Professional Documents
Culture Documents
Poli. Q A
Poli. Q A
(1) Those who are citizens of the Philippines at the SECTION 1. The legislative power shall be vested in
time of the adoption of this Constitution; the Congress of the Philippines which shall consist of a Senate
and a House of Representatives, except to the extent reserved
(2) Those whose fathers or mothers are citizens of to the people by the provision on initiative and referendum.
the Philippines;
9. What is the composition of the House of
(3) Those born before January 17, 1973, of Filipino Representatives?
mothers, who elect Philippine citizenship upon reaching the
age of majority; and SECTION 5. (1) The House of Representatives shall
be composed of not more than two hundred and fifty
(4) Those who are naturalized in accordance with members, unless otherwise fixed by law, who shall be elected
law. from legislative districts apportioned among the provinces,
cities, and the Metropolitan Manila area in accordance with
4. Who are natural-born citizens of the Philippines? the number of their respective inhabitants, and on the basis of
SECTION 2. Natural-born citizens are those who are a uniform and progressive ratio, and those who, as provided
citizens of the Philippines from birth without having to by law, shall be elected through a party-list system of
perform any act to acquire or perfect their Philippine registered national, regional, and sectoral parties or
citizenship. Those who elect Philippine citizenship in organizations.
accordance with paragraph (3), Section 1 hereof shall be
deemed natural-born citizens. (2) The party-list representatives shall constitute
twenty per centum of the total number of representatives
5. What is the effect of marriage to an alien on Philippine including those under the party list. For three consecutive
citizenship? terms after the ratification of this Constitution, one-half of the
seats allocated to party-list representatives shall be filled, as
SECTION 4. Citizens of the Philippines who marry provided by law, by selection or election from the labor,
aliens shall retain their citizenship, unless by their act or peasant, urban poor, indigenous cultural communities,
omission they are deemed, under the law, to have renounced women, youth, and such other sectors as may be provided by
it. law, except the religious sector.
Article V, Suffrage
(3) Each legislative district shall comprise, as far as
6. Who may exercise the right to suffrage? practicable, contiguous, compact and adjacent territory. Each
SECTION 11. A Senator or Member of the House of 16. Who shall be the sole judge of all contests relating to
Representatives shall, in all the election, returns and qualifications of the members of
the Senate and House of Representatives?
Offenses punishable by not more than six years
imprisonment, be privileged from arrest while the Congress is SECTION 17. The Senate and the House of
in session. Representatives shall each have an Electoral Tribunal which
shall be the sole judge of all contests relating to the election,
11. For what activities shall members of Congress be not returns, and qualifications of their respective Members.
held liable?
Each Electoral Tribunal shall be composed of nine
No Member shall be questioned nor be held liable in Members, three of whom shall be Justices of the Supreme
any other place for any speech or debate in the Congress or in Court to be designated by the Chief Justice, and the remaining
any committee thereof. (Section 11) six shall be Members of the Senate or the House of
Representatives, as the case may be, who shall be chosen on
12. What are the prohibitions on members of Congress in the basis of proportional representation from the political
relation to holding or being appointed to other offices? parties and the parties or organizations registered under the
party-list system represented therein. The senior Justice in
SECTION 13. No Senator or Member of the House of the Electoral Tribunal shall be its Chairman.
Representatives may hold any other office or
employment in the Government, or any subdivision, agency, 17. What are the limitations to Congress’ power of
or instrumentality thereof, including government-owned or inquiry?
controlled corporations or their subsidiaries, during his term
without forfeiting his seat. SECTION 21. The Senate or the House of
Representatives or any of its respective committees may
Neither shall he be appointed to any office which conduct inquiries in aid of legislation in accordance with its
may have been created or the emoluments thereof increased duly published rules of procedure. The rights of persons
during the term for which he was elected. appearing in or affected by such inquiries shall be respected.
13. What are the prohibitions on members of Congress >The following are some of the limitations on the
with respect to the practice of profession or pursuit of power of the Congress to investigate:
his business? a. The Bill of Rights
b. Personal matters cannot be investigated.
SECTION 14. No Senator or Member of the House of c. Congress cannot investigate on matters not within
Representatives may personally appear as counsel before any its power to legislate.
court of justice or before the Electoral Tribunals, or quasi- d. It cannot inquire into cases pending in court
judicial and other administrative bodies. because of the principle of separation of powers.
Neither shall he, directly or indirectly, be interested 18. When may heads of departments appear before the
financially in any contract with, or in any franchise or special Senate or House and be heard on matters pertaining to
privilege granted by the Government, or any subdivision, their departments?
agency, or instrumentality thereof, including any government-
owned or controlled corporation, or its subsidiary, during his SECTION 22. The heads of departments may upon
term of office. their own initiative, with the consent of the President, or upon
the request of either House, as the rules of each House shall
He shall not intervene in any matter before any office provide, appear before and be heard by such House on any
of the Government for his pecuniary benefit or where he may matter pertaining to their departments.
be called upon to act on account of his office.
Written questions shall be submitted to the
14. What is required for each house to be able to conduct President of the Senate or the Speaker of the House of
its business? Representatives at least three days before their scheduled
appearance.
SECTION 2. Par. (2) A majority of each House shall
constitute a quorum to do business, but a smaller number Interpellations shall not be limited to written
may adjourn from day to day and may compel the attendance questions, but may cover matters related thereto. When the
of absent Members in such manner, and under such penalties, security of the State or the public interest so requires and the
as such House may provide. President so states in writing, the appearance shall be
15. What are the powers of each house with respect to its conducted in executive session.
own members?
19. Who has the power to declare the existence of a state
of war?
22. Under Section 25, Article VI, what are the limitations 24. How does a bill passed by Congress become a law?
on the power of Congress to pass appropriation bills?
SECTION 27. (1) Every bill passed by the Congress
SECTION 25. (1) The Congress may not increase the shall, before it becomes a law, be presented to the President.
appropriations recommended by the President for the If he approves the same, he shall sign it.
operation of the Government as specified in the budget. The
form, content, and manner of preparation of the budget shall 25. What is the President’s so-called veto power?
be prescribed by law.
It is the power of the President to disapprove a bill
(2) No provision or enactment shall be embraced in passed by the Congress. If the President disapprove it, the bill
the general appropriations bill unless it relates specifically to shall be returned with his obligation to the house where it
some particular appropriation therein. Any such provision or originated.
enactment shall be limited in its operation to the
appropriation to which it relates. 26. How can Congress override this?
The Congress may override the veto power of the President
(3) The procedure in approving appropriations for by 2/3 votes of all the members of both houses, voting
the Congress shall strictly follow the procedure for approving separately.
appropriations for other departments and agencies.
27. What is the power of the President with respect to
(4) A special appropriations bill shall specify the appropriations, revenue or tariff bills?
purpose for which it is intended, and shall be supported by
funds actually available as certified by the National Treasurer, SECTION 27. Par. (2) The President shall have the
or to be raised by a corresponding revenue proposed therein. power to veto any particular item or items in an
appropriation, revenue, or tariff bill, but the veto shall not
(5) No law shall be passed authorizing any transfer affect the item or items to which he does not object.
of appropriations; however, the President, the President of
the Senate, the Speaker of the House of Representatives, the 28. Under Section 28, Article VI, what are the limitations
Chief Justice of the Supreme Court, and the heads of on Congress’ power to tax?
Constitutional Commissions may, by law, be authorized to
augment any item in the general appropriations law for their SECTION 28. (1) The rule of taxation shall be uniform
respective offices from savings in other items of their and equitable. The Congress shall evolve a progressive system
respective appropriations. of taxation.
(6) Discretionary funds appropriated for particular (2) The Congress may, by law, authorize the
officials shall be disbursed only for public purposes to be President to fix within specified limits, and subject to such
supported by appropriate vouchers and subject to such limitations and restrictions as it may impose, tariff rates,
guidelines as may be prescribed by law. import and export quotas, tonnage and wharfage dues, and
other duties or imposts within the framework of the national
(7) If, by the end of any fiscal year, the Congress shall development program of the Government.
have failed to pass the general appropriations bill for the
Article VII, The Executive Branch 36. What are the categories of officials who are subject to
the appointing power of the President?
30. In whom is executive power vested?
SECTION 16. The President shall nominate and, with
SECTION 1. The executive power shall be vested in the consent of the Commission on Appointments:
the President of the Philippines.
a. Appoint the heads of the executive departments,
31. What are the qualifications to be elected President? ambassadors, other public ministers and
consuls;
SECTION 2. No person may be elected President b. Officers of the armed forces from the rank of
unless: colonel or naval captain;
a. He is a natural-born citizen of the Philippines; c. Other officers whose appointments are vested in
b. a registered voter; him in this Constitution;
c. able to read and write; d. He shall also appoint all other officers of the
d. at least forty years of age on the day of the Government whose appointments are not
election; and otherwise provided for by law; and
e. a resident of the Philippines for at least ten years e. Those whom he may be authorized by law to
immediately preceding such election. appoint.
32. Who has the responsibility for the canvassing of the 37. Who else may have the power to appoint, other than
election returns for President and Vice President? the President?
The Congress has the responsibility for the SECTION 16. The Congress may, by law, vest the
canvassing of election returns for President and Vice- appointment of other officers lower in rank in the President
President. alone, in the courts, or in the heads of departments, agencies,
commissions, or boards.
SECTION4. Par. 4. The returns of every election for
President and Vice-President, duly certified by the board of 38. State the prohibition on the President, Vice President,
canvassers of each province or city, shall be transmitted to the Members of the Cabinet and their deputies with respect
Congress, directed to the President of the Senate. to the holding of other offices, exercise of profession and
pursuit of business?
33. Give the instances when the Vice President shall serve
as President.
SECTION 3. The Judiciary shall enjoy fiscal (6) Appoint all officials and employees of the
autonomy. Appropriations for the Judiciary may not be Judiciary in accordance with the Civil Service Law.
reduced by the legislature below the amount appropriated for
the previous year and, after approval, shall be automatically 55. State the rule-making power of the Supreme Court
and regularly released.
SECTION 5. Par. (5) Promulgate rules concerning the
52. What is the power of Congress with respect to protection and enforcement of constitutional rights, pleading,
jurisdiction of courts? practice, and procedure in all courts, the admission to the
practice of law, the Integrated Bar, and legal assistance to the
SECTION 2. Par. (1) The Congress shall have the underprivileged. Such rules shall provide a simplified and
power to define, prescribe, and apportion the jurisdiction of inexpensive procedure for the speedy disposition of cases,
various courts but may not deprive the Supreme Court of its shall be uniform for all courts of the same grade, and shall not
jurisdiction over cases enumerated in Section 5 hereof. diminish, increase, or modify substantive rights. Rules of
procedure of special courts and quasi-judicial bodies shall
53. What is the limitation on the power of remain effective unless disapproved by the Supreme Court.
Congress to reorganize the judiciary? 56. What is the constitutional requirement for decisions
rendered by the courts?
SECTION 2. Par. (2) No law shall be passed
reorganizing the Judiciary when it undermines the security of SECTION 14. No decision shall be rendered by any
tenure of its Members. court without expressing therein clearly and distinctly the
facts and the law on which it is based.
54. What are the powers of the Supreme Court? No petition for review or motion for reconsideration of a
decision of the court shall be refused due course or denied
SECTION 5. The Supreme Court shall have the without stating the legal basis therefor.
following powers:
(1) Exercise original jurisdiction over cases affecting 57.What is the function of the Judicial and Bar Council?
ambassadors, other public ministers and consuls, and over
petitions for certiorari, prohibition, mandamus, quo warranto, SECTION 8. Par. (5) The Council shall have the
and habeas corpus. principal function of recommending appointees to the
(2) Review, revise, reverse, modify, or affirm on Judiciary. It may exercise such other functions and duties as
appeal or certiorari, as the law or the Rules of Court may the Supreme Court may assign to it.
provide, final judgments and orders of lower courts in:
(a) All cases in which the constitutionality 58. Give the safeguards embodied in the Constitution to
or validity of any treaty, international or executive ensure the independence of the judiciary
agreement, law, presidential decree, proclamation,
order, instruction, ordinance, or regulation is in a. The Constitution expressly prohibits the Congress from
question. depriving the Supreme Court of its jurisdiction as enumerated
(b) All cases involving the legality of any tax, under Section 5, Art. VIII as far as passing a law that
impost, assessment, or toll, or any penalty imposed undermines the security of tenure of the members of the
in relation thereto. Judiciary.
(c) All cases in which the jurisdiction of any
lower court is in issue. b. SECTION 3. The Judiciary shall enjoy fiscal autonomy.
(d) All criminal cases in which the penalty
imposed is reclusion perpetua or higher. c. SECTION 10. The salary of the Chief Justice and of the
(e) All cases in which only an error or Associate Justices of the Supreme Court and of the Judges of
question of law is involved. the lower courts shall be fixed by law. During the continuance
of their office, their salary shall not be decreased.
(3) Assign temporarily judges of lower courts to
other stations as public interest may require. Such temporary
e. Determine the salaries of the President and Vice-President. 62. What are the ways by which the President can “check”
the exercise of power by the Judiciary? Briefly explain.
60. What are the ways by which Congress can “check” the
exercise of power by the Judiciary. Briefly explain each. ARTICLE VII SECTION 19. Except in cases of impeachment, or
as otherwise provided in this Constitution, the President may
Power of the Congress to impeach a Member of grant reprieves, commutations and pardons, and remit fines
SC and forfeitures, after conviction by final judgment.
ARTICLE XI, SECTION 2. The President, the Vice-President, He shall also have the power to grant amnesty with the
the Members of the Supreme Court, the Members of the concurrence of a majority of all the Members of the Congress.
Constitutional Commissions, and the Ombudsman may be
removed from office, on impeachment for, and conviction of, Article IX, Constitutional Commissions
culpable violation of the Constitution, treason, bribery, graft
and corruption, other high crimes, or betrayal of public trust.
63. What are the Constitutional Commissions?
SECTION 5. The Commission shall enjoy fiscal autonomy. SECTION 6. No candidate who has lost in any election shall,
Their approved annual appropriations shall be automatically within one year after such election, be appointed to any office
and regularly released. in the Government or any government-owned or controlled
corporations or in any of their subsidiaries.
SECTION 6. Each Commission en banc may promulgate its
own rules concerning pleadings and practice before it or 71. What is the prohibition on elective officials with
before any of its offices. Such rules however shall not respect to their appointment to other public offices?
diminish, increase, or modify substantive rights.
SECTION 7. No elective official shall be eligible for
65. What are the powers of the Civil Service appointment or designation in any capacity to any public
Commission? office or position during his tenure.
B. The Civil Service Commission 72. What is the prohibition on appointive officials
with respect to holding any other office in government?
SECTION 3. The Civil Service Commission, as the central What are the exceptions?
personnel agency of the Government, shall establish a career
service and adopt measures to promote morale, efficiency, SECTION 7. xxx
integrity, responsiveness, progressiveness, and courtesy in
the civil service. Unless otherwise allowed by law or by the primary functions
of his position, no appointive official shall hold any other
It shall strengthen the merit and rewards system, integrate all office or employment in the Government or any subdivision,
human resources development programs for all levels and agency or instrumentality thereof, including government-
ranks, and institutionalize a management climate conducive owned or controlled corporations or their subsidiaries.
to public accountability. It shall submit to the President and
the Congress an annual report on its personnel programs. 73. What is the rule on double compensation?
66. What are covered by the civil service? SECTION 8. No elective or appointive public officer or
employee shall receive additional, double, or indirect
SECTION 2. (1) The civil service embraces all branches, compensation, unless specifically authorized by law, nor
subdivisions, instrumentalities, and agencies of the accept without the consent of the Congress, any present,
Government, including government-owned or controlled emolument, office, or title of any kind from any foreign
corporations with original charters. government.
67. What are the criteria for appointments in the Pensions or gratuities shall not be considered as additional,
civil service? double, or indirect compensation.
SECTION 2.(2) Appointments in the civil service shall be made 74. What are the powers of the Commission on
only according to merit and fitness to be determined, as far as Audit?
practicable, and, except to positions which are policy-
determining, primarily confidential, or highly technical, by (D) Commission on Audit
competitive examination.
SECTION 2.
68. What are the only valid causes for removal or
suspension of employees or officers in the civil service?
(1) The Commission on Audit shall have the power, authority,
and duty to examine, audit, and settle all accounts pertaining
SECTION 2. (3) No officer or employee of the civil service shall to the revenue and receipts of, and expenditures or uses of
be removed or suspended except for cause provided by law. funds and property, owned or held in trust by, or pertaining
to, the Government, or any of its subdivisions, agencies, or
69. Do government employees have the right to form instrumentalities, including government-owned or controlled
unions? Why? corporations with original charters, and on a post-audit basis:
Yes. SECTION 2.(5) provides that the right to self-organization (a) constitutional bodies, commissions and offices that have
shall not be denied to government employees. been granted fiscal autonomy under this Constitution;
But while the right to organize and join unions cannot be (b) autonomous state colleges and universities;
curtailed, government employees may not engage in strikes to
demand changes on the terms and conditions of employment (c) other government-owned or controlled corporations and
because such are provided by law (Alliance of Concerned their subsidiaries; and
Teachers vs. Carino)
Decisions, final orders, or rulings of the Commission on 79. What is the most basic right of local
election contests involving elective municipal and barangay governments?
offices shall be final, executory, and not appealable.
SECTION 2. The territorial and political subdivisions shall
76. What is the power of the COMELEC with respect enjoy local autonomy.
to the enjoyment and utilization of all franchises or
permits for the operation of transportation and other 80. What is the role of the President with respect to
public utilities, or media of communications? local governments?
SECTION 4. The Commission may, during the election period, SECTION 4. The President of the Philippines shall exercise
supervise or regulate the enjoyment or utilization of all general supervision over local governments.
franchises or permits for:
Provinces with respect to component cities and
the operation of transportation and other public municipalities, and cities and municipalities with respect to
utilities, component barangays shall ensure that the acts of their
media of communication or information, component units are within the scope of their prescribed
all grants, special privileges, or concessions powers and functions.
granted by the Government or any subdivision,
agency, or instrumentality thereof, including any
81. What is the extent of the taxing power of local
government-owned or controlled corporation or
governments?
its subsidiary.
SECTION 5. Xxx Such taxes, fees, and charges shall accrue All other public officers and employees may be removed from
exclusively to the local governments. office as provided by law, but not by impeachment.
83. What is the requirement for the creation, 87. What are the grounds for impeachment?
division, merger, or abolition of a province, city,
municipality or barangay? SECTION 2. xxx for, and conviction of,
SECTION 10. No province, city, municipality, or barangay may culpable violation of the Constitution,
be created, divided, merged, abolished, or its boundary treason,
substantially altered, except in accordance with the criteria
bribery,
established in the Local Government Code and subject to
graft and corruption,
approval by a majority of the votes cast in a plebiscite in the
other high crimes, or
political units directly affected.
betrayal of public trust.
Article XI, Accountability of Public Officers
88. How is the process of impeachment initiated?
84. What is the basic character of a public office?
What does this mean? SECTION 3. (1) The House of Representatives shall have the
exclusive power to initiate all cases of impeachment.
SECTION 1. Public office is a public trust.
(2) A verified complaint for impeachment may be filed by
any Member of the House of Representatives or by any citizen
Public officers and employees must at all times be upon a resolution of endorsement by any Member thereof,
accountable to the people, serve them with utmost which shall be included in the Order of Business within ten
responsibility, integrity, loyalty, and efficiency, act with session days, and referred to the proper Committee within
patriotism and justice, and lead modest lives. three session days thereafter.
85. Which of these categories required confirmation 89. Outline the entire impeachment process.
by the Commission on Appointments?
SECTION 3. (2) A verified complaint for impeachment may be
SECTION 16. The President shall nominate and, with filed by any Member of the House of Representatives or by
the consent of the Commission on Appointments, any citizen upon a resolution of endorsement by any Member
appoint the heads of the executive departments, thereof, which shall be included in the Order of Business
ambassadors, other public ministers and consuls, or within ten session days, and referred to the proper Committee
officers of the armed forces from the rank of colonel within three session days thereafter. The Committee, after
or naval captain, and other officers whose hearing, and by a majority vote of all its Members, shall
appointments are vested in him in this Constitution submit its report to the House within sixty session days from
such referral, together with the corresponding resolution. The
Judicial Bar Council resolution shall be calendared for consideration by the House
within ten session days from receipt thereof.
ARTICLE VIII Section 8 (2) The regular Members of the
Council shall be appointed by the President for a term of four (3) A vote of at least one-third of all the Members of the
years with the consent of the Commission on Appointments. House shall be necessary either to affirm a favorable
Of the Members first appointed, the representative of the resolution with the Articles of Impeachment of the
Integrated Bar shall serve for four years, the professor of law Committee, or override its contrary resolution. The vote of
for three years, the retired Justice for two years, and the each Member shall be recorded.
representative of the private sector for one year.
(4) In case the verified complaint or resolution of
The Chairman and the Commissioners of the impeachment is filed by at least one-third of all the Members
Constitutional Commissions of the House, the same shall constitute the Articles of
Impeachment, and trial by the Senate shall forthwith proceed.
86. Who may be removed from office by
impeachment? (5) No impeachment proceedings shall be initiated against the
same official more than once within a period of one year.
SECTION 2.
(6) The Senate shall have the sole power to try and decide all
The President, cases of impeachment. When sitting for that purpose, the
the Vice-President, Senators shall be on oath or affirmation. When the President
the Members of the Supreme Court, of the Philippines is on trial, the Chief Justice of the Supreme
the Members of the Constitutional Commissions, and Court shall preside, but shall not vote. No person shall be
90. When is a public officer considered impeached? The President shall notify the Congress of every contract
entered into in accordance with this provision, within thirty
SECTION 3. (6) No person shall be convicted without the days from its execution.
concurrence of two-thirds of all the Members of the Senate.
94. State the rule of preference on the grant of rights,
91. What is the extent of judgments in cases of privileges and concessions covering the national
impeachment? economy and patrimony.
Section 3.(7) Judgment in cases of impeachment shall not SECTION 10. The Congress shall, upon recommendation of the
extend further than removal from office and disqualification economic and planning agency, when the national interest
to hold any office under the Republic of the Philippines, but dictates, reserve to citizens of the Philippines or to
the party convicted shall nevertheless be liable and subject to corporations or associations at least sixty per centum of
prosecution, trial, and punishment according to law. whose capital is owned by such citizens, or such higher
percentage as Congress may prescribe, certain areas of
investments. The Congress shall enact measures that will
Article XII, National Economy & Patrimony
encourage the formation and operation of enterprises whose
capital is wholly owned by Filipinos.
92. State the Regalian Doctrine under the 1987
Constitution.
In the grant of rights, privileges, and concessions covering the
national economy and patrimony, the State shall give
SECTION 2. All lands of the public domain, waters, minerals, preference to qualified Filipinos.
coal, petroleum, and other mineral oils, all forces of potential
energy, fisheries, forests or timber, wildlife, flora and fauna,
95. State the limitations on the grant of franchise for
and other natural resources are owned by the State.
the operation of a public utility.
The State shall protect the nation’s marine wealth in its 96. State the Filipino First policy.
archipelagic waters, territorial sea, and exclusive economic
zone, and reserve its use and enjoyment exclusively to
SECTION 12. The State shall promote the preferential use of
Filipino citizens.
Filipino labor, domestic materials and locally produced goods,
and adopt measures that help make them competitive.
The Congress may, by law, allow small-scale utilization of
natural resources by Filipino citizens, as well as cooperative
97. When may the State temporarily take over a
fish farming, with priority to subsistence fishermen and
privately owned public utility or business affected with
fishworkers in rivers, lakes, bays, and lagoons.
public interest?
98. What are the limitations in incurring foreign (6) Recommend to the Congress effective measures to
loans? promote human rights and to provide for compensation to
victims of violations of human rights, or their families;
SECTION 21. Foreign loans may only be incurred in
accordance with law and the regulation of the monetary (7) Monitor the Philippine Government’s compliance with
authority. Information on foreign loans obtained or international treaty obligations on human rights;
guaranteed by the Government shall be made available to the
public.
(8) Grant immunity from prosecution to any person whose
testimony or whose possession of documents or other
99. What is the rule on the practice of profession? evidence is necessary or convenient to determine the truth in
any investigation conducted by it or under its authority;
SECTION 14.xxxThe practice of all professions in the
Philippines shall be limited to Filipino citizens, save in cases (9) Request the assistance of any department, bureau, office,
prescribed by law. or agency in the performance of its functions;
100. How may the State regulate the formation of (10) Appoint its officers and employees in accordance with
private corporations? law; and
SECTION 16. The Congress shall not, except by general law, (11) Perform such other duties and functions as may be
provide for the formation, organization, or regulation of provided by law.
private corporations. Government-owned or controlled
corporations may be created or established by special
SECTION 19. The Congress may provide for other cases of
charters in the interest of the common good and subject to the
violations of human rights that should fall within the
test of economic viability.
authority of the Commission, taking into account its
recommendations.
101. What is the policy of the State with respect to
monopolies, restraint of trade and unfair competition?
Article XIV, Education, Science and Technology, Arts,
Culture and Sports
SECTION 19. The State shall regulate or prohibit monopolies
when the public interest so requires. No combinations in
103. What is the obligation of the State with respect to
restraint of trade or unfair competition shall be allowed.
the maintenance of a free public education system?
SECTION 4.The control and administration of educational Only Filipino citizens or corporations or associations at least
institutions shall be vested in citizens of the Philippines. seventy per centum of the capital of which is owned by such
citizens shall be allowed to engage in the advertising industry.
107. State the prohibition on the establishment of
schools for aliens? The participation of foreign investors in the governing body
of entities in such industry shall be limited to their
SECTION 4 .No educational institution shall be established proportionate share in the capital thereof, and all the
exclusively for aliens and no group of aliens shall comprise executive and managing officers of such entities must be
more than one-third of the enrollment in any school. The citizens of the Philippines.
provisions of this subsection shall not apply to schools
established for foreign diplomatic personnel and their Article XVII, Amendments and Revisions
dependents and, unless otherwise provided by law, for other
foreign temporary residents. 113. How may amendments to the Constitution be
proposed?
108. What is academic freedom?
SECTION 1. Any amendment to, or revision of, this
SECTION 5. Constitution may be proposed by:
(2) Academic freedom shall be enjoyed in all institutions of (1) The Congress, upon a vote of three-fourths of all its
higher learning. Members; or
(3) Every citizen has a right to select a profession or course of (2) A constitutional convention.
study, subject to fair, reasonable, and equitable admission and
academic requirements. SECTION 2. Amendments to this Constitution may likewise be
directly proposed by the people through initiative upon a
Article XVI, General Provisions petition of at least twelve per centum of the total number of
registered voters, of which every legislative district must be
109. What are the prohibitions on members of the represented by at least three per centum of the registered
military with respect to elections? voters therein.
SECTION 5.(3)xxx No member of the military shall engage 114. How may revisions to the Constitution be
directly or indirectly in any partisan political activity, except proposed?
to vote.
SECTION 1. Any amendment to, or revision of, this
110. What are the prohibitions on members of the Constitution may be proposed by:
military with respect to appointment to other public
office? (1) The Congress, upon a vote of three-fourths of all its
Members; or
SECTION 5.(4) No member of the armed forces in the active
service shall, at any time, be appointed or designated in any (2) A constitutional convention.
capacity to a civilian position in the Government including
government-owned or controlled corporations or any of their 115. How may a constitutional convention be called?
subsidiaries.
SECTION 3. The Congress may, by a vote of two-thirds of all
111. What are the limitations in the ownership of its Members, call a constitutional convention, or by a majority
mass media? vote of all its Members, submit to the electorate the question
of calling such a convention.
SECTION 11. (1) The ownership and management of mass
media shall be limited to citizens of the Philippines, or to 116. When will an amendment or revision of the
corporations, cooperatives or associations, wholly-owned and Constitution be valid?
managed by such citizens.
SECTION 4. Any amendment to, or revision of, this
Constitution under Section 1 hereof shall be valid when
13 POLITICAL LAW REVIEW/SHIENGLAIASAS REVIEWER
ratified by a majority of the votes cast in a plebiscite which
shall be held not earlier than sixty days nor later than ninety
days after the approval of such amendment or revision.
POLITICAL LAW INTRODUCTION >the right of the state to pass or enact its own laws
and employ force to secure obedience thereto, maintain peace
1. Political Law and order within its territorial limits, defend the state against
foreign invasion, and do any other act of governance on its
own people and territory.
Political Law is a branch of public law which deals
with the organization and operations of the governmental 8. Distinguish a de facto from a de jure government
organs of the State and defines the relation of the State with
the inhabitants of the territory.
>a) De Jure Government- is a government of right, a
2. Effect of change in sovereignty to political laws government established according to the Constitution of the
state, and lawfully entitled to recognition and supremacy and
administration of the state but is actually ousted from power
a) Political Laws are abrogated but municipal laws of control.
remain in force.
-It is a true and lawful government
It is the community of persons, more or less -It is a government of fact, that is, it actually
numerous, permanently occupying a definite portion of exercises power of control without legal title.
territory, independent of external control and possessing a
government to which a great body of inhabitants render -One which establishes a defiance of the sovereign
habitual obedience. government.
c) Constitution of Sovereignty- the provision Revision generally affects several provisions of the
pointing out the mode of procedure in accordance with the constitution while amendment generally affects only the
formal changes in the fundamental law may be brought about. specific provision being amended.
(e.g Art. XVII –Amendments and Revisions)
In determining whether the proposal involves an
12. Doctrine of constitutional supremacy amendment or revision, the Court considered the two-part
test:
If a law or contract violates any norm of the a) First, the quantitative test, asks whether the
constitution, that law or contract, whether promulgated by proposed change is so extensive in its provisions as to change
the legislative or by the executive branch or entered into by directly the substance entirely of the constitution by the
private for private purposes, is null and void and without any deletion or alteration of numerous provisions. The court’s
force and effect. Thus, since the constitution is the duty is to determine the number of provisions affected and
fundamental, paramount, and supreme law of nation, it is does not consider the degree of the change.
deemed written in every statute and contracts.
b) Second, the qualitative test, which inquires into
13. Self-executing and non-self-executing provisions the qualitative effects of the proposed change in the
of the Constitution constitution. The main inquiry is whether the change will
accomplish the far-reaching changes in the nature of our basic
governmental plan to amount revision. (Lambino v.
a) Non-self-executing- a provision which lays down COMELEC, supra.)
a general principle such as those in Article II of the 1987
Constitution. 16. May amendments to the Constitution be
proposed directly by the people through an initiative
b) Self-execution –a provision which is in itself petition? Why?
complete and becomes operative without the aid of
supplementary or enabling legislation or that which supplies
sufficient rule by means of which the right it grants may be Yes. Article XVII, Section 2 provides that
enjoyed or provoked. “Amendments to this Constitution may likewise be directly
proposed by the people through initiative upon a petition of at
-If the nature and extent of the right conferred and least twelve per centum (20%) of the total number of
the liability imposed are fixed by the constitution itself, so registered voters, of which every legislative district must be
that it can be determined by the examination and represented by at least three per centum (3%) of the
construction of its terms, and there is no language indicating registered voters therein.No amendment under this section
that the subject is referred to the legislative for action. shall be authorized within five years following the ratification
of this Constitution nor oftener than once every five years
14. What are the two essential elements for a thereafter.”
petition to be considered valid under Sec. 2, Article XVII
of the Constitution on amendments directly proposed by 17. Is the system of initiative on the Constitution
the people through initiative? How can these elements be under the Constitution self-executory? Why?
met?
(1) Those who are citizens of the Philippines at the 32. How is Philippine citizenship acquired?
time of the adoption of this Constitution;
There are two generally recognized form of
(2) Those whose fathers or mothers are citizens of acquiring Philippine Citizenship:
the Philippines;
a) Filipino by Birth
(3) Those born before January 17, 1973, of Filipino 1. Jus Soli (right of soil) which is the legal
mothers, who elect Philippine citizenship upon reaching the right that a person’s nationality at birth is determined by the
age of majority; and place of birth. (e.g. The territory of a given state)
(4) Those who are naturalized in accordance with 2. Jus Sanguinis (right of blood) which is
law. (Sec. 1, Art. IV, 1987 Constitution) the legal principle that at birth, an individual acquires the
nationality of his or her natural parents. The Philippines
29. Who are citizens of the Philippines at the time of the adheres to this principle.
adoption of the 1987 Constitution?
b) Filipino by Naturalization
Philippine Citizens at the time of the adoption of the The legal act of adopting an alien and
1987 Constitution were those who were citizens under the clothing him with the privilege of a native-born citizen.
1973 Constitution.
33. Election of citizenship
30. Who are citizens of the Philippines at the time of the
adoption of the 1973 Constitution? Prior to the 1973 Constitution, if a Filipina marries
an alien, she lost her Filipino citizenship. Hence, her child
would have to elect Filipino Citizenship upon reaching the age
The following are citizens of the Philippines:
of majority.
(1) Those who are citizens of the Philippines at the Under the 1973 Constitution, however, children born
time of the adoption of this Constitution; of Filipino mothers were already considered Filipinos.
(2) Those whose fathers or mothers are citizens of Therefore, the provision on election of citizenship
the Philippines; under the 1987 Constitution only applies to those persons
who were born under the 1935 Constitution.
(3) Those who elect Philippine citizenship pursuant In order for the children to elect Filipino citizenship,
to the provision of the Constitution of Nineteen-hundred and the mothers must have been Filipinos at the time of marriage.
Thirty-five (1935)
So if your mother was a Filipino who marries an
(4) Those who are naturalized in accordance with alien under the 1935 constitution and you were born before
law. (Sec. 1(1), Art. III, 1973 Constitution) January 17, 1973, you can elect Filipino citizenship upon
reaching the age of majority.
31.Who are citizens of the Philippines at the time of the
adoption of the 1935 Constitution? The election must be made within reasonable period
(within 3 months) after reaching the age of majority.
The following are citizens of the Philippines: 34. Naturalization
(3) By subscribing to an oath of allegiance to support the The mere fact that private respondent Rosalind
constitution or laws of a foreign country upon attaining Ybasco Lopez was a holder of Australian passport and an alien
twenty-one years of age or more: Provided, however, That a certificate of registration are not acts constituting the
Filipino may not divest himself of Philippine citizenship in any effective renunciation of citizenship and do not militate
manner while the Republic of the Philippines is at war with against her claim of Filipino Citizenship. (Valles v. COMELEC,
any country; 337 SCRA, 2000 Aug 09)
(4) By rendering services to, or accepting commission in, 38. Is registration as an alien with the Bureau of
the armed forces of a foreign country: Provided, That the Immigration equivalent to effective renunciation of
rendering of service to, or the acceptance of such commission citizenship? Give your jurisprudential basis.
in, the armed forces of a foreign country, and the taking of an
As held by the Court in the case of Aznar v. COMELEC,
oath of allegiance incident thereto, with the consent of the
an application for alien certificate of registration does not
Republic of the Philippines, shall not divest a Filipino of his
amount to an express renunciation of repudiation of one’s
Philippine citizenship if either of the following circumstances
citizenship.
is present:
39. How is citizenship reacquired?
(a) The Republic of the Philippines has a defensive and/or
offensive pact of alliance with the said foreign country; or a) By direct act of Congress
Civil and Political Rights and Liabilities - Those Repatriationmay be had under various statutes by
who retain or re-acquire Philippine citizenship under this Act those who lost their citizenship due to:
shall enjoy full civil and political rights and be subject to all
attendant liabilities and responsibilities under existing laws a) Desertion to armed forces. (sec. 4, CA 63)
of the Philippines and the following conditions:
b) Service in the armed forces of the allied forces in
World War II. (sec.1, RA 965)
(1) Those intending to exercise their right of surffrage must
Meet the requirements under Section 1, Article V of the
c) Service in the armed forces of the United States at
Constitution, Republic Act No. 9189, otherwise known as "The
any other time. (sec. 1, RA 2630)
Overseas Absentee Voting Act of 2003" and other existing
laws; d) Marriage of a Filipino woman to an alien. (sec. 1,
RA 8171)
(2) Those seeking elective public in the Philippines shall meet
the qualification for holding such public office as required by e) Political and economic necessity.
the Constitution and existing laws and, at the time of the filing
of the certificate of candidacy, make a personal and sworn
While dual citizenship is involuntary, dual allegiance PD No. 1596 (11 June 1978)
is the result of an individual volition.
Claims the Kalayaan Group of Islands as part of the Philippine
territory on the basis of historic rights and legal title.
NATIONAL TERRITORY
The claim was made “by reason of history, indispensable
47. Archipelagic doctrine need, and effective occupation and control established in
accordance with international law.
Outermost points of the archipelago shall be
State immunity from suit
connected by straight baselines and all island and waters
therein are regarded as integral one integrated unit.
48.What are the specific islands or territories included in 53. Meaning of State immunity from suit
the phrase “Philippine archipelago”?
No. Courts cannot blindly adhere and take on its face the When consent to be sued is provided by the charter, the
communication from the DFA that petitioner is covered by consent does not stop with the rendition but goes up to the
any immunity. The DFA’s determination that a certain person satisfaction of judgment.
is covered by immunity is only preliminary which has no
63. May the courts issue writs of execution
binding effect in courts. (Liang vs. People)
against the government? Why?
57. How state consent to be sued is given
No. The universal rule that where the State gives it
The consent to be sued, in order to be effective, must come consent to be sued by private parties either by general or
from the State, acting through a duly enacted statute. Waiver special law, it may limit claimant’s claim only up to the
of state immunity can only be made by an act of legislative completion of proceedings anterior to the stage of execution
body. and that the power of the courts when the judgment is
rendered, since government funds and properties may not be
58. How is express consent to be sued given? seized under the writ of execution or garnishment to satisfy
such judgments, is based on the obvious consideration of
public policy. Disbursements of public funds must be covered
Express consent may be embodied in a general law or special by corresponding appropriations as required by law.
law. Express consent is effected only by the will of the (Commissioner of Public Highways vs. San Diego)
legislature through the medium of a duly enacted statute.
Art. XVI, Section 5 SECTION 5. (1) All members of the armed 68. Does the deployment of the military for
forces shall take an oath or affirmation to uphold and defend civilian law enforcement necessarily constitute a
this Constitution. violation of the civilian supremacy clause? Why?
(2) The State shall strengthen the patriotic spirit and Military assistance to civilian authorities in various forms
nationalist consciousness of the military, and respect for persists in Philippine Jurisdiction. The Philippine experience
people’s rights in the performance of their duty. reveals that it is not adverse to request the assistance of the
military in the implementation and execution of certain
traditionally civil functions. (IBP vs Zamora)
(3) Professionalism in the armed forces and adequate
remuneration and benefits of its members shall be a prime
69. What are generally accepted principles
concern of the State. The armed forces shall be insulated from
of international law? Give examples?
partisan politics.
The Doctrine of Separation of Powers is intended to prevent a A party with personal and substantial interest;
concentration of authority in one person or group of persons An appropriate case;
that might lead to an irreversible error or abuse in its exercise A constitutional question raised at the earliest possible time;
to the detriment of our republican institutions. More A constitutional question that is the very lis mota of the case
specifically, according to J. Laurel, the doctrine is intended to
secure action, to forestall overaction, to prevent despotism
and to obtain deficiency. 81. What is the meaning of “ripeness”
requirement in the exercise of judicial review
76. Blending of powers
Art. VIII, SECTION 5. The Supreme Court shall have the A personal and substantial interest in the case such that the
following powers: party has sustained or will sustain direct injury as a result of
the government act that is being challenged.
(2) Review, revise, reverse, modify, or affirm on appeal or
certiorari, as the law or the Rules of Court may provide, final
judgments and orders of lower courts in:
he term interest means a material interest, an interest in issue
affected by the decree, as distinguished from mere interest in
(a) All cases in which the constitutionality or validity of any
the question involved, or a mere incidental interest. The gist
treaty, international or executive agreement, law, presidential
of the question of standing is whether a party alleges such
decree, proclamation, order, instruction, ordinance, or
personal stake in the outcome of the controversy as to assure
regulation is in question.
that concrete adverseness which sharpens the presentation of
issues upon which the court depends for illumination of
79. Requisites for judicial review difficult constitutional questions. (IBP vs Zamora)
(2) for taxpayers, there must be a claim of illegal The earliest opportunity to raise a constitutional issue is to
disbursement of public funds or that the tax measure is raise it in the pleadings before a competent court that can
unconstitutional; resolve the same such that, “if it is not raised in the pleadings,
it cannot be considered on appeal.”
(3) for voters, there must be a showing of obvious interest
in the validity of the election law in question; 91. Meaning of lis mota requirement
Significantly, recent decisions show a certain Because of the doctrine of separation of powers which
toughening in the CourtÕs attitude toward legal demands that proper respect be accorded the other branches
standing. (David vs. Arroyo) of government, courts are loath to decide on constitutional
questions as long as there is some other basis that can be used
85. Direct injury test to resolve the case.
Yes. In the case of Oposa vs. Factoran, the court recognized As Taada v. Cuenco puts it, political questions refer to those
the right of an unborn child to a balanced and healthful questions which, under the Constitution, are to be decided by
ecology and the right to sue in environment cases under the the people in their sovereign capacity, or in regard to which
principle of intergenerational responsibility. full discretionary authority has been delegated to the
legislative or executive branch of government. Thus, if an
89. Doctrine of transcendental importance issue is clearly identified by the text of the Constitution as
matters for discretionary action by a particular branch of
government or to the people themselves then it is held to be a
political question. (IBP vs Zamora)
EDSA 1 EDSA 2
As to power involved or exercised by the people
102. In whom is legislative power vested? The House of Representatives shall be composed of
not more than two hundred fifty (250) members unless
otherwise fixed by law.
The Legislative power shall be vested in the Congress
of the Philippines which shall consist of the Senate and the a) District Representatives-elected from legislative
House of Representatives, except to the extent reserved to the district apportioned among provinces, cities, and the
people by the provision on initiative and referendum. Metropolitan Manila area. (Section 5(1), Article VI, 1987
(Section 1, Article VI, 1987 Constitution) Constitution)
The delegating law must: b) Each legislative district shall comprise as far as
practicable, contiguous, compact, and adjacent territory. This
a) Complete in itself –it must set forth therein the is to prevent gerrymandering.
policy to be carried out or implemented by the delegate.
(Completeness Test)
108. Parameters of Philippine-style party list 110. May Congress impose additional qualifications
elections for membership in Congress? Why?
No, the qualifications of members of Congress as
provided in the Constitution are exclusive.
The following are four (4) inviolable constitutional
and statutory parameters in the party-list system:
a) The remarks must be made while the legislature As to the possibility of an entirely new bill emerging
or the legislative committee is in session; and out of a Conference Committee, it has been explained:
b) The speech or debate must be made in connection Under congressional rules of procedures, conference
with the discharge of official duties. committees are not expected to make any material change in
the measure at issue, either by deleting provisions to which
Nota Bene: An Incumbent Congressman who both houses have already agreed or by inserting new
committed an offense punishable for not more than 6 years provisions. But this is a difficult provision to enforce. Note the
who is not attending session shall be immune from arrest. problem when one house amends a proposal originating in
(People v. Jalosjos, GR Nos. 132875-76, February 3, 2000) either house by striking out everything following the enacting
clause and substituting provisions which make it an entirely
new bill. The versions are now altogether different,
114. May Congress compel the attendance of one of its permitting a conference committee to draft essentially a new
absent members if the latter is confined for being bill
charged with a crime punishable by imprisonment of
more than six years? Why? The result is a third version, which is considered an
amendment in the nature of a substitute, the only
requirement for which being that the third version be
The members of the Congress cannot compel an germane to the subject of the House and Senate bills.
absent member to attend session if the reason of absence is a
legitimate one. The confinement of a Congressman charged
with a crime punishable by imprisonment of more than six (6) 117. Basis and concept of congressional oversight
years is not merely authorized by law but it has Constitutional
basis and foundation. (People v. Jalosjos, supra.)
The power of oversight embraces all activities
undertaken by Congress to enhance its understanding of and
influence over the implementation of legislation it has
115. What are the alternatives for Congress’ enacted. It concerns post-enactment measures undertaken by
Bicameral Conference Committee in terms of Congress. (Macalintal v. COMELEC, GR. No. 157013 July 10,
harmonizing bills from both Houses? 2003, -separate opinion of Justice Puno)
Legislative veto is a statutory provision requiring the Legislative veto is a statutory provision requiring the
President or an administrative agency to present the President or an administrative agency to present the
proposed implementing rules and regulations of a law to proposed implementing rules and regulations of a law to
Congress which, by itself or through a committee formed by it, Congress which, by itself or through a committee formed by it,
retains a right or power to approve or disapprove such retains a right or power to approve or disapprove such
regulations before they take effect. regulations before they take effect. (ABAKADA Guro Party-
List v. Purisima, GR No. 166715, August 14, 2008)
As such, a legislative veto in the form of a
congressional oversight committee is in the form of an
inward-turning delegation designed to attach a congressional
leash (other than through scrutiny and investigation) to an 122. May Congress empower itself to approve the
agency to which Congress has by law initially delegated broad implementing rules of a law, after a law has already taken
powers. It radically changes the design or structure of the effect? Why?
Constitutions diagram of power as it entrusts to Congress a
direct role in enforcing, applying or implementing its own
laws. Thus, legislative veto is not allowed in the Philippines. No, the Congress may not do so.
(ABAKADA Guro Party-List v. Purisima, GR No. 166715,
August 14, 2008)
Administrative regulations enacted by
administrative agencies to implement and interpret the law
119. Does the House of Representatives on its own which they are entrusted to enforce have the force of law and
validly exercise legislative power? are entitled to respect. Such rules and regulations partake of
the nature of a statute and are just as binding as if they have
been written in the statute itself. As such, they have the force
No. Section 1, Article VI of the Constitution states: and effect of law and enjoy the presumption of
constitutionality and legality until they are set aside with
Section 1. The legislative power shall be vested in finality in an appropriate case by a competent court.
the Congress of the Philippines which shall consist of a
Senate and a House of Representatives, except to the extent Congress, in the guise of assuming the role of an
reserved to the people by the provision on initiative and overseer, may not pass upon their legality by subjecting them
referendum. (emphasis supplied) to its stamp of approval without disturbing the calculated
balance of powers established by the Constitution. In
Legislative power (or the power to propose, enact, exercising discretion to approve or disapprove the IRR based
amend and repeal laws) is vested in Congress which consists on a determination of whether or not they conformed with
of two chambers, the Senate and the House of the provisions of RA 9335, Congress arrogated judicial power
Representatives. A valid exercise of legislative power unto itself, a power exclusively vested in this Court by the
requires the act of both chambers. Corrollarily, it can be Constitution. (ABAKADA Guro Party-List v. Purisima, GR
exercised neither solely by one of the two chambers nor No. 166715, August 14, 2008)
by a committee of either or both chambers. Thus,
assuming the validity of a legislative veto, both a single- 123. Power of inquiry
chamber legislative veto and a congressional committee
legislative veto are invalid. (ABAKADA Guro Party-List v.
Purisima, GR No. 166715, August 14, 2008) The Senate or the House of Representatives or any of
its respective committees may conduct inquiries in aid of
legislation in accordance with its duly published rules of
120. What are the two basic steps required before a procedure. The rights of persons appearing in or affected by
bill becomes a law? such inquiries shall be respected. (Section 21, Article VI)
e) Congress may no longer punish the witness in The right of Congress or any of its Committees to
contempt after its final adjournment. The basis of the power obtain information in aid of legislation cannot be equated
to impose such penalty is the right to self-preservation. And with the people’s right to public information. The demand of a
such right is enforceable only during the existence of the citizen for the production of documents pursuant to his right
legislature. (Lopez v. Delos Reyes, GR No. L-3436, Nov. 5, to information does not have the same obligatory force as a
1930) subpoena duces tecum issued by Congress. In the exercise of
its power, Congress cannot invoke a right properly belonging
Exceptions to the rule are: 138. How may Congress limit the power of the
President to appoint?
(i) delegated legislative power to local government units but
this shall involve purely local matters;
It is readily apparent that under the provisions of the
1987 Constitution (Sec. 16, Art. VI) there are four (4) groups
(ii) authority of the President to, by law, exercise powers
of officers whom the President shall appoint. These four (4)
necessary and proper to carry out a declared national policy
groups, to which we will hereafter refer from time to time,
in times of war or other national emergency, or fix within
are:
specified limits, and subject to such limitations and
35 POLITICAL LAW REVIEW/SHIENGLAIASAS REVIEWER
First, the heads of the executive departments, the choice of the President to only one candidate. Once the
ambassadors, other public ministers and consuls, officers of power of appointment is conferred on the President, such
the armed forces from the rank of colonel or naval captain, conferment necessarily comes from the discretion to appoint.
and other officers whose appointments are vested in him in
this Constitution; 2 140. Can Congress make a law effective immediately upon
approval, even before or without previous publication?
Second, all other officers of the Government whose Why?
appointments are not otherwise provided for by law; 3
No. In the case of Tanada v. Tuvera (146 SCRA
Third, those whom the President may be authorized 446), the Court ruled that, laws passed shall comply with
by law to appoint; Article 2 of the New Civil Code, stating:
Fourth, officers lower in rank 4 whose appointments Laws shall take effect after fifteen days following the
the Congress may by law vest in the President alone. completion of their publication in the Official Gazette, unless
it is otherwise provided. This Code shall take effect one year
The first group of officers is clearly appointed with after publication.
the consent of the Commission on Appointments.
Appointments of such officers are initiated by nomination Thus, if the law provides that it shall take effect
and, if the nomination is confirmed by the Commission on immediately, it means that it shall take effect immediately after
Appointments, the President appoints. publication with the fifteen-day period being dispensed with.
Article VII, SECTION 1. The executive power shall be vested in It is the power of the President to withhold information from
the President of the Philippines. Congress, Judiciary and ultimately the public.
SECTION 17. The President shall have control of all the 145. Nepotism rule
executive departments, bureaus, and offices. He shall ensure
that the laws be faithfully executed.
SECTION 13. The spouse and relatives by
The Executive function is essentially the duty to implement consanguinity or affinity within the fourth civil degree of the
the laws within the standards imposed by the legislature. President shall not during his tenure be appointed as
Under the Constitution, this power is exercised by the members of the Constitutional Commissions, or the Office of
President. Thus, when the cabinet and other branches of the the Ombudsman, or as Secretaries, Undersecretaries,
Executive department implement the law, they are acting chairmen or heads of bureaus or offices, including
under the control of the President. government-owned or controlled corporations and their
subsidiaries.
As stated above, the Constitution provides that "[t]he 146. Power of control
executive power shall be vested in the President of the
Philippines." [Art. VII, Sec. 1]. However, it does not define Each head of a department is, and must be, the President’s
what is meant by executive power" although in the same alter ego in the matters of that department, where the
article it touches on the exercise of certain powers by the President is required by law to exercise authority. The
President, i.e., the power of control over all executive President has the constitutional power of control and
departments, bureaus and offices, the power to execute the direction over such department heads and cabinet
laws, the appointing power, the powers under the secretaries.
commander-in-chief clause, the power to grant reprieves,
commutations and pardons, the power to grant amnesty with
the concurrence of Congress, the power to contract or
guarantee foreign loans, the power to enter into treaties or 147. What is the extent of the President’s power of
international agreements, the power to submit the budget to control?
Congress, and the power to address Congress [Art. VII, Sec.
14-23]. (Marcos vs. Manglapus) SECTION 17. The President shall have control of all the
executive departments, bureaus, and offices. He shall ensure
that the laws be faithfully executed.
142. Unitary Executive
With respect to local government, the President exercises
It holds that the President possesses the power to control the general supervision.
entire executive branch.
148. Power of control v. Power of supervision
143. Presidential immunity On many occasions in the past, this court has had the
opportunity to distinguish the power of supervision from the
power of control. In Taule vs. Santos, we held that the Chief
Settled is the doctrine that the President, during his tenure of Executive wielded no more authority than that of checking
office or actual incumbency, may not be sued in any civil or whether a local government or the officers thereof perform
criminal case, and there is no need to provide for it in the their duties as provided by statutory enactments. He cannot
Constitution or law. It will degrade the dignity of the high interfere with local governments provided that the same or
office of the President, the Head of State, if he can be dragged its officers act within the scope of their authority. Supervisory
into court litigations while serving as such. Furthermore, it is power, when contrasted with control, is the power of mere
important that he be freed from any form of harassment, oversight over an inferior body; it does not include any
hindrance or distraction to enable him to fully attend to the restraining authority over such body. Officers in control lay
performance of his official duties and functions. Unlike the down the rules in the doing of an act. If they are not followed,
legislative and judicial branch, only one constitutes the it is discretionary on his part to order the act undone or re-
executive branch and anything which impairs his usefulness done by his subordinate or he may even decide to do it
in the discharge of the many great and important duties himself. Supervision does not cover such
imposed upon him by the Constitution necessarily impairs the authority. Supervising officers merely sees to it that the rules
operation of the Government. However, this does not mean are followed, but he himself does not lay down such rules, nor
that the President is not accountable to anyone. Like any does he have the discretion to modify or replace them. If the
other official, he remains accountable to the people but he rules are not observed, he may order the work done or re-
may be removed from office only in the mode provided by law done to conform to the prescribed rules. He cannot prescribe
and that is by impeachment. (David vs. Macapagal – Arroyo)
No. The power of the President to reorganize is limited only to While an ad interim appointment is permanent and
the Executive department and not the local government. irrevocable except as provided by law, an appointment or
designation in a temporary or acting capacity can be
withdrawn or revoked at the pleasure of the appointing
power. A temporary or acting appointee does not enjoy any
152. Power of appointment security of tenure, no matter how briefly. (Matibag vs.
Benipayo)
SECTION 16. The President shall nominate and, with
the consent of the Commission on Appointments, Ad interim appointment takes effect immediately. It is valid if
appoint the heads of the executive departments, confirmed by the CA or until the next adjournment of the
ambassadors, other public ministers and consuls, or Congress. Acting appointment is temporary in nature. It is a
officers of the armed forces from the rank of colonel step-gap measure intended to fill an office for a limited time
or naval captain, and other officers whose until appointment of a permanent occupant to the office.
appointments are vested in him in this Constitution.
He shall also appoint all other officers of the
Government whose appointments are not otherwise
156. May an ad interim appointee disapproved by the
provided for by law, and those whom he may be
Commission on Appointments be extended a new
authorized by law to appoint. The Congress may, by
appointment?
law, vest the appointment of other officers lower in
rank in the President alone, in the courts, or in the
157. What is the difference between a disapproved o Being executive in nature, it is implied from
and a by-passed ad interim appointment? the constitutional provision vesting the
executive power in the President.
a. CALLING OUT POWER - He may call out such armed Yes. The principle that mobility of travel is another necessary
forces to prevent or suppress lawless violence, restriction on members of the military. A soldier cannot leave
invasion or rebellion. his/her post without the consent of the commanding officer.
b. He may suspend the privilege of the writ of habeas The reasons are self-evident. The commanding officer has to
corpus, or be aware at all times of the location of the troops under
c. He may proclaim martial law over the entire command, so as to be able to appropriately respond to any
Philippines or any part thereof. exigencies. For the same reason, commanding officers have to
be able to restrict the movement or travel of their soldiers, if
in their judgment, their presence at place of call of duty is
Subject to:
necessary. (Gudani v. Senga, G.R. No. 170165, Aug. 15, 2006)
ARTICLE VIII, Judicial power includes the duty of the courts of 165. Why does the President have the power to
justice to settle actual controversies involving rights which prevent a member of the Armed Forces from testifying
are legally demandable and enforceable, and to determine before a legislative inquiry?
whether or not there has been a grave abuse of discretion
amounting to lack or excess of jurisdiction on the part of any
branch or instrumentality of the Government. The President as Commander‐in‐Chief can prevent the Army
General from appearing in a legislative investigation and, if
162. What is the extent of the power of the President disobeyed, can subject him to court martial. (Gudani v. Senga,
as commander-in-chief of the Armed Forces of the G.R. No. 170165, Aug. 15, 2006)
Philippines?
Under the calling-out power, the President may summon the 166. Veto power
armed forces to aid him in suppressing lawless violence,
invasion and rebellion. This involves ordinary police action. ARTICLEVI, SECTION 27. (1) Every bill passed by the
But every act that goes beyond the President’s calling-out Congress shall, before it becomes a law, be presented to the
power is considered illegal or ultra vires. (David vs. President. If he approves the same, he shall sign it; otherwise,
Macapagal- Arroyo) he shall veto it and return the same with his objections to the
House where it originated, which shall enter the objections at
163. Does the President have the power to restrict the large in its Journal and proceed to reconsider it. If, after such
speech of members of the Armed Forces? Why? reconsideration, two-thirds of all the Members of such House
shall agree to pass the bill, it shall be sent, together with the
objections, to the other House by which it shall likewise be
167. Distinguish the power of the President to veto a SECTION 21. No treaty or international agreement shall be
bill and his power to veto a particular item in an valid and effective unless concurred in by at least two-thirds
appropriation bill of all the Members of the Senate.
179. Is the exercise of judicial review meant to It would not be accurate, however, to state that
supplant the Executive? "executive power" is the power to enforce the laws, for the
President is head of state as well as head of government and
42 POLITICAL LAW REVIEW/SHIENGLAIASAS REVIEWER
whatever powers inhere in such positions pertain to the office against external and internal threats to its existence. The
unless the Constitution itself withholds it. Furthermore, the President is not only clothed with extraordinary powers in
Constitution itself provides that the execution of the laws is times of emergency, but is also tasked with attending to the
only one of the powers of the President. It also grants the day-to-day problems of maintaining peace and order and
President other powers that do not involve the execution of ensuring domestic tranquility in times when no foreign foe
any provision of law, e.g., his power over the country's foreign appears on the horizon. Wide discretion, within the bounds of
relations. law, in fulfilling presidential duties in times of peace is not in
any way diminished by the relative want of an emergency
specified in the commander-in-chief provision. For in making
the President commander-in-chief the enumeration of powers
On these premises, we hold the view that although that follow cannot be said to exclude the President's
the 1987 Constitution imposes limitations on the exercise of exercising as Commander-in- Chief powers short of the calling
specific powers of the President, it maintains intact what is of the armed forces, or suspending the privilege of the writ
traditionally considered as within the scope of "executive of habeas corpus or declaring martial law, in order to keep the
power." Corollarily, the powers of the President cannot be peace, and maintain public order and security. (Marcos vs.
said to be limited only to the specific powers enumerated in Manglapus, G.R. No. 88211, September 15, 1989, Cortes, J.)
the Constitution. In other words, executive power is more
than the sum of specific powers so enumerated. 184. Please explain the power of the president to “keep
the peace”?
Another basis. To the President, the problem is one of The Presidential privilege of immunity cannot be
balancing the general welfare and the common good against invoked by a non-sitting President even for acts committed
the exercise of rights of certain individuals. The power during his or her tenure. (Estrada v. Desierto, 2001)
involved is the President's residual power to protect the
general welfare of the people. It is founded on the duty of the Only the President can invoke his immunity. It
President, as steward of the people. To paraphrase Theodore cannot be invoked by another. (Beltran v. Makasiar)
Roosevelt, it is not only the power of the President but also
his duty to do anything not forbidden by the Constitution or 187. Executive Privilege
the laws that the needs of the nation demand. It is a power
borne by the President's duty to preserve and defend the Executive privilege is not a personal privilege, but
Constitution. It also may be viewed as a power implicit in the one that adheres to the Office of the President. It exists to
President's duty to take care that the laws are faithfully protect public interest, not to benefit a particular public
executed [see Hyman, The American President, where the official. Its purpose, among others, is to assure that the nation
author advances the view that an allowance of discretionary will receive the benefit of candid, objective and untrammeled
power is unavoidable in any government and is best lodged in communication and exchange of information between the
the President]. President and his/her advisers in the process of shaping or
forming policies and arriving at decisions in the exercise of
More particularly, this case calls for the exercise of the the functions of the Presidency under the Constitution. The
President's powers as protector of the peace. Rossiter The confidentiality of the President’s conversations and
American Presidency].The power of the President to keep the correspondence is not unique. It is akin to the confidentiality
peace is not limited merely to exercising the commander-in- of judicial deliberations. It possesses the same value as the
chief powers in times of emergency or to leading the State right to privacy of all citizens and more, because it is dictated
The Court held: “Applying the principles adopted in a.) As to nature of crime. Pardon is usually granted
PMPF v. Manglapus, it is clear that while the final text of the for common crimes; amnesty for political crimes.
JPEPA may not be kept perpetually confidential – since there
should be 'ample opportunity for discussion before [a treaty] b.) As to whom it is granted. Pardon is granted to
is approved' – the offers exchanged by the parties during the individuals; amnesty, to a group, class, or community
negotiations continue to be privileged even after the JPEPA is generally.
published. It is reasonable to conclude that the Japenese
representatives submitted their offers with the understanding c.) As to when it is granted. Pardon can only be
that 'historic confidentiality' would govern the same. granted after conviction; amnesty may be granted even before
Disclosing these offers could impair the ability of the trial.
Philippines to deal not only with Japan but with other foreign
governments in future negotiations.” (AKABAYAN v Aquino, d.) As to effect. Pardon looks forward and relieves
G.R. No. 170516, 2008) the offender from the consequences of an offense which he
has been convicted, that is, it abolishes or forgives the
208. What is the character of the diplomatic punishment; amnesty looks backward and abolishes and puts
negotiations privilege? into oblivion the offense itself, that is, it overlooks and
obliterates the offense with which the convict is charged that
the person released stands precisely as though he had
The privileged character of diplomatic negotiations has
committed no offense.
been recognized in this jurisdiction. In discussing valid
limitations on the right to information, the Court in Chavez v.
e.) As to nature of the grant. Pardon is a private act
PCGG held that information on inter-government exchanges
of the President which must be pleaded and proved by person
prior to the conclusion of treaties and executive agreements
because the courts do not take judicial notice of it; amnesty is
may be subject to reasonable safeguards for the sake of
a public act of which the courts take judicial notice.
national interest. Even earlier, the same privilege was upheld
in Peoples Movement for Press Freedom (PMPF) v. Manglapus
wherein the Court discussed the reasons for the privilege in 211. What are the legal requirements for the President’s
more precise terms. exercise of the power of augmentation to be valid?
a. There is absolute necessity of deciding a case. In Province of Batangas v. Romulo, this Court, in
b. Rules of Constitutional Law shall be formulated construing the phrase "automatic release" in Section 6, Article
only as required by the facts of the case. X of the Constitution reading: Section 6. Local government
c. Judgement may not be sustained on some other units shall have a just share, as determined by law, in the
ground. national taxes which shall be automatically released to them,
d. There be actual injury sustained by the party by held: Webster’s Third New International Dictionary defines
reason of the operation of the Statute. "automatic" as "involuntary either wholly or to a major extent
e. Parties are not in estoppel. so that any activity of the will is largely negligible; of a reflex
f. Courts uphold the presumption of nature; without volition; mechanical; like or suggestive of an
Constitutionality. automaton." Further, the word "automatically" is defined as
"in an automatic manner: without thought or conscious
The principle of judicial restraint refers to a theory of intention." Being "automatic," thus, connotes something
judicial interpretation that encourages the judges to limit mechanical, spontaneous and perfunctory. As such the
their exercise of power. LGUs are not required to perform any act to receive the
"just share" accruing to them from the national coffers. x x x”
The common law principle of judicial restraint serves
the public interest by allowing the political processes to By parity of construction, "automatic release" of
operate without undue interference. (Sinaca v, Mula, 1999) approved annual appropriations to petitioner, a constitutional
commission which is vested with fiscal autonomy, should thus
215. Fiscal Autonomy be construed to mean that no condition to fund releases to it
may be imposed. This conclusion is consistent with the above-
The Judiciary shall enjoy fiscal autonomy. cited June 3, 1993 Resolution of this Court which effectively
Appropriations for the Judiciary may not be reduced by the prohibited the enforcement of a "no report, no release" policy
The agencies which the Constitution has vested with d.) Discipline of lower court judges
fiscal autonomy should thus be given priority in the release of
their approved appropriations over all other agencies not xxx. The Supreme Court en banc shall have the
similarly vested when there is a revenue shortfall. (CSC v power to discipline judges of lower courts, or order their
DBM, G.R. No. 158791) dismissal, by a vote of a majority of the members who actually
took part in the deliberations on the issues in the case and
219. Is a revenue shortfall a valid justification to withhold voted thereon. (Article 8, Section 11, 1987 Constitution)
the release of funds of these Constitutional bodies?
e.) Appointment of officials and employees of the
No. Article IX (A), Section 5 of the Constitution entire judiciary
provides, “The Commission shall enjoy fiscal autonomy. Their
approved appropriations shall be automatically and regularly The Supreme Court shall have the xxx power (to)
released.” Shortfall in revenues does not justify non- Appoint all officials and employees of the Judiciary in
compliance with this Constitutional mandate. accordance with the Civil Service Law. (Article 8, Section 5(6),
1987 Constitution)
Asturias Sugar Central, Inc. v. Commissioner of
Customs teaches that "[a]n interpretation should, if possible,
221. Rule-making power of the Supreme Court
be avoided under which a statute or provision being
construed is defeated, or as otherwise expressed, nullified,
destroyed, emasculated, repealed, explained away, or Promulgate rules concerning the protection and
rendered insignificant, meaningless, inoperative, or enforcement of constitutional rights, pleading, practice, and
nugatory." procedure in all courts, the admission to the practice of law,
the integrated bar, and legal assistance to the under-
If respondent’s theory were adopted, then the privileged. Such rules shall provide a simplified and
constitutional mandate to automatically and regularly release inexpensive procedure for the speedy disposition of cases,
approved appropriations would be suspended every year, or shall be uniform for all courts of the same grade, and shall not
even every month that there is a shortfall in revenues, diminish, increase, or modify substantive rights. Rules of
thereby emasculating to a significant degree, if not rendering procedure of special courts and quasi-judicial bodies shall
insignificant altogether, such mandate. Furthermore, the remain effective unless disapproved by the Supreme Court.
Constitution grants the enjoyment of fiscal autonomy only to (Article 8, Section 5(5), 1987 Constitution)
the Judiciary, the Constitutional Commissions of which
petitioner is one, and the Ombudsman. To hold that petitioner
may be subjected to withholding or reduction of funds in the 222. Why rule-making is now an exclusive power of the
event of a revenue shortfall would, to that extent, place Supreme Court?
petitioner and the other entities vested with fiscal autonomy
on equal footing with all others which are not granted the Because under the 1987 Constitution, rule-making
same autonomy, thereby reducing to naught the distinction power and the corollary power of amending the rules are now
established by the Constitution. The agencies which the lodged exclusively on the SC.
Constitution has vested with fiscal autonomy should thus be
given priority in the release of their approved appropriations In In Re: Petition for Recognition of the Exemption of
over all other agencies not similarly vested when there is a the Government Service Insurance System from Payment of
revenue shortfall. (Civil Service Commission vs. Department of Legal Fees, the Court ruled that the provision in the Charter of
Budget and Management, G.R. No. 158791, July 22, 2005, the GSIS, i.e., Section 39 of Republic Act No. 8291, which
Carpio-Morales, J.) exempts it from "all taxes, assessments, fees, charges or duties
of all kinds," cannot operate to exempt it from the payment of
220. Administrative supervision of the Supreme Court legal fees. This was because, unlike the 1935 and 1973
Constitutions, which empowered Congress to repeal, alter or
a.) Supervision of lower courts supplement the rules of the Supreme Court concerning
pleading, practice and procedure, the 1987 Constitution
The Supreme Court shall have administrative removed this power from Congress. Hence, the Supreme
supervision over all courts and the personnel thereof. (Article Court now has the sole authority to promulgate rules
8, Section 6, 1987 Constitution) concerning pleading, practice and procedure in all courts.
b.) Temporarily assign judges to other stations in The separation of powers among the three co-equal
the public interest branches of our government has erected an impregnable wall
that keeps the power to promulgate rules of pleading, practice
The Supreme Court shall have the xxx power (to) and procedure within the sole province of this Court. The
Assign temporarily judges of lower courts to other stations as other branches trespass upon this prerogative if they enact
>Eight members of shall constitute a quorum of the d.) But one who expressly inhibited or is disqualified
Court. In the absence of the Chief Justice, the most senior from taking part (for instance because of conflict of interest)
associate justice shall chair the session of the court. is not included;
227.) Police power vs. power of eminent domain vs. power of The tax levied by the challenged statute is for a
taxation regulatory purpose, namely, to provide ways and means for
the rehabilitation and stabilization of sugar industry. Sugar
Police Power Power of Power of Taxation production is one of the great industries of the country
Eminent Domain imbued with public interest, and, hence, Congress was
Extent of Power empowered to find that the general welfare demanded that
Regulates liberty Affects only Affects only the sugar industry be stabilized. The law is thus primarily an
and property property rights property rights exercise of police power of the State and taxation was merely
Scope used to implement the State’s power. (Lutz vs. Araneta, 98 Phil
All persons, Only upon a All persons, 148 as cited in Cruz, Constitutional Law, 2007)
property, rights, particular property, and
and privileges property excises It is inherent in the power to tax that a state be free
Power exercised by whom to select the subjects of taxation, and it has been repeatedly
May be exercised May be exercised May be exercised hold that “inequities which result from singling out of one
only by the by the only by the particular class for taxation or exemption infringe no
government or its government or its government or its constitutional limitation. Taxation has been made to
political political political implement of the state’s police power. (Tio vs. Videogram
subdivisions subdivisions or subdivisions Regulatory Board, 151 SCRA 2008)
public service
companies or In the case of Small Landowners Association vs.
public utilities Secretary of Agrarian Reform, 175 SCRA 343, the SC upheld the
Compensation constitutionality of CARP and reasoned that, “The cases
before us present no knotty complication insofar as the
Intangible Full and fair Protection and
question of compensable taking is concerned. To the extent
altruistic feeling equivalent of the public
that the measures under challenge merely prescribe retention
that he has property improvements for
limits for landowners, there is an exercise of the police power
contributed to the expropriated. the taxes paid.
for the regulation of private property in accordance with the
public welfare. Hence, there is a Hence, no special
Constitution. But where, to carry out such regulation, it
No direct benefit direct benefit. or direct benefit is
becomes necessary to deprive such owners of whatever lands
is received; a received by the
they may own in excess of the maximum area allowed, there
healthy economic taxpayer; merely
is definitely a taking under the power of eminent domain for
standard of general benefit of
which payment of just compensation is imperative. The taking
society is protection
contemplated is not a mere limitation of the use of the land.
attained.
What is required is the surrender of the title to and the
Nature of the property
physical possession of the said excess and all beneficial rights
Noxious or Intended for Intended for public
accruing to the owner in favor of the farmer-beneficiary. This
intended for public use of use of purpose;
is definitely an exercise not of the police power but of the
noxious purpose; purpose; therefore,
power of eminent domain.
hence, destroyed therefore, wholesome
wholesome
229.) Who may exercise police power
Purpose
Promotion of the To take private To raise revenues General rule: Police power is lodged primarily in
general welfare property for to defray the the national legislature.
public purpose expenses of
government
231.) Requisites for valid exercise No person shall be deprived of life, liberty, or
property without due process of law, nor shall any person be
Lawful subject. The first requisite simply means denied the equal protection of the laws. (Section 1, Article 3,
that the subject of the measure is within the scope of the 1987 Constitution)
police power, that is, that the activity or property sought to be
regulated affects the public welfare. The interests of the Private property shall not be taken for public use
public generally, as distinguished from those of a particular without just compensation. (Article 3, Section 9, 1987
class, require the exercise of the police power. Constitution)
Lawful means. The end does not justify the means. The State may, in the interest of national welfare or
The lawful objective, in other words, must be pursued defense, establish and operate vital industries and, upon
through a lawful method; that is, both the end and the means payment of just compensation, transfer to public ownership
must be legitimate. The means employed are reasonably utilities and other private enterprises to be operated by the
necessary for the accomplishment of the purpose and not Government. (Section 18, Article 12, 1987 Constitution)
unduly oppressive upon individuals.
The State shall, by law, undertake an agrarian reform
The requisites for the valid exercise of police power program founded on the right of farmers and regular
by the delegate are as follows: (a.) Express grant by law; (b.) farmworkers who are landless, to own directly or collectively
Must not be contrary to law; (c.) As a general rule, within the lands they till or, in the case of other farmworkers, to
territorial limits of LGUs. As an exception, when exercised to receive a just share of the fruits thereof. To this end, the State
protect water supply. shall encourage and undertake the just distribution of all
agricultural lands, subject to such priorities and reasonable
Power of Eminent Domain retention limits as the Congress may prescribe, taking into
account ecological, developmental, or equity considerations,
232.) Eminent domain defined and subject to the payment of just compensation. In
determining retention limits, the State shall respect the right
The power of eminent domain enables the State to of small landowners. The State shall further provide
forcibly acquire private property, upon payment of just incentives for voluntary land-sharing. (Section 4, Article 13,
compensation, for some intended public use. 1987 Constitution)
Also called the power of expropriation, eminent The State shall, by law, and for the common good,
domain is described as “the highest and most exact idea of undertake, in cooperation with the private sector, a
property remaining in the government” that may be acquired continuing program of urban land reform and housing which
for some public purpose through a method “in the nature of a will make available at affordable cost, decent housing and
compulsory sale to the State.” (Cruz, Constitutional Law, basic services to under-privileged and homeless citizens in
2007) urban centers and resettlement areas. It shall also promote
adequate employment opportunities to such citizens. In the
233.) Eminent Domain vs. Police Power implementation of such program the State shall respect the
rights of small property owners. (Section 9, Article 13, 1987
See No. 227 Constitution)
234.) Eminent Domain vs. Power of Taxation 238.) Give at least four (4) common actions that constitute
taking
See No. 227
a.) It may include trespass without actual eviction of
235.) Eminent Domain as an implement of Police Power the owner, material impairment of the value of the property
or prevention of the ordinary uses for which the property was
See No. 228 intended.
b.) Private property is involved. Private property 242.) Meaning of just compensation
already devoted to public use cannot be expropriated by a
delegate of legislature acting under a general grant of See No. 239, letter e.
authority (City of Manila vs. Chinese Community, 40 Phil 349)
Just compensation has been defined as "the full and
c.) There must be taking. See No. 238. Requisites fair equivalent of the property taken from its owner by the
for valid taking: the expropriator must enter a private expropriator. The measure is not the taker's gain, but the
property; entry must be for more than a momentary period; owner’s loss. The word ‘just’ is used to qualify the meaning of
The trial court is mandated to follow Section 5, Rule The payment of just compensation for private
67 of the 1997 Rules of Civil Procedure regarding the property taken for public use is guaranteed no less by our
appointment of not more than three competent and Constitution and is included in the Bill of Rights. As such, no
disinterested commissioners for the ascertainment of just legislative enactments or executive issuances can prevent the
compensation. The time as to when the just compensation courts from determining whether the right of the property
should be fixed, it is settled jurisprudence that where owners to just compensation has been violated. It is a judicial
property was taken without the benefit of expropriation function that cannot "be usurped by any other branch or
proceedings, it is the value of the property at the time of the official of the government." Thus, we have consistently ruled
taking that is controlling. Hence, in this case, it should the that statutes and executive issuances fixing or providing for
price of the property in 1980 not in 1994. (Eusebio et al. vs. the method of computing just compensation are not binding
Luis et al., G.R. No. 162474, October 13, 2009, Peralta, J.) on courts and, at best, are treated as mere guidelines in
ascertaining the amount thereof.
245.) What is the effect of delay in payment
In National Power Corporation v. Bagui, where the same
In some expropriation cases, the Court imposed an petitioner also invoked the provisions of Section 3A of RA No.
interest of 12% per annum on the just compensation due the 6395, we held that: Moreover, Section 3A-(b) of R.A. No.
landowner. It must be stressed, however, that in these cases, 6395, as amended, is not binding on the Court. It has been
the imposition of interest was in the nature of damages for repeatedly emphasized that the determination of just
delay in payment which, in effect, makes the obligation on the compensation in eminent domain cases is a judicial function
part of government one of forbearance. It follows that the and that any valuation for just compensation laid down in the
interest in the form of damages cannot be applied where statutes may serve only as a guiding principle or one of the
there was prompt and valid payment of just compensation. factors in determining just compensation but it may not
Conversely, where there was delay in tendering a valid substitute the court’s own judgment as to what amount
payment of just compensation, imposition of interest is in should be awarded and how to arrive at such amount.
order. (Wycoco vs. Judge Caspillo, G.R. No. 146733, January 13, (National Power Corporation (Napocor)vs. Zabala, G.R. No.
2004) 173520, January 30, 2013, Del Castillo, J.)
259. Aspects of due process a) Deferential Review- laws are upheld if they
rationally further a legitimate guaranteed interest without the
a) Procedural Due Process Courts seriously inquiring into the substantiality of such
interest and examining the alternative means by which the
Requirements: objectives could be achieved.
1. There must be an impartial tribunal.
2. The Court must have jurisdiction. b) Intermediate Review- the substantiality of the
3. There must be an opportunity to be heard. governmental interest is seriously looked into and the
4. The judgment must be rendered after trial and in availability of less restrictive alternatives are considered.
accordance with law.
c) Strict Scrutiny- The focus is on the presence of
b) Substantial Due Process compelling rather that substantial governmental interest and
in the absence of less restrictive means of achieving the
Requirements: interest. (Separate opinion of Justice Mendoza in Estrada
1. The means are reasonable for the accomplishment v. Sandignabayan, GR No. 148965, February 26, 2002)
of the purpose.
6. Issuance of warrants of distraint and/or levy by the BIR 271. Valid and invalid classifications
Commissioner.
For classifications to meet the requirements of
7. Cancellation of the passport of a person charged with a Constitutionality, it must include or embrace all persons who
crime. naturally belong to the class.
8. Suspension of a bank’s operation by the Monetary Board The classification will be regarded as invalid if all the
upon a prima facie finding of liquidity problems in such bank. members of the class are not similarly situated. (Biraogo v.
The Philippine Truth Commission of 2010, GR No.
267. Due process and the right to privacy 192935, Dec. 07, 2010)
272. Requirements for a valid classifications
The right to privacy is within the coverage of due
process clause under the Liberty aspect. The classification must:
2. The classification scheme does not rely on a difference that 274. When does the strict scrutiny test of the Equal
is at all designed to achieve the state’s purpose so that the Protection Clause apply?
classification is not rationally related to the state’s objective.
In Moreno, for example, the law relied on the difference Under strict scrutiny review, used to review laws that utilize
between households of related persons and households with classifications based on race or ethnicity and other suspect
at least one unrelated person, but that difference was not classifications, the standard of review is whether the use of
rationally related to the government’s objectives of the classification is narrowly tailored to achieve a compelling
encouraging the purchase of agricultural products or government objective. In these cases, the government
encouraging good nutrition. In the Court's view, the use of the sometimes lacks a compelling objective and may even lack a
classification actually undermined those purposes. legitimate one (as in Loving v. Virginia where the objective was
to maintain white supremacy).
B. Intermediate Scrutiny Test. Intermediate scrutiny is
used to review laws that utilize classifications based on In addition, even if the government has a compelling interest,
gender (this standard is used whether the law discriminates it cannot use a suspect classification if there are any other
in favor of men or in favor of women) and other quasi- means available to the government to achieve its compelling
suspect (also referred to as semi-suspect) classifications. The objective. Therefore, when the government employs a racial
intermediate scrutiny standard of review requires that the classification, it must prove that no race neutral means would
use of the classification be substantially related to an achieve its objective and that no less discriminatory race-
important governmental justification. Under this form of conscious equally effective solution is available either. To
rigorous scrutiny, the burden of proof is on the government to show that no race neutral means are available (or less
show both an important objective and that the use of the discriminatory race-conscious means), the government must
classification is substantially related to that objective (Craig v. show that it seriously considered available alternatives, but
Boren). In describing the burden on the government to justify need not show that it actually tried the available alternatives.
classifications based on gender, the Court in United States v. Right to privacy in general
Virginia used the phrase "exceedingly persuasive
justification" to describe the required showing that the Right to privacy in general
government must make. In this analysis, the challenger can
present less discriminatory alternatives to the Court and
290. What is the presumption with respect to prior Grounds for exemption of compulsory military service;
restraints? expanded version provides exemption even to those who
object war based on non-religious belief i.e. non-theist criteria
With regard to prior restraint in free press, the rule is that it is
presumed to be invalid. This rule overrides the standard 296. Compelling state interest test
presumption that statutes are constitutionally valid.
Underlying the compelling state interest test is the notion that
291. Invalid and Valid prior restraints free exercise is a fundamental right and that laws burdening it
should be subject to strict scrutiny.
See example in question no. 287
In its application, the compelling state interest test follows a
292. Clear and present danger test three-step process, summarized as follows:
The question in every case is whether the words used are If the plaintiff can show that a law or government practice
used in such circumstances and are of such nature as to create inhibits the free exercise of his religious beliefs, the burden
a clear and present danger that they will bring about the shifts to the government to demonstrate that the law or
substantive evils that Congress has a right to prevent. It is a practice is necessary to the accomplishment of some
question of proximity of degree. (Schenck vs. United States) important (or compelling) secular objective and that it is the
least restrictive means of achieving that objective. If the
Emphasis: The danger created must not only be clear and plaintiff meets this burden and the government does not, the
present but also traceable to the ideas expressed. (Gonzales v. plaintiff is entitled to exemption from the law or practice at
COMELEC, G.R. No. L‐27833, April 18, 1969) issue. In order to be protected, the claimants beliefs must be
sincere, but they need not necessarily be consistent, coherent,
Note: This test has been adopted by our SC, and is most clearly articulated, or congruent with those of the claimants
applied to cases involving freedom of expression. religious denomination. Only beliefs rooted in religion are
protected by the Free Exercise Clause; secular beliefs,
Q: Are facial challenges allowed in penal statutes? The overbreadth doctrine, decrees that “a governmental
A: No. Criminal statutes have general in terrorem effect purpose may not be achieved by means which sweep
resulting from their very existence, and, if facial challenge is unnecessarily broadly and thereby invade the area of
allowed for this reason alone, the State may well be prevented protected freedoms.” (Estrada vs. Sandiganbayan)
from enacting laws against socially harmful conduct. In the
area of criminal law, the law cannot take chances as in the area The overbreadth doctrine permits a party to challenge the
of free speech. (KMU v. Ermita, G.R. No. 17855, October 5, 2010) validity of a statute even though as applied to him it is not
unconstitutional but it might be if applied to others not before
298. Void-for-vagueness doctrine the Court whose activities are constitutionally protected.
(Separate opinion of Justice Mendoza in Cruz v. Secretary of
As a rule, a statute or act may be said to be vague when it Environment and Natural Resources, 347 SCRA 128, 2000) It is
lacks comprehensible standards that men of common a type of facial challenge that prohibits the government from
intelligence must necessarily guess at its meaning and differ achieving its purpose by means that “sweep unnecessarily
as to its application. It is repugnant to the Constitution in two broadly, reaching constitutionally protected as well as
respects: (1) it violates due process for failure to accord unprotected activity.
persons, especially the parties targeted by it, fair notice of the
conduct to avoid; and (2) it leaves law enforcers unbridled 300. How may the government regulate the broadcast
discretion in carrying out its provisions and become an media?
arbitrary flexing of the Government muscle.
Broadcasting has to be licensed. Airwave frequencies
We added, however, that: have to be allocated among qualified users. A
x x x the act must be utterly vague on its face, that is to say, it broadcast corporation cannot simply appropriate a
cannot be clarified by either a saving clause or by certain frequency without regard for government
construction. Thus, in Coates v. City of Cincinnati, the U.S. regulation or for the rights of others. (Eastern
Supreme Court struck down an ordinance that had made it Broadcasting vs Dans)
illegal for three or more persons to assemble on any sidewalk The ownership and management of mass media shall
and there conduct themselves in a manner annoying to be limited to citizens of the Philippines, as to
persons passing by. Clearly, the ordinance imposed no corporations, cooperative and associations, shall be
standard at all because one may never know in advance what wholly owned and managed by such citizens.
annoys some people but does not annoy others. The Congress shall regulate or prohibit monopolies
in commercial mass media when the public interest
Coates highlights what has been referred to as a perfectly so requires. No combinations in restraint of trade or
vague act whose obscurity is evident on its face. It is to be unfair competition shall be allowed.
distinguished, however, from legislation couched in imprecise
languagebut which nonetheless specifies a standard though 301. May the government validly suspend the showing
defectively phrasedin which case, it may be saved by proper of a TV show or the appearance of a broadcaster in a TV
construction. (People vs. Dela Piedra) show? Why?
299. Overbreadth doctrine Yes. But even as we uphold the power of the MTRCB to review
and impose sanctions for violations of PD 1986, its decision to
A statute may be said to be overbroad where it operates to suspend petitioner must be modified, for nowhere in that
inhibit the exercise of individual freedoms affirmatively issuance, particularly the power-defining Sec. 3 nor in the
guaranteed by the Constitution, such as the freedom of speech MTRCB Schedule of Administrative Penalties effective January
or religion. A generally worded statute, when construed to 1, 1999 is the Board empowered to suspend the program host
punish conduct which cannot be constitutionally punished is or even to prevent certain people from appearing in television
unconstitutionally vague to the extent that it fails to give programs. The MTRCB, to be sure, may prohibit the broadcast
adequate warning of the boundary between the of such television programs or cancel permits for exhibition,
constitutionally permissible and the constitutionally but it may not suspend television personalities, for such
impermissible applications of the statute.[26] would be beyond its jurisdiction. The MTRCB cannot extend
It is communication which “no more than proposes a 306. What is the Miller Test?
commercial transaction. Advertisements of goods or of
services is an example of this. (Bernas, the 1987 Constitution of According to the Miller test, a film, book or magazine is
the Republic of the Philippines Comprehensive Reviewer 2006) obscene if it
1) appeals to a prurient interest when contemporary
Q: In order for government to curtail commercial speech community standards are applied;
what must be shown? 2) is patently offensive; and
3) lacks serious literary, artistic, political or scientific value
A: To enjoy protection, commercial speech: when taken as a whole
1. Must not be false or misleading (Friedman v. Rogers, 307. What is the test to determine if seditious speech
440 US 1 (1979) and 2. Should not propose an illegal is punishable?
transaction, Pittsburgh Press Co. v Human Relations
Commissions, 413 US 376(1973). Clear and present danger rule is the test to determine if
2. Should not propose an illegal transaction, Pittsburgh seditious speech is punishable.
Press Co. v Human Relations Commissions, 413 US
376(1973). 308. What are the elements of libel?
Note: However, even truthful and lawful commercial speech A public and malicious imputation of a crime, vice or defect,
maybe regulated if (1) government has a substantial interest real or imaginary or any act omission, status tending to cause
to protect; (2) the regulation directly advances that interest; dishonor, discredit or contempt of a natural or judicial person,
and (3) it is not more than extensive than is necessary to or blacken the memory of one who is dead (Art 353, Revised
protect that interest. (Central Hudson Gas & Electric Corp v. Penal Code)
Public Service Commission of NY, 447 US 557 (1980)
There must be identity of person
303. Private v. Government Speech There must be malicious imputation
The result to damage of reputation
Government Speech Private Speech There must be publication
A speech where the government The right of a person to 309. Public figure doctrine
may advance or restrict its own freely speak one’s mind is
speech in a manner that would a highly valued freedom Honest criticisms on conduct of public officials and public
clearly be forbidden were it in a republican and figure are insulated from libel judgments.
regulating the speech of a democratic society.
private citizen. (doctrine was (Ashcroft v. Free Speech The guarantees of freedom of speech and press prohibit a
implied in Wooley v. Maynard in Coalition, 535 U.S. 234 public official or public figure from recovering damages for a
1971) (2002)) defamatory falsehood relating to his official conduct unless he
proves that the statement was made with actual malice, i.e.,
with knowledge that it was false or with reckless disregard of
304. Heckler’s Veto whether it was false or not. (Borjal vs. CA)
A heckler's veto occurs when an acting party's right to 310. Fair commentaries on matters of public interest
freedom of speech is curtailed or restricted by the
government in order to prevent a reacting party's behavior. Fair commentaries on matters of public interest are
The term Heckler’s Veto was coined by University of Chicago privileged and constitute a valid defense in an action for libel
professor of law Harry Kalven. or slander. The doctrine of fair comment means that while in
general every discreditable imputation publicly made is
It may be in the guise of a permit requirement in the holding deemed false, because every man is presumed innocent until
of rallies, parades, or demonstrations conditioned on the his guilt is judicially proved, and every false imputation is
payment of a fee computed on the basis of the cost needed to
Yes. DEPARTMENT CIRCULAR NO. 4 Provides that: 314. What is the legal basis of the right to return to
one’s country?
Section 1. Hold Departure Order. - The Secretary of Justice
may issue an HDO, under any of the following instances: The right to return to one’s country is not among the rights
specifically guaranteed in the Bill of Rights, which treats only
(a) Against the accused, irrespective of nationality, in criminal of the liberty of abode and the right to travel. Nevertheless,
cases falling within the jurisdiction of courts below the the right to return may be considered as a generally accepted
Regional Trial Courts (RTCs). principle of International law, and under the Constitution, is
If the case against the accused is pending trial, the application part of the law of the land. However, it is distinct and separate
under oath of an interested party must be supported by (a) a from the right to travel and enjoys a different protection
certified true copy of the complaint or information and (b) a under the Intl. Covenant of Civil and Political Rights. (Marcos
Certification from the Clerk of Court concerned that criminal v. Manglapus, G.R. No. 88211, Sept. 15, 1989 & Oct. 27, 1989)
case is still pending.
315. May a court prohibit a person admitted to bail
(b) Against the alien whose presence is required either as a from leaving the Philippines? Why?
defendant, respondent, or witness in a civil or labor case
pending litigation, or any case before an administrative Yes. Holding an accused in a criminal case within the
agency of the government. reach of the Courts by preventing his departure from the
The application under oath of an interested party must be Philippines must be considered as a valid restriction on his
supported by (a) a certified true copy of the subpoena or right to travel so that he may be dealt with in accordance with
summons issued against the alien and (b) a certified true copy law. The offended party in any criminal proceeding is the
complaint in civil, labor or administrative case where the People of the Philippines. It is to their best interest that
presence of the alien is required. (c) The Secretary of Justice criminal prosecutions should run their course and proceed to
may likewise issue an HDO against any person, either motu finality without undue delay, with an accused holding himself
proprio, or upon the request by the Head of a Department of amenable at all times to Court Orders and processes.
the Government; the head of a constitutional body or (Defensor vs. Vasquez)
commission; the Chief Justice of the Supreme Court for the
Judiciary; the Senate President or the House Speaker for the ASAS
Legislature, when the adverse party is the Government or any
of its agencies or instrumentalities, or in the interest of Right to information
national security, public safety or public health.
316. What are the limitations to the right to
information?
The right of the people to information on matters of Other acknowledged limitations to information
public concern shall be recognized. Access to official records, access include diplomatic correspondence, closed door
and to documents, and papers pertaining to official acts, Cabinet meetings and executive sessions of either house of
transactions, or decisions, as well as to government research Congress, as well as the internal deliberations of the Supreme
data used as basis for policy development, shall be afforded Court.
the citizen, subject to such limitations as may be provided by
law. (Article 3, Section 7, 1987 Constitution) Alternative Answer
Subject to reasonable conditions prescribed by law, General Rule: The access must be for a lawful
the State adopts and implements a policy of full public purpose and subject to reasonable conditions by the
disclosure of all its transactions involving public interest. custodian of the records.
(Article 2, Section 28, 1987 Constitution)
Exceptions: The right does not extend to the
Limitations following:
The "information" and the "transactions" referred to a.) Information affecting national security, military
in the subject provisions of the Constitution have as yet no and diplomatic secrets. It also includes inter-government
defined scope and extent. There are no specific laws exchanges prior to consultation of treaties and executive
prescribing the exact limitations within which the right may agreement as may reasonably protect the national interest;
be exercised or the correlative state duty may be obliged.
However, the following are some of the recognized b.) Matters relating to investigation, apprehension,
restrictions: (1) national security matters and intelligence and detention of criminals which the court may not inquire
information, (2) trade secrets and banking transactions, (3) into prior to arrest, prosecution and detention;
criminal matters, and (4) other confidential information.
(Chavez vs. PCGG et al., G.R. No. 130716, December 9, 1998, c.) Trade and industrial secrets and other banking
Panganiban, J.) transactions as protected by Intellectual Property Code and
the Secrecy of Bank Deposits Act;
National Security and Intelligence Information. At
the very least, this jurisdiction recognizes the common law d.) Other confidential information falling under the
holding that there is a governmental privilege against public scope of the Ethical Safety Act concerning classified
disclosure with respect to state secrets regarding military, information.
diplomatic and other national security matters. But where
there is no need to protect such state secrets, the privilege 317. Public records and documents
may not be invoked to withhold documents and other
information, provided that they are examined "in strict This covers information on matters of public
confidence" and given "scrupulous protection." concern. It pertains to access to official records, documents
and papers pertaining to official acts, transactions or
Likewise, information on inter-government decisions, as well as to government research data used as
exchanges prior to the conclusion of treaties and executive basis for policy development.
agreements may be subject to reasonable safeguards for the
sake of national interest. The right to information contemplates inclusion of
negotiations leading to the consummation of transaction.
Trade Secrets and Banking Transactions. The (Chavez vs. PEA and AMARI, G.R. No. 133250, July 9, 2002)
drafters of the Constitution also unequivocally affirmed that,
aside from national security matters and intelligence Note: The right only affords access to records,
information, trade or industrial secrets (pursuant to the documents, and papers, which means the opportunity to
Intellectual Property Code and other related laws) as well as inspect and copy them at his expense. The exercise is also
banking transactions (pursuant to the Secrecy of Bank subject to reasonable regulations to protect the integrity of
Deposits Act) are also exempted from compulsory disclosure. public records and to minimize disruption of government
operations.
Criminal Matters. Also excluded are classified law
enforcement matters, such as those relating to the 318. Access to courts
apprehension, the prosecution and the detention of
criminals, which courts may nor inquire into prior to such Free access to the courts and quasi-judicial bodies
arrest, detention and prosecution. Efforts at effective law and adequate legal assistance shall not be denied to any
enforcement would be seriously jeopardized by free public person by reason of poverty. (Section 11, Article 3, 1987
access to, for example, police information regarding rescue Constitution)
operations, the whereabouts of fugitives, or leads on covert
criminal activities. Access to court records
Other Confidential Information. The Ethical The term "judicial record" or "court record" does not
Standards Act further prohibits public officials and employees only refer to the orders, judgment or verdict of the courts. It
from using or divulging "confidential or classified information comprises the official collection of all papers, exhibits and
324. What is the basic requirement for the The following are the instances when a warrantless
Constitutional prohibition to apply? search is allowed: (i) a warrantless search incidental to a
lawful arrest; (ii) search of evidence in "plain view;" (iii)
The basic requirement for the Constitutional search of a moving vehicle; (iv) consented warrantless search;
prohibition to apply is the State Action Doctrine as enunciated (v) customs search; (vi) a "stop and frisk" search; and (vii)
in the case of Atienza v. Commission on Elections, G.R. No. exigent and emergency circumstances. (Luz v. People, G.R. No.
188920, February 16, 2010: 197788, February 29, 2012)
325. When is there a government or state action? 331. Limitations on a search incident to a lawful
arrest
There is a government or state action when the State
in the exercise of its inherent powers interferes with the life, Searches incidental to a lawful arrest require that a
liberty, and property of its citizens or subjects. crime be committed in flagrante delicto, and the search
conducted within the vicinity and within reach by the person
326. In general, when is a search unreasonable? arrested is done to ensure that there are no weapons, as well
as to preserve the evidence. (People v. Cogaed, G.R. No.
In general, search is unreasonable when there is an 200334, July 30, 2014)
unreasonable government intrusion to the right of privacy of
an individual or the right to be let alone. 332. Requirements for a valid search of a moving
motor vehicle
Yes. In People v. Johnson, which also involved seizure As the warrantless clause of Sec. 2, Art III of the
of a dangerous drug from a passenger during a routine frisk at Constitution is couched and as has been held,
the airport, this Court ruled that such evidence obtained in a "reasonableness" is the touchstone of the validity of a
warrantless search was acquired legitimately pursuant to government search or intrusion. And whether a search at
airport security procedures, thus: issue hews to the reasonableness standard is judged by the
balancing of the government - mandated intrusion on the
Persons may lose the protection of the search and individual's privacy interest against the promotion of some
seizure clause by exposure of their persons or property to the compelling state interest. In the criminal context,
public in a manner reflecting a lack of subjective expectation reasonableness requires showing of probable cause to be
of privacy, which expectation society is prepared to recognize personally determined by a judge. Given that the drug -
as reasonable. Such recognition is implicit in airport security testing policy for employees--and students for that matter--
procedures. With increased concern over airplane hijacking under RA 9165 is in the nature of administrative search
and terrorism has come increased security at the nation’s needing what was referred to in Vernonia as "swift and
airports. Passengers attempting to board an aircraft routinely informal disciplinary procedures," the probable - cause
pass through metal detectors; their carry-on baggage as well standard is not required or even practicable. (SJS vs. DDB, G.R.
as checked luggage are routinely subjected to x-ray scans. No. 157870, November 3, 2008)
Should these procedures suggest the presence of suspicious
objects, physical searches are conducted to determine what 339. What is the basic requirement in all valid
the objects are. There is little question that such searches are warrantless searches?
reasonable, given their minimal intrusiveness, the gravity of
the safety interests involved, and the reduced privacy *The warrant specifically describes the place to be
expectations associated with airline travel. Indeed, travelers searched and things to be seized.
are often notified through airport public address systems,
signs, and notices in their airline tickets that they are subject Purpose: The evident purpose and intent of this
to search and, if any prohibited materials or substances are requirement is to limit the things to be seized to those, and
found, such would be subject to seizure. These only those, particularly described in the search warrant—to
announcements place passengers on notice that ordinary leave officers of the law with no discretion regarding
constitutional protections against warrantless searches and what articles they should seize, to the end that
seizures do not apply to routine airport procedures. (Sales v. unreasonable searches and seizures may not be committed,
People, G.R. No. 191023, February 06, 2013) that abuses may not be committed.
338. Do mandatory drug, alcohol and blood tests 340. What are the consequences of an unlawful search
violate the right against unreasonable searches? Explain or seizure?
No. It is within the prerogative of educational 342. Fruit of the poisonous tree doctrine
institutions to require, as a condition for admission,
compliance with reasonable school rules and regulations and The Constitution provides: “Any evidence obtained
policies. To be sure, the right to enroll is not absolute; it is in violation of [the right against unreasonable searches and
subject to fair, reasonable, and equitable requirement. seizures] shall be inadmissible for any purpose in any
proceeding.”
In sum: (a.) Schools and their administrators stand
in loco parentis with respect to their students; (b.) Minor Otherwise known as the exclusionary rule or the
students have contextually fewer rights than an adult and are fruit of the poisonous tree doctrine, this constitutional
subjects to the custody and supervision of their parents, provision originated from Stonehill v. Diokno. This rule
guardians, and schools; (c.) Schools acting in loco parentis, prohibits the issuance of general warrants that encourage law
have the duty to safeguard the health and well-being of their enforcers to go on fishing expeditions. Evidence obtained
students and may adopt such measure as reasonably through unlawful seizures should be excluded as evidence
necessary to discharge such duty; and (d.) Schools have the because it is “the only practical means of enforcing the
Arrest without warrant; when lawful. — A peace The Constitution does not distinguish between
officer or a private person may, without a warrant, arrest a warrants in a criminal case and administrative warrants in
person: administrative proceedings. And if one suspected of having
committed a crime is entitled to a determination of the
a) When, in his presence, the person to be arrested has probable cause against him, by a judge, why should one
committed, is actually committing, or is attempting suspected of a violation of an administrative nature deserve
to commit an offense; (in flagrante delicto) less guarantee? Of course it is different if the order of arrest is
issued to carry out a final finding of a violation, either by an
b) When an offense has just been committed, and he has executive or legislative officer or agency duly authorized for
probable cause to believe based on personal the purpose, as then the warrant is not that mentioned in the
knowledge of facts or circumstances that the person Constitution which is issuable only probable cause. Such, for
to be arrested has committed it; (doctrine of hot example, would be a warrant of arrest to carry out a final
pursuit) and order of deportation, or to effect compliance of an order of
contempt. (Vivo v. Montesa, G.R. No. L-24576, July 29,
c) When the person to be arrested is a prisoner who 1968)
has escaped from a penal establishment or place
where he is serving final judgment or is temporarily *There is an administrative arrest as an incident to
confined while his case is pending, or has escaped deportation proceeding.
while being transferred from one confinement to
another. (Sec. 5, Rule 113, Rules of Court) 349. Legality of drug, alcohol and blood tests
d) An arrest by a bondsman for the purpose of Mandatory drug testing, alcohol test, and blood test
surrendering the accused. are in the nature of administrative search where the probable
standard is not required.
e) Where the accused attempt to leave the country
without the permission of the court. Rights of persons under investigation
344. Meaning of probable cause for a valid 350. What are the Constitutional rights or Miranda
warrantless arrest rights of persons under investigation for the commission
of an offense?
When an offense has been committed and he has
personal knowledge of the facts indicating that the person to a. The right to be informed of his right to remain
be arrested has committed the crime. silent; that any statement he makes may be used as evidence
against him.
345. Requirements for a valid in flagrante arrest b. To have a competent and independent counsel
preferably of his own choice.
(1) The person to be arrested must execute an overt c. If the person cannot afford the services of a
act indicating that he has just committed, is actually counsel, he must be provided with one.
committing, or is attempting to commit a crime; and d. These rights cannot be waived except in writing
(2) Such overt act is done in the presence or within and in the presence of counsel.
the view of the arresting officer. (People v. Nazareno, G.R.
No. 201363 March 18, 2013) 351. At what point will these rights become available
to a person?
Such overt act is done in the presence or within the 352. What does custodial investigation mean?
view of the arresting officer.
Custodial investigation involves any questioning by
347. Requirements for a valid hot pursuit arrest law enforcement people after a person is taken into custody
or deprived of his freedom in any significant manner. That
a. An offense has been committed (close proximity includes "inviting" a person to be investigated in connection
between the arrest and the time of commission of the crime) of a crime of which he's suspect and without prejudice to the
"inviting" officer for any violation of law. If a person is taken
353. Are these rights available during a police line up? 8. In addition, if the person arrested waives his right to a
lawyer, he must be informed that it must be done in writing
No, a police line-up is not considered a part of any AND in the presence of counsel, otherwise, he must be
custodial inquest because it is conducted before the stage of warned that the waiver is void even if he insist on his waiver
investigation is reached. (People v. Bravo, GR No. 135562) and chooses to speak;
Here, the process has not yet shifted from the 9. That the person arrested must be informed that he may
investigating to the accusatory stage. indicate in any manner at any time or stage of the process that
he does not wish to be questioned with warning that once he
When the accused having become the focus of makes such indication, the police may not interrogate him if
attention by the police after he had been pointed to by a the same had not yet commenced, or the interrogation must
person as the possible perpetrator of the crime, it was held ceased if it has already begun;
then out of Court identification that was conducted by the
police, the accused was already under custodial investigation. 10. The person arrested must be informed that his initial
(People v. Lara, GR No. 199877, Aug. 13, 2012) waiver of his right to remain silent, the right to counsel or any
of his rights does not bar him from invoking it at any time
354. May these rights be invoked in administrative during the process, regardless of whether he may have
investigations? answered some questions or volunteered some statements;
No, these rights can be invoked only in criminal 11. He must also be informed that any statement or evidence,
investigations. as the case may be, obtained in violation of any of the
foregoing, whether inculpatory or exculpatory, in whole or in
355. State the Supreme Court’s guidelines on Miranda part, shall be inadmissible in evidence.
rights as expressed in the case of People v. Mahinay
356. State the rule on extra-judicial confessions
1. The person arrested, detained, invited or under custodial
investigation must be informed in a language known to and Any extrajudicial confession made by a person
understood by him of the reason for the arrest and he must be arrested, detained or under custodial investigation shall be in
shown the warrant of arrest, if any; Every other warnings, writing and signed by such person in the presence of his
information or communication must be in a language known counsel or in the latter's absence, upon a valid waiver, and in
to and understood by said person; the presence of any of the parents, elder brothers and sisters,
his spouse, the municipal mayor, the municipal judge, district
2. He must be warned that he has a right to remain silent and school supervisor, or priest or minister of the gospel as
that any statement he makes may be used as evidence against chosen by him; otherwise, such extrajudicial confession shall
him; be inadmissible as evidence in any proceeding. (Sec. 2(d), RA
3. He must be informed that he has the right to be assisted at 7438)
all times and have the presence of an independent and
competent lawyer, preferably of his own choice; What is sought to be avoided is the "evil of extorting
from the very mouth of the person undergoing interrogation
4. He must be informed that if he has no lawyer or cannot for the commission of an offense, the very evidence with
afford the services of a lawyer, one will be provided for him; which to prosecute and thereafter convict him. (People vs.
and that a lawyer may also be engaged by any person in his Bonola 274 SCRA 238 [1997])
behalf, or may be appointed by the court upon petition of the
person arrested or one acting in his behalf; The alleged infringement of the constitutional rights
of the accused while under custodial investigation is relevant
5. That whether or not the person arrested has a lawyer, he and material only to cases in which an extra-judicial
must be informed that no custodial investigation in any form admission or confession extracted from the accused becomes
shall be conducted except in the presence of his counsel or the basis of his conviction. People vs. Tiadula, 292 SCRA
after a valid waiver has been made; 596 (1998)
6. The person arrested must be informed that, at any time, he 357. Meaning of right to be informed
has the right to communicate or confer by the most expedient
means – telephone, radio, letter or messenger – with his In Andaya v. People (G.R. No. 75930 June 8, 1990)
lawyer (either retained or appointed), any member of his the Court expounded on the constitutional right to be
immediate family, or any medical doctor, priest or minister informed of the nature and cause of the accusation against the
chosen by him or by any one from his immediate family or by accused.
his counsel, or be visited by/confer with duly accredited
national or international non-government organization. It x x x As early as the 1904 case of U.S. v. Karelsen, the
shall be the responsibility of the officer to ensure that this is rationale of this fundamental right of the accused was already
accomplished; explained in this wise:
364. State the provisions in the Constitution that allow 365. What are the requirements for religion to be
State support or entanglement with religion? taught in public elementary and high schools?
a. Charitable institutions, churches and personages a. It should be at the option expressed in writing
or convents appurtenant thereto, mosques, non-profit by the parents or guardians.
cemeteries, and all lands, buildings, and improvements,
2. The statute must not advance nor inhibit religious Benevolent neutrality recognizes that religion plays
practice (also known as the Effect Prong) an important role in the public life of the United States as
3. The statute must have a secular legislative shown by many traditional government practices which,
purpose. (also known as the Purpose Prong) to strict neutrality, pose Establishment Clause questions.
Among these are the inscription of In God We Trust on
If any of these prongs are violated, the government's American currency; the recognition of America as one nation
action is deemed unconstitutional under the non- under God in the official pledge of allegiance to the flag; the
establishment clause. (Lemon v. Kurtzman, 403 U.S. Supreme Courts time-honored practice of opening oral
602 (1971) argument with the invocation God save the United States and
>A regulation is constitutional when: a) it has a this Honorable Court; and the practice of Congress and every
secular legislative purpose; b) it neither advances nor state legislature of paying a chaplain, usually of a particular
prohibits religion; and c) it does not foster an excessive Protestant denomination, to lead representatives in
entanglement with religion. (The Diocese of Bacolod v. prayer. These practices clearly show the preference for one
COMELEC, GR No. 205728, January 21, 2015) theological view point the existence of and potential for
intervention by a god over the contrary theological viewpoint
of atheism. Church and government agencies also cooperate
in the building of low-cost housing and in other forms of poor
367. Benevolent accommodation or neutrality test relief, in the treatment of alcoholism and drug addiction, in
foreign aid and other government activities with strong moral
dimension.
380. The right of the State to due process 384. Equipoise rule
>The State and the offended party are entitled to due Under the equipoise rule, when the evidence of both
process. The State and more so, the offended party, is also sides are equally balanced, constitutional presumption of
entitled to due process of law. innocence should tilt the scales in favor of the accused.
(Corpuz v. People, GR No. 74259, 11 July 1991)
>The judgment of acquittal was vacated upon a
finding by the Court that there was bias and partiality on the 385. Right to be heard by himself and counsel
part of judge and prosecutor.
In criminal cases, the right of the accused to be
>In Merciales v. Court of Appeals (G.R. No. assisted by counsel is immutable. Otherwise, there will be a
124171. March 18, 2002), it was held that the Petitioner grave denial of due process. The right to counsel proceeds
(mother of the rape victim) was denied due process when the from the fundamental principle of due process which basically
public prosecutor who was under legal obligation to pursue means that a person must be heard before being condemned.9
the action on her behalf, reneged on that obligation and
refused to perform his sworn duty. In People v. Ferrer, the essence of the right to
counsel was enunciated:
381. Presumption of innocence
The right to counsel means that the accused is amply
accorded legal assistance extended by a counsel who commits
In all criminal prosecutions, the accused shall be himself to the cause for the defense and acts accordingly. The
presumed innocent until the contrary is proved. right assumes an active involvement by the lawyer in the
(Sec. 14(2), Art.III, 1987 Constitution) proceedings, particularly at the trial of the case, his bearing
constantly in mind of the basic rights of the accused, his being
>The requirement of proof beyond reasonable doubt well-versed on the case, and his knowing the fundamental
is a necessary corollary of the constitutional right to presume procedures, essential laws and existing jurisprudence. The
innocent. (People v. Dramayo, G.R. No. L-21325 October right of an accused to counsel finds substance in
29, 1971) the performance by the lawyer of his sworn duty of
382. Presumption of regularity of performance of fidelity to his client. Tersely put, it means an efficient and
official duty vs. presumption of innocence truly decisive legal assistance and not a simple perfunctory
representation. (Cited in the case of Callangan v. People,
G.R. No. 153414 June 27, 2006)
No, the right to counsel during the trial is not subject The Rules of Court provides that “whenever possible,
to waiver. (Flores v. Ruiz, 90 SCRA 428) because “even the a complaint or information should state the designation given
most intelligent or educated man may have no skill in the to the offense by the Statute” besides the statements
science of law, particularly in the rules of procedure and constituting the same. If there is no such designation,
without counsel, he may be convicted NOT because he is reference should be made to the section or subsection.
GUILTY but because he DOES NOT know how to establish his
innocence” (People v. Holgado, 86 Phil 752). Thus, the Rationale for this right:
conviction of the accused in the lower court was set aside and
the case was remanded for new trial, as the accused was a. To furnish the accused with such a description of
represented by someone who was not a member of the the charge against him as will enable him to make his defense.
Philippine bar (People vs. Santociles GR No. 109149,
December 21, 1999). But the failure of the record to disclose b. To avail himself of his conviction or acquittal for
affirmatively that the trial court advised the accused of his protection against further prosecution for the same cause.
right to counsel is not sufficient ground to reverse conviction.
The trial court must be presumed to have complied with the c. To inform the Court of the facts alleged so that it
procedure prescribed by law for the hearing and trial of cases, may decide whether they are sufficient in law to support a
and such presumption can be overcome only by affirmative conviction. If one should be had. (US v. Karelsen, GR No.
showing to the contrary (People v. Agbayani, GR No. 1376, Jan. 21, 1904)
122770, January 16, 1998)
390. What are the requirements of this right?
387. Is the right of the accused to choose his own
counsel during trial absolute? a. Information must state the name of the accused.
b. Designation given to the offense by the statute.
General Rule: No, the right of the accused to choose c. Statement of the acts or omission so complained of
his own counsel during trial is not absolute. While the right to as resulting to the crime.
be represented by counsel during the trial is absolute, the d. Name of the offended party.
option of the accused to hire one of his own choice is e. Approximate time and date of commission of
limited. Such option cannot be used to sanction offense.
reprehensible dilatory tactics, to trifle with the Rules of Court, f. Place where the offense was committed.
or to prejudice the equally important rights of the State and g. Every element of the offense must be alleged in the
the offended party to a speedy and adequate justice (People complaint of information.
v. Serzo, GR. No. 118435, June 20, 1997).
391. Give the procedural consequences of the right to
Exception: xxx Upon motion, the accused may be be informed?
allowed to defend himself in person when it sufficiently
appears to the court that he can properly protect his right a. The accused cannot be convicted thereof due to
without the assistance of counsel. (Sec.1, R115, Rules of violation of due process.
Court)
b. The accused, if the information fails to allege
388. When is negligence of counsel considering denial material element of the offense, cannot be convicted even if
of right to be heard? the prosecution is able to present evidence during trial with
respect to such elements.
The long standing rule is that a client is bound by the
mistake of his lawyer. (Andrada v People, GR No. 135222, 392. What must be alleged in the criminal
March 04, 2005) except when the negligence or information?
incompetence of counsel is deemed so GROSS as to have
prejudiced the Constitutional right of the accused to be heard. a. Section 6, Rule 110, Rules of Court:
Sufficiency of complaint or information. — A
389. Meaning of right of the accused to be informed of complaint or information is sufficient if it states the name of
the nature and cause of the accusation against him the accused; the designation of the offense given by the
statute; the acts or omissions complained of as constituting
So that the accused can adequately prepare for his the offense; the name of the offended party; the approximate
defense, obviously, he cannot do so if he has to guess at the date of the commission of the offense; and the place where
the offense was committed.
A trial free from vexatious, capricious, and c. The common basic principle underlying the
oppressive delays; but justice and fairness not speed are the application of the rule on implied waiver is that the party was
objectives. (Acebedo v. Sarmiento, G.R. No. L-28025, given the opportunity to confront and cross-examine an
December 16, 1970) opposing witness but failed to take advantage of it for reasons
attributable to himself alone. (Savory Luncheonette vs.
397. Meaning of impartial trial Lakas ng Manggagawang Pilipino, G.R. No. L-38964,
January 31, 1975)
a. The accused is entitled to “cold” neutrality of an
impartial judge. DIMAPILIS
403. Trial in absentia Rule 114. Section 4. Bail, a matter of right; exception. — All
persons in custody shall be admitted to bail as a matter of
Trial in absentia may proceed if the following requisites are right, with sufficient sureties, or released on recognize as
present: prescribed by law or this Rule (a) before or after conviction
by the Metropolitan Trial Court, Municipal Trial Court,
1. Accused has been validly arraigned Municipal Trial Court in Cities, or Municipal Circuit Trial
2. Accused has been duly notified of the dates of hearing Court, and (b) before conviction by the Regional Trial Court of
3. Failure to appear is unjustifiable an offense not punishable by death, reclusion perpetua, or life
imprisonment. Bail as a matter of right
Q: Can there be promulgation of judgment in absentia?
As of October 1, 1994 and rule 114, a person charged with a
A: Promulgation of judgment in absentia is valid provided crime punishable by life imprisonment is no longer entitled to
that the essential elements are present: bail as a matter of right and instead falls under the above
1. Judgment be recorded in the criminal docket exception.
2. Copy be served upon accused or counsel
When bail is a matter of right:
Note: Recording the decision in the criminal docket
1. Before or after conviction by the MTC;
of the court satisfies the requirement of notifying the 2. Before conviction, for all offenses punishable by a
accused of the decision wherever he may be. penalty lower than reclusion perpetua
(Estrada v. People, G.R. No. 162371, Aug. 25, 2005)
407. When is bail a matter of discretion?
404. When is the presence of the accused mandatory?
Rule 114 Section 5. Bail, when discretionary. — Upon
1. During arraignment and plea conviction by the Regional Trial Court of an offense not
2. During trial, for identification, unless the accused has punishable by death, reclusion perpetua, or life imprisonment,
already stipulated on his identity during the pre‐trial and that admission to bail is discretionary. The application for bail may
he is the one who will be identified by the witnesses as the be filed and acted upon by the trial court despite the filing of a
accused in the criminal case notice of appeal, provided it has not transmitted the original
3. During promulgation of sentence, unless for a light offense, record to the appellate court. However, if the decision of the
in which case the accused may appear by counsel or trial court convicting the accused changed the nature of the
representative. At such stages of the proceedings, his offense from non-bailable to bailable, the application for bail
presence is required and cannot be waived (People vs. Grano) can only be filed with and resolved by the appellate court.
Note: While the accused is entitled to be present during Should the court grant the application, the accused may be
promulgation of judgment, the absence of his counsel during allowed to continue on provisional liberty during the
such promulgation does not affect its validity. pendency of the appeal under the same bail subject to the
consent of the bondsman.
4.Also the promulgation of judgment must be read in the
presence of the accused. The proper clerk of court shall give
If the penalty imposed by the trial court is imprisonment
notice to the accused personally requireing him to be present
exceeding six (6) years, the accused shall be denied bail, or his
at the promulgation of decision. The presence of the accused
Only persons under detention may petition for bail, for the
411. After receiving an application for bail, what are
purpose of bail is to secure their provisional release. It follows
the things that a judge must do?
that one who is not in the custody of the law cannot ask for
bail.
"(1) Notify the prosecutor of the hearing of the application for
bail or require him to submit his recommendation (Section
Note: The rule considers “custody of the law” and does not
18, Rule 114 of the Rules of Court as amended;
cover person who is in the enjoyment of his physical liberty. A
fugitive therefore may not apply for bail unless he gives
"(2) Conduct a hearing of the application for bail regardless of
himself up first so he may be placed in the custody of law.
whether or not the prosecution refuses to present evidence to
show that the guilt of the accused is strong for the purpose of
Exception:
enabling the court to exercise its sound discretion (Sections 7
Bail to guarantee appearance of a witness
and 8, supra);
A prosecution witness may be required to post bail to ensure
their appearance when:
"(3) Decide whether the evidence of guilt of the accused is
strong based on the summary of evidence of the prosecution
1. There is substitution for information;
(Baylon v. Sison, supra);
2. The court believes that a material witness will not
appear in the trial
"(4) If the guilt of the accused is not strong, discharge the
409. Does a person under detention but not yet accused upon the approval of the bailbond. (Section 19,
formally charged have a right to bail? supra). Otherwise, petition should be denied."
But in order that a person can invoke this constitutional The Court added: "The above-enumerated procedure should
precept, it is not necessary that he should wait until a formal now leave no room for doubt as to the duties of the trial judge
complaint or information is filed against him. From the in cases of bail applications. So basic and fundamental is it to
We laid down the following rules outlining the duties of the 414. What must it do to discharge this burden?
judge in case an application for bail is filed:
Xxx It must produce all the evidence that it may desire to
introduce before the court should resolve the motion for bail.
2. Where bail is a matter of discretion, conduct a hearing of
the application for bail regardless of whether or not the
prosecution refuses to present evidence to show that the guilt 415. What is the limitation on the power of the court
of the accused is strong for the purpose of enabling the court to set bail?
to exercise its sound discretion (Section 7 and 8, id.);
Excessive bail shall not be allowed
xxx Amount of bail shall be in accordance with rule:
This Court has uniformly ruled that even if the prosecution The judge who issued the warrant or granted the application
refuses to adduce evidence or fails to interpose any objection shall fix a reasonable amount of bail considering primarily,
to the motion for bail, it is still mandatory for the court to but not limited to, the following factors:
(a) Financial ability of the accused to give bail;
conduct a hearing or ask searching and clarificatory questions
(b) Nature and circumstances of the offense;
from which it may infer the strength of the evidence of guilt, (c) Penalty for the offense charged;
or lack of it, against the accused. Where the prosecutor (d) Character and reputation of the accused;
refuses to adduce evidence in opposition to the application to (e) Age and health of the accused;
grant and fix bail, the court may ask the prosecution such (f) Weight of the evidence against the accused;
questions as would ascertain the strength of the States (g) Probability of the accused appearing at the trial;
(h) Forfeiture of other bail;
evidence or judge the adequacy of the amount of bail.
(i) The fact that accused was a fugitive from justice when
Irrespective of respondent judges opinion that the evidence of arrested; and
guilt against the accused is not strong, the law and settled (j) Pendency of other cases where the accused is on bail.
jurisprudence demand that a hearing be conducted before
bail may be fixed for the temporary release of the accused, if 416. Does a prospective extradite have the right to
bail is at all justified. (Zuo Vs. Macabebe) bail? Is the right to bail limited to criminal proceedings?
Briefly explain.
When the grant of bail is discretionary, due process requires
that the prosecution must be given an opportunity to present, The Philippines, along with the other members of the family
within a reasonable time, all the evidence that it may desire to of nations, committed to uphold the fundamental human
introduce before the court should resolve the motion for bail. rights as well as value the worth and dignity of every person.
This commitment is enshrined in Section II, Article II of our
Constitution which provides: "The State values the dignity of
Whether bail is a matter of right or discretion, reasonable
every human person and guarantees full respect for human
notice of hearing is required to be given to the prosecutor or rights." The Philippines, therefore, has the responsibility of
fiscal or at least must be asked for his recommendation protecting and promoting the right of every person to liberty
because in fixing the amount of bail, the Judge is required to and due process, ensuring that those detained or arrested can
take into account as provided in the Rule. participate in the proceedings before a court, to enable it to
decide without delay on the legality of the detention and
order their release if justified. In other words, the Philippine
See also answer in no. 410.
authorities are under obligation to make available to every
person under detention such remedies which safeguard their
fundamental right to liberty. These remedies include the right
413. When bail is discretionary, what is the burden of to be admitted to bail. While this Court in Purganan limited
the prosecution? the exercise of the right to bail to criminal proceedings,
however, in light of the various international treaties giving
When the grant of bail is discretionary, the prosecution has recognition and protection to human rights, particularly the
right to life and liberty, a reexamination of this Court’s ruling
the burden of proving that the evidence of guilt is strong.
in Purganan is in order.
Basis:
The argument that denial from the military of the right to bail SECTION 15. The privilege of the writ of habeas corpus shall
would violate the equal protection clause is not acceptable. not be suspended except in cases of invasion or rebellion
when the public safety requires it.
This guaranty requires equal treatment only of persons or
423. What are the limitations to the power to suspend
things similarly situated and does not apply where the subject
this privilege?
of the treatment is substantially different from others. The
accused officers can complain if they are denied bail and other
SECTION 16. Article VII. Xxx In case of invasion or rebellion,
members of the military are not. But they cannot say they
when the public safety requires it, he may, for a period not
have been discriminated against because they are not allowed exceeding sixty days, suspend the privilege of the writ of
the same right that is extended to civilians. (Comendador vs habeas corpus or place the Philippines or any part thereof
Villa) under martial law. Within forty-eight hours from the
proclamation of martial law or the suspension of the privilege
Legal assistance & access to courts of the writ of habeas corpus, the President shall submit a
report in person or in writing to the Congress. The Congress,
voting jointly, by a vote of at least a majority of all its
418. Free legal assistance
Members in regular or special session, may revoke such
proclamation or suspension, which revocation shall not be set
SECTION 11. Free access to the courts and quasi-judicial aside by the President. Upon the initiative of the President,
bodies and adequate legal assistance shall not be denied to the Congress may, in the same manner, extend such
any person by reason of poverty. proclamation or suspension for a period to be determined by
the Congress, if the invasion or rebellion shall persist and
The integrated Bar of the Philippines provides deserving public safety requires it.
indigents with free legal aid, including representation in
courts. The Congress, if not in session, shall, within twenty-four hours
419. Free access to courts following such proclamation or suspension, convene in
accordance with its rules without any need of a call.
SECTION 11. Free access to the courts and quasi-judicial
bodies and adequate legal assistance shall not be denied to Xxx
any person by reason of poverty.
Habeas corpus, habeas data, amparo The suspension of the privilege of the writ shall apply only to
persons judicially charged for rebellion or offenses inherent
420. What is the writ of habeas corpus? in or directly connected with the invasion.
A Latin phrase which literally means “you have the body.” During the suspension of the privilege of the writ, any person
Basically, it is a writ directed to the person detaining another, thus arrested or detained shall be judicially charged within
three days, otherwise he shall be released.
commanding him to produce the body of the prisoner at a
424. Writ of amparo
designated time and place, with day and cause of his capture
and detention, to do, submit to, and receive whatsoever the
It is a remedy available to any person whose right to life,
court or judge awarding the writ shall consider in that behalf.
liberty, and security has been violated or is threatened with
violation by an unlawful act or omission of a public official or
It is a remedy to all cases of illegal confinement or detention:
employee, or of a private individual or entity. The writ covers
extralegal killings and enforced disappearances or threats
1. By which a party is deprived of his liberty or;
thereof. (Rule on Writ of Amparo)
2. By which the rightful custody of any person is
withheld from the person entitled thereto.
425. What rights are protected by the writ of amparo?
421. Give instances when this privilege is available?
extralegal killings - Killings committed without due
process of law, legal safeguards or judicial
The Writ of Habeas Corpus extends to all cases of illegal
proceedings. (Secretary of National Defense v.
confinement or detention by which any person is deprived of Manalo, G.R. No. 180906, Oct. 7, 2008) These include
his liberty, or by which the rightful custody of any person is the illegal taking of life regardless of the motive,
withheld from the one entitled thereto. summary and arbitrary executions, salvaging even of
suspected criminals, and threats to take the life of
There has been deprivation of a constitutional right persons who are openly critical of erring government
resulting in a restraint of a person; officials and the like.
The court has no jurisdiction to impose sentence;
The Supreme Court shall accredit the persons and (d) Witness Protection Order. – The court, justice
private institutions that shall extend temporary or judge, upon motion or motu proprio, may refer
protection to the petitioner or the aggrieved party the witnesses to the Department of Justice for
and any member of the immediate family, in admission to the Witness Protection, Security and
accordance with guidelines which it shall issue. Benefit Program, pursuant to Republic Act No. 6981.
The accredited persons and private institutions shall The court, justice or judge may also refer the
comply with the rules and conditions that may be witnesses to other government agencies, or to
imposed by the court, justice or judge. accredited persons or private institutions capable of
keeping and securing their safety.
(b) Inspection Order. — The court, justice or judge, 427. Writ of habeas data
upon verified motion and after due hearing, may
order any person in possession or control of a
428. What rights are protected by the writ of habeas 433. State the remedies available under the writ of
data? amparo and writ of habeas data
Right to privacy in life, liberty or security is violated or See 426 and 429
threatened by unlawful act or omission of a public official or
employee, or of a private individual or entity engaged in 434. Is the principle of command responsibility
gathering, collecting or storing data or information regarding applicable in a petition for a writ of amparo?
the person, family, home and correspondence of the aggrieved
party. If command responsibility were to be invoked and applied to
these proceedings, it should, at most, be only to determine the
429. What remedies may be obtained under the writ author who, at the first instance, is accountable for, and has
of habeas data? the duty to address, the disappearance and harassments
complained of, so as to enable the Court to devise remedial
The writ of habeas data provides a judicial remedy to protect measures that may be appropriate under the premises to
a person’s right to control information regarding oneself, protect rights covered by the writ of amparo. As intimated
particularly in instances where such information is being earlier, however, the determination should not be pursued to
collected through unlawful means in order to achieve fix criminal liability on respondents preparatory to criminal
unlawful ends. As an independent and summary remedy to prosecution, or as a prelude to administrative disciplinary
protect the right to privacy—especially the right to proceedings under existing administrative issuances, if there
informational privacy—the proceedings for the issuance of be any. (Rubrico vs. Arroyo)
the writ of habeas data does not entail any finding of criminal,
civil or administrative culpability. If the allegations in the The inapplicability of the doctrine of command responsibility
petition are proven through substantial evidence, then the in an amparo proceeding does not, by any measure, preclude
Court may (a) grant access to the database or information; (b) impleading military or police commanders on the ground that
enjoin the act complained of; or (c) in case the database or the complained acts in the petition were committed with their
information contains erroneous data or information, order its direct or indirect acquiescence. Commanders may therefore
deletion, destruction or rectification. Balao v. Arroyo be impleaded—not actually on the basis of command
responsibility—but rather on the ground of their
430. Writ of habeas corpus v. writ of amparo responsibility, or at least accountability. Balao v. Arroyo
A writ of amparo is distinguished from the writ of habeas 435. Is the writ of amparo a remedy against the
corpus in that it covers violations of constitutional and civil actions of private individuals?
rights other than unlawful deprivation of liberty, like enforced
disappearances and extralegal killings. Yes. It is a remedy available to any person whose right to life,
liberty, and security has been violated or is threatened with
431. Writ of habeas corpus v. writ of habeas data violation by an unlawful act or omission of a public official or
employee, or of a private individual or entity.
The function of the proceeding of habeas corpus is to inquire
into the legality of ones detention. We are aware that under Section 1 of A.M. No. 07-9-12-SC a
writ of amparo may lie against a private individual or entity.
The writ of habeas data mandates the military and other But even if the person sought to be held accountable or
government agents to release information about the victims responsible in an amparo petition is a private individual or
of enforced disappearances and extralegal killings. entity, still, government involvement in the disappearance
remains an indispensable element. Here, petitioners are mere
432. Writ of amparo v. writ of habeas data security guards at Grand Royale Subdivision in Brgy. Lugam,
Malolos City and their principal, the Asian Land, is a private
Habeas data essentially allows families of victims of enforced entity. They do not work for the government and nothing has
disappearance to petition the courts to compel government been presented that would link or connect them to some
and security officials to allow access to documents about the covert police, military or governmental operation. As
missing. discussed above, to fall within the ambit of A.M. No. 07-9-12-
The privilege against self‐incrimination can be claimed only The drug test was a violation of petitioner’s right to privacy
when the specific question, incriminatory in character, is and right against self-incrimination.
actually addressed to the witness. It cannot be claimed at any
other time. It does not give a witness the right to disregard a
440. May the accused be compelled to produce
subpoena, to decline to appear before the court at the time
appointed. The privilege against self‐incrimination is not self‐ documents, papers and chattels that may be used against
executing or automatically operational. It must be claimed. It him?
follows that the right may be waived, expressly, or impliedly,
as by a failure to claim it at the appropriate time. No. Prohibition extends to the compulsion for the production
of documents, papers and chattels that may be used against
438. What kind of compulsion does this right cover? the witness except when the state has the right to the same
such as book of accounts of corporation.
The constitutional right of an accused against self-
incrimination proscribes the use of physical or moral 441. May the accused be compelled to produce a
compulsion to extort communications from the accused and specimen of his handwriting that will be used against
not the inclusion of his body in evidence when it may be him?
material. Purely mechanical acts are not included in the
prohibition as the accused does not thereby speak his guilt, No. Section 17 of the 1987 Constitution, “no person shall be
hence the assistance and guiding hand ofcounsel is not compelled to be a witness against himself.” Since the
required. provision prohibits compulsory testimonial incrimination, it
does not matter whether the testimony is taken by oral or
Note: It applies only to testimonial compulsion and written. Writing is not purely a mechanical act because it
production of documents, papers and chattels in court except requires the application of intelligence and attention. The
when books of account are to be examined in the exercise of purpose of the privilege is to avoid and prohibit thereby the
police power and the power of taxation. An accused may be repetition and recurrence of compelling a person, in a
compelled to be photographed or measured, his garments criminal or any other case, to furnish the missing evidence
may be removed, and his body may be examined. However, an necessary for his conviction. (Bermudez v. Castillo, July 26,
order requiring the accused to write so that his handwriting 1937; Beltran v. Samson, G.R. No. 32025, September 23, 1929)
may be validated with the documentary evidence is covered
by the constitutional proscription against self‐incrimination. ASAS
439. Is the use of the body of the accused as evidence Right to speedy disposition of cases
violative of this right?
This protection extends to all citizens and covers the Excessive fines shall not be imposed, nor cruel,
periods before, during and after trial, affording broader degrading or inhuman punishment inflicted. Neither shall
protection than Section 14(2), which guarantees merely the death penalty be imposed, unless, for compelling reasons
involving heinous crimes, the Congress hereafter provides for
right to a speedy trial. However, just like the constitutional
it. Any death penalty already imposed shall be reduced to
guarantee of speedy trial, speedy disposition of cases is a reclusion perpetua.
flexible concept. It is consistent with delays and depends
upon the circumstances. What the Constitution prohibits are The employment of physical, psychological, or
unreasonable, arbitrary and oppressive delays, which render degrading punishment against any prisoner or detainee or the
rights nugatory. (Lumanog v. People, G.R. No. 182555 : use of substandard or inadequate penal facilities under
September 7, 2010, Villarama) subhuman conditions shall be dealt with by law. (Section 19,
Article 3, 1987 Constitution)
444. How is this right to different to the right to
speedy trial? 447. When is a punishment cruel, degrading or
inhuman?
The distinctions are as follows:
A penalty is cruel and inhuman if it involves torture
a.) As to applicability. The right to speedy and lingering suffering. It is degrading if it exposes a person
disposition of cases applies to criminal, civil, quasi-judicial, to public humiliation.
and administrative cases whereas right to speedy trial applies
only to criminal cases. 448. When may Congress impose the death penalty?
b.) As to nature of the right. The right to speedy Excessive fines shall not be imposed, nor cruel,
disposition of cases is a constitutional right while the right to degrading or inhuman punishment inflicted. Neither shall
speedy trial is a statutory right. death penalty be imposed, unless, for compelling reasons
involving heinous crimes, the Congress hereafter provides for
c.) As to coverage. The coverage of the right to it. Any death penalty already imposed shall be reduced to
speedy disposition of cases is from commencement of the reclusion perpetua. (Section 19(1), Article 3, 1987
case up to its termination while right to speedy trial covers Constitution)
only the presentation of evidence.
449. Is death by lethal injection cruel and unusual
Right against involuntary servitude punishment?
445. What are the instances when involuntary In Echegaray v. Executive Secretary, this Court in
servitude is deemed valid? a per curiam Decision held that Republic Act No. 8177, even if
it does not provide in particular the details involved in the
The instances where involuntary servitude is valid execution by lethal injection, is not cruel, degrading or
are as follows: inhuman, and is thus constitutional. Any infliction of pain in
a.) Punishment for a crime for which the party has lethal injection is merely incidental in carrying out the
execution of the death penalty and does not fall within the
been duly convicted;
constitutional proscription against cruel, degrading or
b.) Personal military or civil service in the interest of inhuman punishment.
national defense;
c.) In naval enlistment, a person who enlists in a The Court adopted the American view that what is
merchant ship may be compelled to remain in the service cruel and unusual is not fastened to the obsolete but may
until the end of a voyage; acquire meaning as public opinion becomes enlightened by
humane justice and must draw its meaning from the evolving
d.) Posse comitatus or conscription of able-bodied
standards of decency that mark the progress of a maturing
men for the apprehension of criminals; society. (Perez vs. People, G.R. No. 164763, February 12, 2008,
e.) Return to work order issued by the DOLE Secretary or the Reyes, R.T. J.)
President; and
450. When is a fine excessive?
In a former case we discuss at length the nature and 454. What are the exceptions to the rule that jeopardy
the gravity of the injury to the body politic which it is asserted will not attach if the case is dismissed with the consent of
would result from the unchecked spread of the opium habit, the accused?
and we then expressed our belief that the legislator was
clearly within his prerogative in enacting the statute defining The exceptions are as follows: (a.) Dismissal of the
an penalizing the unauthorized use of the drug and its case upon a demurrer to evidence; and (b.) Dismissal based
derivatives. (U.S. vs. Lim Sing, 23, Phil. Rep., 424.) Adhering to on the denial of the accused’s right to speedy trial.
the doctrine and the reasoning of that opinion we have no
hesitation in holding that in prescribing a minimum penalty of 455. What is the finality of acquittal rule?
P300 for the violation of the penal provisions of that statute,
the legislator did not exceed the limits of the discretion A judgment of acquittal is final and is no longer
conferred upon him in that regard, and that this penalty is not reviewable. It is also immediately executory and the State
therefore excessive in the sense in which that word is used in may not seek its review without placing the accused in double
the Philippine Bill of Rights. (US vs. Valera, G.R. No. L-8956, jeopardy. (People v. Nazareno, G.R. No. 168982, August 5,
February 4, 1914 Carson, J.) 2009)
The right against double jeopardy 456. What are the exceptions to this rule?
451. What is the basic meaning of the right against A petition for certiorari under Rule 65, not appeal, is
double jeopardy? the remedy to question a verdict of acquittal whether at the
trial court or at the appellate level. In our jurisdiction, We
adhere to the finality-of-acquittal doctrine, that is, a judgment
No person shall be twice put in jeopardy of of acquittal is final and unappealable. The rule, however, is
punishment for the same offense. If an act is punished by a not without exception. In several cases,9the Court has
law and an ordinance, conviction or acquittal under either entertained petitions for certiorari questioning the acquittal
shall constitute a bar to another prosecution for the same act. of the accused in, or the dismissals of, criminal cases. Thus, in
(Section 21, Article 3, 1987 Constitution) People v. Louel Uy, the Court has held:
1. Permanent – Extended to a person who meets all the A qualification standard expresses the minimum
requirements for the position to which he is being appointed, requirements for a class of positions in terms of
education, training and experience, civil service
including the appropriate eligibility required, for the position
eligibility, physical fitness, and other qualities
and thus enjoys security of tenure. required for successful performance. The degree of
qualifications of an officer or employee shall be
2. Temporary – Extended to a person who may not possess determined by the appointing authority on the basis
the requisite qualifications or eligibility and is revocable at of the qualification standard for the particular
will without necessity of just cause or investigation. However, position. (Section 22, EO No. 292)
if the appointment is for a specific period, the appointment
477. What are the disabilities and inhibitions of
may not be revoked until the expiration of the term.
specific public officers?
Note: Temporary appointments shall not exceed 12 months.
The 1987 Constitution provides that:
Acquisition of civil service eligibility will not automatically
convert the temporary appointment into a permanent one.
A. Members of Congress shall not:
(Prov. Of Camarines Sur v. Court of Appeals, G.R. No.
1. Appear as counsel before any court, electoral tribunal, or
104639, July 14, 1995).
quasi‐judicial and other administrative bodies;
3. Regular appointment – one made by the President while
2. Shall not be interested in any contract with, or in any
the Congress is in session, takes effect only after confirmation
franchise, or special privilege granted by the Government, or
by the CA, and once approved, continues until the end of the
any subdivision, agency or instrumentality thereof, including
term of the appointee.
GOCCs, or its subsidiary;
4. Ad interim appointment – one made by the President
3. Shall not intervene in any matter before any office of the
while Congress is not in session, takes effect immediately, but
Government for his pecuniary benefit or where he may be
ceases to be valid if disapproved by the CA or upon the next
called upon to act on account of his office.
adjournment of Congress.
D. No officer or employee in the civil service shall engage, d. The appointment has been approved by the Civil Service
directly or indirectly, in any electioneering or partisan Commission.
political campaign. (Section 2(4), Article IX-B)
e. The appointee accepts the appointment by taking the oath
E. No loan, guaranty, or other form of financial and entering the discharge of his office.
accommodation for any business purpose may be granted,
directly or indirectly, by any government-owned or controlled Note: If any one of these requisite is lacking, the appointment
bank or financial institution to the President, the Vice- is invalid and the officer who assumes and discharges the
President, the Members of the Cabinet, the Congress, the functions thereof, may only be considered a de facto officer.
Supreme Court, and the Constitutional Commissions, the
Ombudsman, or to any firm or entity in which they have 479. What is the role of the Civil Service Commission
controlling interest, during their tenure. (Section 16, Article with regard to the appointment process?
XI)
Section 9 of Presidential Decree (P.D.) No. 807 (Civil Service
F. No elective official shall be eligible for appointment or Decree of the Philippines)[22] relevantly provides:
designation in any capacity to any public office or position
during his tenure. Section 9. Powers and Functions of the Commission. The
Commission shall administer the Civil Service and shall have the
Unless otherwise allowed by law or by the primary functions following powers and functions:
of his position, no appointive official shall hold any other
office or employment in the Government or any subdivision, xxx xxx xxx
agency or instrumentality thereof, including government- (h) Approve all appointments, whether original or
owned or controlled corporations or their subsidiaries. promotional, to positions in the civil service, except those of
(Section 7, Article IX-B) presidential appointees, members of the Armed Forces of the
Philippines, police forces, firemen, and jailguards, and
G. No elective or appointive public officer or employee shall disapprove those where the appointees do not possess the
receive additional, double, or indirect compensation, unless appropriate eligibility or required qualifications. An
specifically authorized by law, nor accept without the consent appointment shall take effect immediately upon issue by the
of the Congress, any present, emolument, office, or title of any appointing authority if the appointee assumes his duties
kind from any foreign government. (Section 8, Article IX-B) immediately and shall remain effective until it is disapproved
by the Commission, if this should take place, without
H. Local Chief Executives (governors, city and municipal prejudice to the liability of the appointing authority for
mayors) are prohibited from practicing their profession. appointments issued in violation of existing laws or rules:
(LGC) Provided, finally, That the Commission shall keep a record of
appointments of all officers and employees in the civil service.
I. Sanggunian members may practice their profession, engage All appointments requiring the approval of the Commission as
in any occupation, or teach in schools except during session herein provided, shall be submitted to it by the appointing
hours. (LGC) authority within thirty days from issuance, otherwise, the
appointment becomes ineffective thirty days thereafter.
J. Doctors of medicine who are likewise local officials may (Obiasca v. Basallote, G.R. No. 176707, February 17, 2010)
practice their profession even during official hours of work in
cases of emergency provided that they do not derive monetary 480. Who are career and non-career officers of the
compensation therefrom. (LGC) civil service?
Section 4. Position Embraced in the Civil Service. The Civil The Non-Career Service shall include:
Service embraces every branch, agency, subdivision, and
instrumentality of the government, including every 1. Elective officials and their personal or confidential staff;
government-owned or controlled corporations whether
performing governmental or proprietary function. 2. Department Heads and other officials of Cabinet rank who
hold positions at the pleasure of the President and their
Positions in the Civil Service shall be classified into career personal or confidential staff(s);
service and non-career service.
3. Chairman and members of commissions and boards with
Section 5. The Career Service shall be characterized by (1) fixed terms of office and their personal or confidential staff;
entrance based on merit and fitness to be determined as far as
practicable by competitive examinations, or based on highly 4. Contractual personnel or those whose employment in the
technical qualifications; (2) opportunity for advancement to government is in accordance with a special contract to
higher career positions; and (3) security of tenure. undertake a specific work or job, requiring special or
technical skills not available in the employing agency, to be
The Career Service shall include: accomplished within a specific period, which in no case shall
exceed one year, and performs or accomplishes the specific
1. Open Career positions for appointment to which prior work or job, under his own responsibility with a minimum of
qualification in an appropriate examination is required; direction and supervision from the hiring agency; and
2. Closed Career positions which are scientific or highly 5. Emergency and seasonal personnel.
technical in nature; these include the faculty and academic
staff of state colleges and universities, and scientific and Section 7. Classes of Positions in the Career Service.
technical positions in scientific or research institutions which
shall establish and maintain their own merit systems; (a) Classes of positions in the career service appointment to
which requires examinations shall be grouped into three
3. Positions in the Career Executive Service; namely, major level as follows:
Undersecretary, Assistant Secretary, Bureau Director,
Assistant Bureau Director, Regional Director, Assistant 1. The first level shall include clerical, trades, crafts, and
Regional Director, Chief of Department Service and other custodial service positions which involve non-professional or
officers of equivalent rank as may be identified by the Career subprofessional work in a non-supervisory or supervisory
Executive Service Board, all of whom are appointed by the capacity requiring less than four years of collegiate studies;
President;
2. The second level shall include professional, technical, and
4. Career officers, other than those in the Career Executive scientific positions which involve professional, technical, or
Service, who are appointed by the President, such as the scientific work in a non-supervisory or supervisory capacity
Foreign Service Officers in the Department of Foreign Affairs; requiring at least four years of college work up to Division
Chief level; and
5. Commissioned officers and enlisted men of the Armed
Forces which shall maintain a separate merit system; 3. The third level shall cover positions in the Career Executive
Service.
6. Personnel of government-owned or controlled
corporations, whether performing governmental or (b) Except as herein otherwise provided, entrance to the first
proprietary functions, who do not fall under the non-career two levels shall be through competitive examinations, which
service; and shall be open to those inside and outside the service who
meet the minimum qualification requirements. Entrance to a
7. Permanent laborers, whether skilled, semi-skilled, or higher level does not require previous qualification in the
unskilled. lower level. Entrance to the third level shall be prescribed by
the Career Executive Service Board.
Section 6. The Non-Career Service shall be characterized by (c) Within the same level, no civil service examination shall be
(1) entrance on bases other than those of the usual tests of required for promotion to a higher position in one or more
merit and fitness utilized for the career service; and (2) related occupational groups. A candidate for promotion
tenure which is limited to a period specified by law, or which should, however, have previously passed the examination for
is coterminous with that of the appointing authority or that level.
Note: Acceptance of the appointment by the appointee is the (1) Permanent status. A permanent appointment shall be
last act that completes the appointing process. issued to a person who meets all the requirements for the
position to which he is being appointed, including appropriate
C. For appointment to the Career Service of the Civil eligibility prescribed, in accordance with the provisions of
Service: law, rules and standards promulgated in pursuance thereof.
1. An appointment to the Career Service of the civil service is (2) Temporary appointment. In the absence of appropriate
not deemed complete until attestation approval by the CSC eligibles and it becomes necessary in the public interest to fill
without the favorable certification or approval of the CSC; no a vacancy, a temporary appointment shall be issued to a
title to the office can be deemed to be permanently vested in person who meets all the requirements for the position to
favor of the appointee, and appointment can still be revoked which he is being appointed except the appropriate civil
or withdrawn by the appointing authority. service eligibility: Provided, That such temporary
appointment shall not exceed twelve months, but the
482. When is an appointment considered complete?
97 POLITICAL LAW REVIEW/SHIENGLAIASAS REVIEWER
appointee may be replaced sooner if a qualified civil service
eligible becomes available. 486. State the nepotism rule under the Administrative
Code
It is clear that a permanent appointment can issue only to a
person who possesses all the requirements for the position to (1) All appointments in the national, provincial, city and
which he is being appointed, including the appropriate municipal governments or in any branch or instrumentality
eligibility. Differently stated, as a rule, no person may be thereof, including government-owned or controlled
appointed to a public office unless he or she possesses the corporations, made in favor of a relative of the appointing or
requisite qualifications. The exception to the rule is where, in recommending authority, or of the chief of the bureau or
the absence of appropriate eligibles, he or she may be office, or of the persons exercising immediate supervision
appointed to it merely in a temporary capacity. over him, are hereby prohibited.
Such a temporary appointment is not made for the benefit of As used in this Section, the word “relative” and members of
the appointee. Rather, an acting or temporary appointment the family referred to are those related within the third
seeks to prevent a hiatus in the discharge of official functions degree either of consanguinity or of affinity.
by authorizing a person to discharge the same pending the
selection of a permanent appointee. In Cuadra v. Cordova, (2) The following are exempted from the operation of the
this Court defined a temporary appointment as "one made in rules on nepotism:
an acting capacity, the essence of which lies in its temporary
character and its terminability at pleasure by the appointing (a) persons employed in a confidential capacity,
power." Thus, the temporary appointee accepts the position (b) teachers,
with the condition that he shall surrender the office when (c) physicians, and
called upon to do so by the appointing authority. Under (d) members of the Armed Forces of the Philippines:
Section 27 (2), Chapter 5, Subtitle A, Title I, Book V of the Provided, however, That in each particular instance full
same Code, the term of a temporary appointment shall be 12 report of such appointment shall be made to the Commission.
months, unless sooner terminated by the appointing
authority. Such pre-termination of a temporary appointment The restriction mentioned in subsection (1) shall not be
may be with or without cause as the appointee serves merely applicable to the case of a member of any family who, after his
at the pleasure of the appointing power. (CSC v. Darangina, or her appointment to any position in an office or bureau,
G.R. No. 167472, January 31, 2007) contracts marriage with someone in the same office or
bureau, in which event the employment or retention therein
485. Holder-over concept of both husband and wife may be allowed.
Absent an express or implied constitutional or statutory (3) In order to give immediate effect to these provisions,
provision to the contrary, an officer is entitled to stay in office cases of previous appointments which are in contravention
until his successor is appointed or chosen and has qualified. hereof shall be corrected by transfer, and pending such
(The phrase “has qualified” means the offcers taking oath and transfer, no promotion or salary increase shall be allowed in
entering the discharge of his office following his election or favor of the relative or relatives who were appointed in
appointment.) violation of these provisions. (Section 59, Chapter 8, Book V,
Title I, Subtitle A)
The legislative intent of not allowing holdover must be clearly
expressed or at least implied in the legislative enactment, 487. State the nepotism rule under the Local
otherwise it is reasonable to assume that the law-making Government Code
body favors the same.
Limitation to Appointments. - No person shall be appointed
The concept of holdover when applied to a public officer in the career service of the local government if he is related
implies that the office has a fixed term and the incumbent is within the fourth civil degree of consanguinity or affinity to
holding onto the succeeding term. It is usually provided by the appointing or recommending authority. (Section79, Title
law that officers elected or appointed for a fixed term shall III, LGC)
remain in office not only for that term but until their
successors have been elected and qualified. Where this 488. State the nepotism rule under the Constitution
provision is found, the office does not become vacant upon
the expiration of the term if there is no successor elected and The spouse and relatives by consanguinity or affinity within
qualified to assume it, but the present incumbent will carry the fourth civil degree of the President shall not during his
over until his successor is elected and qualified, even though tenure be appointed as members of the Constitutional
it be beyond the term fixed by law. (Lecaroz v. Commissions, or the Office of the Ombudsman, or as
Sandiganbayan, G.R. No. 130872, March 25, 1999) Secretaries, Undersecretaries, chairmen or heads of bureaus
Nepotism is defined as an appointment issued in However, the appointing authority may promote an employee
favor of a relative within the third civil degree of who is not next-in-rank but, who possesses superior
consanguinity or affinity of any of the following: (1) qualifications and competence compared to a next-in-rank
appointing authority; (2) recommending authority; employee who merely meets the requirements for the
(3) chief of the bureau or office; and (4) person
position. (Espanol v. CSC, G.R. No. 85479, March 3, 1992)
exercising immediate supervision over the
appointee. By way of exception, the following shall
not be covered by the prohibition: (1) persons 491. What are the requirement for appointment to the
employed in a confidential capacity; (2) teachers; (3) Career Executive Service?
physicians; and (4) members of the Armed Forces of
the Philippines. (CSC v. Cortes, G.R. No. 200103, A. Career Executive Service
April 23, 2014)
The Career Executive Service is the ‘third level’ or the
489. What are primarily confidential positions?
managerial class in the group of career positions in the
Philippine civil service. The CES was created by Presidential
An incumbent of a primarily confidential position holds office
Decree No. 1 to "form a continuing pool of well-selected and
at the pleasure of the appointing power. When the pleasure
development-oriented career administrators who shall
turns into displeasure, the incumbent is not removed or
provide competent and faithful service."
dismissed from office — his term merely expires (Santos v.
Macaraig, 208 SCRA 74 citing Ingles vs. Mutuc, 26 SCRA
The CES is also a public personnel system separate from that
171).
of the first two levels of positions in the Philippine civil
service.
"Primarily confidential" denotes "not only confidence in the
aptitude of the appointee for the duties of the office but
B. The CES Concept
primarily close intimacy which insures freedom of
intercourse without embarrassment or freedom from
The CES operates on the ‘rank concept’. Career Executive
misgivings of betrayals of personal trust or confidential
Service Officers (CESOs) are ‘appointed’ to ranks and
matters of state" (Pinero vs. Hechanova, 18 SCRA 417;
‘assigned’ to CES positions. As such, they can be re-assigned
citing De los Santos vs. Mallare, 87 Phil. 289).
or transferred from one CES position to another and from one
office to another but not oftener than once every two years.
490. Next-in-rank rule
The CES is like the Armed Forces and the Foreign Service
where the officers are also appointed to ranks and assigned to
Section 19, paragraph 6, Article VIII of Presidential Decree No.
positions.
807 defines a qualified next-in-rank as an employee
appointed on a permanent basis to a position previously
C. Requirements
determined to be next-in-rank to the vacancy proposed to
be filled and who meets the requisites for appointment
Appointment to appropriate classes in the Career Executive
thereto as previously determined by the appointing
Service shall be made by the President form a list of career
authority and approved by the respondent commission.
executive eligibles recommended by the Board. Such
appointees shall be made on the basis of rank.
Pursuant to. the provisions of Section 9(b) and Section 19 of
Presidential Decree No. 807, the CSC promulgated Resolution
Provided that appointments to the higher ranks which qualify
No. 83-343 (Rules on Promotion); Sections 2 and 4 of which
the incumbents to assignments as undersecretary and heads
provide:
of bureaus and officer and equivalent positions shall be with
confirmation of the Commission on Appointments. The
Sec. 2. Whenever a position in the first level becomes vacant,
President may, however, in exceptional cases, appoint any
the employees in the ministry or agency who occupy positions
person who is not a Career Executive Service eligible;
deemed to be next-in-rank to the vacancy, shall be considered
Provided that, such appointee shall subsequently take the
for promotion. In the second level, those employees in the
required CES examination and that he shall not be promoted
government service who occupy next-in-rank position shall
to a higher class until he qualifies in such examination.
be considered for promotion to the vacancy.
(Resolution No. 1240, CSC)
3. Right to Security of Tenure- granted to civil service The present legal basis for an award of back salaries
is Section 47, Book V of the Administrative Code of 1987.
employees. No public officer can remove without cause.
A. Members of Congress shall not: C. Members of the Constitutional Commission shall not:
1. Appear as counsel before any court, electoral tribunal, or To safeguard the independence of these Commissions, the
quasi‐judicial and other administrative bodies; 1987 Constitution, among others,31 imposes under Section 2,
2. Shall not be interested in any contract with, or in any Article IX-A of the Constitution certain inhibitions and
disqualifications upon the Chairmen and members to
franchise, or special privilege granted by the Government, or
strengthen their integrity, to wit:
any subdivision, agency or instrumentality thereof, including
GOCCs, or its subsidiary;
(a) Holding any other office or employment during
3. Shall not intervene in any matter before any office of the their tenure;
Government for his pecuniary benefit or where he may be
called upon to act on account of his office (b) Engaging in the practice of any profession;
Unless otherwise allowed by law or the primary functions of SECTION 8. No elective or appointive public officer or
his position, no appointive official shall hold any other office employee shall receive additional, double, or indirect
or employment in the Government or any subdivision, agency compensation, unless specifically authorized by law, nor
or instrumentality thereof, including government-owned or accept without the consent of the Congress, any present,
controlled corporations or their subsidiaries. emolument, office, or title of any kind from any foreign
government.
In Funa v. Ermita,33 where petitioner challenged the
concurrent appointment of Elena H. Bautista as Pensions or gratuities shall not be considered as additional,
Undersecretary of the Department of Transportation and double, or indirect compensation.
Communication and as Officer-in-Charge of the Maritime 507. Termination of Official Relation
Industry Authority, the Court reiterated the pronouncement
in Civil Liberties Union v. The Executive Secretary on the Modes of terminating official relationships:
intent of the Framers on the foregoing provision of the 1987
Constitution, to wit:
Expiration of term or tenure
Thus, while all other appointive officials in the civil Reaching the age limit for retirement
esignation
service are allowed to hold other office or employment in
ecall
the government during their tenure when such is allowed
emoval
by law or by the primary functions of their positions, bandonment
members of the Cabinet, their deputies and assistants cceptance of an incompatible office
may do so only when expressly authorized by the Abolition of office
Constitution itself. In other words, Section 7, Article IX-B is Prescription of the right to office
meant to lay down the general rule applicable to all elective Impeachment
and appointive public officials and employees, while Section Death
13, Article VII is meant to be the exception applicable Failure to assume office
only to the President, the Vice-President, Members of the Conviction of a crime
Filing for a certificate of candidacy
Cabinet, their deputies and assistants. Funa v. Chairman,
Civil Service Commission, G.R. No. 191672, November 25,
508. Scope of civil service
2014
The civil service embraces all branches, subdivisions,
instrumentalities, and agencies of the government including
505. Does the rule against holding of dual positions
GOCCs with original charters.
apply to offices held in an ex-officio capacity?
Section 3, Article IX-B of the 1987 Constitution describes the
No. As to the meaning of ex officio, the Court has decreed in
CSC as the central personnel agency of the government and is
Civil Liberties Union v. Executive Secretary that –
principally mandated to establish a career service and adopt
measures to promote morale, efficiency, integrity,
x x x x The term ex officio means "from office; by virtue of
office." It refers to an "authority derived from official responsiveness, progressiveness, and courtesy in the civil
character merely, not expressly conferred upon the individual service; to strengthen the merit and rewards system; to
character, but rather annexed to the official position." Ex integrate all human resources development programs for all
officio likewise denotes an "act done in an official character,
Note: The CSC cannot disapprove an appointment just 2. National, provincial, city and municipal elective officials.
because another person is better qualified, as long as the (Alejo Santos v. Yatco, G.R. No. L‐ 16133, Nov. 6, 1959)
appointee is himself qualified. It cannot add qualifications 512. May civil servants engage in a strike?
other than those provided by law. (Cortez v. CSC, G.R. No.
92673 March 13, 1991) While the Constitution recognizes the right of public
employees to organize, they are prohibited from staging
1. Appoint only according to merit and fitness strikes, demonstrations, mass leaves, walk‐outs and other
2. Require competitive examination forms of mass action which may result to temporary cessation
of work or disturbance of public service. Their right to self
Except: organization is limited only to form unions or to associate
a. Policy‐determining – tasked to formulate a method of without including the right to strike. Labor unions in the
action for the government or any of its subdivisions. government may bargain for better terms and conditions of
b. Primarily confidential – duties are not merely clerical employment by either petitioning the Congress for better
but devolve upon the head of an office, which, by reason terms and conditions, or negotiating with the appropriate
of his numerous duties, delegates his duties to others, the government agencies for the improvement of those not fixed
performance of which requires skill, judgment, trust and by law. (SSS Employees Assn. v. CA, G.R No. 85279, Jul
confidence. 28,1989)
c. Highly technical – requires technical skill or training in
the highest degree 513. What is the meaning of security of tenure?
510. Accountability public officers It means that no officer or employee in the civil service shall
be suspended or dismissed except for a cause provided by law
Officer holds the public office in trust for the benefit of the and after due process or after he shall have been given the
people—to whom such officers are required to be opportunity to defend himself.
accountable at all times, and to serve with utmost
responsibility, loyalty, and efficiency, act with patriotism and Note: Once an appointment is issued and completed and the
justice, and lead modest lives. (Sec. 1, Art. XI, Constitution) appointee assumes the position, he acquires a legal right, not
merely an equitable right to the position. (Lumigued v. Exevea,
511. State the prohibition against partisan political G.R. No. 117565, Nov. 18, 1997)
activity
It attaches once an appointment is issued and the moment the
SECTION 2. (4) No officer or employee in the civil service shall appointee assumes a position in the civil service under a
engage, directly or indirectly, in any electioneering or completed appointment, he acquires a legal, not merely
partisan political campaign. equitable, right (to the position) which is protected not only
by statute, but also by the constitution, and cannot be taken
Partisan political activity away from him either by revocation of the appointment, or by
removal, except for cause, and with previous notice and
- It is an act designed to promote the election or defeat of a hearing. (Aquino v. CSC, G.R. No. 92403 April 22, 1992)
particular candidate/s to a public office. It is also known as
“electioneering” (Sec. 79, Omnibus Election Code).
514. Who are covered by security of tenure?
Officers or employees in the Civil Service including members
of the Armed Forces cannot engage in such activity except to Regardless of the characterization of the position held by a
vote. They shall not use their official authority or influence to government employee covered by civil service rules, be it
coerce the political activity of any person (Sec. 55, Subtitle A, career or non career position, such employee may not be
Title I, Book V, 1987 Administrative Code). removed without just cause (Jocom v. Regalado, G.R. No.
77373,Aug. 22, 1991).
Execption. Kind of public officers may engage in partisan
political activities? Acceptance of a temporary appointment or assignment
without reservation or upon one’s own volition is deemed
The power of removal may be implied from power to appoint As to Appointive officials:
however, the President cannot remove officials appointed by
him when the Constitution prescribed certain methods for a. Not Presidential appointee
separation of such officer from public service. (Example: 1. By proper disciplining authority
2. Against any subordinate officer
Chairman of constitutional commissions) The power may be
exercised only for causes as may be provided by law and in
b. Presidential appointee
accordance with the administrative procedure. Can only be investigated and removed from office
after due notice and hearing by the president under
Authority to impose Respondent Local Official 526. What is the liability of public officers for
suspension belongs unexplained wealth?
to the
RA3019. Section 8. Dismissal due to unexplained wealth. If in
President Elective official of a province, highly
accordance with the provisions of Republic Act Numbered
urbanized or independent
component city One thousand three hundred seventy-nine, a public official
has been found to have acquired during his incumbency,
Governor elective official of a component city whether in his name or in the name of other persons, an
of municipality amount of property and/or money manifestly out of
proportion to his salary and to his other lawful income, that
Mayor Elective official of a barangay. (Sec fact shall be a ground for dismissal or removal. Properties in
63[a], LGC)
the name of the spouse and unmarried children of such public
official may be taken into consideration, when their
521. When is reinstatement with back wages allowed?
acquisition through legitimate means cannot be satisfactorily
shown. Bank deposits shall be taken into consideration in the
522. Is preventive suspension without pay allowed?
enforcement of this section, notwithstanding any provision of
Briefly explain.
law to the contrary.
Pending investigation:
Only when the accumulated wealth becomes manifestly
During such preventive suspension, the employee is not
disproportionate to the employees income or other sources of
entitled to payment of salaries.
income and the public officer/employee fails to properly
account or explain his other sources of income, does he
Pending appeal:
become susceptible to dishonesty because when a public
If during the appeal he remains suspended and the penalty
officer takes an oath or office, he or she binds himself or
imposed is only reprimand, the suspension pending appeal
herself to faithfully perform the duties of the office and use
becomes illegal and he is entitled to back salary
reasonable skill and diligence, and to act primarily for the
corresponding to the period of suspension
benefit of the public. Thus, in the discharge of duties, a public
officer is to use that prudence, caution and attention which
523. What is the limitation on the power to reorganize
careful persons use in the management of their affairs.
or abolish public offices?
(Ombudsman vs Racho)
He is tasked to entertain complaints addressed to him against Section 19 of the Ombudsman Act further enumerates the
erring public officers and take all necessary actions thereon. types of acts covered by the authority granted to the
Ombudsman:
Note: The powers of the Ombudsman are not merely SEC. 19. Administrative Complaints. ‐ The Ombudsman shall
recommendatory. His office was given teeth to render this act on all complaints relating, but not limited to acts or
constitutional body not merely functional but also effective. omissions which:
Under R.A. No. 6770 and the 1987 Constitution, the
Ombudsman has the constitutional power to directly remove 1. Are contrary to law or regulation;
from government service an erring public official other than a 2. Are unreasonable, unfair, oppressive or discriminatory;
member of Congress and the Judiciary. (Estarija v. Ranada, 3. Are inconsistent with the general course of an agency's
G.R No. 159314, June 26, 2006). functions, though in accordance with law;
4. Proceed from a mistake of law or an arbitrary
ascertainment of facts;
Over the years the scope of the powers of the Ombudsman
5. Are in the exercise of discretionary powers but for an
under Section 12 has been clarified thus settling various
improper purpose; or
disputed issues:
6. Are otherwise irregular, immoral or devoid of justification
1. The ombudsman can investigate only officers of
government owned corporations with original charter.
(Khan, Jr v Ombudsman, G.R. No. 125296, July 20. 2006) In the exercise of its duties, the Ombudsman is given full
administrative disciplinary authority. His power is not limited
2. The jurisdiction of the Ombudsman over disciplinary cases merely to receiving, processing complaints, or recommending
involving public school teachers has been modified by Section penalties. He is to conduct investigations, hold hearings,
9 of R.A. 4670, otherwise known as the Magna Carta for Public summon witnesses and require production of evidence and
School Teachers, which says that such cases must first go to a place respondents under preventive suspension. This
committee appointed by the Secretary of Education.
includes the power to impose the penalty of removal,
(Ombudsman v. Estandarte, GR 168670, April 13, 2007.)
suspension, demotion, fine, or censure of a public officer or
3. The Ombudsman Act authorizes the Ombudsman to impose employee. (Ombudsman v. Galicia, G.R. No. 167711, October 10,
penalties in administrative cases. (Ombudsman v. CA, 2008)
November 22, 2006; Ombudsman v. Lucero,November 24, 2006)
Note: According to the Local Government Code, elective 531. Judicial review of Ombudsman proceedings and
officials may be dismissed only by the proper court. “Where resolutions
the disciplining authority is given only the power to suspend
and not the power to remove, it should not be permitted to
manipulate the law by usurping the power to In the exercise of its investigative power, this Court has
remove.”(Sangguniang Barangay v. Punong Barangay, G.R. No. consistently held that courts will not interfere with the
170626, March 3, 2008) discretion of the fiscal or the Ombudsman to determine the
specificity and adequacy of the averments of the offense
4. The Special Prosecutor may not file an information without charged. He may dismiss the complaint forthwith if he finds it
authority from the Ombudsman. (Perez v. Sandigabayan, G.R. to be insufficient in form and substance or if he otherwise
No. 166062, September 26, 2006)
finds no ground to continue with the inquiry; or he may
5. The Ombudsman has been conferred rule making power to proceed with the investigation of the complaint if, in his view,
govern procedures under it. (703 Buencamino v. CA, GR it is in due and proper form. (Ocampo v. Ombudsman, 225
175895,April 4, 2007) SCRA 725, 1993)
6. The power to investigate or conduct a preliminary Note: In Garcia‐Rueda v. Pascasio, G.R. No. 118141. September
investigation on any Ombudsman case may be exercised by an
5, 1997, the Court held that “while the Ombudsman has the
investigator or prosecutor of the Office of the Ombudsman, or
by any Provincial or City Prosecutor or their assistance, either full discretion to determine whether or not a criminal case is
in their regular capacities or as deputized Ombudsman to be filed, the Court is not precluded from reviewing the
prosecutors. (Honasan II v. Panel of Investigators of the DOJ, Ombudsman’s action when there is grave abuse of discretion.”
G.R. No.159747, April 13, 2004)
The quasi legislative power may be defined as the See No. 533
authority delegated by the law-making body to the
administrative body to adopt rules and regulations intended 535. Kinds of administrative rules and regulations
to carry out the provisions of a law and implement a
legislative policy. Legislative regulations. A legislative rule is in the
matter of subordinate legislation, designed to implement a
Quasi-judicial – its power of adjudication, enables the primary legislation by providing the details thereof.
administrative body to resolve, in a manner essentially Legislative rules and regulations are accorded by the courts
judicial, factual, and sometimes even legal questions or by express provision of statute the force and effect of law
incidental to its primary power of enforcement of the law. immediately upon going into effect. In such instances, the
administrative agency is acting in a legislative capacity,
The quasi-judicial power has been defined as the supplementing the statute, filling in the details, or “making
power of administrative authorities to make determinations the law”, and usually acting pursuant to a specific delegation
of facts in the performance of their official duties and to apply of legislative power. A legislative rule is in the nature of
the law as they construe it to the facts so found. The exercise subordinate legislation, designed to implement a primary
of this power is only incidental to their main function, which legislation by providing the details thereof.
is the enforcement of the law.
Legislative regulation is further classified into
To better enable the administrative body to exercise supplementary and contingent. The supplementary
its quasi-judicial authority, it is also vested with what are regulation is intended to fill in the details of the law and “to
known as determinative powers and functions. Professor make explicit what is only general.” Its purpose is to enlarge
Freund classifies them generally into the enabling powers and upon a statute, subject only to the standards fixed therein, to
directing powers. The latter includes the dispensing, the ensure its effective enforcement in accordance with
examining, and the summary powers. legislative will.
The enabling powers are those that permit the doing The contingent regulation is so called because it is
of an act which the law undertakes to regulate and which issued upon the happening of a certain contingency which the
would be unlawful without government approval. The most administrative body is given the discretion to determine or
common example is the issuance of licenses to engage in a ascertain, under and pursuant to the law, by its own terms,
particular business or occupation. makes its own action depend, or to find the facts or conditions
properly prescribed under which a law is passed will or will
The directing powers order the doing or not operate, that is, for putting in effect, applying or
performance of particular acts to ensure compliance with the suspending the law.
law and are often exercised for corrective purposes. Thus, the
536. Requisites for validity 5.) The decision must be based on the evidence
presented at the hearing or at least contained in the record,
a.) It must be promulgated in accordance with the and disclosed to the parties affected;
prescribed procedure;
b.) It must be reasonable; 6.) The tribunal or body or any of its judges must act
c.) It must be issued under the authority of the law; on its own independent consideration of the law and the facts
d.) It must be within the scope and purview of the of the controversy in arriving at a decision;
law;
e.) Administrative regulations, issued for the purpose of 7.) The board or body should render decision that
implementing existing law, pursuant to a valid delegation are parties know the various issues involved and reason for such
included in the term “laws” under Article 2, of the Civil Code decision; and
and must therefore be published in order to be effective; and
f.) Filing with the Office of the National Administrative 8.) Officer or tribunal must be vested with competent
Register (ONAR) of the University of the Philippines Law jurisdiction and must be impartial and honest.
Center.
540.) Administrative appeal and review
537. Publication: when and when not required
Administrative appeal. It refers to a review by a
See No. 536(e). But mere interpretative regulations, higher agency of decisions rendered by an administrative
and those merely internal in nature, i.e. regulating only the agency, commenced by petition of an interested party.
personnel of the administrative agency and not the public,
need not be published. Administrative appeals are established by the 1987
Administrative Code, which will govern primarily in the
538. Quasi-Judicial (Adjudicatory) power absence of specific law applicable. Under the 1987
Administrative Code, administrative appeals from a decision
See No. 533. of an administrative agency are taken to the Department
Head.
539. Meaning and requirement of administrative due
process Administrative review. Administrative appeals are
not the only way by which a decision of an administrative
While administrative determinations of contested agency may be reviewed. A superior officer or department
cases are by their nature judicial, there is no requirement for head may upon his or her own volition review a subordinate’s
strict adherence to technical rules as are observed in truly decision pursuant to the power of control.
judicial proceedings. The atmosphere of administrative
tribunals may be one of expeditiousness or liberally Administrative reviews by a superior officer are,
conceived remedies and, whether by provision of statute, however, subject to the caveat that a final and executory
official rule or judicial decision, it is a general rule that they decision is not included within the power of control, and
are unrestricted by the technical or formal rules of procedure hence, can no longer be altered by administrative review.
which govern trials before a court, especially where the
administrative order has the effect of only prima facie 541. Administrative res judicata
evidence.
The doctrine of res judicata applies only to judicial or
According to Justice Laurel in the landmark case quasi-judicial proceedings and not to the exercise of purely
of Ang Tibay vs. CIR, the following are the cardinal rights administrative functions. Administrative proceedings are
and principles to be observed in administrative non-litigious and summary in nature; hence, res judicata does
proceedings: not apply.
1.) Right to a hearing which includes the right to The principle of res judicata applies only to the
present one’s case and submit evidence in support thereof; exercise of administrative agencies of their quasi-judicial
The right of suffrage is the right to vote. It is the It is the power of the electorate to approve or reject
expression of the sovereign will of the people. In a legislation through an election called for that purpose. (UST
democracy, “the people, combined, represent the sovereign Golden Notes)
power of the state. Their sovereignty is exercised through the
ballot of the registered voters in duly appointed elections held Note: The process and the voting in an initiative are
from time to time, by means of which they choose their more complex than in a referendum where the voters will
officials for definite and fixed periods, and to whom they simply write either “Yes” or “No” in the ballot.
entrust, for the time being, as their representatives, the
exercised of the powers of government. 555.) Plebiscite
The right of suffrage is an attribute of sovereignty In modern constitutional law, the term “plebiscite”
which resides in the people and entitles them to have a direct means that which is given to a vote of the entire people or the
participation in government. It is the bedrock of all aggregate of the enfranchised individuals composing a state
republican institutions. It is a recognition that the people in or nation expressing their choice for a proposed measure.
their sovereign character are the fountain head of Under our Constitution, it refers to the constituent act of
governmental authority, and that their right to participate in those citizens not otherwise disqualified by law, who are
the power process is indispensable for democratic eighteen years of age or over and who shall have resided in
government to constitute an effective instrument of social the Philippines for a t least six months preceding a political
control. exercise.
The right of suffrage is predicated upon the theory Plebiscite is also the means by which the voters in
that the people who bear the burden of government should the affected areas consent to the change in the form of local
share in the privilege of choosing the officials of government. government. (Agpalo, Comments on the Omnibus Election
That is the theory of representative form of government. Code, 2004)
(Agpalo, Comments on the Omnibus Election Code, 2004)
Who may elect
Constitutional basis:
556.) Who may exercise this right: Qualification and
Suffrage may be exercised by all citizens of the disqualification of voters
Philippines, not otherwise disqualified by law, who are at
least eighteen years of age, and who shall have resided in the Constitutional basis:
Philippines for at least one year and in the place wherein they
propose to vote, for at least six months immediately Suffrage may be exercised by all citizens of the
preceding the election. No literacy, property, or other Philippines, not otherwise disqualified by law, who are at
substantive requirement shall be imposed on the exercise of least eighteen years of age, and who shall have resided in the
suffrage. (Section 1, Article 5, 1987 Constitution) Philippines for at least one year and in the place wherein they
propose to vote, for at least six months immediately
preceding the election. No literacy, property, or other
The Congress shall provide a system for securing the Any person who temporarily resides in another city,
secrecy and sanctity of the ballot as well as a system for municipality or country solely by reason of his occupation,
absentee voting by qualified Filipinos abroad. profession, employment in private or public service,
educational activities, work in the military or naval
The Congress shall also design a procedure for the reservations within the Philippines, service in the Armed
disabled and the illiterates to vote without the assistance of Forces of the Philippines, the National Police Forces, or
other persons. Until then, they shall be allowed to vote under confinement or detention in government institutions in
existing laws and such rules as the Commission on Elections accordance with law, shall not be deemed to have lost his
may promulgate to protect the secrecy of the ballot. (Section original residence.
2, Article 5, 1987 Constitution) Any person, who, on the day of registration may not have
reached the required age or period of residence but, who, on
Substantive basis: the day of the election shall possess such qualifications, may
register as a voter.
Omnibus Election Code
Section 11. Disqualification. The following shall be
Section 117. Qualifications of a voter. - Every citizen disqualified from registering:
of the Philippines, not otherwise disqualified by law, eighteen
years of age or over, who shall have resided in the Philippines a) Any person who has been sentenced by final
for one year and in the city or municipality wherein he judgment to suffer imprisonment of not less than one (1)
proposes to vote for at least six months immediately year, such disability not having been removed by plenary
preceding the election, may be registered as a voter. pardon or amnesty: Provided, however, That any person
disqualified to vote under this paragraph shall automatically
Any person who transfers residence to another city, reacquire the right to vote upon expiration of five (5) years
municipality or country solely by reason of his occupation; after service of sentence;
profession; employment in private or public service;
educational activities; work in military or naval reservations; b) Any person who has been adjudged by final
service in the army, navy or air force; the constabulary or judgment by a competent court or tribunal of having
national police force; or confinement or detention in committed any crime involving disloyalty to the duly
government institutions in accordance with law, shall be constituted government such as rebellion, sedition, violation
deemed not to have lost his original residence. of the firearms laws or any crime against national security,
unless restored to his full civil and political rights in
Section 118. Disqualifications. - The following shall accordance with law: Provided, That he shall automatically
be disqualified from voting: reacquire the right to vote upon expiration of five (5) years
after service of sentence; and
(a) Any person who has been sentenced by final c) Insane or incompetent persons declared as such
judgment to suffer imprisonment for not less than one year, by competent authority unless subsequently declared by
such disability not having been removed by plenary pardon or proper authority that such person is no longer insane or
granted amnesty: Provided, however, That any person incompetent.
disqualified to vote under this paragraph shall automatically
reacquire the right to vote upon expiration of five years after Republic Act No. 9189 – Overseas Absentee
service of sentence. Voting Act of 2003
(b) Any person who has been adjudged by final Sec. 4. Coverage. – All citizens of the Philippines
judgment by competent court or tribunal of having committed abroad, who are not otherwise disqualified by law, at least
any crime involving disloyalty to the duly constituted eighteen (18) years of age on the day of elections, may vote
government such as rebellion, sedition, violation of the anti- for president, vice-president, senators and party-list
subversion and firearms laws, or any crime against national representatives.
security, unless restored to his full civil and political rights in
accordance with law: Provided, That he shall regain his right Sec. 5. Disqualifications. – The following shall be
to vote automatically upon expiration of five years after disqualified from voting under this Act:
service of sentence. 1. Those who have lost their Filipino citizenship in
accordance with Philippine laws;
(c) Insane or incompetent persons as declared by
competent authority. 2. Those who have expressly renounced their
Philippine citizenship and who have pledged allegiance to a
Republic Act No. 8189 – Voter’s Registration Act foreign country;
of 1996
3. Those who have committed and are convicted in a
Section 9. Who may Register. All citizens of the final judgment by a court or tribunal of an offense punishable
Philippines not otherwise disqualified by law who are at least by imprisonment of not less than one (1) year, including those
eighteen (18) years of age, and who shall have resided in the who have committed and been found guilty of Disloyalty as
Philippines for at least one (1) year, and in the place wherein defined under Article 137 of the Revised Penal Code, such
disability not having been removed by plenary pardon or
(a) Name, surname, middle name, maternal surname; The application shall contain the following data:
(b) Date and place of birth;
(c) Citizenship; a) Name, surname, middle name, and/or maternal
(d) Periods of residence in the Philippines and in the surname;
place of registration; b) Sex;
(e) Exact address with the name of the street and c) Date, and place of birth;
house number or in case there is none, a brief d) Citizenship;
description of the locality and the place; e) Civil status, if married, name of spouse;
(f) A statement that the applicant has not been f) Profession, occupation or work;
previously registered, otherwise he shall be required g) Periods of residence in the Philippines and in the
to attach a sworn application for cancellation of his place of registration;
previous registration; and h) Exact address with the name of the street and
(g) Such other information or data which may be house number for location in the precinct maps
required by the Commission. maintained by the local office of the Commission, or
in case there is none, a brief description of his
The voter's affidavit shall also contain three residence, sitio, and barangay;
specimens of the applicant's signature and clear and legible i) A statement that the applicant possesses all the
prints of his left and right hand thumbmarks and shall be qualifications of a voter;
sworn to and filed together with four copies of the latest j) A statement that the applicant is not a registered
identification photograph to be supplied by the applicant. voter of any precinct; and
The oath of the applicant shall include a statement that he k) Such information or data as may be required by
does not have any of the disqualifications of a voter and that the Commission.
he has not been previously registered in the precinct or in any
other precinct. The application for registration shall contain three
(3) specimen signatures of the applicant, clear and legible
Section 6. Publication and Notice Requirement. – The 559. Who may vote under the absentee voting law?
Commission shall cause the publication of the commencement
of the validation in two (2) newspapers of general circulation.
The City or Municipal Election Officer shall serve individual
written notices by registered mail with return card to the
560. May dual citizens vote in Philippine elections? 5. A resident of the Philippines for not less than two years
immediately preceding the day of the election. (Section 3,
Yes, RA 9225 (Citizenship Retention and Re- Article VI, 1987 Constitution)
acquisition Act of 2003), allows dual citizens to
register as overseas absentee voters. Under the said D. District Representatives
Act, dual citizens enjoy the full civil and political
rights of Filipino as guaranteed by the Philippine No person shall be a Member of the House of Representatives
Constitution and the existing Philippine laws. unless:
Civil and Political Rights and Liabilities - Those 3. Able to read and write;
who retain or re-acquire Philippine citizenship under
this Act shall enjoy full civil and political rights and 4. Except the party-list representatives, a registered voter in
be subject to all attendant liabilities and the district in which he shall be elected; and
responsibilities under existing laws of the
Philippines. (Section 5, RA 9225) 5. A resident thereof for a period of not less than one year
immediately preceding the day of the election. (Section 6,
Who may be elected Article VI, 1987 Constitution)
4. At least forty years of age on the day of the election; and Qualifications:
5. A resident of the Philippines for at least ten years 1. An elective local official must be a citizen of the Philippines;
immediately preceding such election. (Section 2, Article VII,
1987 Constitution) 2. A registered voter in the barangay, municipality, city, or
province or, in the case of a member of the sangguniang
B. Vice President panlalawigan, sangguniang panlungsod, or sangguniang
bayan, the district where he intends to be elected;
There shall be a Vice-President who shall have the same
qualifications and term of office and be elected with and in the 3. A resident therein for at least one (1) year immediately
same manner as the President. He may be removed from preceding the day of the election; and
office in the same manner as the President. (Section 3,
Article VII, 1987 Constitution) 4. Able to read and write Filipino or any other local language
or dialect. (Section 39(a), RA 7160)
C. Senators
Age:
No person shall be a Senator unless:
(b) Candidates for the position of governor, vice-governor, or
1. He is a natural-born citizen of the Philippines; member of the sangguniang panlalawigan, or mayor, vice-
(a) given money or other material consideration to influence, (f) Permanent residents in a foreign country or those
induce or corrupt the voters or public officials performing who have acquired the right to reside abroad and
continue to avail of the same right after the
electoral functions;
effectivity of this Code; and
(b) committed acts of terrorism to enhance his candidacy; (g) The insane or feeble-minded.
(c) spent in his election campaign an amount in excess of that Note: When a candidate has not yet been disqualified by final
allowed by this Code; judgment during the election day and was voted for, the votes
cast in his favor cannot be declared stray. (Codilla v. De
(d) solicited, received or made any contribution prohibited Venecia, G.R. No. 150605, Dec. 10, 2002)
under Sections 89, 95, 96, 97 and 104; or 567. Qualification and disqualification of party list
candidates
(e) violated any of Sections 80, 83, 85, 86 and 261, paragraphs
d, e, k, v, and cc, subparagraph 6, shall be disqualified from A. Qualifications:
continuing as a candidate, or if he has been elected, from
holding the office. Any person who is a permanent resident of For a party list organization to participate in the elections, it
or an immigrant to a foreign country shall not be qualified to must comply with the following:
run for any elective office under this Code, unless said person
has waived his status as permanent resident or immigrant of On April 2, 2013, the Court, in Atong Paglaum Inc. v.
a foreign country in accordance with the residence Commission on Elections, laid down new parameters to be
requirement provided for in the election laws. observed by the COMELEC in screening parties, organizations
or associations seeking registration and/or accreditation
under the party-list system, viz:
Note:
1. Three different groups may participate in the
Sec. 80- Election Campaign or partisan political activity party-list system: (1) national parties or
outside campaign period. organizations, (2) regional parties or organizations,
and (3) sectoral parties or organizations.
Sec. 83- Removal, destruction, or defacement of lawful
election propaganda 2. National parties or organizations and regional
parties or organizations do not need to organize
Sec. 85- Prohibited forms of election propaganda along sectoral lines and do not need to represent any
marginalized and underrepresented sector. 3.
Political parties can participate in party-list elections
Sec.86- Regulation of election propaganda through mass provided they register under the party-list system
media and do not field candidates in legislative district
elections. A political party, whether major or not,
Sec. 261- Prohibited acts which are considered as election that fields candidates in legislative district elections
offenses can participate in party-list elections only through its
sectoral wing that can separately register under the
party-list system. The sectoral wing is by itself an
C. Section 40, RA 7160 (LGC) independent sectoral party, and is linked to a
political party through a coalition.
The following persons are disqualified from running for any
elective local position: 4. Sectoral parties or organizations may either be
"marginalized and underrepresented or lacking in
(a) Those sentenced by final judgment for an offense "well-defined political constituencies." It is enough
involving moral turpitude or for an offense that their principal advocacy pertains to the special
punishable by one (1) year or more of imprisonment, interests and concerns of their sector. The sectors
within two (2) years after serving sentence; that are marginalized and underrepresented include
labor, peasant, fisherfolk, urban poor, indigenous
cultural communities, handicapped, veterans, and
(b) Those removed from office as a result of an
overseas workers. The sectors that lack "well-
administrative case;
5. A majority of the members of the sectoral parties 568. Qualification and disqualification of party list
or organizations that represent the ''marginalized nominees
and underrepresented must belong to the
marginalized and underrepresented sector they
Qualifications of Party-List Nominees:
represent. Similarly, a majority of the members of
sectoral parties or organizations that lack "well-
defined political constituencies" must belong to the No person shall be nominated as party-list representative
sector they represent. The nominees of sectoral unless:
parties or organizations that represent the
"marginalized and underrepresented" or that 1. he is a natural-born citizen of the Philippines;
represent those who lack "well-defined political
constituencies," either must belong to their 2. a registered voter;
respective sectors, or must have a track record or
advocacy for their respective sectors. The nominees
of national and regional parties or organizations 3. a resident of the Philippines for a period of not less than
must be bona-fide members of such parties or one (1)year immediately preceding the day of the election;
organizations.
4. able to read and write;
6. National, regional, and sectoral parties or
organizations shall not be disqualified if some of 5.a bona fide member of the party or organization which he
their nominees are disqualified, provided that they seeks to represent for at least ninety (90) days preceding the
have at least one nominee who remains qualified. day of the election, and is at least twenty-five (25) years of
(Abang Lingkod Party List v. COMELEC, G.R. No. age on the day of the election.
206952, October 22, 2013)
6. In case of a nominee of the youth sector, he must at least be
B. Disqualifications: twenty-five (25) but not more than thirty (30) years of age on
the day of the election. Any youth sectoral representative who
attains the age of thirty (30) during his term shall be allowed
Refusal and/or Cancellation of Registration. The COMELEC
to continue in office until the expiration of his term. (Section
may, motu propio or upon verified complaint of any
9, RA 7941, Party-List System Act)
interested party, refuse or cancel, after due notice and
hearing, the registration of any national, regional or sectoral
party, organization or coalition on any of the following 7. The nominees of sectoral parties or organizations that
grounds: represent the "marginalized and underrepresented" or that
represent those who lack "well-defined political
constituencies," either must belong to their respective sectors,
(1) It is a religious sect or denomination,
or must have a track record or advocacy for their respective
organization or association, organized for religious
sectors. The nominees of national and regional parties or
purposes;
organizations must be bona-fide members of such parties or
organizations. (Abang Lingkod Party List v. COMELEC, G.R.
(2) It advocates violence or unlawful means to seek No. 206952, October 22, 2013)
its goal;
Other actors in the election process
(3) It is a foreign party or organization;
569. State the powers of the Commission on Elections
(4) It is receiving support from any foreign under the Constitution.
government, foreign political party, foundation,
organization, whether directly or through any of its
officers or members or indirectly through third The Commission on Elections shall exercise the following
parties for partisan election purposes; powers and functions:
(5) It violates or fails to comply with laws, rules or (1) Enforce and administer all laws and regulations relative to
regulations relating to elections; the conduct of an election, plebiscite, initiative, referendum,
and recall.
(6) It declares untruthful statements in its petition;
(2) Exercise exclusive original jurisdiction over all contests
relating to the elections, returns, and qualifications of all
(7) It has ceased to exist for at least one (1) year; or
elective regional, provincial, and city officials, and appellate
jurisdiction over all contests involving elective municipal
(8) It fails to participate in the last two (2) preceding officials decided by trial courts of general jurisdiction, or
elections or fails to obtain at least two per centum involving elective barangay officials decided by trial courts of
(2%) of the votes cast under the party-list system in limited jurisdiction.
the two (2) preceding elections for the constituency
121 POLITICAL LAW REVIEW/SHIENGLAIASAS REVIEWER
Decisions, final orders, or rulings of the Commission on special privileges, or concessions granted by the Government
election contests involving elective municipal and barangay or any subdivision, agency, or instrumentality thereof,
offices shall be final, executory, and not appealable. including any government-owned or controlled corporation
or its subsidiary.
(3) Decide, except those involving the right to vote, all
questions affecting elections, including determination of the
Such supervision or regulation shall aim to ensure equal
number and location of polling places, appointment of
election officials and inspectors, and registration of voters. opportunity, time, and space, and the right to reply, including
reasonable, equal rates therefor, for public information
(4) Deputize, with the concurrence of the President, law campaigns and forums among candidates in connection with
enforcement agencies and instrumentalities of the the objective of holding free, orderly, honest, peaceful, and
Government, including the Armed Forces of the Philippines, credible elections. (Section 4, Article IX-C, 1987
for the exclusive purpose of ensuring free, orderly, honest, Constitution)
peaceful, and credible elections.
Note: The power may only be exercised over the media not
(5) Register, after sufficient publication, political parties, over practitioners.
organizations, or coalitions which, in addition to other
requirements, must present their platform or program of
government; and accredit citizens’ arms of the Commission on 571. May the COMELEC compel newspapers to give
Elections. Religious denominations and sects shall not be free print space to candidates to ensure equal
registered. Those which seek to achieve their goals through opportunities during elections? Briefly explain.
violence or unlawful means, or refuse to uphold and adhere to
this Constitution, or which are supported by any foreign No. In Philippine Press Institute v. COMELEC (G.R. No. L-
government shall likewise be refused registration. 119694 May 22, 1995), the Court held that to
compel print media companies to donate “COMELEC space”
Financial contributions from foreign governments and their amounts to “taking” of private personal property without
agencies to political parties, organizations, coalitions, or payment of the just compensation required
candidates related to elections constitute interference in in expropriation cases. Moreover, the element of necessity for
national affairs, and, when accepted, shall be an additional the taking has not been established by respondent COMELEC,
ground for the cancellation of their registration with the considering that the newspapers were not unwilling to sell
Commission, in addition to other penalties that may be advertising space. The taking of private property for public
prescribed by law. use is authorized by the constitution, but not without
payment of just compensation. Also Resolution No. 2772 does
not constitute a valid exercise of the police power of the state.
(6) File, upon a verified complaint, or on its own initiative,
In the case at bench, there is no showing of existence of a
petitions in court for inclusion or exclusion of voters;
national emergency to take private property of newspaper
investigate and, where appropriate, prosecute cases of
or magazine publishers.
violations of election laws, including acts or omissions
constituting election frauds, offenses, and malpractices.
572. May the COMELEC prevent the publication of
surveys of voter preference during the election period?
(7) Recommend to the Congress effective measures to
minimize election spending, including limitation of places Briefly explain.
where propaganda materials shall be posted, and to prevent
and penalize all forms of election frauds, offenses, No. In SWS v. COMELEC (G.R. No. 147571, 05 May 2001), the
malpractices, and nuisance candidacies. Court declared unconstitutional Section 5.4 of RA 9005
prohibiting publication of election survey results.
(8) Recommend to the President the removal of any officer or
employee it has deputized, or the imposition of any other “We hold that 5.4 of R.A. No. 9006 constitutes an
disciplinary action, for violation or disregard of, or unconstitutional abridgment of freedom of speech,
disobedience to its directive, order, or decision.
expression, and the press.
The technical effect of Article IX (C) (4) of the Constitution Campaign period:
may be seen to be that no presumption of invalidity arises in
respect of exercises of supervisory or regulatory authority on 1. Presidential and Vice presidential election – 90 days;
the part of the COMELEC for the purpose of securing equal 2. Election of members of the Congress and local election – 45
opportunity among candidates for political office, although days;
such supervision or regulation may result in some limitation
of the rights of free speech and free press. 3. Barangay Election – 15 days
573. What are the prohibitions on members of the 4. Special election under Art. VIII, Sec. 5(2) of the Constitution
armed forces and the civil service during elections? – 45 days
Professionalism in the armed forces and adequate Note: The campaign periods shall not include the day before
remuneration and benefits of its members shall be a and the day of the election (Sec. 3 OEC)
prime concern of the State. The armed forces shall be
insulated from partisan politics. 577. Effect of filing on appointive and elective officers
574. May the COMELEC ban the media from conduct b) Any person holding an elective office or position
and publication of exit polls on elections? Why? shall not be considered resigned upon the filing of
his certificate of candidacy for the same or any other
No. On January 28, 2000, the Court gave its final ruling that elective office or position. (COMELEC
"the holding of exit polls and the dissemination of their Resolution No. 8678)
results through mass media constitute an essential part of the
freedoms of speech and of the press" (ABS-CBN v. COMELEC, The aforementioned were not declared unconstitutional when
G.R. 133486). This had the later effect of keeping exit polling the court reversed its prior decision in the case of Quinto v.
safe from the publication ban, and is one of our strongest COMELEC (22 February 2010) through a resolution on the
arguments as to the unconstitutionality, as well, of a ban on MR.
publishing pre-election surveys.
Section 4 of COMELEC Resolution 8678 Compliant with Law
575. May the COMELEC ban the conduct of election
surveys? Why? Section 4 of COMELEC Resolution 8678 is a faithful reflection
of the present state of the law and jurisprudence on the
matter, viz.:
XPN: This does not include those cases where the certificate
Requisites:
of candidacy of the person to be substituted had been denied
due course and canceled under Section 78 of the Omnibus
1. Material misrepresentation in the qualifications for elective
Election Code. While the law enumerated the occasion where
office, which includes age, residency, citizenship, and any
a candidate may be validly substituted, there is no mention of
other legal qualifications necessary to run for an elective
the case where a candidate is excluded not only by
office; and
disqualification but also by denial and cancellation of his
certificate of candidacy. (Ong v. Alegre, G.R. No. 163295,
2. Deliberate attempt to mislead, misinform or hide a fact
January 23, 2006)
which would otherwise render a candidate ineligible. Note:
These two requirements must concur to warrant the
cancellation of the certificate of candidacy.
No. The false representation under Section 78 must likewise Sec. 40. Disqualifications. - The following persons are
be a deliberate attempt to mislead, misinform, or hide a fact disqualified from running for any elective local position:
that would otherwise render a candidate ineligible. Given the
purpose of the requirement, it must be made with the (a) Those sentenced by final judgment for an offense
intention to deceive the electorate as to the would-be involving moral turpitude or for an offense punishable by one
candidates qualifications for public office. Thus, the (1) year or more of imprisonment, within two (2) years after
serving sentence;
misrepresentation that Section 78 addresses cannot be the
586. Effect of Disqualification
result of a mere innocuous mistake, and cannot exist in a
situation where the intent to deceive is patently absent, or
Art. 30. Effects of the penalties of perpetual or temporary
where no deception on the electorate results. The deliberate
absolute disqualification. — The penalties of perpetual or
character of the misrepresentation necessarily follows from a temporary absolute disqualification for public office shall
consideration of the consequences of any material falsity: a produce the following effects:
candidate who falsifies a material fact cannot run; if he runs
and is elected, he cannot serve; in both cases, he can be 1. The deprivation of the public offices and employments
prosecuted for violation of the election laws. (Mitra vs. which the offender may have held, even if conferred by
COMELEC) popular election.
585. Give the various grounds for disqualification 2. The deprivation of the right to vote in any election for
under the Omnibus Election Code. any popular elective office or to be elected to such office.
Sec. 12. Disqualification. — Any person who has been declared 3. The disqualification for the offices or public
by competent authority insane or incompetent, or has employments and for the exercise of any of the rights
been sentenced by final judgment for subversion, mentioned.
insurrection, rebellion or for any offense for which he was
sentenced to a penalty of more than eighteen months or In case of temporary disqualification, such disqualification as
for a crime involving moral turpitude, shall be disqualified is comprised in paragraphs 2 and 3 of this article shall last
to be a candidate and to hold any office, unless he has been during the term of the sentence.
given plenary pardon or granted amnesty.
4. The loss of all rights to retirement pay or other pension for
The disqualifications to be a candidate herein provided shall any office formerly held.
be deemed removed upon the declaration by competent
authority that said insanity or incompetence had been Art. 31. Effects of the penalties of perpetual or temporary
removed or after the expiration of a period of five years from special disqualification. — The penalties of perpetual or
his service of sentence, unless within the same period he temporary special disqualification for public office,
again becomes disqualified. (Emphasis supplied) profession or calling shall produce the following effects:
The grounds for disqualification for a petition under Section 1. The deprivation of the office, employment, profession or
68 of the Omnibus Election Code are specifically enumerated: calling affected.
Sec. 68. Disqualifications. ‒ Any candidate who, in an action or 2. The disqualification for holding similar offices or
protest in which he is a party is declared by final decision by a employments either perpetually or during the term of the
competent court guilty of, or found by the Commission of sentence, according to the extent of such disqualification.
having (a) given money or other material consideration to
influence, induce or corrupt the voters or public officials
Section 85. Prohibited forms of election propaganda. - It shall (d) Natural and juridical persons who have been granted
be unlawful: franchises, incentives, exemptions, allocations or similar
privileges or concessions by the government or any of its
(a) To print, publish, post or distribute any poster, divisions, subdivisions or instrumentalities, including
pamphlet, circular, handbill, or printed matter urging government-owned or controlled corporations;
voters to vote for or against any candidate unless they
bear the names and addresses of the printer and payor as (e) Natural and juridical persons who, within one year
required in Section 84 hereof; prior to the date of the election, have been granted loans
or other accommodations in excess of P100,000 by the
(b) To erect, put up, make use of, attach, float or display government or any of its divisions, subdivisions or
any billboard, tinplate-poster, balloons and the like, of instrumentalities including government-owned or
whatever size, shape, form or kind, advertising for or controlled corporations;
against any candidate or political party;
(f) Educational institutions which have received grants of
(c) To purchase, manufacture, request, distribute or public funds amounting to no less than P100,000.00;
accept electoral propaganda gadgets, such as pens,
lighters, fans of whatever nature, flashlights, athletic (g) Officials or employees in the Civil Service, or members
goods or materials, wallets, shirts, hats, bandanas, of the Armed Forces of the Philippines; and
matches, cigarettes and the like, except that campaign
supporters accompanying a candidate shall be allowed to (h) Foreigners and foreign corporations.
wear hats and/or shirts or T-shirts advertising a
candidate; It shall be unlawful for any person to solicit or receive
any contribution from any of the persons or entities
(d) To show or display publicly any advertisement or enumerated herein.
propaganda for or against any candidate by means of
cinematography, audio-visual units or other screen Section 96. Soliciting or receiving contributions from foreign
projections except telecasts which may be allowed as sources. - It shall be unlawful for any person, including a
hereinafter provided; and political party or public or private entity to solicit or receive,
directly or indirectly, any aid or contribution of whatever
(e) For any radio broadcasting or television station to sell form or nature from any foreign national, government or
or give free of charge air time for campaign and other entity for the purposes of influencing the results of the
political purposes except as authorized in this Code election.
under the rules and regulations promulgated by the
Commission pursuant thereto. Section 97. Prohibited raising of funds. - It shall be unlawful
for any person to hold dances, lotteries, cockfights, games,
Any prohibited election propaganda gadget or boxing bouts, bingo, beauty contests, entertainments, or
advertisement shall be stopped, confiscated or torn down cinematographic, theatrical or other performances for the
by the representative of the Commission upon specific purpose of raising funds for an election campaign or for the
authority of the Commission. support of any candidate from the commencement of the
589. Prohibited contributions election period up to and including election day; or for any
person or organization, whether civic or religious, directly or
indirectly, to solicit and/or accept from any candidate for
Section 100. Limitations upon expenses of candidates. - No (i) For employment of counsel, the cost of which shall not
candidate shall spend for his election campaign an aggregate be taken into account in determining the amount of
amount exceeding one peso and fifty centavos for every voter expenses which a candidate or political party may have
currently registered in the constituency where he filed his incurred under Section 100 and 101 hereof;
candidacy: Provided, That the expenses herein referred to
shall include those incurred or caused to be incurred by the
candidate, whether in cash or in kind, including the use, rental (j) For copying and classifying list of voters, investigating
or hire of land, water or aircraft, equipment, facilities, and challenging the right to vote of persons registered in
apparatus and paraphernalia used in the campaign: Provided, the lists the costs of which shall not be taken into account in
further, That where the land, water or aircraft, equipment, determining the amount of expenses which a candidate or
facilities, apparatus and paraphernalia used is owned by the political party may have incurred under Sections 100 and
candidate, his contributor or supporter, the Commission is 101 hereof; or
hereby empowered to assess the amount commensurate with
the expenses for the use thereof, based on the prevailing rates (k) For printing sample ballots in such color, size and
in the locality and shall be included in the total expenses maximum number as may be authorized by the Commission
incurred by the candidate. and the cost of such printing shall not be taken into account
in determining the amount of expenses which a candidate
Section 101. Limitations upon expenses of political parties. - A or political party may have incurred under Sections 100
duly accredited political party may spend for the election of and 101 hereof.
its candidates in the constituency or constituencies where it Sec. 13 of RA 7166. Authorized Expenses of Candidates
has official candidates an aggregate amount not exceeding the and Political Parties. - The agreement amount that a
equivalent of one peso and fifty centavos for every voter candidate or registered political party may spend for election
currently registered therein. Expenses incurred by branches, campaign shall be as follows:
chapters, or committees of such political party shall be
included in the computation of the total expenditures of the 1. For candidates. - Ten pesos (P10.00) for President
political party. and Vice-President; and for other candidates Three
Pesos (P3.00) for every voter currently registered in
the constituency where he filed his certificate of
Expenses incurred by other political parties shall be candidacy: Provided, That a candidate without any
considered as expenses of their respective individual political party and without support from any political
candidates and subject to limitation under Section 100 of this party may be allowed to spend Five Pesos (P5.00) for
Code. every such voter; and
2. For political parties. - Five pesos (P5.00) for every
Section 102. Lawful expenditures. - To carry out the voter currently registered in the constituency or
objectives of the preceding sections, no candidate or treasurer constituencies where it has official candidates.
of a political party shall, directly or indirectly, make any
Any provision of law to the contrary notwithstanding any
expenditure except for the following purposes:
contribution in cash or in kind to any candidate or political
party or coalition of parties for campaign purposes, duly
(a) For travelling expenses of the candidates and campaign reported to the Commission shall not be subject to the
personnel in the course of the campaign and for personal payment of any gift tax.
expenses incident thereto;
591. Statements of contributions and expenses
(b) For compensation of campaigners, clerks,
stenographers, messengers, and other persons actually Sec. 14. Statement of Contributions and Expenditures;
employed in the campaign; Effect of Failure to File Statement. - Every candidate and
treasurer of the political party shall, within thirty (30) days
(c) For telegraph and telephone tolls, postage, freight and after the day of the election, file in duplicate with the offices of
express delivery charges; the Commission the full, true and itemized statement of all
contributions and expenditures in connection with the
(d) For stationery, printing and distribution of printed election.
matters relative to candidacy; No person elected to any public offices shall enter upon the
duties of his office until he has filed the statement of
(e) For employment of watchers at the polls; contributions and expenditures herein required.
(1) The effective date when partisan political acts become Section 168. Powers of the board of election inspectors. - The
unlawful as to a candidate is when the campaign period starts. board of election inspectors shall have the following powers
Before the start of the campaign period, the same partisan and functions:
political acts are lawful.
596. Doctrine of statistical improbability SEC. 78.Petition to deny due course to or cancel a certificate of
candidacy. - A verified petition seeking to deny due course or
The doctrine of statistical improbability was first pronounced to cancel a certificate of candidacy may be filed by any person
in Lagumbay v. Commission on Elections, in which the Court exclusively on the ground that any material representation
contained therein as required under Section 74 hereof is false.
upheld the power and duty of the COMELEC to reject the
The petition may be filed at any time not later than twenty-
returns of about 50 precincts affecting the elections of five days from the time of the filing of the certificate of
Senators, because their results were contrary to all statistical candidacy and shall be decided, after due notice and hearing,
probabilities, thus: not later than fifteen days before the election.
It appearing therein that contrary to all statistical The false representation that these provisions mention
probabilities in the first set, in each precinct the number of pertains to a material fact, not to a mere innocuous
registered voters equalled the number of ballots and the mistake. This is emphasized by the consequences of any
material falsity: a candidate who falsifies a material fact
number of votes reportedly cast and tallied for each and every
cannot run; if he runs and is elected, cannot serve; in both
candidate of the Liberal Party, the party in power; whereas, cases, he or she can be prosecuted for violation of the election
all the candidates of the Nacionalista Party got exactly zero; laws.60 Obviously, these facts are those that refer to a
and in the second set, again contrary to all statistical candidate’s qualifications for elective office, such as his or her
probabilities all the reported votes were for candidates of the citizenship and residence.
Liberal Party, all of whom were credited with exactly the Separate from the requirement of materiality, a false
same number of votes in each precinct, ranging from 240 in representation under Section 78 must consist of a "deliberate
one precinct to 650 in another precinct; whereas, all the attempt to mislead, misinform, or hide a fact, which would
candidates of the Nacionalista Party were given exactly zero otherwise render a candidate ineligible." In other words, it
in all said precincts. must be made with the intention to deceive the electorate as
to the would-be candidate's qualifications for public office.
(Jalover v. Osmena)
131 POLITICAL LAW REVIEW/SHIENGLAIASAS REVIEWER
the Omnibus Election Code as follows: (1.) Illegal
598. Petition to Declare Failure of Elections: When composition or proceedings of the board of canvassers; (2.)
can it be filed and on what ground/s The canvassed election returns are incomplete, contain
material defects, appear to be tampered with or falsified, or
contain discrepancies in the same returns or in other
Section 6 of the Omnibus Election Code provides, “If, on
authentic copies thereof as mentioned in Sections 233, 234,
account of force majeure, violence, terrorism, fraud, or other
235 and 236 of the Omnibus Election Code; (3.) The election
analogous causes the election in any polling place has not
returns were prepared under duress, threats, coercion, or
been held on the date fixed, or had been suspended before the
intimidation, or they are obviously manufactured or not
hour fixed by law for the closing of the voting, or after the
authentic; and (4.) When substitute or fraudulent returns in
voting and during the preparation and the transmission of the
controverted polling places were canvassed, the results of
election returns or in the custody or canvass thereof, such
which materially affected the standing of the aggrieved
election results in a failure to elect, and in any of such cases
candidate or candidates. (Abdul Gaffar P.M. Dibaratun vs.
the failure or suspension of election would affect the result of
COMELEC)
the election, the Commission shall, on the basis of a verified
petition by any interested party and after due notice and
Procedure under RA 7166:
hearing, call for the holding or continuation of the election not
held, suspended or which resulted in a failure to elect on a
date reasonably close to the date of the election not held, Sec. 15. Pre-proclamation Cases Not Allowed in Elections
suspended or which resulted in a failure to elect but not later for President Vice-President, Senator, and Member of the
than thirty days after the cessation of the cause of such House of Representatives. - For purposes of the elections for
postponement or suspension of the election or failure to President, Vice-President, Senator and Member of the House
elect.” This provision was reflected in Section 2, Rule 26 of of Representatives, no pre-proclamation cases shall be
the COMELEC Rules of Procedure. allowed on matters relating to the preparation, transmission,
receipt, custody and appreciation of the election returns or
In Banaga vs. COMELEC, which was cited in the challenged the certificates of canvass, as the case may be. However, this
resolution, enumerated the instances when failure of does not preclude the authority of the appropriate canvassing
elections may be declared as follows: (1) the election in any body motu propio or upon written complaint of an interested
polling place has not been held on the date fixed on account of person to correct manifest errors in the certificate of canvass
force majeure, violence, terrorism, fraud or other analogous or election returns before it.
causes; (2) the election in any polling place had been
suspended before the hour fixed by law for the closing of the Questions affecting the composition or proceedings of the
voting on account of force majeure, violence, terrorism, fraud board of canvassers may be initiated in the board or directly
or other analogous causes; or (3) after the voting and during with the Commission in accordance with Section 19 hereof.
the preparation and transmission of the election returns or in
the custody or canvass thereof, such election results in a Any objection on the election returns before the city or
failure to elect on account of force majeure, violence, municipal board of canvassers, or on the municipal
terrorism, fraud or other analogous causes. certificates of canvass before the provincial board of
canvassers or district boards of canvassers in Metro Manila
Before the COMELEC can act on a verified petition Area, shall be specifically noticed in the minutes of their
seeking to declare a failure of elections, two conditions must respective proceedings.
concur: (1) no voting took place in the precinct or precincts
on the date fixed by law, or even if there was voting, the
election resulted in a failure to elect; and (2) the votes not Sec. 17. Pre-proclamation Controversies; How
cast would have affected the result of the elections. The cause Commenced. - Questions affecting the composition or
of such failure of election could only be any of the proceedings of the board of canvassers may be initiated in the
following: force majeure, violence, terrorism, fraud or other board or directly with the Commission. However, matters
analogous causes. raised under Sections 233, 234, 235 and 236 of the Omnibus
Election Code in relation to the preparation, transmission,
receipt, custody and appreciation of the election returns, and
599. Pre-Proclamation Controversy: When can it be the certificates of canvass shall be brought in the first instance
filed and on what ground/s before the board of canvassers only.
Note:
The purpose of an election protest is to ascertain whether the
Section 9. No pre‐proclamation cases are allowed in
case of barangay election. (R.A. No. 6679) candidate proclaimed elected by the board of canvassers is
the true and lawful choice of the electorate. Such a proceeding
600. What are manifest errors? is usually instituted on the theory that the election returns,
which are deemed prima facie to be true reports of how the
To be manifest, the errors must appear on the face of the electorate voted on election day and which serve as the basis
certificates of canvass or election returns sought to be for proclaiming the winning candidate, do not accurately
corrected and/or objections thereto must have been made reflect the true will of the voters due to alleged irregularities
before the board of canvassers and specifically noted in the that attended the counting of ballots. In a protest prosecuted
minutes of their respective proceedings. (Chavez vs. on such a theory, the protestant ordinarily prays that the
COMELEC) official count as reflected in the election returns be set aside
in favor of a revision and recount of the ballots, the results of
One that is visible to the eye or obvious to the understanding, which should be made to prevail over those reflected in the
and is apparent from the papers to the eye of the appraiser returns pursuant to the doctrine that "in an election contest
and collector, and does not include an error which may, by where what is involved is the number of votes of each
evidence to make it more clear. (O’hara vs COMELEC) candidate, the best and most conclusive evidence are the
ballots themselves." (Eriguel v. Commission on Elections)
601. What are the grounds to declare failure of 603. Quo Warranto: When can it be filed and on what
elections? ground/s
See answer to no. 598 A quo warranto proceeding in elective office can be filed by
any registered voter in the constituency on the grounds of
602. Election Protest: When can it be filed and on ineligibility or disloyalty to the Republic.
what ground/s
It is a proceeding to determine the right to the use or exercise
Requisites: of an office and to oust the holder from its enjoyment, if his
Must be filed by any candidate who has filed a certificate of claim is not well founded or if he has forfeited his right to
candidacy and has been voted upon for the same office. enjoy the privilege.
The period for filing election protest is suspended 604. Election protest v. quo warranto
during the pendency of a pre-proclamation
controversy (Gatchalian vs. COMELEC) Unlike an election protest, which can only be filed by a
Where, after 5 days from the proclamation of the candidate, any voter can file a petition for quo warranto.
winning candidate, the loser files a motion for
reconsideration, only five (5) days of the ten (10) day
605. Who may prosecute individuals for election
reglementary period to file an election protest
remained. (Roquero vs COMELEC) offenses
Sec. 40. Disqualifications. - The following persons are The nature of a Section 78 petition was discussed in the case
disqualified from running for any elective local position: of Fermin v. COMELEC,38 where the Court illumined:
Section 231. Canvass by the board. The Court has thus warned that the doctrine of statistical
Xxx improbability must be restrictively viewed, with the utmost
The respective board of canvassers shall prepare a certificate care being taken lest in penalizing fraudulent and corrupt
of canvass duly signed and affixed with the imprint of the practices which is truly called for innocent voters become
thumb of the right hand of each member, supported by a disenfranchised, a result that hardly commends itself.
statement of the votes received by each candidate in each
polling place and, on the basis thereof, shall proclaim as Remedies in election law
elected the candidates who obtained the highest number of
votes cast in the province, city, municipality or barangay. 597. Petition Not to Give Due Course to Certificate of
Failure to comply with this requirement shall constitute an Candidacy: When can it be filed and on what ground/s
election offense.
SEC. 78.Petition to deny due course to or cancel a certificate of
596. Doctrine of statistical improbability candidacy. - A verified petition seeking to deny due course or
to cancel a certificate of candidacy may be filed by any person
The doctrine of statistical improbability was first pronounced exclusively on the ground that any material representation
in Lagumbay v. Commission on Elections, in which the Court contained therein as required under Section 74 hereof is false.
upheld the power and duty of the COMELEC to reject the The petition may be filed at any time not later than twenty-
five days from the time of the filing of the certificate of
returns of about 50 precincts affecting the elections of
candidacy and shall be decided, after due notice and hearing,
Senators, because their results were contrary to all statistical not later than fifteen days before the election.
probabilities, thus:
The false representation that these provisions mention
It appearing therein that contrary to all statistical pertains to a material fact, not to a mere innocuous
probabilities in the first set, in each precinct the number of mistake. This is emphasized by the consequences of any
registered voters equalled the number of ballots and the material falsity: a candidate who falsifies a material fact
number of votes reportedly cast and tallied for each and every cannot run; if he runs and is elected, cannot serve; in both
cases, he or she can be prosecuted for violation of the election
candidate of the Liberal Party, the party in power; whereas,
laws.60 Obviously, these facts are those that refer to a
all the candidates of the Nacionalista Party got exactly zero; candidate’s qualifications for elective office, such as his or her
and in the second set, again contrary to all statistical citizenship and residence.
probabilities all the reported votes were for candidates of the
139 POLITICAL LAW REVIEW/SHIENGLAIASAS REVIEWER
Separate from the requirement of materiality, a false the Commission, or any matter raised under Sections 233,
representation under Section 78 must consist of a "deliberate 234, 235 and 236 in relation to the preparation, transmission,
attempt to mislead, misinform, or hide a fact, which would receipt, custody and appreciation of the election returns.
otherwise render a candidate ineligible." In other words, it
Grounds:
must be made with the intention to deceive the electorate as
to the would-be candidate's qualifications for public office. The issues that may be ventilated in a pre-
(Jalover v. Osmena) proclamation controversy are enumerated in Section 243 of
the Omnibus Election Code as follows: (1.) Illegal
598. Petition to Declare Failure of Elections: When composition or proceedings of the board of canvassers; (2.)
can it be filed and on what ground/s The canvassed election returns are incomplete, contain
material defects, appear to be tampered with or falsified, or
contain discrepancies in the same returns or in other
Section 6 of the Omnibus Election Code provides, “If, on
authentic copies thereof as mentioned in Sections 233, 234,
account of force majeure, violence, terrorism, fraud, or other
235 and 236 of the Omnibus Election Code; (3.) The election
analogous causes the election in any polling place has not
returns were prepared under duress, threats, coercion, or
been held on the date fixed, or had been suspended before the
intimidation, or they are obviously manufactured or not
hour fixed by law for the closing of the voting, or after the
authentic; and (4.) When substitute or fraudulent returns in
voting and during the preparation and the transmission of the
controverted polling places were canvassed, the results of
election returns or in the custody or canvass thereof, such
which materially affected the standing of the aggrieved
election results in a failure to elect, and in any of such cases
candidate or candidates. (Abdul Gaffar P.M. Dibaratun vs.
the failure or suspension of election would affect the result of
COMELEC)
the election, the Commission shall, on the basis of a verified
petition by any interested party and after due notice and
Procedure under RA 7166:
hearing, call for the holding or continuation of the election not
held, suspended or which resulted in a failure to elect on a
date reasonably close to the date of the election not held, Sec. 15. Pre-proclamation Cases Not Allowed in Elections
suspended or which resulted in a failure to elect but not later for President Vice-President, Senator, and Member of the
than thirty days after the cessation of the cause of such House of Representatives. - For purposes of the elections for
postponement or suspension of the election or failure to President, Vice-President, Senator and Member of the House
elect.” This provision was reflected in Section 2, Rule 26 of of Representatives, no pre-proclamation cases shall be
the COMELEC Rules of Procedure. allowed on matters relating to the preparation, transmission,
receipt, custody and appreciation of the election returns or
In Banaga vs. COMELEC, which was cited in the challenged the certificates of canvass, as the case may be. However, this
resolution, enumerated the instances when failure of does not preclude the authority of the appropriate canvassing
elections may be declared as follows: (1) the election in any body motu propio or upon written complaint of an interested
polling place has not been held on the date fixed on account of person to correct manifest errors in the certificate of canvass
force majeure, violence, terrorism, fraud or other analogous or election returns before it.
causes; (2) the election in any polling place had been
suspended before the hour fixed by law for the closing of the Questions affecting the composition or proceedings of the
voting on account of force majeure, violence, terrorism, fraud board of canvassers may be initiated in the board or directly
or other analogous causes; or (3) after the voting and during with the Commission in accordance with Section 19 hereof.
the preparation and transmission of the election returns or in
the custody or canvass thereof, such election results in a Any objection on the election returns before the city or
failure to elect on account of force majeure, violence, municipal board of canvassers, or on the municipal
terrorism, fraud or other analogous causes. certificates of canvass before the provincial board of
canvassers or district boards of canvassers in Metro Manila
Before the COMELEC can act on a verified petition Area, shall be specifically noticed in the minutes of their
seeking to declare a failure of elections, two conditions must respective proceedings.
concur: (1) no voting took place in the precinct or precincts
on the date fixed by law, or even if there was voting, the
Sec. 17. Pre-proclamation Controversies; How
election resulted in a failure to elect; and (2) the votes not
Commenced. - Questions affecting the composition or
cast would have affected the result of the elections. The cause
proceedings of the board of canvassers may be initiated in the
of such failure of election could only be any of the
board or directly with the Commission. However, matters
following: force majeure, violence, terrorism, fraud or other
raised under Sections 233, 234, 235 and 236 of the Omnibus
analogous causes.
Election Code in relation to the preparation, transmission,
receipt, custody and appreciation of the election returns, and
599. Pre-Proclamation Controversy: When can it be the certificates of canvass shall be brought in the first instance
filed and on what ground/s before the board of canvassers only.
See answer to no. 598 A quo warranto proceeding in elective office can be filed by
any registered voter in the constituency on the grounds of
602. Election Protest: When can it be filed and on ineligibility or disloyalty to the Republic.
what ground/s
It is a proceeding to determine the right to the use or exercise
Requisites: of an office and to oust the holder from its enjoyment, if his
Must be filed by any candidate who has filed a certificate of claim is not well founded or if he has forfeited his right to
candidacy and has been voted upon for the same office. enjoy the privilege.
The period for filing election protest is suspended 604. Election protest v. quo warranto
during the pendency of a pre-proclamation
controversy (Gatchalian vs. COMELEC) Unlike an election protest, which can only be filed by a
Where, after 5 days from the proclamation of the candidate, any voter can file a petition for quo warranto.
winning candidate, the loser files a motion for
reconsideration, only five (5) days of the ten (10) day
reglementary period to file an election protest 605. Who may prosecute individuals for election
remained. (Roquero vs COMELEC) offenses
611.) Elements of municipal corporations Note: The required minimum population should be:
Barangay – 2000 but 5000 in Metro Manila
The essential elements of municipal corporations and highly urbanized cities
are: (a.) legal creation; (b.) corporate name; (c.) inhabitants Municipality – 25,000
constituting the population who are vested with political and City – 150,000
corporate powers; and (d.) territory. Province – 250,000
612.) Nature and function of municipal corporations (c) Land Area. - It must be contiguous, unless it
comprises two or more islands or is separated by a local
It is a body politic and corporate constituted by the government unit independent of the others; properly
incorporation of inhabitants for purposes of local identified by metes and bounds with technical descriptions;
government. It is established by the law partly as an agency and sufficient to provide for such basic services and facilities
of the State to assist in the civil government of the country, to meet the requirements of its populace.
but chiefly to regulate and administer the local or internal
affairs of the city, town or district which is incorporated. Note: Area requirements are:
Province – 2000 sq. k.
613.) Requisites for Creation, Conversion, Division, Merger or City – 100 sq. k.
Dissolution Municipality – 50 sq. k.
616.) Extent and limitation of LGU’s taxing power Thus, the following essential requisites must concur
Constitutional basis before an LGU can exercise the power of eminent domain:
(1.) An ordinance is enacted by the local legislative council
Each local government unit shall have the power to authorizing the local chief executive, in behalf of the LGU, to
create its own sources of revenues and to levy taxes, fees and exercise the power of eminent domain or pursue
charges subject to such guidelines and limitations as the expropriation proceedings over a particular private property;
Congress may provide, consistent with the basic policy of (2.) The power of eminent domain is exercised for public use,
local autonomy. Such taxes, fees, and charges shall accrue purpose or welfare, or for the benefit of the poor and the
exclusively to the local governments. (Section 5, Article X, landless; (3.) There is payment of just compensation, as
1987 Constitution) required under Section 9, Article III of the Constitution, and
other pertinent laws; (4.) A valid and definite offer has been
Substantive basis previously made to the owner of the property sought to be
expropriated, but said offer was not accepted. (Parañaque vs.
Local Government Code V.M. Realty Corporation, G.R. No. 127820, July 20, 1998,
Panganiban, J.)
Sec. 129. Power to Create Sources or Revenue. — Each
local government unit shall exercise its power to create its 618.) Extent and limitation of LGUs police power
623.) Are properties of local governments exempt from Appeal. - Within the time and manner prescribed by
execution? the Rules of Court, any party may elevate the decision of the
sanggunian concerned to the proper Regional Trial Court
624.) Requisites of entering into a valid contract having jurisdiction over the area in dispute. The Regional
Trial Court shall decide the appeal within one (1) year from
a.) The local government unit has the express, the filing thereof. Pending final resolution of the disputed area
implied or inherent power to enter into the particular prior to the dispute shall be maintained and continued for all
contract; legal purposes. (Section 119 of the LGC)
b.) The contract is entered into by the proper 627.) Succession of elective officials
department, board, committee, officer or agent. Unless
otherwise provided by the Code, no contract may be entered It is governed by the following provisions of the LGC:
into by the local chief executive on behalf of the local
government unit concerned without prior authorization by Section 44. Permanent Vacancies in the Offices of the
the sanggunian concerned. Governor, Vice-Governor, Mayor, and Vice-Mayor. - If a
permanent vacancy occurs in the office of the governor or
c.) The contract must comply with certain mayor, the vice-governor or vice-mayor concerned shall
substantive requirements, i.e. when expenditure of public become the governor or mayor. If a permanent vacancy
fund is to be made, there must be an actual appropriation and occurs in the offices of the governor, vice-governor, mayor, or
a certificate of availability of funds; vice-mayor, the highest ranking sanggunian member or, in
case of his permanent inability, the second highest ranking
d.) The contract must comply with the formal sanggunian member, shall become the governor, vice-
requirements of written contracts e.g. Statute of Frauds. governor, mayor or vice-mayor, as the case may be.
625.) Doctrine of implied municipal liability Subsequent vacancies in the said office shall be filled
automatically by the other sanggunian members according to
Doctrine of implied municipal liability. A their ranking as defined herein.
municipality may become obligated upon an implied contract
to pay the reasonable value of the benefits accepted or (b) If a permanent vacancy occurs in the office of the
appropriated by it as to which it has the general power to punong barangay, the highest ranking sanggunian barangay
contract. (Province of Cebu vs. IAC) member or, in case of his permanent inability, the second
highest ranking sanggunian member, shall become the
626.) Settlement of boundary disputes punong barangay.
Jurisdictional Responsibility for Settlement of (c) A tie between or among the highest ranking
Boundary Dispute. - Boundary disputes between and among sanggunian members shall be resolved by the drawing of lots.
local government units shall, as much as possible, be settled
amicably. To this end: (d) The successors as defined herein shall serve only
the unexpired terms of their predecessors.
(a) Boundary disputes involving two (2) or more
barangays in the same city or municipality shall be referred For purposes of this Chapter, a permanent vacancy
for settlement to the sangguniang panlungsod or sangguniang arises when an elective local official fills a higher vacant office,
bayan concerned. refuses to assume office, fails to qualify, dies, is removed from
office, voluntarily resigns, or is otherwise permanently
(b) Boundary disputes involving two (2) or more incapacitated to discharge the functions of his office.
municipalities within the same province shall be referred for
settlement to the sangguniang panlalawigan concerned. For purposes of succession as provided in the
Chapter, ranking in the sanggunian shall be determined on the
(c) Boundary disputes involving municipalities or basis of the proportion of votes obtained by each winning
component cities of different provinces shall be jointly candidate to the total number of registered voters in each
referred for settlement to the sanggunians of the province district in the immediately preceding local election.
concerned.
Section 45. Permanent Vacancies in the
(d) Boundary disputes involving a component city or Sanggunian. -
municipality on the one hand and a highly urbanized city on (a) Permanent vacancies in the sanggunian where
the other, or two (2) or more highly urbanized cities, shall be automatic succession provided above do not apply shall be
jointly referred for settlement to the respective sanggunians filled by appointment in the following manner:
of the parties.
(2) The governor, in the case of the sangguniang (d) In the event, however, that the local chief
panlungsod of component cities and the sangguniang bayan; executive concerned fails or refuses to issue such
authorization, the vice-governor, the city or municipal vice-
(3) The city or municipal mayor, in the case of mayor, or the highest ranking sangguniang barangay member,
sangguniang barangay, upon recommendation of the as the case may be, shall have the right to assume the powers,
sangguniang barangay concerned. duties, and functions of the said office on the fourth (4th) day
of absence of the said local chief executive, subject to the
(b) Except for the sangguniang barangay, only the limitations provided in subsection (c) hereof.
nominee of the political party under which the sanggunian
member concerned had been elected and whose elevation to (e) Except as provided above, the local chief
the position next higher in rank created the last vacancy in the executive shall in no case authorize any local official to
sanggunian shall be appointed in the manner hereinabove assume the powers, duties, and functions of the office, other
provided. The appointee shall come from the same political than the vice-governor, the city or municipal vice-mayor, or
party as that of the sanggunian member who caused the the highest ranking sangguniang barangay member, as the
vacancy and shall serve the unexpired term of the vacant case may be.
office. In the appointment herein mentioned, a nomination
and a certificate of membership of the appointee from the 628.) Discipline of local officials: Who may exercise and on
highest official of the political party concerned are conditions what grounds
sine qua non, and any appointment without such nomination
and certification shall be null and void ab initio and shall be a It is governed by the following provisions of the LGC:
ground for administrative action against the official
responsible therefore. Section 60. Grounds for Disciplinary Actions. - An
elective local official may be disciplined, suspended, or
(c) In case or permanent vacancy is caused by a removed from office on any of the following grounds:
sanggunian member who does not belong to any political
party, the local chief executive shall, upon recommendation of (a) Disloyalty to the Republic of the Philippines;
the sanggunian concerned, appoint a qualified person to fill (b) Culpable violation of the Constitution;
the vacancy. (c) Dishonesty, oppression, misconduct in office,
gross negligence, or dereliction of duty;
(d) In case of vacancy in the representation of the (d) Commission of any offense involving moral
youth and the barangay in the sanggunian, said vacancy shall turpitude or an offense punishable by at least prision
be filled automatically by the official next in rank of the mayor;
organization concerned. (e) Abuse of authority;
(f) Unauthorized absence for fifteen (15) consecutive
Section 46. Temporary Vacancy in the Office of the working days, except in the case of members of the
Local Chief Executive. - sangguniang panlalawigan, sangguniang panlungsod,
sangguniang bayan, and sangguniang barangay;
(a) When the governor, city or municipal mayor, or (g) Application for, or acquisition of, foreign
punong barangay is temporarily incapacitated to perform his citizenship or residence or the status of an
duties for physical or legal reasons such as, but not limited to, immigrant of another country; and
leave of absence, travel abroad, and suspension from office, (h) Such other grounds as may be provided in this
the vice-governor, city or municipal vice-mayor, or the Code and other laws.
highest ranking sangguniang barangay member shall
automatically exercise the powers and perform the duties and An elective local official may be removed from office
functions of the local chief executive concerned, except the on the grounds enumerated above by order of the proper
power to appoint, suspend, or dismiss employees which can court.
only be exercised if the period of temporary incapacity
exceeds thirty (30) working days. Section 61. Form and Filing of Administrative
Complaints. - A verified complaint against any erring local
(b) Said temporary incapacity shall terminate upon elective official shall be prepared as follows:
submission to the appropriate sanggunian of a written (a) A complaint against any elective official of a
declaration by the local chief executive concerned that he has province, a highly urbanized city, an independent
reported back to office. In cases where the temporary component city or component city shall be filed
incapacity is due to legal causes, the local chief executive before the Office of the President;
concerned shall also submit necessary documents showing (b) A complaint against any elective official of a
that said legal causes no longer exist. municipality shall be filed before the sangguniang
panlalawigan whose decision may be appealed to the
(c) When the incumbent local chief executive is Office of the President; and
traveling within the country but outside his territorial (c) A complaint against any elective barangay official
jurisdiction for a period not exceeding three (3) consecutive shall be filed before the sangguniang panlungsod or
days, he may designate in writing the officer-in-charge of the
Section 62. Notice of hearing. - (d) Any abuse of the exercise of the power of
(a) Within seven (7) days after the administrative preventive suspension shall be penalized as abuse of
complaint is filed, the Office of the President or the authority.
sanggunian concerned, as the case may be, shall
require the respondent to submit his verified answer Section 64. Salary of Respondent Pending
within fifteen (15) days from receipt thereof, and Suspension. - The respondent official preventively suspended
commence the investigation of the case within ten from office shall receive no salary or compensation during
(10) days after receipt of such answer of the such suspension; but upon subsequent exoneration and
respondent. reinstatement, he shall be paid full salary or compensation
(b) When the respondent is an elective official of a including such emoluments accruing during such suspension.
province or highly urbanized city, such hearing and Section 65. Rights of Respondent. - The respondent
investigation shall be conducted in the place where shall be accorded full opportunity to appear and defend
he renders or holds office. For all other local elective himself in person or by counsel, to confront and cross-
officials, the venue shall be the place where the examine the witnesses against him, and to require the
sanggunian concerned is located. attendance of witnesses and the production of documentary
process of subpoena or subpoena duces tecum.
(c) However, no investigation shall be held within
ninety (90) days immediately prior to any local Section 66. Form and Notice of Decision. -
election, and no preventive suspension shall be (a) The investigation of the case shall be terminated
imposed within the said period. If preventive within ninety (90) days from the start thereof.
suspension has been imposed prior to the 90-day Within thirty (30) days after the end of the
period immediately preceding local election, it shall investigation, the Office of the President or the
be deemed automatically lifted upon the start of sanggunian concerned shall render a decision in
aforesaid period. writing stating clearly and distinctly the facts and the
reasons for such decision. Copies of said decision
Section 63. Preventive Suspension. - shall immediately be furnished the respondent and
(a) Preventive suspension may be imposed: all interested parties.
(1) By the President, if the respondent is an (b) The penalty of suspension shall not exceed the
elective official of a province, a highly unexpired term of the respondent or a period of six
urbanized or an independent component (6) months for every administrative offense, nor
city; shall said penalty be a bar to the candidacy of the
(2) By the governor, if the respondent is an respondent so suspended as long as he meets the
elective official of a component city or qualifications required for the office.
municipality; or (c) The penalty of removal from office as a result of
(3) By the mayor, if the respondent is an an administrative investigation shall be considered a
elective official of the barangay. bar to the candidacy of the respondent for any
elective position.
(b) Preventive suspension may be imposed at any
time after the issues are joined, when the evidence of Section 67. Administrative Appeals. - Decisions in
guilt is strong, and given the gravity of the offense, administrative cases may, within thirty (30) days from receipt
there is great probability that the continuance in thereof, be appealed to the following:
office of the respondent could influence the (a) The sangguniang panlalawigan, in the case of
witnesses or pose a threat to the safety and integrity decisions of the sangguniang panlungsod of
of the records and other evidence: Provided, That, component cities and the sangguniang bayan; and
any single preventive suspension of local elective (b) The Office of the President, in the case of
officials shall not extend beyond sixty (60) days: decisions of the sangguniang panlalawigan and the
Provided, further, That in the event that several sangguniang panlungsod of highly urbanized cities
administrative cases are filed against an elective and independent component cities.
official, he cannot be preventively suspended for Decisions of the Office of the President shall be final and
more than ninety (90) days within a single year on executory.
the same ground or grounds existing and known at
the time of the first suspension. Section 68. Execution Pending Appeal. - An appeal
shall not prevent a decision from becoming final or executory.
(c) Upon expiration of the preventive suspension, the The respondent shall be considered as having been placed
suspended elective official shall be deemed under preventive suspension during the pendency of an
reinstated in office without prejudice to the appeal in the event he wins such appeal. In the event the
continuation of the proceedings against him, which appeal results in an exoneration, he shall be paid his salary
shall be terminated within one hundred twenty and such other emoluments during the pendency of the
(120) days from the time he was formally notified of appeal.
the case against him. However, if the delay in the
proceedings of the case is due to his fault, neglect, or 629.) State the nepotism rule under the LGC
request, other than the appeal duly filed, the
Section 12, Article 12. The State shall promote the Save in cases of hereditary succession, no private
preferential use of Filipino labor, domestic materials and lands shall be transferred or conveyed except to individuals,
locally produced goods, and adopt measures that help make corporations, or associations qualified to acquire or hold
them competitive. lands of the public domain. (Section 7, Article 12, 1987
Constitution)
Section 13, Article 12. The State shall pursue a trade
policy that serves the general welfare and utilizes all forms Notwithstanding the provisions of Section 7 of this
and arrangements of exchange on the basis of equality and Article, a natural-born citizen of the Philippines who has lost
reciprocity. his Philippine citizenship may be a transferee of private lands,
subject to limitations provided by law. (Section 8, Article 12,
Section 14, Article 12. The sustained development of 1987 Constitution)
a reservoir of national talents consisting of Filipino scientists,
entrepreneurs, professionals, managers, high-level technical Exceptions:
manpower and skilled workers and craftsmen in all fields
shall be promoted by the State. The State shall encourage 1.) In cases of hereditary succession. (Section 7,
appropriate technology and regulate its transfer for the Article 12, 1987 Constitution)
national benefit. The practice of all professions in the
Philippines shall be limited to Filipino citizens, save in cases 2.) A natural-born citizen of the Philippines who has
prescribed by law. lost his Philippine citizenship may be a transferee of private
lands, subject to limitations provided by law. (Section 8,
639.) Meaning of academic freedom Article 12, 1987 Constitution)
Academic freedom shall be enjoyed in all institutions This Constitutional provision is implemented by B.P.
of higher learning. (Section 5(2), Article 14, 1987 Constitution) 185, pertinent provision of it reads:
Academic freedom or, to be precise, the institutional Any natural-born citizen of the Philippines who has
autonomy of universities and institutions of higher learning lost Philippine citizenship and who has the legal capacity to
has been enshrined in the Constitution. The essential enter into contract under Philippine laws may be a transferee
freedoms of academic freedom on the part of schools are of a private land up to a maximum area of 1000 square
as follows: (a.) the right to determine who may teach; (b.) the meters, in the case of urban land, or 1 hectare in the case of
right to determine what may be taught; (c.) the right to rural land, to be used by him as his residence. In the case of
determine how it shall be taught; (d.) the right to determine married couples, one of them may avail of the privilege herein
who may be admitted to study. The Honor Code is just but granted; Provided, That if both shall avail of the same, the
one way for the PMA to exercise its academic freedom. If it total area acquired shall not exceed the maximum herein
determines that a cadet violates it, then it has the right to fixed.
It depends.
Formal Sources can refer to various processes by
which rules come into existence. Thus, for instance,
legislation is a formal source of law. So are treaty
If the conflict is to be decided by a local court and the making and judicial decision making as well as the
case is with respect to the conflict of public
practice of states.
international law and our Constitution, then our
Constitution should be upheld being the highest law
of the land. Material Sources, on the other hand, are not
concerned with how rules come into existence but
rather with substance and content of the obligation.
Ratio: Section 5(2)(a), Article VIII of the 1987
They identify what the obligations are. In this sense,
Constitution provides that the Supreme Court shall have the
state practice, UN resolutions, treaties, judicial
power to review, revise, reverse, modify, or affirm on appeal
decisions, and writing of jurists are material sources
or certiorari, as the law or the Rules of Court may provide,
in so far as they identify wat obligations are. They
final judgments and orders of lower courts in: “xxx All cases in
which the constitutionality or validity of any treaty,
157 POLITICAL LAW REVIEW/SHIENGLAIASAS REVIEWER
are also sometimes called to as “evidence” of
international law. c) Duration (UST Golden Notes)
Sources of International Law: 652. What is the difference between a treaty and an
international agreement?
1. The Court, whose function is to decide in a) International agreement – shall refer to a contract or
accordance with international law such disputes as are understanding, regardless of nomenclature, entered into
submitted to it, shall apply: between the Philippines and another government in written
a. international conventions, whether general or form and governed by international law, whether embodied
particular, establishing rules expressly recognized by the in a single instrument or in two or more related instruments.
contesting states; (treaties) - determine the rights and duties
of states just as individual rights are determined by contracts. b) Treaties – international agreements entered into by the
Their binding force comes from the voluntary decision of Philippines which require legislative concurrence after
sovereign states to obligate themselves to a mode of behavior. executive ratification. This term may include compacts like
conventions, declarations, covenants and acts.
b. international custom, as evidence of a general
practice accepted as law; (custom or customary
International law)- “a general and consistent practice of c) Executive agreements – similar to treaties except that
states followed by them form a sense of legal obligation.” they do not require legislative concurrence. (Executive Order
(Third Reinstatement of Foreign Relations Law of the No. 459 cited in Abaya v. Ebdane, G.R. No. 167919, February
United Nation) 14, 2007)
a) Uniformity, consistency, and general practice. e) Political entities legally proximate to States.
(e.g. The former free city of Pazig)
How to establish?
1. Presentation of bilateral treaties
2. Conclusion of international agreement or
f) Condominium – the joint exercise of State power
conference within a particular territory by means of an autonomous local
3. Resolution of the UN General Assembly
administration acting as an agent of the State.
b) Opinion juris et necessitates
-The belief that a certain form of behavior is
obligatory is what makes practice an
international law.
158 POLITICAL LAW REVIEW/SHIENGLAIASAS REVIEWER
g) International Territories – special states created The organization is supposed to act in accordance
by multilateral treaties and protected by an international with the following principles:
organization.
a) Good faith
Exceptions:
Other types of personalities: a) The Security Council, under powers granted in articles 24
and 25, and Chapter VII of the Charter, may
a) non-self governing people authorize collective action to maintain or enforce
international peace and security.
b) national liberation monument
b) A state is exercising its inherent right of individual or
c) state in statu nascendi – the continuity of the collective self-defiance recognized by Article 51 of the UN
political entity of the state, in certain cases, in order Charter ("Nothing in the present Charter shall impair the
to give effect to acts done before independence. inherent right to individual or collective self-defence if an
armed attack occurs against a state.").
d) legal construction – the opposite of statu nascendi,
when called for a state’s legal entity, may be 656. May states that are not signatories to the UN
protected in certain cases even though the state has Charter be bound by the UN Charter?
politically ceased to exist.
b) No party to any such treaty or international agreement 5. Constituent, such as the admission of members and the
which has not been registered in accordance with the amendment of the Charter.
provisions of paragraph 1 of this Article may invoke that
treaty or agreement before any organ of the United Nations.
Session of the General Assembly: Its regular session is held
once a year. It may hold special sessions called by the
In the Charter of the League of Nations, a treaty had to be Secretary General at the request of the Security Council or a
registered to enter into force, but in the UN Charter a treaty majority of the members.
(or international agreement – both expressions are used to
ensure broad coverage) can enter into force without being
registered. However, the UN Member States have undertaken
the legal obligation to register their treaties and there is an Required vote on several questions:
incentive (or rather a penalty) if a treaty is filed: only
registered treaties can be invoked before the UN Organs, 1. On important questions (e.g. peace, security, membership,
including the Security Council and the International Court of elections, trusteeship, system, budget) 2/3 vote of the
Justice. members present and voting is required;
657. Role and function of the General Assembly, 2. On other questions, a simple majority is sufficient. To
Security Council and International Court of Justice classify a question as important, the vote required is a simple
majority.
a) General Assembly
b) Security Council
Classification of functions:
Voting Power: For the elective members, no immediate re-
election is allowed.
The Security Council also recommends to the General Basis of Court’s jurisdiction: It is based on the consent of
Assembly the appointment of the Secretary-General and the the parties.
admission of new Members to the United Nations. And, Article 36 of the Statute provides, “The states parties to the
together with the General Assembly, it elects the judges of the present Statute may at any time declare that they recognize as
International Court of Justice compulsory ipso facto and without special agreement, in
relation to any other state accepting the same obligation, the
jurisdiction of the Court in all legal disputes concerning:
Required vote on several questions: Each member of the a. the interpretation of a treaty;
Security Council shall have one vote, but distinction is made
b. any question of international law;
between permanent members and non-permanent members
in the resolution of substantive questions. c. the existence of any fact which, if established, would
constitute a breach of an international obligation;
d. the nature or extent of the reparation to be made for the
c. International Court of Justice breach of an international obligation. “
Can it give advisory opinion? Yes. The Court may give an
advisory opinion on any legal question at the request of
It is the principal judicial organ of the UN. (Art. 1, Statute of whatever body may be authorized by or in accordance with
the International Court of Justice) the Charter of the United Nations to make such a request.
(Article 65, ibid.) (e.g. General Assembly or Security Council or
other organs of the UN when authorized by the General
Assembly) (Suarez, 2015)
The Court’s role is to settle, in accordance with international 658. Diplomatic and consular law in general
law, legal disputes submitted to it by States and to give
advisory opinions on legal questions referred to it by
authorized United Nations organs and specialized agencies.
The Vienna Convention on Diplomatic Relations (1961) is the
codification of rules of international law particularly
applicable to the political relations of the States. Diplomatic
Composition: The Court shall be composed of a body of relations between states are entered into by mutual consent.
independent judges, elected regardless of their nationality
from among persons of high moral character, who possess the
qualifications required in their respective countries for
appointment to the highest judicial offices, or are jurisconsults The Vienna Convention on Consular Relations (1967) is the
of recognized competence in international law. codification of rules of international law particularly
applicable to consular relations. While consular relations
between states are entered into by mutual consent, consular
relations are more specific than diplomatic relations.
1. The Court shall consist of fifteen members, no two of whom
may be nationals of the same state.
2. A person who for the purposes of membership in the Court
could be regarded as a national of more than one state shall Consuls attend to administrative and economic matters
be deemed to be a national of the one in which he ordinarily between the sending and the receiving states. However, a
exercises civil and political rights. (Article 2 and 3, ibid,) diplomatic mission may still perform consular functions.
Term of office: The members of the Court shall be elected for a) Under Vienna Convention on Diplomatic Relations (1961)
nine years and may be re-elected; provided, however, that of for official acts performed in the exercise of their functions,
the judges elected at the first election, the terms of five judges diplomatic agents enjoy a special privileges including
shall expire at the end of three years and the terms of five immunity from jurisdiction, which is the effect of suspending
more judges shall expire at the end of six years. (Article 13, the laws of the States to which they are accredited, or
ibid.) exemptions of the administrative courts, civil and criminal
matters, both national and local, including exemptions from
c) These privileges are also granted to the diplomatic agent’s 3. The premises of the mission, their furnishings and other
family living under the same roof and who are not nationals of property thereon and the means of transport of the mission
the receiving country. Similarly, he has the right to shall be immune from search, requisition, attachment or
inviolability of the administrative and technical staff of the execution.
mission and service staff, whose members are not nationals of
the receiving State and not permanent residents of the same.
Article 24
2. His papers, correspondence and, except as provided in 1. A diplomatic agent shall enjoy immunity from the criminal
paragraph 3 of Article 31, his property, shall likewise enjoy jurisdiction of the receiving State. He shall also enjoy
inviolability. immunity from its civil and administrative jurisdiction,
except in the case of:
Article 36
(a) A real action relating to private immovable property
situated in the territory of the receiving State, unless he holds
it on behalf of the sending State for the purposes of the
2. The personal baggage of a diplomatic agent shall be exempt mission;
from inspection, unless there are serious grounds for
presuming that it contains articles not covered by the
exemptions mentioned in paragraph 1 of this article, or
articles the import or export of which is prohibited by the law (b) An action relating to succession in which the diplomatic
or controlled by the quarantine regulations of the receiving agent is involved as executor, administrator, heir or legatee as
State. Such inspection shall be conducted only in the presence a private person and not on behalf of the sending State;
of the diplomatic agent or of his authorized representative
A treaty is "an international agreement concluded between 2. Extinction of one of the parties to the treaty.
States in written form and governed by international law,
whether embodied in a single instrument or in two or more 3. Mutual agreement of all the parties to terminate the treaty.
related instruments and whatever its particular designation."
(Vienna Convention on the Law of Treaties of 1969) 4. Denunciation of the treaty by one of the parties.
664. Requisites for validity of treaties. 6. Conclusion of a subsequent treaty inconsistent between the
same parties.
(a) the other parties by unanimous agreement to suspend the 4. The doctrine must be invoked within a reasonable Time
operation of the treaty in whole or in part or to terminate it
either: (i) in the relations between themselves and the
defaulting State, or (ii) as between all the parties;
5. The duration of the treaty must be Indefinite
(b) a party specially affected by the breach to invoke it as a
ground for suspending the operation of the treaty in whole or
in part in the relations between itself and the defaulting State; 6. The change must be so Substantial that the foundation of
the treaty must have altogether disappeared.
(c) any party other than the defaulting State to invoke the
breach as a ground for suspending the operation of the treaty
in whole or in part with respect to itself if the treaty is of such
a character that a material breach of its provisions by one 667. Treatment of Aliens
party radically changes the position of every party with
respect to the further performance of its obligations under the
treaty.
Flowing from its right to existence and as an
attribute of sovereignty, as a general rule, no state is
3. A material breach of a treaty, for the purposes of this under the obligation to admit aliens. The State can
article, consists in: determine in what cases and under what conditions
it may admit aliens.
(a) a repudiation of the treaty not sanctioned by the present
Convention; or The right includes the power to regulate the entry
and stay of aliens, and the state has the right to expel
(b) the violation of a provision essential to the aliens from its territory through deportation.
accomplishment of the object or purpose of the treaty.
Q: How should States treat aliens within their
4. The foregoing paragraphs are without prejudice to any territory?
provision in the treaty applicable in the event of a breach.
A: The standards to be used are the following:
5. Paragraphs 1 to 3 do not apply to provisions relating to the
1. National treatment/ equality of treatment –
protection of the human person contained in treaties of a
Aliens are treated in the same manner as nationals of
humanitarian character, in particular to provisions
the State where they reside.
prohibiting any form of reprisals against persons protected by
such treaties. (Article 60, ibid.)
2. Minimum international standard – However
harsh the municipal laws might be, against a State’s
666. What is the meaning of rebus sic stantibus? own citizens, aliens should be protected by certain
minimum standards of humane protection.
c. Recital of facts
Basis for extradition:
d. Text of applicable law designating the offense
e. Pertinent papers
The extradition of a person is required only if there is a treaty
between the State of refuge and the State of origin. As a
gesture of comity, however, a State may extradite anyone.
Furthermore, even with a treaty, crimes which are political in 2. DFA forwards request to DOJ
character are exempted.
670. Jurisdiction of states: territoriality principle The principle does not apply in criminal offenses.
Jurisdiction of states means the authority to affect legal Statelessness- It is the condition or status of an
interest. Corresponding to the powers of the government, individual who is either:
jurisdiction can be:
1. De Jure Stateless persons ‐ stripped of their nationality by
a) Jurisdiction to prescribe norms of conduct (legislative their former government and without having an opportunity
jurisdiction) to acquire another.
b) Jurisdiction to enforce the norms prescribed (executive 2. De Facto Stateless persons ‐ those who possess a
jurisdiction) nationality whose country does not give them protection
outside their own country and who are commonly referred to
as refugees. (Frivaldo v. COMELEC, G.R. No. 123755, June 28,
1996)
c) Jurisdiction to adjudicate (judicial jurisdiction) (Bernas,
2009, ibid.)
1. an effective occupation
675. Passive personality principle
2. intention to act as a sovereign over that territory
(animus occupandi)
679. United Nations Convention on the Law of the Sea Archipelago means a group of islands, including
parts of islands, interconnecting waters and other
natural features which are so closely interrelated
that such islands, waters and other natural features
UNCLOS defines the rights and obligations of nations in their form an intrinsic geographical, economic and
use of the world’s oceans, establishing rules for business, the political entity, or which historically have been
environment and the management of marine natural regarded as such (Article 46, UNCLOS)
resources.
Guidelines in drawing archipelagic baselines: Q: What are the other rights by which they are subject to?
4. It shall not be applied in such a manner as to cut off from Q: May the right of innocent passage be suspended in
the high seas or the exclusive economic zone the territorial some areas of its archipelagic waters?
sea of another State. (Article 47[5], UNCLOS)
5. If a part of the archipelagic water of an archipelagic State 1. Without discrimination in form or in fact among
lies between two parts of an immediately adjacent foreign ships;
neighboring State, existing rights and all other legitimate
interests which the latter State has traditionally exercised in 2. Essential for the protection of its security; and
such waters and all rights stipulated by agreement between
those States shall continue and be respected. (Article 47[6], 3. Shall take effect only after having been duly
UNCLOS) published. (Article 52[2], UNCLOS) (UST Golden Notes)
These are waters enclosed by the archipelagic baselines, It is the right of foreign ships and aircraft to have continuous,
regardless of their depth or distance from the coast. expeditious and unobstructed passage in sea lanes and air
(Article 49[1], UNCLOS) routes through or over the archipelagic waters and the
adjacent territorial sea of the archipelagic state, “in transit
between one part of the high seas or an exclusive economic
Q: Does sovereignty of the archipelagic state extend to zone.” All ships and aircraft are entitled to the right of
the archipelagic waters? archipelagic sea lanes passage. (Article 53[1] in relation with
Article 53[3], UNCLOS)
The territorial sea is the belt of sea outwards from the (h) any act of wilful and serious pollution contrary to this
baseline and up to 12 nautical miles beyond. The baseline is Convention;
the low-water line along the coast as marked on large scale
charts officially recognized by the coastal state. The width of (i) any fishing activities;
the territorial sea is measured from the baseline.
(j) the carrying out of research or survey activities;
Distinguish briefly but clearly between the territorial sea
and the internal waters of the Philippines. (k) any act aimed at interfering with any systems of
communication or any other facilities or installations of the
Territorial water is defined by historic right or treaty limits coastal State;
while internal water is defined by the archipelago doctrine.
The territorial waters, as defined in the Convention on the (l) any other activity not having a direct bearing on passage.
Law of the Sea, has a uniform breadth of 12 miles measured
from the lower water mark of the coast; while the outermost 686. What are the rights of a state with respect to its
points of our archipelago which are connected with baselines territorial sea?
and all waters comprised therein are regarded as internal
waters. (2004 Bar Question)
The sovereignty of a coastal State extends, beyond its land
territory and internal waters and, in the case of an
Note: archipelagic State, its archipelagic waters, to an adjacent belt
of sea, described as the territorial sea. (Article 2)
Importance of the distinction between internal waters
and territorial sea. The sovereignty of the coastal state over its territorial sea and
the airspace above it as well as the seabed under is the same
In the territorial sea, a foreign State can claim for its ships the as its sovereignty over the land territory.
right of innocent passage, whereas in the internal waters of a
State no such right exists. (Salonga & Yap, 1992) 687. What is the exclusive economic zone?
685. Give at least four examples of acts that are not It gives the coastal State sovereign rights over all economic
deemed exercise of “innocent passage” under the resources of the sea, sea‐bed and subsoil in an area extending
UNCLOS. not more than 200 nautical miles beyond the baseline from
which the territorial sea is measured. (Magallona, 2005;
Innocent passage is passage that is not prejudicial to the Articles 55 & 57, UNCLOS))
peace, good order or security of the coastal state. Article 19
(2) enumerates acts that are not considered innocent passage Article55: Specific legal regime of the exclusive economic zone
thus:
Article57 Breadth of the exclusive economic zone 690. What are the rights of a state with respect to its
continental shelf?
The exclusive economic zone shall not extend beyond
200 nautical miles from the baselines from which the breadth The coastal state has the right to explore and exploit its
of the territorial sea is measured. natural resources, to erect installations needed and to erect a
safety zone over its installations with a radius of 500 meters.
688. What are the rights of a state with respect to its
exclusive economic zone? The right does not affect the right of navigation of others.
Moreover the right does not extend to non-resource material
Article56 Rights, jurisdiction and duties of the coastal State in in the shelf area such as wrecked ship and their cargoes.
the exclusive economic zone
Article77 Rights of the coastal State over the continental shelf
1. In the exclusive economic zone, the coastal State has:
1. The coastal State exercises over the continental shelf
(a) sovereign rights for the purpose of exploring and sovereign rights for the purpose of exploring it and exploiting
exploiting, conserving and managing the natural resources, its natural resources.
whether living or non-living, of the waters superjacent to the
seabed and of the seabed and its subsoil, and with regard to 2. The rights referred to in paragraph 1 are exclusive in the
other activities for the economic exploitation and exploration sense that if the coastal State does not explore the continental
of the zone, such as the production of energy from the water, shelf or exploit its natural resources, no one may undertake
currents and winds; these activities without the express consent of the coastal
State.
(b) jurisdiction as provided for in the relevant provisions of
this Convention with regard to: 3. The rights of the coastal State over the continental shelf do
not depend on occupation, effective or notional, or on any
(i) the establishment and use of artificial islands, installations express proclamation.
and structures;
4. The natural resources referred to in this Part consist of the
(ii) marine scientific research; mineral and other non-living resources of the seabed and
subsoil together with living organisms belonging to sedentary
(iii) the protection and preservation of the marine species, that is to say, organisms which, at the harvestable
environment; stage, either are immobile on or under the seabed or are
unable to move except in constant physical contact with the
(c) other rights and duties provided for in this Convention. seabed or the subsoil.
2. In exercising its rights and performing its duties under this 691. What is the extended continental shelf?
Convention in the exclusive economic zone, the coastal State
shall have due regard to the rights and duties of other States It is that portion of the continental shelf that lies beyond the
and shall act in a manner compatible with the provisions of 200 nautical miles limit in the juridical/legal continental
this Convention. Shelf.
3. The rights set out in this article with respect to the seabed
and subsoil shall be exercised in accordance with Part VI.
692. What are the rights of a state with respect to its
689. What is a continental shelf? extended continental shelf?
Article76 Definition of the continental shelf The state has the exclusive right to explore and exploit
mineral and non-living resources of the extended continental
1. The continental shelf of a coastal State comprises the shelf.
seabed and subsoil of the submarine areas that extend
beyond its territorial sea throughout the natural prolongation 693. What is the hot pursuit doctrine?
of its land territory to the outer edge of the continental
margin, or to a distance of 200 nautical miles from the Art. 111 allows the hot pursuit of a vessel where there is good
baselines from which the breadth of the territorial sea is reason to believe that the ship has violated laws or
measured where the outer edge of the continental margin regulations of coastal state. The pursuit must commence
does not extend up to that distance. when the foreign vessel is within the internal waters, the
archipelagic waters, the territorial waters of the contiguous
The continental shelf refers to: zone of the pursuing state. It may continue to the high seas if
Hot pursuit may be carries out only by warships or military 697. What are the peaceful means of settling
aircraft or any other ship or aircraft properly marked for that international disputes?
purpose.
Peaceful Settling of Dispute, UN Charter
Its elements are the following:
Article 33
The pursuit must be commenced when the ship is
within the internal waters, territorial sea or the contiguous 1. The parties to any dispute, the continuance of which
zone of the pursuing State, and may only be continued outside is likely to endanger the maintenance of
if the pursuit has not been interrupted international peace and security, shall, first of all,
seek a solution by negotiation, enquiry, mediation,
2. It is continuous and unabated conciliation, arbitration, judicial settlement, resort to
regional agencies or arrangements, or other peaceful
3. Pursuit conducted by a warship, military aircraft, means of their own choice.
or government ships authorized to that effect.
2. The Security Council shall, when it deems necessary,
694. Tribunal of the Law of the Sea call upon the parties to settle their dispute by such
means.
International Tribunal of the Law of the Sea (ITLoS)
Article 36
It is an independent judicial body established by the Third
United Nations Convention on the Law of the Seato adjudicate 1. The Security Council may, at any stage of a dispute of
disputes arising out of the interpretation and application of the nature referred to in Article 33 or of a situation
the Convention. It was established after Ambassador Arvido of like nature, recommend appropriate procedures
Pardo Malta addressed the General Assembly of the United or methods of adjustment.
Nations and called for “an effective international regime over
the seabed and ocean floor beyond a clearly defined national 2. The Security Council should take into consideration
jurisdiction”. Its seat is in Hamburg, Germany. any procedures for the settlement of the dispute
which have already been adopted by the parties.
Its jurisdiction comprises all disputes and all applications
submitted to it and all matters specifically provided for in any 3. In making recommendations under this Article the
other agreement which confers jurisdiction to the Tribunal. Security Council should also take into consideration
that legal disputes should as a general rule be
695. When and how does the Tribunal of the Law of referred by the parties to the International Court of
the Sea acquire jurisdiction over a dispute? Justice in accordance with the provisions of the
Statute of the Court.
Its jurisdiction comprises all disputes and all applications
submitted to it and all matters specifically provided for in any Article 37
other agreement which confers jurisdiction to the Tribunal.
1. Should the parties to a dispute of the nature referred
696. What is the doctrine of state responsibility? to in Article 33 fail to settle it by the means indicated
in that Article, they shall refer it to the Security
A State may be held responsible for an international Council.
delinquency directly or indirectly imputable to it which
causes injury to the national of another State. Liability will 2. If the Security Council deems that the continuance of
attach to the State where its treatment of the alien falls below the dispute is in fact likely to endanger the
the international standard of justice or where it is remiss in maintenance of international peace and security, it
according him the protection or redress that is warranted by shall decide whether to take action under Article 36
the circumstances. or to recommend such terms of settlement as it may
consider appropriate.
Requisites for the enforcement of the doctrine of State
Article 38
Responsibility:
698. What is the jurisdiction of the ICJ in contentious 700. How binding are decisions of the ICJ?
jurisdiction?
The decision of the ICJ is only binding between the parties.
Article 36
ARTICLE 59
1. The jurisdiction of the Court comprises all cases which the
parties refer to it and all matters specially provided for in the The decision of the Court has no binding force except between
Charter of the United Nations or in treaties and conventions the parties and in respect of that particular case.
in force.
701. State the rights protected under the Universal
2. The states parties to the present Statute may at any time Declaration of Human Rights
declare that they recognize as compulsory ipso facto and
without special agreement, in relation to any other state The Universal Declaration of Human Rights
accepting the same obligation, the jurisdiction of the Court in
all legal disputes concerning: Article 1. All human beings are born free and equal in dignity
and rights. They are endowed with reason and conscience and
a. the interpretation of a treaty; should act towards one another in a spirit of brotherhood.
b. any question of international law; Article 2. Everyone is entitled to all the rights and freedoms
set forth in this Declaration, without distinction of any kind,
c. the existence of any fact which, if established, would such as race, colour, sex, language, religion, political or other
constitute a breach of an international obligation; opinion, national or social origin, property, birth or other
status. Furthermore, no distinction shall be made on the basis
d. the nature or extent of the reparation to be made for the of the political, jurisdictional or international status of the
breach of an international obligation. country or territory to which a person belongs, whether it be
independent, trust, non-self-governing or under any other
3. The declarations referred to above may be made limitation of sovereignty.
unconditionally or on condition of reciprocity on the part of
several or certain states, or for a certain time. Article 3. Everyone has the right to life, liberty and security of
person.
4. Such declarations shall be deposited with the Secretary-
General of the United Nations, who shall transmit copies Article 4. No one shall be held in slavery or servitude; slavery
thereof to the parties to the Statute and to the Registrar of the and the slave trade shall be prohibited in all their forms.
Court.
Article 5. No one shall be subjected to torture or to cruel,
5. Declarations made under Article 36 of the Statute of the inhuman or degrading treatment or punishment.
Permanent Court of International Justice and which are still in
force shall be deemed, as between the parties to the present Article 6 Everyone has the right to recognition everywhere as
Statute, to be acceptances of the compulsory jurisdiction of a person before the law.
the International Court of Justice for the period which they
still have to run and in accordance with their terms. Article 7. All are equal before the law and are entitled without
any discrimination to equal protection of the law. All are
entitled to equal protection against any discrimination in
6. In the event of a dispute as to whether the Court has
violation of this Declaration and against any incitement to
jurisdiction, the matter shall be settled by the decision of the
such discrimination.
Court.
Article 8. Everyone has the right to an effective remedy by the
Note: Jurisdiction of the ICJ is applicable only to disputes
competent national tribunals for acts violating the
between the states and disputes are settled by international
fundamental rights granted him by the constitution or by law.
law and not domestic law. But the Court has jurisdiction only
when a case is referred to it by the parties.
Article 9. No one shall be subjected to arbitrary arrest,
detention or exile.
699. When may the ICJ issue advisory opinions?
174 POLITICAL LAW REVIEW/SHIENGLAIASAS REVIEWER
without interference and to seek, receive and impart
Article 10. Everyone is entitled in full equality to a fair and information and ideas through any media and regardless of
public hearing by an independent and impartial tribunal, in frontiers.
the determination of his rights and obligations and of any
criminal charge against him. Article 20.
(1) Everyone has the right to freedom of peaceful assembly
Article 11. and association.
(1) Everyone charged with a penal offence has the right to be (2) No one may be compelled to belong to an association.
presumed innocent until proved guilty according to law in a
public trial at which he has had all the guarantees necessary Article 21.
for his defence. (1) Everyone has the right to take part in the government of
(2) No one shall be held guilty of any penal offence on account his country, directly or through freely chosen representatives.
of any act or omission which did not constitute a penal (2) Everyone has the right of equal access to public service in
offence, under national or international law, at the time when his country.
it was committed. Nor shall a heavier penalty be imposed (3) The will of the people shall be the basis of the authority of
than the one that was applicable at the time the penal offence government; this will shall be expressed in periodic and
was committed. genuine elections which shall be by universal and equal
suffrage and shall be held by secret vote or by equivalent free
Article 12. No one shall be subjected to arbitrary interference voting procedures.
with his privacy, family, home or correspondence, nor to
attacks upon his honour and reputation. Everyone has the Article 22. Everyone, as a member of society, has the right to
right to the protection of the law against such interference or social security and is entitled to realization, through national
attacks. effort and international co-operation and in accordance with
the organization and resources of each State, of the economic,
Article 13. social and cultural rights indispensable for his dignity and the
(1) Everyone has the right to freedom of movement and free development of his personality.
residence within the borders of each state.
(2) Everyone has the right to leave any country, including his Article 23.
own, and to return to his country. (1) Everyone has the right to work, to free choice of
employment, to just and favourable conditions of work and to
Article 14. protection against unemployment.
(1) Everyone has the right to seek and to enjoy in other (2) Everyone, without any discrimination, has the right to
countries asylum from persecution. equal pay for equal work.
(2) This right may not be invoked in the case of prosecutions (3) Everyone who works has the right to just and favourable
genuinely arising from non-political crimes or from acts remuneration ensuring for himself and his family an existence
contrary to the purposes and principles of the United Nations. worthy of human dignity, and supplemented, if necessary, by
other means of social protection.
Article 15. (4) Everyone has the right to form and to join trade unions for
(1) Everyone has the right to a nationality. the protection of his interests.
(2) No one shall be arbitrarily deprived of his nationality nor
denied the right to change his nationality. Article 24.
Everyone has the right to rest and leisure, including
Article 16. reasonable limitation of working hours and periodic holidays
(1) Men and women of full age, without any limitation due to with pay.
race, nationality or religion, have the right to marry and to
found a family. They are entitled to equal rights as to Article 25.
marriage, during marriage and at its dissolution. (1) Everyone has the right to a standard of living adequate
(2) Marriage shall be entered into only with the free and full for the health and well-being of himself and of his family,
consent of the intending spouses. including food, clothing, housing and medical care and
(3) The family is the natural and fundamental group unit of necessary social services, and the right to security in the event
society and is entitled to protection by society and the State. of unemployment, sickness, disability, widowhood, old age or
other lack of livelihood in circumstances beyond his control.
Article 17. (2) Motherhood and childhood are entitled to special care and
(1) Everyone has the right to own property alone as well as in assistance. All children, whether born in or out of wedlock,
association with others. shall enjoy the same social protection.
(2) No one shall be arbitrarily deprived of his property.
Article 26.
Article 18. Everyone has the right to freedom of thought, (1) Everyone has the right to education. Education shall be
conscience and religion; this right includes freedom to change free, at least in the elementary and fundamental stages.
his religion or belief, and freedom, either alone or in Elementary education shall be compulsory. Technical and
community with others and in public or private, to manifest professional education shall be made generally available and
his religion or belief in teaching, practice, worship and higher education shall be equally accessible to all on the basis
observance. of merit.
(2) Education shall be directed to the full development of the
Article 19. Everyone has the right to freedom of opinion and human personality and to the strengthening of respect for
expression; this right includes freedom to hold opinions human rights and fundamental freedoms. It shall promote
4. People who do not or can no longer take part in the (3) Members of regular armed forces who profess allegiance
hostilities are entitled to respect for their lives and for their to a government or an authority not recognized by the
physical and mental integrity and must be treated with Detaining Power.
humanity, without any unfavorable distinction whatever.
(4) Persons who accompany the armed forces without
5. It is forbidden to kill or wound an adversary who actually being members thereof, such as civilian members of
surrenders or who can no longer take part in the fighting military aircraft crews, war correspondents, supply
contractors, members of labour units or of services
6. Neither the parties to the conflict nor members of their responsible for the welfare of the armed forces, provided that
armed forces have an unlimited right to choose methods and they have received authorization, from the armed forces
means of warfare which they accompany, who shall provide them for that
purpose with an identity card similar to the annexed model.
7. It is forbidden to use weapons or methods of warfare that
are likely to cause unnecessary losses and excessive suffering. (5) Members of crews, including masters, pilots and
apprentices, of the merchant marine and the crews of civil
C. This Article shall in no way affect the status of medical International Criminal International Court of
personnel and chaplains as provided for in Article 33 of the Court Justice
present Convention. As to what created each
Rome Statute UN Charter
Rights and privileges of prisoners of war: As to jurisdiction
Has criminal jurisdiction to Does not have criminal
1. They must be treated humanely, shall not be subjected to prosecute individuals jurisdiction to prosecute
physical or mental torture, shall be allowed to communicate individuals
with their families, and may receive food, clothing, As to parties
educational and religious articles. Individuals States
As to independence
2. They may not be forced to reveal military data except the The ICC is independent of the The ICJ is the principal
name, rank, serial number, army and regimental number and UN judicial organ of the UN
date of birth; they may not be compelled to work for military
services
The ICC is an independent judicial institution created by the
treaty known as Rome Statute with the power to try and
3. All their personal belonging except their arms and military
punish individuals for the most serious crimes of
papers remain their property.
international concern:
1. Genocide
710. Law on Neutrality
2. Crimes against humanity
3. Crimes of aggression, and
It is non‐participation, directly or indirectly, in a war between
4. War crimes.
contending belligerents. This exists only during war time and
is governed by the law of nations. Examples of these states are
712. May the International Criminal Court acquire
Switzerland, Sweden, The Vatican City, Costa Rica.
jurisdiction over the person of the Head of State of a
signatory State?
When is a State considered as a neutralized State?
1. This Statute shall apply equally to all persons without any Principle 2 States have, in accordance with the Charter of the
distinction based on official capacity. In particular, official United Nations and the principles of international law, the
capacity as a Head of State or Government, a member of a sovereign right to exploit their own resources pursuant to
Government or parliament, an elected representative or a their own environmental and developmental policies, and the
government official shall in no case exempt a person from responsibility to ensure that activities within their
criminal responsibility under this Statute, nor shall it, in and jurisdiction or control do not cause damage to the
of itself, constitute a ground for reduction of sentence. environment of other States or of areas beyond the limits of
national jurisdiction.
2. Immunities or special procedural rules which may attach to
the official capacity of a person, whether under national or Principle 3 The right to development must be fulfilled so as to
international law, shall not bar the Court from exercising its equitably meet developmental and environmental needs of
jurisdiction over such a person. present and future generations.
713. Under the ICJ Statute, may a superior officer be Principle 4 In order to achieve sustainable development,
held responsible for the crimes committed by forces environmental protection shall constitute an integral part of
under his command? Briefly explain the development process and cannot be considered in
isolation from it.
Article 28 Responsibility of commanders and other superiors
In addition to other grounds of criminal responsibility under Principle 5 All States and all people shall cooperate in the
this Statute for crimes within the jurisdiction of the Court: essential task of eradicating poverty as an indispensable
requirement for sustainable development, in order to
(a) A military commander or person effectively acting as a decrease the disparities in standards of living and better meet
military commander shall be criminally responsible for the needs of the majority of the people of the world.
crimes within the jurisdiction of the Court committed by
forces under his or her effective command and control, or Principle 6 The special situation and needs of developing
effective authority and control as the case may be, as a result countries, particularly the least developed and those most
of his or her failure to exercise control properly over such environmentally vulnerable, shall be given special priority.
forces, where: International actions in the field of environment and
development should also address the interests and needs of
(i) That military commander or person either knew or, owing all countries.
to the circumstances at the time, should have known that the
forces were committing or about to commit such crimes; and Principle 7 States shall cooperate in a spirit of global
(ii) That military commander or person failed to take all partnership to conserve, protect and restore the health and
necessary and reasonable measures within his or her power integrity of the Earth's ecosystem. In view of the different
to prevent or repress their commission or to submit the contributions to global environmental degradation, States
matter to the competent authorities for investigation and have common but differentiated responsibilities. The
prosecution. developed countries acknowledge the responsibility that they
bear in the international pursuit to sustainable development
(b) With respect to superior and subordinate relationships in view of the pressures their societies place on the global
not described in paragraph (a), a superior shall be criminally environment and of the technologies and financial resources
responsible for crimes within the jurisdiction of the Court they command.
committed by subordinates under his or her effective
authority and control, as a result of his or her failure to Principle 8 To achieve sustainable development and a higher
exercise control properly over such subordinates, where: (i) quality of life for all people, States should reduce and
The superior either knew, or consciously disregarded eliminate unsustainable patterns of production and
information which clearly indicated, that the subordinates consumption and promote appropriate demographic policies.
were committing or about to commit such crimes; (ii) The
crimes concerned activities that were within the effective Principle 9 States should cooperate to strengthen endogenous
responsibility and control of the superior; and (iii) The capacity-building for sustainable development by improving
superior failed to take all necessary and reasonable measures scientific understanding through exchanges of scientific and
within his or her power to prevent or repress their technological knowledge, and by enhancing the development,
commission or to submit the matter to the competent adaptation, diffusion and transfer of technologies, including
authorities for investigation and prosecution. new and innovative technologies.
Principle 12 States should cooperate to promote a supportive Principle 20 Women have a vital role in environmental
and open international economic system that would lead to management and development. Their full participation is
economic growth and sustainable development in all therefore essential to achieve sustainable development.
countries, to better address the problems of environmental
degradation. Trade policy measures for environmental Principle 21 The creativity, ideals and courage of the youth of
purposes should not constitute a means of arbitrary or the world should be mobilized to forge a global partnership in
unjustifiable discrimination or a disguised restriction on order to achieve sustainable development and ensure a better
international trade. future for all.
Unilateral actions to deal with environmental challenges Principle 22 Indigenous people and their communities and
outside the jurisdiction of the importing country should be other local communities have a vital role in environmental
avoided. Environmental measures addressing transboundary management and development because of their knowledge
or global environmental problems should, as far as possible, and traditional practices. States should recognize and duly
be based on an international consensus. support their identity, culture and interests and enable their
effective participation in the achievement of sustainable
Principle 13 States shall develop national law regarding development.
liability and compensation for the victims of pollution and
other environmental damage. States shall also cooperate in an Principle 23 The environment and natural resources of people
expeditious and more determined manner to develop further under oppression, domination and occupation shall be
international law regarding liability and compensation for protected.
adverse effects of environmental damage caused by activities
within their jurisdiction or control to areas beyond their Principle 24 Warfare is inherently destructive of sustainable
jurisdiction. development. States shall therefore respect international law
providing protection for the environment in times of armed
Principle 14 States should effectively cooperate to discourage conflict and cooperate in its further development, as
or prevent the relocation and transfer to other States of any necessary.
activities and substances that cause severe environmental
degradation or are found to be harmful to human health. Principle 25 Peace, development and environmental
protection are interdependent and indivisible.
Principle 15 precautionary principle
Principle 26 States shall resolve all their environmental
In order to protect the environment, the precautionary disputes peacefully and by appropriate means in accordance
approach shall be widely applied by States according to their with the Charter of the United Nations.
capabilities. Where there are threats of serious or irreversible
damage, lack of full scientific certainty shall not be used as a Principle 27 States and people shall cooperate in good faith
reason for postponing cost-effective measures to prevent and in a spirit of partnership in the fulfilment of the principles
environmental degradation. embodied in this Declaration and in the further development
of international law in the field of sustainable development.
Principle 16 Polluter Pays Principle 715. Principle 21 of Stockholm Declaration
National authorities should endeavour to promote the The Stockholm Declaration, or the Declaration of the United
internalization of environmental costs and the use of Nations Conference on the Human Environment, was adopted
economic instruments, taking into account the approach that on June 16, 1972 in Stockholm, Sweden. It contains 26
the polluter should, in principle, bear the cost of pollution, principles and 109 recommendations regarding the
with due regard to the public interest and without distorting preservation and enhancement of the right to a healthy
international trade and investment. environment.
If, in any Contracting State, the use of a registered mark is Private international law generally concerns business
compulsory, the registration cannot be canceled for non-use transactions between citizens or corporations of different
until after a reasonable period, and then only if the owner countries. Because most of the rules governing these private
cannot justify this inaction. transactions are enforceable in the courts of the concerned
countries, these rules are usually deemed hard international
law. Most of international environmental law, however,
Each Contracting State must refuse registration and prohibit concerns general principles agreed upon among nations.
the use of marks that constitute a reproduction, imitation or Although these principles sometimes oblige countries to
translation, liable to create confusion, of a mark used for