Regime of Sea requires States to settle peacefully any dispute
Islands" under the Republic of the Philippines concerning the Convention. Failing a bilateral
consistent with Art. 121 of the United Nations settlement, it provides that any dispute shall be
Convention on the Law of the Sea (UNCLOS): submitted for compulsory settlement to one of the
tribunals having jurisdiction. (Art. 286, UNCLOS)
1. The Kalayaan Island Group as constituted These include the ITLos, the International Court of
under Presidential Decree No. 1596; and Justice (ICJ), and arbitral or special arbitral
2. Bajo de Masinloc, also known as Scarborough tribunals constituted under the UNCLOS.
Shoal. (Sec. 2, R.A. No. 9522)
The ITLoS is composed of 21 independent members
Internal waters elected by the States partied to the UNCLOS from
among persons with recognized competence in the
These are waters of lakes, rivers and bays landward field of the law of the sea and representing the
of the baseline of the territorial sea. Waters on the principal legal systems of the world. (ITLOS)
landward side of the baseline of the territorial sea
also form part of the internal waters of the coastal Jurisdiction of the tribunal
state. However, in the case of archipelagic states,
waters landward of the baseline other than those of Its jurisdiction comprises all disputes and all
rivers, bays, and lakes, are archipelagic waters. (Art. applications submitted to it and all matters
8(1), UNCLOS) specifically provided for in any other agreement
which confers jurisdiction to the Tribunal. (Sec. 2,
Delimitation of internal waters Art. 21, Statute of ITLoS)
Within the archipelagic waters, the archipelagic Rules with regard to membership in the
state may draw closing lines for the delimitation of Tribunal
internal waters. (Art. 50 in relation with Arts. 9, 10,
11, UNCLOS) 1. No two members of the Tribunal may be
nationals of the same State (Art. 3(1) UNCLOS,
NOTE: A coastal state has sovereignty over its Annex VI, Statute of ITLoS);
internal waters as if internal waters were part of its
land territory. (Art. 50, UNCLOS) NOTE: The person shall be deemed to be a
national of the one in which he ordinarily
International Tribunal for the Law of the Sea exercises civil and political rights. (Ibid)
(ITLoS)
2. There should be no fewer than three members
The ITLoS is an independent judicial body from each geographical group to be established
established by the 1982 United Nations Convention by the UN General Assembly (Art. 3(2), UNCLOS,
on the Law of the Sea. It has jurisdiction over any Annex VI, Statute of ITLoS);
525
3. No member of the Tribunal may exercise any All rights in the resources of the Area are vested in
political or administrative function, or associate mankind as a whole, on whose behalf the Authority
actively with or be financially interested in any shall act. These resources are not subject to
of the operations of any enterprise concerned alienation. The minerals recovered from the Area,
with the exploration for or exploitation of the however, may only be alienated in accordance with
resources of the sea or the seabed or other this Part and the rules, regulations and procedures
commercial use of the sea or the seabed (Art. of the Authority.
7(1), UNCLOS, Annex VI, Statute of ITLoS);
No State or natural or juridical person shall claim,
4. No member of the Tribunal may act as agent, acquire or exercise rights with respect to the
counsel or advocate in any case (Art. 7(2) minerals recovered from the Area except in
UNCLOS, Annex VI, Statute of ITLoS); accordance with this Part. Otherwise, no such claim,
acquisition or exercise of such rights shall be
5. No member of the Tribunal may participate in recognized. (Art. 137, 1982 Law of the Sea
the decision of any case in which he has Convention)
previously taken part as agent, counsel or
advocate for one of the parties, or as a member c) OUTER SPACE
of a national or international court or tribunal,
or in any other capacity (Art. 8(1), UNCLOS, Outer space, whatever that might be, and celestial
Annex VI, Statute of ITLoS; and, bodies are not susceptible to appropriation by any
state (Bernas, 2009)
6. If for some special reason a member of the
Tribunal should not sit in a particular case: Appropriation
a. Member should inform the President of the Outer space, including the moon and other celestial
Tribunal (Art. 8(2), UNCLOS, Annex VI, bodies, is not subject to national appropriation by
Statute of ITLoS); or claim of sovereignty, by means of use or occupation,
or by any other means. (Art. II, 1967 Treaty on
b. President should give the member notice Principles Governing the Activities of States in the
accordingly. (Art. 8(3), UNCLOS, Annex VI, Exploration and Use of Outer Space, including the
Statute of ITLoS) Moon and Other Celestial Bodies)
NOTE: Any doubt shall be resolved by decision of Use of Moon and other Celestial Bodies
the majority of other members of the Tribunal
present. (Art. 7 & 8, UNCLOS Annex VII, Arbitration) The moon and other celestial bodies shall be used
Members enjoy diplomatic privileges and by all States Parties to the Treaty exclusively for
immunities. (Art. 10, UNCLOS Annex VII, Arbitration) peaceful purposes. The establishment of military
bases, installations and fortifications, the testing of
b) DEEP SEABED any type of weapons and the conduct of military
manoeuvres on celestial bodies shall be forbidden.
No state can claim or exercise sovereignty or The use of military personnel for scientific research
sovereign rights over any part of the Area or its or for any other peaceful purposes shall not be
resources, nor shall any state or natural or juridical prohibited. The use of any equipment or facility
person appropriate any part thereof. Consequently, necessary for peaceful exploration of the moon and
no such claim or exercise of sovereignty or other celestial bodies shall also not be prohibited.
sovereign rights nor such appropriation shall be (Art. IV, 1967 Treaty on Principles Governing the
recognized.
526
2023 GOLDEN NOTES
Activities of States in the Exploration and Use of Outer
Space, including the Moon and Other Celestial Bodies)
Discovery
States Parties to the Treaty shall immediately

inform the other States Parties to the Treaty or the
Secretary-General of the United Nations of any
phenomena they discover in outer space, including
the moon and other celestial bodies, which could
constitute a danger to the life or health of
astronauts. (Art. V, 1967 Treaty on Principles
Governing the Activities of States in the Exploration
and Use of Outer Space, including the Moon and Other
Celestial Bodies)
527
Requisites for the enforcement of the doctrine of
IV. INTERNATIONAL RESPONSIBILTY State Responsibility (N-E-R)
1. Nationality of the Claimant/The Doctrine of

Effective Nationality/The Genuine Link
A State may be held responsible for an international
Doctrine;
delinquency, directly or indirectly, imputable to it
which causes injury to the national of another State.
2. The injured alien must first Exhaust all local
Liability will attach to the State where its treatment
remedies; and
of the alien falls below the international standard of
justice or where it is remiss in according to him the
3. He must be Represented in the international
protection or redress that is warranted by the
claim for damages by his own State. (Bernas,
circumstances. (2010 BAR) (Cruz, 2020)
2009)
NOTE: No government can be held responsible for

Calvo Clause
the act of rebellious bodies of men committed in
violation of its authority, where it is itself guilty of
A stipulation by which an alien waives or restricts
no breach of good faith, or of no negligence in
his right to appeal to his own state in connection
suppressing insurrection. (Home Frontier and
with any claim arising from the contract and agrees
Foreign Missionary Society of the United Brethren in
to limit himself to the remedies available under the
Christ v. Great Britain, 18 Dec. 1920)
laws of the local state. (Lehman and Phelps, 2008)
Elements of State Responsibility (VAD)

NOTE: This cannot be interpreted to deprive the
alien’s state of the right to protect or vindicate his
1. An act or omission in violation of International
interests in case they are injured in another state, as
Law
such waiver can legally be made not by the alien but
2. Attributable to the State
by his own state.
3. Causing damage to a third State either directly
or indirectly to a national of the third State.
Kinds of State Responsibility A. CONCEPT OF IMPUTABILITY OF

INTERNATIONALLY WRONGFUL ACT OR
1. Direct State Responsibility. Where the OMISSION
international delinquency was committed by
superior government officials or organs like the
chief of State or the national legislature, liability Elements of an Internationally Wrongful Act
will attach immediately as their acts may not be (A-B)
effectively prevented or reversed under the
constitution or laws of the State. (Bernas, 2009) 1. Act or omission is Attributable to the State
under international law; and
2. Indirect State Responsibility. Where the 2. Constitutes a Breach of an international
offense is committed by inferior government obligation of the State. (Art. 2, Responsibility of
officials or by private individuals, the State will States for Internationally Wrongful Acts)
be held liable only if, by reason of its
indifference in preventing or punishing it, it can NOTE: Every internationally wrongful act of a State
be considered to have connived in effecting its entails the international responsibility of that State.
commission. (Bernas, 2009) (Art. 1, Responsibility of States for Internationally
Wrongful Acts)
528
2023 GOLDEN NOTES
Acts or situations attributable to the State Motive (intent) is relevant when:
1. The existence of a deliberate intent to injure
1. Acts of the State organs. Acts of State organs
may have an effect on the remoteness of the
in their capacity provided by law or under
damage and may help to establish the breach of
instructions of superiors. (Art. 4, Responsibility
duty; and (Brownlie, 2012)
of States for Internationally Wrongful Acts)
2. Motive and intent may be a specific element in
defining permitted conduct.
2. Acts of other persons. If the group of persons
was in fact exercising elements of the
State’s exercise of diplomatic protection
governmental authority in the absence or
default of the official authorities and
When a State admits into its territory foreign
circumstances such as to call for the exercise of
investments or foreign nationals, whether natural
those elements of authority. (Art. 5,
or juristic persons, it is bound to extend to them the
Responsibility of States for Internationally
protection of the law and assumes obligations
Wrongful Acts)
concerning the treatment to be afforded to them.
3. Acts of revolutionaries. Conduct of an

These obligations, however, are neither absolute
insurrectional movement which becomes the
nor unqualified. An essential distinction should be
new government of a State or part of a State.
drawn between:
(Art. 10, Responsibility of States for
Internationally Wrongful Acts)
1. Obligations of the State towards the
international community as a whole - concern
Theory of Objective or Strict Liability
of all States. All States can be held to have a
legal interest in their protection; they are
With respect to state responsibility, the theory
obligations erga omnes.
provides that fault is unnecessary for State
responsibility to be incurred. Its requisites are:
2. Obligations the performance of which is the
subject of diplomatic protection - cannot be
1. Agency; and
held, when one such obligation in particular is
2. Casual connection between the breach and the
in question, in a specific case, that all States
act or omission imputable to the State.
have a legal interest in its observance.
(Brownlie, 2012)
(Case Concerning Barcelona Traction, Light and
Culpa (fault) is relevant when:
Power Company, Limited, 05 Feb. 1970)
1. The breach results from acts of individuals not

employed by the state or from the activities of
licenses or trespassers on its territory; B. REPARATION
2. A state engages in lawful activities, in which

case responsibility may result from culpa in Relief available where a State is liable for an
executing these lawful activities; internationally wrongful act:
3. Determining the amount of damages; and, 1. Declaratory relief. It refers to the declaration
by the court that, as to the illegality of an act,
4. Due diligence or liability for culpa is stipulated constitutes a measure of satisfaction or
in a treaty. (Bernas, 2009) reparation in the broad sense.
529
NOTE: Available when this is, or the parties restitution in kind or payment in place of it. (Art.
deem this, the proper way to deal with a dispute 36, Responsibility of States for Internationally
or when the object is not to give satisfaction for Wrongful Acts)
the wrong received but only to recognize the Pecuniary satisfaction vs. Compensation
liability.
PECUNIARY
COMPENSATION
2. Satisfaction - It refers to a measure other than SATISFACTION
restitution or compensation which an As to nature
offending State is bound to take; (Art. 37 (1), A token of regret and To make up for or
Responsibility of States for Internationally acknowledgment of repair the damage
Wrongful Acts) wrongdoing. done.
(“monetary sorry”)
NOTE: Satisfaction may consist of the following: (A-
R-F-Mo)
C. INTERNATIONAL PROTECTION OF HUMAN
1. Acknowledgement of the breach;
RIGHTS (INCLUDING REFUGEES AND
2. an expression of Regret;
STATELESS PERSONS)
3. a Formal apology; or
4. another appropriate Modality. (Art. 37 (2),
Responsibility of States for Internationally
Human Rights
Wrongful Acts)
Those inalienable and fundamental rights which are

3. Restitution - It involves the wiping out of all
essential for life as human beings. (Bernas, 2009)
the consequences of the breach and re-
establishing the situation which would
International Human Rights Law
probably have existed had the act not been
committed. (Art. 35, Responsibility of States for
Internationally Wrongful Acts) The law which deals with the protection of
individuals and groups against violations by
NOTE: It can either be in the form of: governments of their internationally guaranteed
rights, and with the promotion of these rights.
(Buergenthal. 1988)
a. Material restitution - includes the
restitution of property and of money
wrongfully taken from a rightful owner; or NOTE: International human rights are divided into
3 generations, namely:
b. Juridical restitution - requires restoring the
legal situation that existed before the 1. First generation: traditional civil and political
rights;
commission of the wrongful act and
includes specific performance. (Sabahi, 2. Second generation: economic, social and
cultural rights; and
2011)
3. Third generation: right to peace, clean
4. Compensation - It is the payment of money as environment, self-determination, common
heritage of mankind, development, minority
a valuation of the wrong done.
rights. (Bernas, 2009)
NOTE: The compensation must correspond to
the value which restitution in kind would bear; Classification of Human Rights
the award of damages for loss sustained must
be that which would not be covered by 1. Individual rights; and
530
2023 GOLDEN NOTES
2. Collective rights (right to self-determination of Basic rights guaranteed by the UDHR
people; the permanent sovereignty over natural
resources) 1. Equality in dignity and in rights;
Main instruments of International Human 2. Everyone is entitled to all the rights and
Rights freedoms in this Declaration, without
distinction of any kind such as race, color, sex,
1. The Universal Declaration of Human Rights; language, religion, political or other opinion,
2. The International Covenant on Economic, Social national or social origin, property, birth or
and Cultural Rights; and other status. No distinction shall also be made
3. The International Covenant on Civil and on the basis of the political or international
Political Rights and its two Optional Protocols. status of a country or territory to which a
(Bernas, 2009) person belongs;
NOTE: The Philippines is a signatory to the 3. Right to life, liberty and security of person;
International Convention on the Protection of the
Rights of All Migrant Workers and Members of Their 4. Right against slavery or servitude;
Families. This instrument is a multilateral treaty
governing the protection of migrant workers and 5. Right against torture or to cruel, inhumane and
families. Concluded on December 18, 1990, it degrading treatment or punishment;
entered into force on July 1, 2003, after the
threshold of 20 ratifying states was reached in 6. Right to be recognized everywhere as a person
March 2003. The Committee on Migrant Workers before the law;
(CMW) monitors implementation of the Convention
and is one of the seven UN-linked human rights 7. Right to equal protection of the law;
treaty bodies. (Bernas, 2009)
8. Right to an effective remedy before courts for
Universal Declaration of Human Rights acts violating fundamental rights;
The basic international statement of the inalienable 9. Right against arbitrary arrest, detention or
rights of human beings. It is the first comprehensive exile;
international human rights instrument. It covers
civil and political rights, and economic, social and 10. Right to a fair and public hearing by an
cultural rights. (UDHR, United Nations) independent and impartial tribunal;
NOTE: Rights covered by UDHR are customary 11. Right to be presumed innocent until proven
international law. Hence, even during the times guilty;
when the bill of rights under the Constitution is
inoperative, rights under UDHR remained in effect. 12. Right to privacy, family, home or
(Republic v. Sandiganbayan, G.R. No. 104768, 21 July correspondence;
2003)
13. Right to freedom of movement and residence;
Q: Is the UDHR a treaty?
14. Right to leave any country, including one’s own
A: NO. It has no obligatory character because it was and to return to one’s own country;
adopted by the UN General Assembly as Resolution
217(III). As a resolution, it is merely 15. Right to seek and enjoy in another country
recommendatory. asylum from persecution; however, this may
not be invoked in the case of prosecutions
531
genuinely arising from non-political crimes or 27. Right to education; and
acts contrary to the principles of the United
Nations; 28. Right to freely participate in the cultural life of
the community, enjoy the arts and share in
16. Right to a nationality and right against arbitrary scientific advancement. (UDHR, United Nations)
deprivation of such right;
Under the Declaration, everyone is entitled to a
17. Right to marry, entered into freely and with full social and international order in which the rights
consent, without any limitation due to race, and freedoms in this Declaration can be fully
nationality or religion; entitled to equal rights realized. The exercise of these rights and freedoms
to marriage, during marriage and dissolution; are subject only to such limitations as are
the family is the natural and fundamental group determined by law, for the purpose of recognition
of society and is entitled to protection by and respect of rights of others, for public order and
society and State; general welfare. (UDHR, United Nations)
18. Right to own property alone as well as in International Covenant on Civil and Political
association with others; right against arbitrary Rights
deprivation of such property;
It is an international covenant and is binding on the
19. Right to freedom of thought, conscience and respective state parties. It commits its parties to
religion; respect the civil and political rights of individuals. It
includes the first generation of human rights.
20. Right to freedom of opinion and expression;
The substantive rights that are treated in the
21. Right to freedom of peaceful assembly and covenant on Civil and Political Rights are found in
association; no one may be compelled to belong Arts. 1, and 6 to 27:
to an association;
1. Life
22. Right to suffrage; right to take part in the 2. Liberty and property
government of one’s country, directly or 3. Equality
through representatives; right of equal public
service in one’s country; Rights guaranteed in the International Covenant
on Civil and Political Rights
23. Right to social security;
1. Right to self-determination;
24. Right to work/labor, free choice of
employment, just and favorable conditions of 2. Right to an effective remedy;
work; right to equal pay for equal work; right to
form and join trade unions; 3. Equal right of men and women to the enjoyment
of all the civil and political rights;
25. Right to rest and leisure, including reasonable
working hours and periodic holidays with pay; 4. Right to life;
26. Right to a standard of living adequate for the 5. Not to be subjected to torture or to cruel,
health and being of oneself and his family; inhuman or degrading treatment or
motherhood and childhood are entitled to punishment. In particular, freedom from
special care and assistance; medical or scientific experimentation except
with his consent; (2010, 1992 BAR)
532
2023 GOLDEN NOTES
6. Freedom from slavery and servitude; 23. Right of minorities to enjoy their own culture,
to profess and practice their religion and to use
7. Right to liberty and security of person;
their own language. (Cruz, 2003)
8. Right to be treated with humanity and with
GR: In times of public emergency which threatens
respect for the inherent dignity of the human
the life of the nation and the existence of which is
person;
officially proclaimed, parties may take measures to
derogate from their obligations to the extent strictly
9. No imprisonment on the ground of inability to
required by the exigencies of the situation. (Art.
fulfill a contractual obligation;
27(1), Habeas Corpus in Emergency Situations and
American Convention on Human Rights)
10. Right to liberty of movement and freedom to
choose his residence;
XPNs: There can be no derogation from the
following:
11. Right to a fair and public hearing by a
competent, independent and impartial tribunal
1. Right to life;
established by law;
2. Freedom from torture or cruel, inhuman
or degrading punishment;
12. No one shall be held guilty of a criminal offense
3. Freedom from slavery;
on account of any act or omission which did not
4. Freedom from imprisonment for failure
constitute a criminal office, under national or
to fulfill a contractual obligation;
international law, at the time when it was
5. Freedom from ex post facto laws;
committed;
6. Right to recognition everywhere as a
person before the law; and
13. Right to recognition everywhere as a person
7. Freedom of thought, conscience and
before the law;
religion.
14. Right to privacy;
(Art. 27(2), Habeas Corpus in Emergency Situations
and American Convention on Human Rights)
15. Right to freedom of thought, conscience and
religion;
Application of the ICCPR during the reign of a
Revolutionary Government
16. Right to freedom of expressions;
Q: A search was conducted on 03 Mar. 1986.

17. Right of peaceful assembly;
During which, the Philippines has no
Constitution. The Constabulary raiding team
18. Right of freedom of association;
searched the house of Elizabeth Dimaano by
virtue of a search warrant and thereafter seized
19. Right to marry and to find a family;
some items not included in the warrant.
Dimaano questioned the search for being
20. Right to such measures of protection as are
violative of the Constitution. Can she invoke her
required by his status as a minor, name and
right against unreasonable searches and
nationality;
seizures during the interregnum?
21. Right to participation, suffrage and access to
A: YES. The Bill of Rights under the 1973
public service;
Constitution was not operative during the
interregnum. Be that as it may, under Art. 17(1) of
22. Right to equal protection of the law; and,
the International Covenant on Civil and Political
Rights, the revolutionary government had the duty
533
to insure that no one shall be subjected to arbitrary 2. No State party shall expel, return (“refouler”) or
or unlawful interference with his privacy, family, extradite a person to another State where there
home or correspondence. Art. 17(2) provides that are substantial grounds for believing that he
no one shall be arbitrarily deprived of his property. would be in danger of being subjected to
Although the signatories to the Declaration did not torture;
intend it as a legally binding document, being only a
declaration, the Court has interpreted the 3. All acts of torture are offenses under a State
Declaration as part of the generally accepted Party’s criminal law;
principles of international law and binding on the
state. The revolutionary government did not 4. State Parties shall afford the greatest measure
repudiate the Covenant or the Declaration during of assistance in connection with civil
the interregnum. It was also obligated under proceedings brought in respect of any of the
international law to observe the rights of offences;
individuals under the Declaration. (Republic v.
Sandiganbayan, G.R. No. 104768, 21 July 2003) 5. To ensure that education and information
regarding the prohibition against torture are
Torture fully included on persons involved in the
custody, interrogation or treatment of any
Any act by which severe pain or suffering, whether individual subject to any form of arrest,
physical or mental, is intentionally inflicted on a detention, or imprisonment;
person for such purposes as obtaining from him or
a third person, information or a confession, 6. To keep under systematic review interrogation
punishing him for an act he or a third person has rules, instructions, methods and practices as
committed or is suspected of having committed, or well as arrangements for the custody and
intimidating or coercing him or a third person, or for treatment of persons subjected to any form of
any reason based on discrimination of any kind, arrest, detention or imprisonment in any
when such pain or suffering is inflicted by or at the territory under its jurisdiction, with a view to
instigation of or with the consent or acquiescence of preventing any case of torture;
a public official or other person acting in an official
capacity. (United Nations Convention against 7. To ensure a prompt and impartial investigation
Torture and Other Cruel, Inhuman or Degrading wherever there is reasonable ground to believe
Treatment or Punishment [UNCTO], Effective 26 June that an act of torture has been committed;
1987)
8. To ensure that an individual subjected to
NOTE: It does not include pain or suffering arising torture has the right complain and have his case
only from, inherent in or incidental to lawful promptly and impartially examined by
sanctions. (Art. 1, UNCTO) competent authorities;
9. To ensure that the victim obtains redress and
Obligations of the State Parties in the UNCTO has an enforceable right to fair and adequate
compensation;
1. No exceptional circumstances whatsoever,
whether a state of war or a threat or war, 10. To ensure that any statement established to
internal political instability or any other public have been made as a result of torture shall not
emergency or any order from a superior officer be invoked as evidence in any proceedings,
or a public authority may be invoked as a except against a person accused of torture as
justification of torture; evidence that the statement was made; and
534
2023 GOLDEN NOTES
11. To prevent in any territory under its 2. Right to favorable conditions of work (Art. 7)
jurisdiction other acts of cruel, inhuman, or 3. Right to form trade unions (Art. 8)
degrading treatment or punishment which do 4. Right to social security and insurance (Art. 9)
not amount to torture when such acts are 5. Right to special assistance for families (Art. 10)
committed by or at the instigation of or with the 6. Right to adequate standard of living (Art. 11)
consent of acquiescence of a public official or 7. Right to the highest standard of physical and
other person acting in an official capacity. (Cruz, mental health (Art. 12)
2003) 8. Right to education including compulsory
primary education (Arts. 13 and 14)
Instances when a state party may establish its 9. Right to enjoyment of cultural and scientific
jurisdiction over offenses regarding torture benefits and international contacts (Art. 15)
10. Right to strike
1. When the offenses are committed in any 11. Right to be free from hunger
territory under its jurisdiction or on board a Freedom of scientific research and creativity
ship or aircraft registered in the State;
Refugee
2. When the alleged offender is a national of that
Any person who is outside the country of his
State;
nationality or the country of his former habitual
residence because he has or had well-founded fear
3. When the victim was a national of that State if of persecution by reason of his race, religion,
that State considers it appropriate; and nationality, membership of a political group or
political opinion and is unable or, because of such
4. Where the alleged offender is present in any fear, is unwilling to avail himself of the protection of
territory under its jurisdiction, and it does not the government of the country of his nationality, or,
extradite him. (Art. 1, UNCTO) if he has no nationality, to return to the country of
his former habitual residence. (Sec. 1101 (a) (42),
Title 8, U.S. Code)
NOTE: Nos. 1 to 3 are considered as extraditable
offenses. In the absence of an extradition treaty, the
Elements: (O- N- Per)
UNCTO may be considered as the legal basis for
extradition. Such offenses shall be treated, for the
1. The person is Outside the country of his
purpose of extradition, as if they have been
nationality, or in the case of Stateless persons,
committed not only in the place in which they
outside the country of habitual residence;
occurred but also in the territories of the State
2. The person lacks National protection; and
required to establish their jurisdiction. (Art. 8,
3. The person fears Persecution in his own
UNCTO)
country. (Sec. 1101 (a) (42), Title 8, U.S. Code)
International Covenant on Economic Social and
NOTE: The second element makes a refugee a
Cultural Rights
Stateless person. (Sec. 1101 (a) (42), Title 8, U.S.
Code)
It is a multilateral treaty adopted by the United
Nations General Assembly. It commits its parties to
Refugees v. Internally displaced persons
work toward the granting of economic, social, and
cultural rights. It embodies the second generation
Refugees are people who, owing to well-founded
of human rights. (General Assembly of the United
fear of being persecuted for reasons of race, religion,
Nations, 16 December 1966)
nationality, membership of a particular social group
or political opinion, are outside the country of his
Rights guaranteed thereunder
nationality, are unable or owing to such fear, are
unwilling to avail themselves of the protection of
1. Right to work (Art. 6)
535
that country, or who not having a nationality and A: YES, because under the 1951 Convention
being outside the country of their former habitual Relating to the Status of Refugees, to which the
residence as a result of such events, are unable or, Philippines is a signatory, a refugee includes one
owing to such fear are unwilling to return to it. who, as a result of events and owing to well-founded
(United Nations Convention Relating to the Status of fear of being persecuted for reasons of race, religion,
Refugees, 1951 Sec. A par. 2) nationality, membership to a particular social
group, or political opinion, is outside the country of
While internally displaced persons are those who his nationality and is unable or, owing to such fear,
have been forced to flee their homes, suddenly or is unwilling to avail himself of the protection of that
unexpectedly in large numbers as a result of armed country. (UP Suggested Answers, 2020)
conflict, internal strife, systematic violation of
human rights, or natural or man-made disaster, and International Humanitarian Law (IHL)
who are within their territory of their country.
(Analytical Report of the United Nations’ Secretary- A set of rules which seek, for humanitarian reasons,
General on Internally Displaced Persons, 14 Feb. to limit the effects of armed conflict. It protects
1992) persons who are not or are no longer participating
in the hostilities and restricts the means and
Principle of Non-Refoulement methods of warfare. This is used to be known as the
Laws of War which provides for instances when the
Posits that a State may not deport or expel refugees use of armed force is justifiable (jus ad bellum) and
to the frontiers of territories where their life or regulates the conduct of armed conflict (jus in bello).
freedom would be put in danger or at risk. (ICRC’s Advisory Services on International
(Magallona, 2005). Humanitarian Law)
Q: The Humanitarian Services Society (HSS), an Importance of IHL

international non-government organization,
assisted the displaced families of Tribe X who It is one of the most powerful tools the international
had to flee their home country in order to escape community has at its disposal to ensure the safety
the systematic persecution conducted against and dignity of people in times of war. It seeks to
them by their country’s ruling regime based on preserve a measure of humanity, with the guiding
their cultural and religious beliefs. Fearing for principle that even in war there are limits. (ICRC’s
their lives, some of these displaced families, The Basics of International Humanitarian Law)
with the help of HSS, were able to sail out into
the sea on a boat which eventually landed in Fundamental principles of IHL
Palawan. The Philippine Coast Guard intended
to push back the boat with 15 passengers. 1. Parties to armed conflict are prohibited from
employing weapons or means of warfare that
An affiliate of HSS in the Philippines intervened cause unnecessary damage or excessive
on behalf these displaced families, claiming that suffering (Principle of prohibition of use of
they are refugees under international law and weapons of a nature to cause superfluous injury
hence, should not be expelled from our or unnecessary suffering);
territory.
2. Parties to armed conflict shall distinguish
May the displaced families of Tribe X be between civilian populace from combatants
considered "refugees" under international law? and spare the former from military attacks
Explain. (2019 BAR) (Principle of distinction between civilians and
combatants);
536
2023 GOLDEN NOTES
3. Persons hors de combat and those who do not
take part in hostilities are entitled to respect for 8. The wounded and sick must be collected and
their lives and their moral and physical cared for by the party to the conflict which has
integrity. They shall be protected and treated them in its power;
humanely without any adverse distinction;
9. Medical personnel and medical establishments,
4. It is prohibited to kill or injure an enemy who transports and equipment must be spared. The
surrenders or who is a hors de combat; red cross or red crescent is the distinctive sign
indicating that such persons and objects must
5. The wounded and the sick shall be protected be respected; and
and cared for by the party who is in custody of
them. Protection shall cover medical personnel, 10. Captured combatants and civilians who find
establishments, transports and equipment; and themselves under the authority of the adverse
party are entitled to respect for their lives, their
6. Parties who captured civilians and combatants dignity, their personal rights and their political,
shall respect the latter’s rights to life, dignity, religious and other convictions and must be
and other personal rights. (ICRC’s Fundamental protected against all acts of violence or
Rules of International Humanitarian Law reprisals; entitled to exchange of news with
Applicable to Armed Conflicts; Bernas, 2009) their families and receive aid and enjoy basic
judicial guarantees. (Cruz, 2003)
Essential rules of IHL
Application of IHL
1. The parties to a conflict must at all times
distinguish between the civilian population and IHL concerns two situations:
combatants;
1. International armed conflicts, which involve at
2. Neither the civilian population as a whole nor least two countries;
individual civilians may be attacked;
2. Situations where the whole or part of a
3. Attacks may be made solely against military country’s territory is occupied by a foreign
objectives; power; and
4. People who do not or can no longer take part in 3. Armed conflicts that take place in one country
the hostilities are entitled to respect for their (such as those between a government and rebel
lives and for their physical and mental integrity forces). (ICRC’s The Basics of International
and must be treated with humanity, without Humanitarian Law)
any unfavorable distinction whatever;
NOTE: IHL applies to all parties to a conflict
5. It is forbidden to kill or wound an adversary regardless of who started it. (ICRC’s The Basics of
who surrenders or who can no longer take part International Humanitarian Law)
in the fighting;
“New” conflicts covered by the IHL
6. Neither the parties to the conflict nor members
of their armed forces have an unlimited right to 1. Anarchic conflicts – It is a situation where armed
choose methods and means of warfare; groups take advantage of the weakening or
breakdown of the State structures in an attempt to
7. It is forbidden to use weapons or methods of grab power; and (ICRC’s International Humanitarian
warfare that are likely to cause unnecessary Law)
losses and excessive suffering;
537
2. Those in which group identity becomes a focal NOTE: Recognizing their specific needs, IHL grants
point – These groups exclude the adversary through women and children additional protection. (ICRC’s
“ethnic cleansing” which consists in forcibly The Basics of International Humanitarian Law)
displacing or even exterminating populations. This
strengthens group feeling to the detriment of the Protection under IHL
existing national identity, ruling out any possibility
of coexistence with other groups. (ibid.) 1. IHL prohibits the use of weapons which are
particularly cruel, or which do not distinguish
Branches of IHL between combatants and civilians.
1. Law of Geneva – It is designed to safeguard 2. The parties to a conflict are required to:
military personnel who are no longer taking a. Distinguish between combatants and
part in the fighting and people not actively civilians, and to refrain from attacking
participating in the war. civilians;
Essence of Geneva Convention b. Care for the wounded and sick and protect
medical personnel;
Persons not actively engaged in warfare should
be treated humanely. The rules apply to any c. Ensure that the dignity of prisoners of war
international armed conflict, whether a and civilian internees is preserved by
declared war or not. allowing visits by International Committee
of the Red Cross delegates. (ibid.)
NOTE: It includes the following: (a) wounded
and sick in the field; (b) wounded, sick and International Humanitarian Law (IHL) vs.
shipwrecked at sea; (c) prisoners of war; and Human Rights Law
(d) civilians.
INTERNATIONAL
2. Law of Hague – It establishes the rights and HUMANITARIAN HUMAN RIGHTS LAW
obligations of belligerents in the conduct of LAW
military operations and limits the means of Application
harming the enemy. Situations of armed Applicable at all times in
conflict only. war and peace alike.
NOTE: Belligerents are inhabitants of a State Permissibility of derogation
who rise up in arms for the purpose of No derogations are Some human rights
overthrowing the legitimate government. permitted under IHL treaties permit
because it was governments to derogate
Persons protected under IHL conceived for from certain rights, in
emergency situations, situations of public
IHL protects those who are not, or no longer, namely armed conflict. emergency.
participating in hostilities, such as: Purpose
Aims to protect people Tailored primarily for
1. Civilians; who do not take part peacetime and applies to
2. Medical and religious military personnel; or are no longer taking everyone. Their
3. Wounded, shipwrecked and sick combatants; part in hostilities. The principal goal is to
and rules embodied in IHL protect individuals from
4. Prisoners of war. (ICRC’s The Basics of impose duties on all arbitrary behavior by
International Humanitarian Law) parties of a conflict. their own governments.
Consequence to states
538
2023 GOLDEN NOTES
Obliges states to take NOTE: IHL and International Human Rights Law
States are bound by
practical and legal (hereafter referred to as human rights) are
human rights law to
measures, such as complementary. Both strive to protect the lives,
accord national law with
enacting penal health, and dignity of individuals, albeit from
international
legislation and different angles.
obligations.
disseminating IHL.
Applicable mechanisms Basic principles that underlie the rules of
Implementing warfare
mechanisms are
complex and, contrary to 1. The Principle of Military Necessity. The
IHL include regional belligerent may employ any amount of
systems. Supervisory force to compel the complete submission
bodies, e.g. the UN of the enemy with the least possible loss of
Commission on Human lives, time, and money. (Bernas, 2009)
Rights (UNCHR), are
either based on the UN NOTE: Under R.A. 9851, it is the necessity of
Charter or provided for employing measures which is indispensable to
in specific treaties. achieve a legitimate aim of the conflict and not
Provides for several
prohibited by IHL.
mechanisms that help
The UNCHR has
its implementation.
developed a mechanism 2. The Principle of Humanity. It prohibits
Notably, states are
of special rapporteurs the use of any measure that is not
required to ensure
and working groups, absolutely necessary for the purpose of
respect also by other
whose task is to monitor the war, such as the poisoning of wells,
states. Provision is also
and report on human destruction of works of art and property
made for inquiry
rights situations either devoted to religious or humanitarian
procedure, a
by country or by topic. purposes. (Bernas, 2009)
Protecting Power
Its role is to enhance the
mechanism, and the
effectiveness of the UN 3. The Principle of Chivalry. It prohibits
International Fact-
human rights machinery belligerents from the employment of
Finding Commission.
and to build up national, treacherous methods in the conduct of
In addition, the
regional and hostilities, such as the illegal use of Red
International
international capacity to Cross emblems. (Bernas, 2009)
Committee of the Red
promote and protect
Cross (ICRC) is given a
human rights and to 4. The Principle of Proportionality. The
key role in ensuring
disseminate human legal use of force whereby belligerents
respect for the
rights texts and must make sure that harm caused to
humanitarian rules.
information. Human civilians or civilian property is not
rights also provide for excessive in relation to the concrete and
the establishment of direct military advantage from an
committees of anticipated attack or by an attack on
independent experts military objective. (Bernas, 2009)
charged with monitoring
their implementation. Q: How is war terminated?
Certain regional treaties
(European and A: Wars may be terminated by any of the following:
American) also establish
human rights courts. 1. Simple cessation of hostilities, without the
conclusion of a formal treaty;
539
2. Treaty of peace; 2. Following a decision adopted by the UN
3. Unilateral declaration; and, Security Council under Chapter VII of the UN
4. The complete submission and subjugation of Charter. (Cruz, 2003)
one of the belligerents, followed by a dictated
treaty of peace or annexation of conquered Status Quo Ante Bellum (the situation as it
territory. (Convention (I) for the Amelioration existed before the war)
of the Condition of the Wounded and Sick in
Armed Forces in the Field; Cruz, 2020) Each of the belligerents is entitled to the territory
and property which it had possession of at the
Postliminium commencement of the war. (Cruz, 2020)
It imports the reinstatement of the authority of the Effect/Relevance of the Passage of R.A. No. 9851
displaced government once control of the enemy is
lost over the territory affected. (Cruz, 2003) R.A. No. 9851 or the Philippine Act on Crimes
Against International Humanitarian Law, Genocide,
Is that in which persons or things taken by the and Other Crimes Against Humanity mandates both
enemy are restored to the former state on coming the State and non-state armed groups to observe
actually into the power of the nation to which they international humanitarian law standards and gives
belong. (Leitensdorfer v. Webb, 1 N.M. 34 in Cruz, the victims of war-crimes, genocide and crimes
2020) against humanity legal recourse.
Application of the Principle of Postliminium Genocide

(1979 BAR)
1. Any of the following acts with intent to
Where the territory of one belligerent State is destroy, in whole or in part, a national,
occupied by the enemy during war, the legitimate ethnic, racial, religious, social or any other
government is ousted from authority. When the similar stable and permanent group such
belligerent occupation ceases to be effective, the as:
authority of the legitimate government is
automatically restored, together with all its laws, by a. Killing of members of the group;
virtue of the jus postliminium.
Principle of Uti Possidetis b. Causing serious bodily or mental harm
to members of the group;
Literally translated as “as you possess, thus may you
possess,” this principle of customary international c. Deliberately inflicting on the group
law enables a belligerent party to claim territory conditions of life calculated to bring
that it has acquired by war. (Cruz, 2020) about its physical destruction in whole
or in part;
Jus ad Bellum (Law on the Use of Force)
d. Imposing measure intended to
Literally translated as “right to war,” it seeks to limit prevent births within the group; and
resort to force between States. States must refrain
from the threat or use of force against the territorial e. Forcibly transferring children of the
integrity or political independence of another state. group to another group.
(Art. 2, par. 4, UN Charter)
2. Directly and publicly inciting others to
XPNs: commit genocide (R.A. No. 9851)
1. Self-defense; or
540
2023 GOLDEN NOTES
NOTE: Genocide may be committed either during forces who have laid down their arms and those
war or armed conflict or in times of peace. (Art I, placed hors de combat by sickness, wounds,
Genocide Convention) detention or any other cause:
War Crimes a. Violence to life and person, in particular,

willful killings, mutilation, cruel treatment
It means grave breaches of the Geneva Conventions and torture;
of August 12, 1949, which are any of the acts
enumerated under Art. 8 of the ICC Statute against b. Committing outrages upon personal
persons or property protected under the provisions dignity, in particular humiliating and
of the relevant Convention: degrading treatment;
1. Namely, any of the following acts against c. Taking of hostages; and

persons or property protected:
d. The passing of sentences and the carrying
a. Willful killing; out of executions without previous
judgment pronounced by a regularly
b. Torture or inhuman treatment, including constituted court, affording all judicial
biological experiments; guarantees which are generally recognized
as indispensable.
c. Willfully causing great suffering, or serious
injury to body or health; 3. Other serious violations of the laws and
customs applicable in the armed conflict within
d. Extensive destruction and appropriation of the established framework of international law.
property not justified by military necessity (R.A. No. 9851)
and carried out unlawfully and wantonly;
“Other crimes against humanity” aside from war
e. Willfully depriving a prisoner of war or crimes and genocide under R.A. 9851
other protected person of the rights of fair
and regular trial; Any of the following acts when committed as part of
a widespread or systematic attack directed against
f. Arbitrary deportation or forcible transfer any civilian population, with knowledge of the
of population or unlawful confinement; attack:
g. Taking hostages;
1. Murder
h. Compelling a prisoner of war or other
protected person to serve in the forces of a 2. Extermination;
hostile power; and
3. Enslavement;
i. Unjustifiable delay in the repatriation of
prisoners of war or other protected 4. Arbitrary deportation or forcible transfer of
persons. population;
2. In case of non-international armed conflict, 5. Imprisonment or other severe deprivation of

serious violation of common Art. 3 to the four physical liberty in violation of fundamental
Geneva Conventions of August 12, 1949, rules of international law;
namely any of the following acts committed
against persons taking no active part in the 6. Torture;
hostilities, including members of the armed
541
7. Rape, sexual slavery, enforced prostitution, not nationals are entitled to respect for their
forced pregnancy, enforced sterilization or any lives, dignity, personal rights and convictions;
other form of sexual violence of comparable
gravity; 6. Everyone must be entitled to benefit from
fundamental judicial guarantees. No one must be
8. Persecution against any identifiable group or sentenced without previous judgment
collectivity on political, racial, national, ethnic, pronounced by a regularly constituted court;
cultural, religious, gender, sexual orientation
other grounds that are universally recognized 7. No one must be held responsible for an act he
as impermissible under international law; has not committed. No one must be subjected to
physical or mental torture, corporal punishment
9. Enforced or involuntary disappearance of or cruel or degrading treatment;
persons;
8. The right of parties to an armed conflict to
10. Apartheid; and choose methods and means of warfare is not
unlimited;
11. Other inhumane acts of similar character
intentionally causing great suffering, or serious 9. Parties to a conflict and members of their armed
injury to body or to mental or physical health. forces do not have an unlimited choice of
(R.A. No. 9851) methods and means of warfare. It is prohibited
to employ weapons or methods of warfare of a
Core International Obligations of States under nature to cause unnecessary losses or excessive
the HIL suffering; and
1. The protection of persons who are not, or are no 10. Parties to a conflict must at all times distinguish
longer, participating in hostilities; between the civilian population and combatants
in order to spare civilian population and
2. Soldiers who surrender or who are hors de property. Adequate precautions shall be taken in
combat are entitled to respect for their lives and this regard before launching an attack. (Bernas,
their moral and physical integrity. It is forbidden 2009)
to kill or injure them;
3. The wounded and sick must be collected and Principle of Humanity or the Martens Clause
cared for by the party to the conflict which has
them in its power. Protection also covers In cases not covered by other international
medical personnel, establishments, transports agreements, civilians and combatants remain under
and equipment. The emblem of the red cross, red the protection and authority of the principles of
crescent or red crystal is the sign of such International Law derived from established custom,
protection and must be respected; from the Principles of Humanity and from the
dictates of public conscience. (Art 1, Protocol 1,
4. Captured combatants are entitled to respect for Protocol Additional to the 1949 Geneva Conventions,
their lives, dignity, personal rights and and relating to the Protection of Victims of
convictions. They must be protected against all International Armed Conflicts)
acts of violence and reprisals. They must have
the right to correspond with their families and to The extensive codification of IHL and the extent of
receive relief; the accession to the resultant treaties, as well as the
fact that the denunciation clauses that existed in the
5. Civilians under the authority of a party to the codification instruments have never been used,
conflict or an occupying power of which they are have provided the international community with a
542
2023 GOLDEN NOTES
corpus of treaty rules the great majority of which 1. To be treated humanely;
had already become customary, and which reflected 2. Not to be subject to torture;
the most universally recognized humanitarian 3. To be allowed to communicate with their
principles. These rules indicate the normal conduct families;
and behavior expected of States. (Legality of the 4. To receive food, clothing, religious articles, and
Threat or Use of Nuclear Weapons, Advisory Opinion, medicine;
July 1996, ICJ Rep. 1996) 5. To bare minimum of information;
6. To keep personal belongings;
Treatment of Civilians under the International 7. To proper burial;
Humanitarian Law (IHL) 8. To be grouped according to nationality;
9. To the establishment of an informed bureau;
The IHL provides that civilians under the power of and
enemy forces must be treated humanely in all 10. To repatriation for sick and wounded (1949
circumstances, without any adverse distinction. Geneva Convention)
They must be protected against all forms of violence
and degrading treatment, including murder and Members of Militias or Volunteer Groups as
torture. Moreover, in case of prosecution, they are Prisoners-Of-War
entitled to a fair trial affording all essential judicial
guarantees. (International Committee of the Red Members of militias or volunteer groups are
Cross, Civilians Protected under the International entitled to prisoner-of-war status when captured by
Humanitarian Law, 2010) the enemy, provided that:
1. They form part of such armed forces of the
States must never make civilians object of attack state; or
and must, consequently, never use weapons that are 2. They fulfill the following conditions:
incapable of distinguishing between civilian and
military targets. Non-combatants or persons taking a. They are being commanded by a person
no direct part in the hostilities should be treated responsible as superior;
humanely in all circumstances, and the following b. They have a fixed distinctive sign
acts are prohibited with respect to them: recognizable at a distance;
c. They carry arms openly; and
1. Violence to life and person; d. They conduct their operations in
2. Taking of hostages; accordance with the laws and customs of
3. Outrages upon personal dignity; and, war. (Art. 13, 1949 Geneva Convention)
4. The passing of sentences and the carrying
out of executions without previous Captured guerilla as prisoners of war
judgment pronounced by a regularly
constituted court. (Art. III, The Geneva A captured guerilla or other members of organized
Convention of 1949 Relative to the resistance movements may demand treatment
Protection of Civilian Persons in Times of afforded to a prisoner of war under the 1949 Geneva
War) Convention, provided that:
Prisoners of War 1. They are being commanded by a person

responsible as superior;
Those lawful combatants who have fallen into the 2. They have a fixed distinctive sign recognizable
power of the enemy. (Art. 4, 1949 Geneva Convention at a distance;
Relative to the Treatment of Prisoners of War) 3. They carry arms openly; and
4. They conduct their operations in accordance
Rights and Privileges of Prisoners of War with the laws and customs of war. (Cruz, 2003)
543
NOTE: Persons such as civilian members of military 1. When made by a member of the armed forces
aircraft crews, and war correspondents, shall be so who is in uniform; and
entitled to prisoner-of-war status when they fall 2. When made by a member of the armed forces
under the hands of the enemy. (ibid.) who is a resident of the territory occupied by an
adverse party who does so but not through an
Status of Journalists who are engaged in act of false pretenses or in a deliberately
dangerous professional missions in areas of clandestine manner. (Art. 46, Protocols
armed conflicts Additional to the Geneva Conventions of 1949)
They shall be treated as civilians, provided that they 1. REMEDIES UNDER TREATY-BASED
take no action adversely affecting their status as MECHANISMS
civilians, and their prisoners-of-war status to the
armed forces when they fall to the enemy hands.
(Art. 79, Protocols Additional to the Geneva
Conventions of 1949) D. INTERNATIONAL MINIMUM STANDARD AND
NATIONAL TREATMENT (INCLUDING
Treatment of spies when captured EXPROPRIATION OF FOREIGN-OWNED
PROPERTIES)
As spy is a soldier employing false pretenses or acts
through clandestine means to gather information
from the enemy. (Art. 46, Protocols Additional to the Doctrine of equality of treatment
Geneva Conventions of 1949)
Where the laws of the sate fall below the
When captured, [a spy] may be proceeded against international standard of justice, it is no defense
under the municipal law of the other belligerent, that they are applicable not only to lies but as well
although under the Hague Convention, [he] may not and equally to the nationals of that state. (Cruz,
be executed without trial. But if captured after he 2020)
has succeeded in rejoining his army, [he] must be
treated as a prisoner of war. (Nachura, 2014) The relations of that state with its own nationals are
purely municipal; international law is involved in its
A soldier not wearing uniform during hostilities relations with the nationals of other states. Hence,
runs the risk of being treated as a spy and not while the national may not demand, say, the right of
entitled to prisoner of war status. When caught, confrontation if this is not granted by the local law,
they are not to be regarded as prisoners of war. the foreigner can (Cruz, 2020)
(Book IV, Côte d'Ivoire)
Treatment of Aliens
NOTE: Military scouts are not spies.
Spies are not entitled to prisoner-of-war status The state is not an insurer of life or property of the
when captured by the enemy. Any member of the alien when he is within its territory.
armed forces of a party to the conflict who falls into The state generally cannot be held responsible if the
the power of an adverse party while engaging in alien is victimized by a pickpocket or a swindler or
espionage shall not have the right to the status of is hurt in an accident through the fault of another
prisoner of war and may be treated as a spy. individual and is unable to redress the wrong done
to him. (Cruz, 2020)
However, the following acts of gathering or
attempting to gather information shall not be The relation between him and the state in these
considered as acts of espionage: cases is too tenuous to make the latter liable for the
injury he has sustained. (Cruz, 2020)
544
2023 GOLDEN NOTES
Doctrine of State Responsibility mandated to account for scientific uncertainty but
can also take positive action, e.g., restrict a product
Under this doctrine a state maybe held responsible or activity even when there is scientific uncertainty.
for:
a. an international delinquency; Under Rule 20 of the Rules of Procedure for
b. directly or indirectly imputable to it; and Environmental Cases, the Precautionary Principle is
c. which cause injury to the national of adopted as a rule of evidence. The Supreme Court’s
another state. (Cruz, 2020) adoption of the Precautionary Principle in the newly
promulgated Rules of Procedure for Environmental
NOTE: Liability will attach to the state where its Cases affords plaintiffs a better chance of proving
treatment falls below the international standard of their cases where the risks of environmental harm
justice or where it is remiss that is warranted by are not easy to prove. (Cruz, 2003)
circumstances. (Cruz, 2020)
BT Talong Case
E. ENVIRONMENTAL HARM Greenpeace Southeast Asia and farmer-scientist

coalition MASIPAG asked the CA to stop the planting
of BT (Bacillus thuringiensis) talong in test fields.
CA, citing the precautionary principle, granted the
International Environmental Law is a branch of
petition. CA stated that “when human activities may
public international law which is concerned with
lead to threats of serious and irreversible damage to
the attempt to control pollution and the depletion of
the environment that if scientifically plausible but
natural resources within a framework of
uncertain, actions shall be taken to avoid or
sustainable development. It covers topics such as
diminish the threat”. The SC permanently stopped
population, biodiversity, climate change, ozone
the field testing for BT Talong, upholding the
depletion, toxic and hazardous substances, air, land,
decision of the CA which stopped the field trials for
sea and transboundary water pollution,
the genetically modified eggplant. The SC is the first
conservation of marine resources, desertification,
in the world to adopt the precautionary principle
and nuclear damage. (Guruswamy, 2017)
regarding GMO products in its decision.
When there is lack of full scientific certainty in

1. PRECAUTIONARY PRINCIPLE establishing a causal link between human activity
and environmental effect, the court shall apply the
Principle 15 of the Rio Declaration, commonly precautionary principle in resolving the case before
known as the Precautionary Principle states: it, the constitutional right if the people to a balanced
and healthful ecology shall be given the benefit if the
In order to protect the environment, the doubt. (Rule 20, Sec. 1, Rules of Procedure for
precautionary approach shall be widely applied by Environmental Cases; (International Service for the
States according to their capabilities. Where there Acquisition of Agri-biotech Applications, Inc. v.
are threats of serious damage, lack of full scientific Greenpeace Southeast Asia Philippines, G.R. No.
certainly shall not be used as a reason for 209271, 26 July 2016)
postponing cost-effective measures to prevent
environmental degradation. Q: NAPOCOR began constructing steel towers to
support overhead high-tension cables in
NOTE: This principle advocates that the potential connection with its Sucat-Araneta-Balintawak
harm should be addressed even with minimal Power Transmission Project. Residents of
predictability at hand. The Precautionary Principle Dasmariñas Village were alarmed by the sight of
requires a high degree of prudence on the part of the the towering steel towers and scoured the
stakeholders. Decision makers are not only internet on the possible adverse health effects of
545
such structures. They got hold of published shouldering the costs of the damage done to the
articles and studies linking the incidence of a environment. It is expressly stated in Principle 16 of
fecund of illnesses to exposure to the Rio Declaration on Environment and
electromagnetic fields. The illnesses range from Development: “National authorities should
cancer to leukemia. endeavor to promote the internalization of
environment costs and the use of economic
Petitioners filed a complaint for the Issuance of instruments, taking into account the approach that
a TRO and/or a Writ of Preliminary Injunction the polluter should, in principle, bear the cost of
against NAPOCOR. This was granted by the trial pollution, with due regard to the public interest and
court. The Court of Appeals reversed the order, without distorting international trade and
holding that the proscription on injunctions investment”. (Principle 16, Rio Declaration)
against infrastructure projects of the
government is clearly mandated by Sec. 1 of P.D.
1818. Is the issuance of a Writ of Preliminary F. INTERNATIONAL CLAIMS
Injunction justified, despite the mandate of P.D.
1818?
The West Philippine Sea Case

A: Whether there is a violation of petitioners’
constitutionally protected right to health is a
Arguments of the Republic of the Philippines
question of law that invested the trial court with
(RP):
jurisdiction to issue a TRO and subsequently, a
preliminary injunction. This question of law divests
1. Declarations that the Philippines’ and China’s
the case from the protective mantle of Presidential
respective rights and obligations in regard to
Decree No. 1818.
the waters, seabed, and maritime features of the
South China Sea are governed by the UNCLOS;
There is adequate evidence on record to justify the
and that China’s claims based on “historic
conclusion that the project of NAPOCOR probably
rights” encompassed within its so-called “Nine-
imperils the health and safety of the petitioners so
dash Line” are inconsistent with the UNCLOS
as to justify the issuance by the trial court of a writ
and therefore invalid;
of preliminary injunction. The health concerns are
at the very least, far from imaginary. 2. Determinations as to whether, under the
UNCLOS, certain maritime features claimed by
In hindsight, if, after trial, it turns out that the both states are properly characterized as
health-related fears that petitioners cleave on to islands, rocks, low tide elevations, or
have adequate confirmation in fact and in law, the submerged banks. The Philippines claims in
questioned project of NAPOCOR then suffers from a particular that Scarborough Shoal and eight of
paucity of purpose, no matter how noble the such features in the Spratlys are low-tide
purpose may be. For what use will modernization elevations or submerged banks that merely
serve if it proves to be a scourge on an individual’s generate a territorial sea (TS), not an exclusive
fundamental right, not just to health and safety, but, economic zone (EEZ) or continental shelf (CS);
ostensibly, to life preservation itself, in all of its and
desired quality. (Hernandez v. NAPOCOR, G.R. No. Declarations that China has violated the UNCLOS by
145328, 23 Mar. 2006) interfering with the Philippines’ sovereign rights
and freedoms, through construction and fishing
Polluter Pays Principle activities that have harmed the marine
environment. (The South China Sea Arbitration (The
It means that the party responsible for producing Republic of The Philippines v. The People’s Republic of
the pollutants must bear responsibility for China))
3.
546
2023 GOLDEN NOTES
as such, in the case that any/some/all of these
Arguments of the People’s Republic of China features are found to belong to China, the maritime
(PRC): entitlements they will generate, if at all, will not
overlap with the Philippines’ own maritime
China contested the Tribunal’s jurisdiction on the entitlements.
following grounds:
The above reasoning will also determine whether
China acted unlawfully with respect to the
1. That the essence of the subject-matter of the enjoyment of the Philippines of its rights, and the
arbitration is the territorial sovereignty over obligation to protect and preserve the marine
several maritime features in the South China environment, within the disputed areas. The
Sea (SCS), which is beyond the scope of the Tribunal also acknowledged that other findings on
Convention, and does not concern the the merits may preclude its jurisdiction, where
interpretation or application of the Convention; fishing and fisheries related law enforcement, and
military activities, may be in issue. With respect to
2. That the two countries have agreed, through the Scarborough Shoal, however, the Tribunal found
bilateral instruments and the Declaration on that the exceptions under Art. 297 and 298 cannot
the Conduct of Parties in the SCS, to settle their oust it of jurisdiction, given that the activities
relevant disputes through negotiations. Thus, complained of involve traditional fishing rights and
the Philippines’ resort to arbitration is a breach other events occurring in the territorial sea, a
of its obligations under international law; and maritime area over which the said provisions have
no application.
Even assuming, arguendo, that the subject-matter of

Finally, the Tribunal asked the Philippines to clarify
the arbitration were concerned with the
the content and narrow the scope of its last
interpretation or application of the Convention, that
submission, requesting a declaration that “China
subject-matter would constitute an integral part of
shall desist from further unlawful claims and
maritime delimitation, which is covered by China’s
activities.” (The South China Sea Arbitration (The
2006 declaration excluding maritime delimitation
Republic of The Philippines v. The People’s Republic of
from its acceptance of compulsory dispute
China))
settlement procedures under the UNCLOS. (The
South China Sea Arbitration (The Republic of The
Tribunal’s Decision on the Merits of the
Philippines v. The People’s Republic of China)
Philippines’ Claim
Award on Jurisdiction and Admissibility

1. The ‘nine-dash line’ and China’s claim to
historic rights in the maritime areas of the South
The Tribunal found that the submissions of the
China Sea
Philippines did not per se involve disputes
concerning sovereignty or maritime boundary
Whether China has historic rights to resources in the
delimitation, which are among the issues that may
South China Sea beyond the limits of the maritime
be excluded by States from the subject-matter
zones that it is entitled to pursuant to the Convention.
jurisdiction of compulsory dispute settlement
procedures entailing binding decisions under the
• Based on the history of the Convention and its
UNCLOS. However, this exclusion of the issue of
provisions concerning maritime zones, the
sovereignty or maritime boundary delimitation is
Convention was intended to comprehensively
premised on the Philippines’ position that the
allocate the rights of States to maritime areas.
features claimed by China belong to the Philippines;
are low-tide elevations or rocks only that do not
• The question of pre-existing rights to resources
generate either a Territorial Sea (TS), EEZ, or a
was considered during the negotiations on the
Continental Shelf (CS), or EEZ or a CS only; and that
547
creation of exclusive economic zone and a are submerged at high tide generate no
number of States wished to preserve historic entitlement to maritime zones.
fishing rights in the new zone: this position was
rejected; the final text of the Convention gives • Many of the reefs in the South China Sea have
other States only a limited right of access to been heavily modified by recent land
fisheries in the exclusive economic zone and no reclamation and construction; the Convention
rights to petroleum or mineral resources. classifies features on the basis of their natural
condition.
• China’s claim to historic rights to resources was
incompatible with the detailed allocation of • Evaluation of features based on the assistance
rights and maritime zones in the Convention: of an expert hydrographer and archival
that China had historic rights to resources in materials and historical hydrographic surveys.
South China Sea waters, such rights were - Scarborough Shoal, Johnson Reef,
extinguished when the Convention entered into Cuarteron Reef, and Fiery Cross Reef are
force to the extent that they were incompatible high-tide features, and
with the Convention’s system of maritime
zones. - Subi Reef, Hughes Reef, Mischief Reef, and
Second Thomas Shoal were submerged at
Whether China actually had historic rights to high tide in their natural condition
resources in the South China Sea prior to the entry
into force of the Convention. - But Gaven Reef (North) and McKennan
Reef are high-tide features
• Prior to the Convention, the waters of the South
China Sea beyond the territorial sea were Whether any of the features claimed by China could
legally considered part of the high seas where generate an entitlement to maritime zones beyond 12
vessels from any State can fish and navigate. nautical miles.
• Historical navigation and fishing by China in the • Art. 121 of the Convention: islands generate an
waters of the South China Sea were an exercise entitlement to an exclusive economic zone of
of high sea freedoms rather than a historic 200 nautical miles and to a continental shelf,
right; there is no evidence that China had but rocks which cannot sustain human
historically exercised exclusive control over the habitation or economic life of their own shall
waters of the South China Sea or prevented have no exclusive economic zone or continental
other States from exploiting their resources. shelf — closely linked to the expansion of
• Between the Philippines and China, there was coastal State jurisdiction and intended to
no legal basis for China to claim historic rights prevent insignificant features from generating
to resources, in excess of the rights provided by large entitlements to maritime zones that
the Convention, within the sea areas falling would infringe on entitlements of inhabited
within the ‘nine-dash line’. territory or on high seas and the area of the
seabed reserved for the common heritage of
2. The status of features in the South China Sea mankind.
• Entitlements of a feature depend on the a)
Whether certain coral reefs claimed by China are or
objective capacity of a feature, b) its natural
are not above water at high tide.
conditions to sustain either c) a stable
community of people or d) economic activity
• Arts. 13 and 121: features that are above water
that is neither dependent on outside resources
at high tide generate an entitlement to at least a
nor purely extractive in nature.
12-nautical mile territorial sea; features that
548
2023 GOLDEN NOTES
• Even if many of the features are currently fishermen from fishing within the Philippines’
controlled by one or other of the littoral States, exclusive economic zone at Mischief Reef and
which have constructed installations and Second Thomas Shoal, and d) constructed
maintained personnel there and have been installations and artificial islands as Mischief
modified to improve their habitability (by land Reef without the authorization of the
reclamation and construction of Philippines.
infrastructure), the current presence of official
personnel on many of the features does not Traditional fishing at Scarborough Shoal
establish their capacity, in their natural
condition, to sustain a stable community of • Fishermen from both China and the Philippines
people and considered that historical evidence and from other countries had long fished at the
of habitation or economic life was more Scarborough Shoal and had traditional fishing
relevant to the objective capacity of the rights in the area.
features.
• Scarborough Shoal is above water at high tide
• Temporary of use of features (as in by small so it generates an entitlement to a territorial
groups of Chinese fishermen and from other sea, its surrounding waters do not form part of
states in the Spratly Islands and Japanese the exclusive economic zone, and traditional
fishing and guano mining enterprises) did not fishing rights were not extinguished by the
amount to inhabitation by a stable community Convention.
and that all historical economic activity had
• China had violated its duty to respect the
been extractive in nature.
traditional fishing rights of Philippine
• All high-tide features in the Spratly Islands are fishermen by halting access to the Shoal after
legally “rocks” that do not generate an exclusive May 2012.
economic zone or continental shelf.
• The Convention does not provide for a group of
Effect of China’s actions on the marine environment
islands (such as the Spratly Islands) to generate
maritime zones collectively as a unit
• China’s large scale land reclamation and
3. Chinese activities in the South China Sea construction of artificial islands at seven
Lawfulness of various Chinese actions in the features in the Spratly Islands has caused
South China Sea under the Convention severe harm to the coral reef environment.
• China violated its obligations under Arts. 192
• Because Mischief Reef, Second Thomas Shoal
and 194 of the Convention to preserve and
and Reed Bank are submerged at high tide and
protect the marine environment with respect to
are not overlapped by any possible entitlement
fragile ecosystems and the habitat of depleted,
of China, they from part of the exclusive
threatened, or endangered species.
economic zone and continental shelf of the
Philippines; the Convention is clear in • Chinese fishermen were engaged in the
allocating sovereign rights to the Philippines harvesting of endangered sea turtles, corals and
with respect to sea areas in its exclusive giant clams on a substantial scale in the South
economic zone. China Sea using methods that inflicted severe
damage on the coral reef environment; Chinese
• China had violated the Philippines’ sovereign
authorities were aware of these and failed to
rights with respect to its exclusive economic
fulfill their due diligence obligation under the
zone and continental shelf: China had a)
Convention to stop them.
interfered with Philippine petroleum
exploration at Reed Bank, b) purported to
prohibit fishing by Philippine vessels within the Lawfulness of conduct of Chinese law enforcement
Philippines’ exclusive economic zone, c) vessels at Scarborough Shoal in April and May 2012
protected and failed to prevent Chinese (Chinese vessels sought to physically obstruct
549
Philippine vessels from approaching or gaining • Both the Philippines and China have accepted
entrance to the Shoal) the Convention and general obligations of good
faith define and regulate their conduct.
• Assisted by an independent expert on • The root of the disputes at issue in this
navigational safety and expert evidence on arbitration lies not in any intention of any Party
navigational safety provided by the Philippines. to infringe on the legal rights of the other but in
• Chinese law enforcement vessels had the fundamentally different understandings of
repeatedly approached the Philippine vessels at their respective rights under the Convention in
high speed and to cross ahead of them at close the waters of the South China Sea.
distances, creating serious risk of collision and
danger to Philippine ships and personnel. (The Republic of the Philippines v. The People’s
Republic of China, Case No. 2013-19 in the
• China breached its obligations under the
Permanent Court of Arbitration Before the
Convention on the International Regulations for
Arbitral Tribunal constituted under UNCLOS
Preventing Collisions at Sea (1972), and Art. 94
Annex VII, 12 July 2016, case brief provided by UP
of the Convention concerning Maritime Safety.
Law Institute for Maritime Affairs and Law of the
Sea)
4. Aggravation of the dispute between the
parties
Whether China’s recent large-scale land reclamation

and construction of artificial islands at seven features
in the Spratly Islands since the commencement of the
arbitration had aggravated the dispute between the
Parties
• Parties engaged in a dispute settlement

procedure have a duty to refrain from
aggravating or extending the dispute or
disputes at issue during the pendency of the
settlement process.
• China has a) build a large artificial island on
Mischief Reef which is within the exclusive
economic zone of the Philippines, b) caused
permanent harm to the coral reef ecosystem,
and c) permanently destroyed evidence of the
natural condition of the features in question.
• China violated its obligations to refrain from
aggravating or extending the Parties’ disputes
during the pendency of the settlement process.
5. Future conduct of the parties
Philippines request for declaration that China shall

respect the rights and freedoms of the Philippines and
comply with its duties under the Convention
550
2023 GOLDEN NOTES
overwhelming and leaving no choice of means and
V. DISPUTE RESOLUTION no moment for deliberation” Mere apprehended
danger or any direct threat to the states does not, by
itself warrant the employment by that state of any
force against a suspected or potential enemy. (Cruz,
A dispute in international law is a technical term
2020)
which means “a disagreement on a point of law or
fact, a conflict of legal views or interests between
When Right of Self-Defense may be invoked
two persons.” A disagreement does not amount to a
dispute if its resolution would have no practical
The right may be resorted only upon a clear
effect on the relationship between the parties.
showing of a grave and actual danger to the security
(Bernas, 2009)
of the state, and, furthermore, self-defensive
measures must be limited by necessity and kept
A Dispute Settlement Body (DSB) has been
clearly within it. (Cruz, 2020)
established by the WTO Agreement. It consists of
the General Council of the WTO and operates under
the Understanding on Rules and Procedures
Governing the Settlement of Disputes 1994 (DSU). B. CONCEPT OF INTERNATIONAL AND NON-
Each state has a right to the establishment of a INTERNATIONAL ARMED CONFLICTS
Panel. The DSU has also provided for a permanent
Appellate Body, consisting of persons with
recognized expertise in law, to handle appeals from 1. THE ROLE OF THE INTERNATIONAL
a Panel decision. (Bernas, 2009) CRIMINAL COURT
The International Criminal Court (ICC) is a permanent

A. LEGALITY OF THE USE OF FORCE international court established to investigate,
prosecute and try individuals accused of committing
the most serious crimes of concern to the international
Nothing in the present Charter shall impair the community as a whole, namely the crime of genocide,
inherent right of individual or collective self- crimes against humanity, war crimes and the crime of
defense if an armed attack occurs against a Member aggression.
of the United Nations, until the Security Council has
taken measures necessary to maintain international Establishment of the ICC
peace and security. Measures taken by Members in
the exercise of this right of self-defense shall be Some of the most heinous crimes were committed
immediately reported to the Security Council and during the conflicts which marked the twentieth
shall not in any way affect the authority and century. Unfortunately, many of these violations of
responsibility of the Security Council under the international law have remained unpunished. The
present Charter to take at any time such action as it Nuremberg and Tokyo tribunals were established in
deems necessary in order to maintain or restore the wake of the Second World War. In 1948, when the
international peace and security. (Art. 51, Charter of Convention on the Prevention and Punishment of the
the United Nations) Crime of Genocide was adopted, the United Nations
General Assembly recognized the need for a
Right of Self-Defense permanent international court to deal with the kinds of
atrocities which had just been perpetrated.
The presence of an “Armed Attack” to justify the
exercise of right of self-defense suggests that The idea of a system of international criminal justice re-
forcible measures may be taken by a state only in emerged after the end of the Cold War. However, while
the face of “a necessity of self-defense instant, negotiations on the ICC Statute were underway at the
551
United Nations, the world was witnessing the Principle of Complementarity
commission of heinous crimes in the territory of the
former Yugoslavia and in Rwanda. In response to these The ICC does not replace national criminal justice
atrocities, the United Nations Security Council systems; rather, it complements them. It can
established an ad hoc tribunal for each of these investigate and, where warranted, prosecute and try
situations. individuals only if the State concerned does not, cannot
or is unwilling genuinely to do so. This might occur
These events undoubtedly had a most significant where proceedings are unduly delayed or are intended
impact on the decision to convene the conference to shield individuals from their criminal responsibility.
which established the ICC in Rome in the summer of This is known as the principle of complementarity,
1998. under which priority is given to national systems.
States retain primary responsibility for trying the
The Rome Statute perpetrators of the most serious of crimes.
On 17 July 1998, a conference of 160 States NOTE: The Court has no jurisdiction with respect to
established the first treaty-based permanent any person who was under the age of 18 when the
international criminal court. The treaty adopted crimes concerned were committed.
during that conference is known as the Rome
Statute of the International Criminal Court. Among Q: Under what conditions does the ICC exercise
other things, it sets out the crimes falling within the its jurisdiction?
jurisdiction of the ICC, the rules of procedure and
the mechanisms for States to cooperate with the A: When a State becomes a party to the Rome
ICC. The countries which have accepted these rules Statute, it agrees to submit itself to the jurisdiction
are known as States Parties and are represented in of the ICC with respect to the crimes enumerated in
the Assembly of States Parties. the Statute. The Court may exercise its jurisdiction
in situations where the alleged perpetrator is a
The Assembly of States Parties, which meets at least national of a State Party or where the crime was
once a year, sets the general policies for the committed in the territory of a State Party. Also, a
administration of the Court and reviews its State not party to the Statute may decide to accept
activities. During those meetings, the States Parties the jurisdiction of the ICC. These conditions do not
review the activities of the working groups apply when the Security Council, acting under
established by the States and any other issues Chapter VII of the United Nations Charter, refers a
relevant to the ICC, discuss new projects and adopt situation to the Office of the Prosecutor.
the ICC’s annual budget.
Q: Is the ICC’s jurisdiction time bound?
ICC as distinguished from other courts
A: The ICC has jurisdiction only with respect to
The ICC is a permanent autonomous court, whereas the events which occurred after the entry into force of
ad hoc tribunals for the former Yugoslavia and Rwanda, its Statute on 1 July 2002. If a State becomes a party
as well as other similar courts established within the to the Statute after its entry into force, the Court
framework of the United Nations to deal with specific may exercise its jurisdiction only with respect to
situations only have a limited mandate and jurisdiction. crimes committed after the entry into force of the
The ICC, which tries individuals, is also different from Statute for that State, unless that State has made a
the International Court of Justice, which is the principal declaration accepting the jurisdiction of the ICC
judicial organ of the United Nations for the settlement retroactively. However, the Court cannot exercise
of disputes between States. The ad hoc tribunal for the jurisdiction with respect to events which occurred
former Yugoslavia and the International Court of before 1 July 2002. For a new State Party, the Statute
Justice also have their seats in The Hague. enters into force on the first day of the month after
552
2023 GOLDEN NOTES
the 60th day following the date of the deposit of its Q: Can the Prosecutor decide on his own initiative
instrument of ratification, acceptance, approval or to open an investigation?
accession.
A: Yes, if the Office of the Prosecutor receives reliable
Q: If those who bear the greatest responsibility information about crimes involving nationals of a State
hold high political or military office, are they not Party or of a State which has accepted the jurisdiction
exempt from prosecution? Can they not be granted of the ICC, or about crimes committed in the territory
immunity or amnesty? of such a State, and concludes that there is a reasonable
basis to proceed with an investigation. Such
A: No one is exempt from prosecution because of his or information can be provided by individuals,
her current functions or because of the position he or intergovernmental or non-governmental
she held at the time the crimes concerned were organizations, or any other reliable sources. The
committed. Prosecution must, however, obtain permission from
the Pre-Trial Chamber judges before initiating an
Acting as a Head of State or Government, minister or investigation under such circumstances.
parliamentarian does not exempt anyone from
criminal responsibility before the ICC.
C. JUDICIAL AND ARBITRAL SETTLEMENT
In some circumstances, a person in a position of
authority may even be held responsible for crimes
committed by those acting under his or her command
1. INTERNATIONAL COURT OF JUSTICE
or orders.
Likewise, amnesty cannot be used as a defense before The International Court of Justice (ICJ) is the
the ICC. As such, it cannot bar the Court from exercising principal judicial organ of the United Nations (UN).
its jurisdiction It was established by the UN Charter, which was
signed in 1945 in San Francisco (United States), and
Crimes that fall within the jurisdiction of the ICC began work in 1946 in the Peace Palace, The Hague
(Netherlands).
The mandate of the Court is to try individuals (rather
than States), and to hold such persons accountable for The ICJ, which is composed of 15 judges, has a
the most serious crimes of concern to the international twofold role: first, to settle, in accordance with
community as a whole, namely: international law, legal disputes between States
submitted to it by them and, second, to give advisory
a.) genocide; opinions on legal matters referred to it by duly
b.) war crimes; authorized United Nations organs and specialized
c.) crimes against humanity; and agencies.
d.) crime of aggression.
All Members of the United Nations are ipso
Q: How do cases come before the Court? facto parties to the Statute of the International
Court of Justice.
A: Any State Party to the Rome Statute can request the
Office of the Prosecutor to carry out an investigation. A The ICJ’s official languages are English and French.
State not party to the Statute can also accept the
jurisdiction of the ICC with respect to crimes Q: Who may submit cases to the ICJ?
committed in its territory or by one of its nationals, and
request the Office of the Prosecutor to carry out an A: Only States are eligible to appear before the ICJ in
investigation. The United Nations Security Council may contentious cases. At present, this essentially means
also refer a situation to the Court. the 193 Member States of the UN.
553
The ICJ has no jurisdiction to deal with applications A State may manifest its consent in three ways:
from individuals, non-governmental organizations, 1. by a special agreement: two or more
corporations or any other private entity. It cannot States with a dispute on a specific issue may
provide them with legal advice or help them in their agree to submit it jointly to the ICJ and
dealings with national authorities. conclude an agreement for this purpose;
However, a State may take up the case of one of its 2. by a clause in a treaty: over 300 treaties
nationals and invoke against another State the contain clauses (known as jurisdictional
wrongs which its national claims to have suffered at clauses) by which a State party undertakes
the hands of the latter; the dispute then becomes to accept the jurisdiction of the ICJ should a
one between States. dispute arise with another State party
about the interpretation or application of
Q: What differentiates the ICJ from the ICC and the treaty;
the ad hoc international criminal tribunals?
3. by a unilateral declaration: the States
A: The ICJ has no jurisdiction to try individuals parties to the Statute of the ICJ may opt to
accused of war crimes or crimes against humanity. make a unilateral declaration recognizing
As it is not a criminal court, it does not have a the jurisdiction of the ICJ as binding with
prosecutor able to initiate proceedings. respect to any other State also accepting it
as binding. This optional clause system, as
This task is the preserve of national courts, the ad it is called, has led to the creation of a group
hoc criminal tribunals established by the United of States each of which has given the ICJ
Nations (such as the International Residual jurisdiction to settle any dispute that might
Mechanism for Criminal Tribunals (IRMCT), arise between them in future. In principle,
mandated to take over residual functions from the any State in this group is entitled to bring
International Criminal Tribunal for the former one or more other States in the group
Yugoslavia (ICTY) and from the International before the ICJ. Declarations may contain
Criminal Tribunal for Rwanda (ICTR)) or in co- reservations limiting their duration or
operation with it (such as the Special Court for excluding certain categories of dispute.
Sierra Leone and the Special Tribunal for Lebanon, They are deposited by States with the
and also of the ICC, set up under the Rome Statute. Secretary-General of the United Nations.
Q: Why are some disputes between States not Q: Are decisions of the ICJ binding?
considered by the ICJ?
A: Judgments delivered by the ICJ (or by one of its
A: The ICJ can only hear a dispute when requested Chambers) in disputes between States are binding
to do so by one or more States. It cannot deal with a upon the parties concerned. Art. 94 of the United
dispute on its own initiative. Neither is it permitted, Nations Charter provides that “[e]ach Member of
under its Statute, to investigate and rule on acts of the United Nations undertakes to comply with the
sovereign States as it chooses. decision of [the Court] in any case to which it is a
party”.
The States involved in the dispute must also have
access to the ICJ and have accepted its jurisdiction, Judgments are final and without appeal. If there is a
in other words they must consent to the ICJ's dispute about the meaning or scope of a judgment,
considering the dispute in question. This is a the only possibility is for one of the parties to make
fundamental principle governing the settlement of a request to the ICJ for an interpretation. In the
international disputes, since States are sovereign event of the discovery of a fact hitherto unknown to
and free to choose how to resolve their disputes.
554
2023 GOLDEN NOTES
the ICJ which might be a decisive factor, either party
may apply for revision of the judgment.
As regards advisory opinions, it is usually for the

United Nations organs and specialized agencies
requesting them to give effect to them or not, by
whichever means they see fit.
2. PERMANENT COURT OF ARTBITRATION
The Permanent Court of Arbitration (PCA) was

originally established for inter-State arbitration,
although the Hague Conventions allow considerable
flexibility in the constitution of a "special Board of
Arbitration. (Art. 26, 1899 Convention; Art. 47, 1907
Convention)
Pursuant to the various Optional Rules, the

following parties may, in principle, agree to bring a
case before the PCA:
1. Any two or more States;

2. A State and an international organization
(i.e., an intergovernmental organization);
3. Two or more international organizations;
4. A State and a private party; and
5. An international organization and a private
party.
The PCA Rules of Procedure for Arbitrating Disputes

Relating to Natural Resources and/or the
Environment and the Optional Rules for
Conciliation of Disputes Relating to Natural
Resources and/or the Environment contain no
requirement that one of the parties be a State or
organization of States. Private parties may agree to
use the administrative and other facilities of the PCA
in arbitrations conducted under the UNCITRAL
Rules, and the PCA is contemplating adopting its
own institutional version of the UNCITRAL Rules for
this purpose. (United Nations document no. A/CN
9/230, 1982)
There is no requirement that a State agreeing to PCA

dispute resolution be a party to the 1899/1907
Conventions, and accession to the Conventions does
not establish any type of compulsory jurisdiction.
(Cruz, 2003)
555

2023 Political Law Golden Notes

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2023 Political Law Golden Notes

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FACULTY OF CIVIL LAW (1734)

2023 GOLDEN NOTES

Address: Academics Committee

Tel. No: (02) 8731-4027

Released in the Philippines, 2023.

ACADEMIC YEAR 2022-2023

JUSTINE RENEE GERVACIO CHAIRPERSON

ATTY. AL CONRAD B. ESPALDON

ACADEMICS COMMITTEE 2023

RON-SOPHIA NICOLE C. ANTONIO CRIMINAL LAW

HERLENE MAE D. CALILUNG LABOR LAW AND SOCIAL LEGISLATION

POLITICAL LAW AND

LEGAL AND JUDICIAL ETHICS WITH PRACTICAL

HANNAH JOY C. IBARRA COMMERCIAL LAW

JEDIDIAH R. PADUA CIVIL LAW

PAULINNE STEPHANY G. SANTIAGO TAXATION LAW

DIANNE MICAH ANGELA D. YUMANG REMEDIAL LAW

PAULA ANDREA F. PEÑAFLOR COVER DESIGN ARTIST

POLITICAL LAW COMMITTEE 2023

POLITICAL LAW SUBJECT HEAD

ASST. HEADS, POWERS AND STRUCTURES OF

FACULTY OF CIVIL LAW

ATTY. ARTHUR B. CAPILI

ATTY. ELGIN MICHAEL C. PEREZ

JUDGE PHILIP A. AGUINALDO

LENY G. GADIANA, R.G.C.

OUR DEEPEST APPRECIATION TO OUR

Justice Amy Lazaro-Javier Atty. Rafaelito M. Garayblas †

Justice Oswaldo D. Agcaoili Atty. Kristjan Vicente T.

Judge Charito M. Sawali Atty. Allan B. Gepty

Judge Rigor R. Pascual Atty. Rene B. Gorospe

Dean Lope E. Feble Atty. Victoria V. Loanzon

Dean Antonio G.M. La Viña Atty. Anicia C. Marquez

Dean Rodel A. Taton Atty. Edwin R. Sandoval

Chairman Sheriff M. Abas Atty. Ismael L. Sarangaya, Jr.

Atty. Carlo L. Cruz Atty. Mauricio C. Ulep

Atty. Enrique V. Dela Cruz Atty. Ronald C. Chua

Atty. Al Conrad B. Espaldon Atty. Glenn M. Mangaoil

Atty. Abraham D. Genuino, II Atty. Noel Raymond R. Ostrea

THE RISK OF USE OF THIS BAR

PART ONE: POLITICAL LAW

POWERS AND STRUCTURES OF GOVERNMENT

II. ADMINISTRATIVE LAW .................................................................................................................................................... 340

IV. LOCAL GOVERNMENT ...................................................................................................................................................... 410

PART TWO: PUBLIC INTERNATIONAL LAW

I. SOURCES OF OBLIGATIONS .............................................................................................................................................. 460

V. DISPUTE RESOLUTION...................................................................................................................................................... 551

1. Constitution of Liberty – series of prescription A self-executing provision is complete in itself and

2. Ratio legis est anima – The words of the

3. Ut magit valeat quam pereat – The Amendments

b. more often than once every five (5)

a. Congress – (as a Constituent Assembly) by

Judicial Review of Amendments

The validity of the process of amendment is not a

Ratification of Proposal if Made Through ConAss

1. Amendments and revisions are valid when

2. Plebiscite is held not earlier than 60 days nor

Ratification of Proposal if made through

1. Valid when ratified by a majority of votes cast

2. Plebiscite is held not earlier than 60 days nor

Requisites for Valid Ratification: (C-P-R)

1. Held in a Plebiscite conducted under the

Date of Effectivity of an Amendment or Revision

Sec. 4, Art. XVII, 1987 Constitution says that any