Political Law, Bar 2011 o It is also the source of clarification on disputed matters, for

instance, it has been used in litigation between Church and

Glenn Tuazon State (“imploring the aid of almighty God” – proof that there is
no hostility to religion)
TABLE OF CONTENTS: o It sets the tone by establishing:
 1. A healthy civil society
1. CONSTITUTIONAL LAW (BRANCHES)
 2. And a democratic republican government
2. BILL OF RIGHTS
 What is the rule on amendments and revisions?
3. CITIZENSHIP
o Amendment – small change
4. PUBLIC OFFICERS
 Can be proposed either by Congress, Con.
5. ADMINISTRATIVE LAW
Convention, initiative and referendum
6. ELECTION LAW
o Revision – changes the structure of government
7. LOCAL GOVERNMENTS
 Only by Congress or Con. Convention
8. NATIONAL ECONOMY AND PATRIMONY AND SOCIAL JUSTICE, ETC.
 NOT by initiative or referendum
9. PUBLIC INTERNATIONAL LAW
 Procedure in proposal of amendments and revisions –
o Congress –
 ¾ vote of all its members
CONSTITUTIONAL LAW
 Doesn’t say whether jointly or separately:
 Because this provision was approved when
The Constitution the Con. Comm. thought we would still have
unicameral assembly
 What is a Constitution?  Must be voted on separately, because this is
o Written instrument where the fundamental powers of the default rule
government are established, limited, defined, and by which  What happens after?
these powers are distributed among several departments, for  Plebiscite where there is majority vote
their more safe and usual exercise, for the benefit of the body needed by the electorate
politic. o Constitutional convention –
o “The Constitution is a living testament and memorial of the  How is a constitutional convention called?
sovereign will of the people from whom all government  1. By a 2/3 vote of all members of congress
authority emanates…” – Estrada v. Arroyo OR
 Was there ever a time when there was no Philippine Constitution?  2. If not obtained, by a majority vote of all
o There was a time there was no Phil. constitution (Feb to Mar members of Congress, with question of w/n
1987) to call for a convention resolved by the
o But protections existed under the ICCPR and UDHR people in plebiscite
o One cannot invoke protections under the BOR during this  What happens after?
period, because there was no BOR  Plebiscite where there is majority vote
 What is the nature of the preamble? needed by the electorate
o It does not give rights and obligations; just identifies author of o Initiative –
the Constitution (“we the sovereign Filipino people”)

1
  There is no valid initiative law yet, based on an SC o Tondo Medical Center v. CA  appeal was made using
decision (Defensor-Santiago v. COMELEC) several provisions in Art. II, but the SC disclaimed these,
 Is this still correct? saying these are not self-executory provisions
 The minute resolution on the MR in
Lambino v. COMELEC held the initiative General considerations
law (RA 6735) to be valid.
 What are the required votes for an initiative on the  What is the scope of national territory?
Constitution? o Components of territory:
 A) archipelago (aerial, terrestrial, fluvial)
 12% of total number of registered voter AND
 B) all other territories outside archipelago
3% of the voters of each district
o Last year: we finally passed a law defining baselines
 Viz. For national initiative, just 10% and 3%
 Straight baselines for the archipelago
 What is the scope of people’s initiative?
 Imaginary straight lines joining outermost
 It only applies to amendment, not to
points of the outermost islands, without
revisions of the Constitution. So it cannot
appreciable departure from the general
apply to sweeping changes like changing
configuration of the archipelago
from presidential to parliamentary.
 But for territories outside the archipelago, the law
 Takes effect on the day it was ratified
considered those as “regime of islands” – each would
 How is it ratified?
have their own baselines, and not included in one
o Through a plebiscite, where a
baseline along with the rest of the archipelago
majority of votes is needed
o What is the archipelagic doctrine?
 Period for ratification?
 Archipelagic principle: all waters are considered
o 60-90 days from sufficiency of
internal waters
petition for initiative
 State immunity –
o What is the subject of amendment or revision?
o Par in parem non habet imperium
 ANYTHING, except those violating jus cogens.
o Extends to:
 Which provisions self-execute? Which don’t?
 1. Diplomatic agents
o Almost all provisions on policy are NON-self-executory
 2. UN and its organs
o 1. There is one provision where the SC recognizes an
 3. Other IOs, if provided
enforceable right: right of people to balanced and healthful
o What is the test to determine if suit is against the State?
ecology
 Whether it requires an affirmative act from the State, if
 (MMDA v. Concerned citizens, Oposa v. Factoran,
a decision is rendered against it
LLDA v. CA)
o When can there be suit against the State?
 N.B. that A.M. No. 09-6-8-SC puts this right into
 1. Waiver
further fruition)
o When is there consent to be sued?
o “Protect and promote a right to health”  Sec. 15 is also
 Express provision of law, or special
recognized as executory
law
 Because it is worded almost similarly as Sec. 16
 Implied: commencing suit or
 Whereas the other provisions are worded differently
entering into business contract
“The State affirms…”

2
 o What is the extent of waiver?
 Waiver does not extend to
execution of judgment, just
immunity from suit. There has to be
a subsequent waiver from
execution. But the aggrieved party
can sue for mandamus in case the
State unjustly refuses to pay.
 2. Performance of proprietary acts
 3. Equity
 The State may be sued if the doctrine of
immunity is used to perpetuate an injustice
 Ex. does not pay just compensation in
expropriation
 What about suits against government agencies
which are incorporated?
 Check if the charter allows suit (this is a
waiver).
 Otherwise, the general rule is to check if it is
performing governmental or proprietary acts.
 N.B. so for these entities, the general
exceptions hold true
 Forms of government and relevant definitions:
o “Democratic and republican”
 Republican  representative of the people
 Democratic  gesture of appreciation for EDSA I
o Differentiate State from government from administration:
 State people, territory, government, sovereignty
 Government  system remains the same
 Administration  changes from election to election
o State:
 De facto or de jure
o Democracy:
 We have really not had a parliamentary form of
government. Initially, 1973 constitution provided for
such, but Marcos never relinquished his supremacy
from the rest of the government
 What are the relevant principles?
o 1. The Philippines renounces war as State policy
3
 We renounce only aggressive war; we allow
defensive war
o 2. As to applicability of International Law
 See International Law notes
o 3. Civilian authority is at all times supreme over the military
 N.B. Civilian authority, not officials.
 Symbolized by President being Commander-in-chief
of the military
o 4. Compulsory military service by civilians if needed
o 5. Maintenance of peace and order
 This is a constituent function, which the State is duty-
bound to perform
 As opposed to ministrant functions which are
voluntarily done, and when needed
 What is the subsidiary principle?
 What civilians can do, the government will
not do
o 6. Separation of Church and State (discussed in Bill of Rights)
o Differentiate principles from policies:
 A. Principles: things the country is supposed to live by
(first 6 provisions – as laid down here)
 B. Policies: guidelines for action – everything else
 Delegation of power
o What delegating law must possess:
 1. Completeness
 2. Sufficient standards
o When rules and regulations can have the force of penal
law:
 1. Delegating statute itself must authorize
promulgation of penal regulations
 2. Penalty provided by the statute itself
 3. Publication in OG or newspaper of GC
 Valid delegation:
o Abakada v. Executive Sec.: The President’s power in the
VAT law to increase the VAT according to the existence of
certain conditions is a valid contingent legislation.
o Gerochi v. DENR: the power delegated to the ERB to impose
universal charge on electricity end-users is not undue
delegation of power to tax, because its purpose is actually not
 revenue generation by regulation – thus, police power.
Moreover, the delegating law was complete and has sufficient
standards.
 “Sufficient standards”
o Eastern Shipping v. POEA: “fair and equitable employment
practices” is a sufficient standard in POEA requiring MC No. 2
(standard contracts for Philippine seamen)
o Tablarin v. Gutierrez: “standardization and regulation of
medical education” is sufficient standard to allow the BME to
create standardized medical entrance tests.
o RA 9335 (Attrition Act): Deemed valid, even if it allows the
BIR and BOC to give awards to those who surpass BIR targets
and sanction those who fall short. Is the setting of the targets
unduly delegated to the President?
 HELD: No. Because the targets set are based on
estimated revenue collection as approved by the
DCBB and stated in the BESF submitted by President
to Congress – so the President alone does not set the
targets.
 Outside scope of delegating law:
o Cebu Oxygen v. Drilon: RA 6640 decreed a wage increase
higher than the agreed-upon CBA. The DOLE however issued
a regulation that the salary increase in the CBA will not be
counted in assessing compliance with RA 6640.
 HELD: Invalid; added a provision/limitation when none
existed in the law.
o Tatad v. Sec. of Energy: The Executive considered other
factors outside of the two provided in RA 8180 in deregulating
oil prices.
 HELD: Invalid.
 Undue delegation:
o People v. Dacuycuy: RA 4670 provides the penalty of
“imprisonment, in the discretion of the court.”
 HELD: Unconstitutional – undue delegation of
legislative power.
o Contra Employers Confederation v. NWPC: Can delegate
wage-fixing power to executive, provided there are sufficient
standards.
Legislative Department
Subdivisions:
Legislative power (1)
Houses of Congress (2-7)
Elections (8-9)
Limitations and privileges (10-14)
Sessions, officers, internal bodies (15-20)
Powers of inquiry (21-22)
Matters of competence (23-25)
Legislative power
 Where is legislative power vested?
o Vested in the Congress: composed of Senate and HOR
o Except: to extent reserved to the people by the provision on
initiative and referendum
 What are the kinds of legislative power?
o Original: possessed by the sovereign people
o Derivative: delegated to the legislative bodies
o Constituent: power to amend or revise the Constitution
o Ordinary: power to pass ordinary laws
 What is the nature of legislative power?
o Plenary in nature
o What are the limitations?
 1. Substantive (as re: content of laws)
 2. Procedural (as to how they are passed)
 3. No irrepealable laws
 General rule: Cannot be delegated.
o What are the exceptions?
 1: delegation to local governments
 2: delegation to administrative bodies
 BUT NOTE: what is delegated to admin
agencies is not legislative power but “rule-
making power” which is executory in nature
o 1. Filling-up details or
o 2. Contingent legislation
 3. Tariff powers to the President

4
  4. Emergency powers to the President, as given by
Congress
 What are the post-legislation powers of Congress?
o Only scrutiny and investigation, to check compliance with law –
otherwise, there will be violation of separation of powers
 What is the difference in power of legislative and executive as re:
abolition of offices?
o Legislative in general holds the power to abolish public offices
o As an exception, the President may inactivate functions of
bureaus, departments, and offices in the executive department
only (as part of broad authority to reorganize)
Houses of Congress
Senate
 24 members
o 1. Natural born citizen
o 2. On day of election, at least 35 years old
o 3. Able to read and write
o 4. Registered voter
o 5. On the day preceding election day, resident of Philippines
for at least 2 years
 Social Justice Society v. Dangerous Drugs Board: Cannot add or
subtract from these qualifications. (apply to HOR too – see Maquera v.
Borra, where a property bond was disallowed)
 Six year term, beginning June 30
 Two consecutive terms, maximum
o Voluntary renunciation of office not considered an interruption
o What about involuntary severance?
 It is considered an interruption, because it is by
operation of law and not voluntary renunciation
HOR
 Not more than 250 members unless provided by law
o Now, there are more than 250 members, obviously
o 1. Natural born citizen of the Philippines
o 2. On the day of the election, at least 25 years old
5
 For youth party-list representative, at least 25 and not
more than 30 on the day of election
o 3. Able to read and write
o 4. Registered voter in the district in which he shall be elected
o 5. On the day immediately preceding election day, resident for
at least 1 year in the district in which he shall be elected
 * Obviously for PLs, there is no district requirement 
just Philippines in general is required
o Special requirement for PL representatives?
 Must be a bona fide member of the PL he seeks to
represent at least 90 days before the election
 What does “residence” mean?
o Residence requirement actually means domicile.
o Requisites of domicile?
 1. Animus manendi
 2. Animus non-revertendi.
o Actual physical presence is not enough, as there must be proof
of permanence. Merely leasing a lot in the supposed new
domicile and registering as a voter in another place fails to
establish this.
 Citizenship:
o Co v. HRET: Those born of Filipino mothers before Jan. 17,
1973 who elect Filipino citizenship upon age of majority are
considered natural born citizens.
o Bengzon v. Cruz: One who lost Filipino citizenship (in this
case, joined US army) and then reacquired Filipino citizenship
is still natural-born. But there is a dissenting opinion here.
o Valles v. COMELEC: Mere possession of alien passport or
alien certificate of registration is not automatically a
renunciation of Filipino citizenship, which must be express. It
is just dual citizenship. Filing of certificate of candidacy is an
act of choosing Filipino citizenship. (See section on citizenship
for more on dual citizenship)
 Three year term, beginning June 30
 Three consecutive terms, maximum
o Voluntary renunciation of office not considered an interruption
o QUINTO v. COMELEC:
 Filing for candidacy is ipso facto resignation for
appointive official, but not elective official
 Two types:
o District representatives
o Party-list representatives
o (No more sectoral representatives after 1998)
 Apportionment of districts:
o From provinces, cities, and MM area  contiguous, compact,
and adjacent (CCA) territory
 “As far as practicable”  so there can be exceptions
for island provinces
 Gerrymandering is prohibited.
o According to population – uniform and progressive ratio
o At least one representative for:
 1. Each city with population of at least 250K
 2. Each province
 Aquino III v. COMELEC: ONLY cities have to comply
with the minimum 250K. In this case, however,
proportionate representation was ignored (sadly).
o Reapportionment of districts within 3 years after every census
return
 On creation of new districts:
o When a municipality is converted into a city large enough
to entitle it to one district, the incidental effect is splitting
the district into two. Does this need census?
 No. The splitting of districts is by law.
 No need for plebiscite under Art. X of the Constitution
when one district is split into two, because you are not
creating new juridical personalities or dividing the
territory per se. There is only a need for plebiscite if
you are creating a new Local Government Unit.
o When the increase of districts creates an imbalance, can
COMELEC correct the imbalance by transferring districts?
 No. The COMELEC must wait for legislative
enactment.
o Sema v. COMELEC: Only law can create new legislative
districts. So RA 9054, in so far as it grants ARMM the
authority to create provinces and cities which could result in
the creation of new legislative districts, is unconstitutional.
 Party-list representatives:
o 20% of total number of representatives
6
 Banat v. COMELEC: The 2% vote provision to fill in the remaining
seats as provided in RA No. 7941 is unconstitutional, as an obstacle to
broad representation. The next higher vote getters, regardless of the
number of votes, will fill-in the remaining seats.
o What about the three-seat cap?
 It’s constitutional. It prevents a party from dominating
the party-list system. The constitution does not
require absolute proportionality.
 Guidelines for PLs in RA 7941:
o 1. Must represent marginalized or underrepresented
2. DQ’ed:
 Religious
 N.B.: religious leaders may be
representatives; the probation is against
religious groups
 Advocates violence or unlawful means to seek goal
 Receiving support from foreign government or
organization for partisan election purposes
 Violates election laws
 Untruthful statements in petition
 Ceases to exist for at least 1 year
 Failed to participate in last 2 preceding elections (or
fails to obtain at least 2% of votes cast in 2 prior
elections  CHANGED to failure to obtained a seat in
the prior 2 elections
o 3. Must not be indirectly funded or assisted by government
o VC Cadangen v. COMELEC: COMELEC has jurisdiction to
determine whether an organization applying for the party list
system represents marginalized sector. It cannot be
challenged by certiorari because the decision is based on facts
and the SC does not try facts.
 Guidelines for PL representatives:
o 1. Must not have lost for an elective office in the immediately
preceding election
o 2. Five are nominated
o 3. No change in the names or order unless when (as approved
by COMELEC):
 A. A nominee dies
 B. He withdraws his nomination in writing
  C. Incapacitated
o 4. Must be bona fide member of the PL he seeks to represent
at least 90 days before election
Elections
 When are elections?
o 2nd Monday of May unless otherwise provided by law
 What if there is a vacancy in either house?
o Can call special elections:
o But elected Senator or representative only serves the
unexpired term
 Tolentino v. COMELEC: Congress enacted law declaring that the 13th
highest vote getter in the next general elections for Senator will fill-in
Guingona’s unexpired term (since he was appointed as VP). This is
valid practice, and there need not be any separate call, since the statute
filled that purpose and charges voters with information already.
 What does RA 6645 (Special Election Law) provide?
o There will be a special election if the vacancy happens:
 A) at least 1.5 years before the next regular election
for Senators
 B) at least 1 year before the next regular election for
members of HOR
o What must be passed:
 A) if Congress is in session – Resolution by the
concerned house
 B) if not in session – Certification by the Speaker or
Senate President (depending where vacancy occurs)
o What it must contain
 1. Declaration of vacancy
 2. Calling for special election 45-90 days from date of
resolution or certification
Limitations and privileges
 There are five: a) salaries, b) arrest, c) financial and business interest,
d) other positions, e) prohibited involvements
(A) Salaries
7
 Determined by law
 No increase in compensation takes effect until after the expiration of the
full term of all the Senators and HOR representatives approving the
increase
 What about a decrease?
o Not covered by the prohibition because it only covers
increases
 Is a new Senator or representative elected through special election
entitled to the new salary rate?
o No. The new members are serving the terms of those who
approved the increase and are thus not entitled to the
increase.
 Are emoluments allowed?
o Open question, because the prohibition seems to allow indirect
increase in salary (not as strict as 1935 Constitution). But one
may appeal to the spirit of the provision to avoid increases.
 Are allowances allowed?
o Yes since these do not constitute salary. The only limit is
moral.
(B) Arrest
 1. Senators and reps privileged from arrest for all offenses punishable
by not more than six years
o When does this privilege apply?
 While Congress is in session – thus, not during
recess
 Whether regular or special, whether legislator is
actually attending it or not
 2. No member can be questioned or held liable in any other place for
any speech/debate in Congress or any committee
o This is protection from other forums apart from Congress itself.
o Protects against libel suits, BUT NOT against disciplinary
authority of Congress.
o What does “Speech or debate” cover?
 Includes utterances made in performance of official
functions (speeches, statements, votes cast, bills
introduced, etc.)
o When does this privilege apply?
  Congress need not actually be in session. (So  2. Office whose emoluments were increased during
compare with Arrest, where there is need for session) term elected
o What is the extent of protection? o This is an absolute prohibition, unlike the first prohibition,
 Extends even to agents of assemblymen, provided where he can accept the other office, but has to just forfeit his
the agency consists of assisting the legislator. seat.
o Pobre v. Defensor Santiago: Miriam Defensor Santiago was
berating the SC as idiots, but she was held to have been (E) Prohibited involvements
protected by parliamentary immunity, although the SC said she
crossed the limits of decency and good conduct.  May not personally appear as counsel before:
o 1. Any court of justice
(C) Financial and business interests connected with bill o 2. Electoral tribunals
o 3. QJ bodies
 When does this limitation apply? o 4. Admin bodies
o All Senators and representatives, upon assumption of office  Cannot be involved in any, if granted by Gov, any sub, agency,
 What must they do? instrumentality, GOCC, subsidiary:
o 1. Make full disclosure of financial and business interests o 1. Contract
o 2. Notify the house concerned of potential conflict of interest o 2. Franchise
 From filing proposed legislation o 3. special privilege
 Wherein they are authors  Cannot intervene in any matter, before any office of government for
 N.B. THEREFORE, they are not prohibited from introducing bills that pecuniary benefit or where he may be called upon to on account of his
have conflicts with their interest, as long as they disclose office
 Puyat v. De Guzman: A congressman cannot buy nominal amount of
(D) Other positions shares in a corporation in a suit before the SEC and appear in
“intervention.” This is a circumvention of the constitutional policy.
 1. First prohibition:
o No senator or HOR rep may hold any other office or Sessions, officers, and other internal bodies
employment in:
 Gov, any subdivision, agency, instrumentality, Session
including GOCCs and subsidiaries
 During term  Regular session:
o Or else, forfeit his seat o Once a year, on fourth Monday of July
o Liban v. Gordon: Gordon, upon assuming position as Phil.  Unless other time fixed by law
National Red Cross chair, did not forfeit his seat because o Continues to be in session for such number of days as it may
PNRC is a private corporation, albeit performing public determine
functions. It is not among the prohibited positions. o UNTIL 30 days before opening of its next regular session
 2. Second prohibition: o (Exclude: Saturday, Sunday, legal holiday)
o Cannot be appointed to:  Special session:
 1. Office created during term elected o Can be called by the President at any time
o When the legislature is in recess

8
Officers  2. Suspension cannot exceed 60 days
 Paredes v. Sandiganbayan: The
 Constitutional officers – elected by majority of its members: suspension here is different from that under
o 1. Senate President RA 3019, the latter of which is preventive
o 2. Speaker of the House while in this provision, it is punitive (and
 Each house chooses other officers as deemed necessary internal).
 Santiago v. Guingona: Tatad, the loser in the election for Senate  Journal rules:
President wanted to assume minority leader position. But Guingona o 1. Published from time to time
assumed it. Filed Quo Warranto case.  Except parts affecting national security
o HELD: The Senate has prerogative to choose how to elect o 2. Yeas and nays recorded at request of 1/5th of members
other officers apart from the SP and SotH. So the Court present
cannot de-proclaim Guingona. o What if there is conflict between extraneous evidence and
 Arroyo v. De Venecia: If what was violated was a mere internal rule of the journal?
the house, the SC cannot take jurisdiction. The house can waive  The journal is conclusive upon the courts.
compliance with its own rules. o What if there is conflict between the journal and an
o Exceptions: enrolled bill?
 1. When what was violated is a Constitutional  The enrolled bill prevails, due to respect given to a co-
provision OR equal branch of government.
 2. Persons other than members of the legislature are o What is the exception to the above matter?
affected.  When the Senate President withdraws his signature
from the enrolled bill, then the journal prevails.
Internal order o What if an enrolled bill conflicts with the journal on a
matter required by the Constitution to be placed in the
 Majority of each house  quorum to do business journal?
o Don’t count those outside the country because they are  Open matter
beyond the coercive jurisdiction of each House
 There will also be a record of proceedings
 Smaller number:
 During sessions, cannot do the ff without the consent of the other
o 1. May adjourn from day to day house:
o 2. May compel attendance of absent members according to o 1. Adjourn for more than 3 days
house rules o 2. Hold session in any other place than that in which the two
 Disciplinary provisions: houses are sitting
o Each house may determine rules of proceedings
 Osmena v. Pendatun: The disciplinary action taken Electoral tribunals
by Congress against a member is not subject to
judicial review because each House is the sole judge  Two ETs:
of what disorderly conduct is. o 1. SET
o Punish members for disorderly behavior o 2. HRET
o How does a house suspend or expel a member?  What is their Jurisdiction?
 1. Need 2/3 concurrence of all members

9
 o Sole judge of all contests relating to election, returns, and
qualifications of members (ERQ)
 Composition?
o 9 members each
o 3 of whom: Justices of SC (designated by CJ)
 Senior justice is chairman
o 6 members from the Senate or HOR, respectively
 Based on proportional representation of political
parties and party-list organizations
 What is an election contest?
o The defeated candidate challenges the qualification and claims
the seat of a proclaimed winner.
o There must be an election contest for the ET to have
jurisdiction.
 When does a case pass from COMELEC to ET?
o When a winning candidate has been proclaimed, taken his
oath, and assumed office.
o Lazatin: After this point, COMELEC rules do not apply
anymore, but the ET rules.
 What is the Supreme Court jurisdiction over ET?
o When there is GADALEJ.
o Bondoc v. Pineda: When a party expelled a member who
disclosed that he was not voting for the party candidate in an
election contest, the SC invalidated the expulsion, saying that it
impaired the ET’s prerogative to be the sole judge of election
contests.
o Garcia v. HRET: There is no GADALEJ when the ET
dismisses a case for failure to pay cash deposit required by the
HRET rules. Since the nature of the case is sensitive, it
follows that there must be strict compliance with internal rules.
 Is the ET’s jurisdiction limited only to Constitutional
qualifications?
o No.
o It includes even statutory qualifications. This is the
consequence of being the “sole judge.”
 Abbas v. Senate: Contest sought DQ of Senators sitting in SET. But
even if there are replaced, the replacements would face the same
challenge. No other body can replace the SET’s function. So they have
to nonetheless discharge their functions.
10
 Limkaichong v. COMELEC: Alleged irregularity in proclamation will
not divest HRET of its jurisdiction. The ET would have to decide as well
whether the proclamation was valid or not.
 Abayon v. COMELEC: The COMELEC decides whether the party-list
organization is qualified to join the party-list system. But it is the HRET
that can decide whether the party-list representative is qualified.
Commission on Appointments (CONA)
 Function of the CONA?
o Function: to check and balance presidential appointments
o The CONA acts on all appointments submitted to it within 30
session days of Congress, from submission
o For positions required to be confirmed by the CONA
 Composition (25):
o 1. Senate President (ex-officio chairman)
o 2. 12 Senators
o 3. 12 HOR representatives
 Representation chosen based on proportional representation of the
parties (and party-list system)
o Daza v. Singson: The party need not be registered. If there
are changes in the party alignment, then the CONA must
always reflect these changes.
o Coseteng v. Mitra: Mere endorsement by eight other
members cannot count in favor of Coseteng, the only member
of KAIBA who won that election (0.4%). There must be at least
8.4% representation to win a seat in the CONA (for the HOR),
under that election.
o Guingona v. Gonzales: No need to complete all 12 seats for a
house. So in this case where one party only had 1
representative in the Senate, this would entitle the party to 0.5
seats. There is no such thing as a half seat.
o Drilon v. Speaker: The two houses have primary jurisdiction
on who should sit in the CONA. This includes determination of
party affiliation and number of party members for purpose of
determining proportional representation.
 Rules on voting:
o Majority vote
o Chairman does not vote, except if there is a tie
On ETs and CONA o No.
 What is “in aid of legislation”?
 When constituted? o Easy to comply with this in Phils. since our legislature
o Constituted within 30 days after Senate and HOR have been possesses plenary powers
organized o Each question separately need not be material to proposed
o When are the Senate and HOR organized? legislation – it is the totality of information gathered that is
 Upon election of the SP or SOH pertinent
 When does the CONA meet? o BUT SEE Bengzon v. Senate Blue Ribbon: The court rules
o Only when Congress is in session that the investigation was not in aid of legislation because
o At call of chairman or majority of members Enrile’s speech did not suggest any contemplated legislation.
o What if the Congress is not in session?   COMMENT: this seems to be an overstepping of
 Then this is when there are ad interim appointments the Court’s bounds, because it cannot second-guess
the intent of Congress based on a single speech.
Records and books of account   The main principle here: it must be in aid of
legislation, not in aid of prosecution
 What is required for these books?
 Who may be summoned?
o 1. Preserved and open to the public
o Anyone, except:
 In accordance with law
 1. President
o 2. Audited by the COA
 2. SC Justice
 Publishes annually an itemized list of amounts paid to
o Even a department head who is an alter ego of the President
and expenses incurred for each member
may be summoned.
Inquiry powers  The rights of persons appearing in or affected by inquiries shall be
respected  apply the Bill of Rights
Sec 21: inquiries in aid of legislation o Ex. Right against self-incrimination
 Does the filing of a criminal case divest the legislative of power to
 What is the purpose of Sec. 21? conduct the inquiry?
o To obtain information for legislation o No. The inquiry is not in the nature of a criminal prosecution.
o EO creating the PCGG included a proviso that none of its Also, cannot invoke in general right against self-incrimination
members may be compelled to provide information or act because the process is not to impute liability per se (although
as witness before any of the government bodies. Is this they may invoke this right for specific questions).
valid?  Garcillano v. HOR: The rules of the Congress in inquiries in aid of
 No. It is repugnant to this power. It was repealed by legislation must be published according to the Civil Code provisions on
the 1987 constitution. publication. The requirement of publication is expressly stated in Art.
 Can Congress punish for contempt? VI, Sec 21.
o Yes. This power to do so exists until the legislature’s final  De la Paz v. Senate: Violation of internal procedures of Senate cannot
adjournment, because this power is for the preservation of the be, as a general rule, subject to judicial supervision since “Each house
legislative body shall determine the rules of its proceedings.” The exceptions are when
 Can courts prohibit Congress from requiring respondents to there is arbitrary and improvident use of power, which ultimately denies
appear before it? due process.

11
Sec 22: executive privilege/oversight function (“question hour”)
 Heads of departments may appear on any matter pertaining to their
departments
o But with due deference to separation of powers, Department
Heads, who are alter egos of the President, may not appear
without permission of the President.
o This provision does not apply to any one else with Cabinet
rank, if not Department Heads.
o N.B. Quick and dirty rule: just Department Heads
 Who initiates?
o 1. Upon own initiative of the department head, with consent of
President OR
o 2. Upon request of either house
 What does “request” imply?
 That Sec. 22 is NOT mandatory and
compulsory
 Written questions submitted to SP/SOH 3 days before scheduled
appearance
o Interpellations not limited to written questions
o But may cover matters related thereto
 What if security of State or public interest is affected?
o The President must state it in writing, and
o Appearance can be in executive session
 Executive privilege  really applies to Sec. 21 (because this is the
mandatory provision, whereas Sec. 22 is merely optional – more on this
in Art. VII)
o Only the President may invoke this. If it is invoked by some
other person, there must be proof that he or she has
Presidential authority.
o Coverage:
 1. State secrets
 2. Informer’s privilege
 3. Generic privilege for internal deliberations
o SC has final say to determine if privilege covers the matter.
o Puno’s dissent  the SC seemed to have guessed Neri’s
intent through guesswork.
Matters of legislature’s competence
12
State of war
 Requirements to declare a State of war:
o 1. Joint session but
o 2. Separate vote
o 3. 2/3 vote of both houses
 Emergency powers to President:
o In times of war or other national emergency:
o Congress may by law authorize President to exercise powers
necessary to carry out declared national policy
o For limited period and subject to restrictions
o When it ends:
 1. By resolution of Congress
 2. Upon next adjournment
 N.B.: “existence of state of war” means that we renounce aggressive
war as national policy
o But the executive may lodge war even without a declaration of
the state of war. The power to make war is with executive.
Origination clause
 What bills must originate from the HOR?
o 1. Appropriation, revenue, or tariff bills
o 2. Bills authorizing increase of public debt
o 3. Bills of local application
o 4. Private bills
 But Senate may propose or concur with amendments
 N.B. HOR just initiates, but the senate may completely replace it. As
long as the idea comes from HOR. The bill is the only one that must be
originated, but not the law.
 The Senate can even “anticipate” the house bill, provided the HOR bill
was filed prior to the Senate version.
Appropriations
 Is a bill that creates an office and appropriates money for it an
appropriations bill?
o No. The primary and specific aim must be the allocation of
sum of money, and not just incidental.
 Congress may not increase appropriations recommended by President  Automatic renewal of prior year’s appropriation bill if at the end of a
for executive branch fiscal year, Congress fails to pass the GAB
 No provision or enactment embraced in general appropriations bill o Remains in effect until the GAB is passed
unless it relates specifically to some appropriation therein
o Provision or enactment  limited to the appropriation to which Passage of laws
it relates
o Garcia v. Mata: An example of a rider is the Appropriations  What is the “one subject rule”?
Act of 1956-7, which contained a prohibition for reserve officers o Every bill must only embrace one subject which shall be
called for tour of active duty for more than 2 years in a 5 year expressed in the title.
period. o This is a mandatory requirement.
o Purposes of this rule?
 Procedure for approving appropriations for Congress: same procedure
as for other departments and agencies  1. To prevent hodge-podge or log-rolling legislation
 2. To prevent surprise or fraud
 Requirements for Special appropriations bills:
 3. Fair appraisal to the people
o 1. Must specify purpose for which it is intended
o How is the rule interpreted?
o 2. Supported by funds actually available (certified by National
 Liberally – allow if title is general and all provisions
Treasurer) OR raised by revenue proposal
are germane to this general subject
 Transfer of appropriations:
o Tio v. Videogram Regulaory Board: Act Creating Videogram
o General rule: no law passed authorizing any transfer of
Regulatory Board included 30% tax on gross receipts on video
appropriations
transactions.
o Exception: The following may (by law) be authorized to
 HELD: Valid, not a rider. Taxation is sufficiently
augment any item in the general appropriations law for their
related to regulation of video industry.
respective offices from savings in other items in their
o Phil. Judges Association v. Prado: Act creating Phil. Postal
appropriations:
Corp., defining powers, functions, responsibilities, regulation of
 1. President
industry, other purposes included removal of judges’ franking
 2. Senate President
privileges.
 3. SOH
 HELD: Valid, not a rider. Sufficiently related (but
 4. CJ
violated EPC).
 5. Heads of Con-Comm.
o Tobias v. Abalos: Act converting Mandaluyong to HUC of
o Demetria v. Alba: A law allowing the President to transfer
Mandaluyong included resulting conversion of city into
funds was declared unconstitutional because it did not state
congressional district.
that these must be savings from other items in his respective
 HELD: Valid.
appropriations
o Banat v. COMELEC: RA 9369, which speaks of poll
o This list is exclusive.
automation, contains substantial provisions dealing with
 Discretionary funds:
manual canvassing of election returns.
o Appropriated for particular officials
 HELD: Valid.
o Must only be disbursed for public purpose
 How does a bill become law?
o And supported by vouchers and subject to guidelines under
o 3 readings on separate days
law
 When can there be 3 readings on one day only?

13
  Public calamity or emergency as certified by
President
 Printed copies given to members 3 days before its
passage
o First reading:
 Read the title
 Pass to Bicameral Conference Committee
o Second reading:
 Entire text read,
 Debates held,
 Amendments introduced
o Third reading:
 No amendment allowed
 Take vote immediately thereafter
 Yeas and nays entered in journal
 Presentation of bill to President
o How does the president signify approval?
 1. Signing the bill
 2. No action in 30 days. Thus, there is enactment by
inaction on the President’s end. No such thing on
legislative side.
o What happens if it is rejected?
 Vetoed, return to originating house, with objections.
Objections are entered in house journal.
 What is the process of reconsideration, where the
legislation can override a Presidential veto?
 2/3 approval on originating house, then sent
along with objections to the other house.
 2/3 approval of other house  becomes law
 Must yeas and nays be recorded?
 Yes.
o Must the President veto the entire bill?
 Yes.
 What is the exception?
 Appropriation, revenue, or tariff bills. The
President can exercise “item veto.”
 What are the exceptions to the exception?
 1. Doctrine of inappropriate provisions
 2. Executive impoundment
14
 Three cases when the Constitution requires yeas and nays to be
recorded:
o 1. Last and third readings of a bill
o 2. Upon 1/5 members’ request
o 3. Re-passing a bill over Presidential veto
 What is a Bicameral Conference Committee?
o Extra-constitutional creation
o Intended to resolve conflicts between house and Senate
versions of bills
o Tolentino v. Sec. of Finance: the Conference Committee may
draft a bill which contains provisions not found on either bill
 Vetoes:
o General rule: no item veto (only for ART bills)
o Invalid veto: deemed without effect
o Can an “item veto” be done within a section?
 Yes. “Item veto” does not mean the President can
only veto an entire section. He can veto within a
section, as long as there is a subject and a tax rate
(that is an item).
o What is the doctrine of “inappropriate provisions”?
 The President may veto riders in an appropriation bill,
even if it is not an appropriation or a revenue item.
o What is “executive impoundement”?
 Refusal of the President to spend funds allocated by
Congress for a purpose. The court did not pass upon
this question, but simply relied on the inappropriate
provisions doctrine.
Taxes
 Characteristics of taxation:
o 1. Uniform and equitable.
 Not intrinsic, but geographical uniformity; also, EPC
o 2. Progressive system of taxation.
 Tax rate increases as tax base increases
 Congress may authorize President to fix within specified limits:
o 1. Tariff rates
o 2. Export and export quotas
o 3. Tonnage and wharfage dues
 o 4. Other duties or imposts within framework of national
development program of government
 Can the power to tax be delegated to the executive?
o Yes. Power to tax is legislative, but Sec. 28(2) allows Congress
to delegate it to the President. The President is bound by
conditions set by Congress. This is an exception to the rule of
non-delegability.
 What are specially exempt from property taxation?
o Land, buildings, and improvements that are actually, directly,
and exclusively used for religious, charitable, or educational
purposes.
 Ex. Charitable institutions, churches and
appurtenances, mosques, non-profit cemeteries
o NOTE: These are only property tax exemptions
 No law granting tax exemption can be passed without concurrence of
majority of all members of Congress
 General limit to power to tax: must be for public purpose
o Planters v. Fertiphil: LOI 1465, a piece of martial law
legislation, imposed a P10 capital contribution for each sale of
a bag of fertilizer until adequate capital is present to make PPI,
a private company, viable. HELD: invalid, because it was not
for a public purpose.
Money
 No money paid out of treasury except pursuant to appropriation made
by law
 Limitations on appropriations?
o 1. Must be for public purpose.
o 2. No public money/property appropriated, applied, paid,
employed to religious sects or religious personnel
 EXCEPT when such person is assigned to:
 1.Armed forces
 2. Penal institution
 3. Government orphanage
 4. Government leprosarium
 What is the rule on special funds?
o Money collected on tax levied for special purpose must be paid
for that purpose only
15
o What if they are not used or the purpose is fulfilled or
abandoned?
 Transferred to general funds of the government
o Is the OPSF a special fund?
 No, because it was not pursuant to the power to tax.
It was pursuant to police power.
 Is a law requiring automatic reappropriation for foreign debts
invalid because there is no fixed amount?
o No. It is valid. The amount can be fixed by the simple act of
looking into Treasury books.
 Is a continuing appropriation law valid?
o Yes. The law does not require yearly or annual appropriation.
 Philconsa v. Enriquez: CDF/Pork barrel was approved by SC, stating
that the Congress already specified uses of the power, and power given
to the executive officials was merely recommendatory, subject to
President’s approval. (Fr. B doesn’t like this.)
Misc
 Can the Congress increase appellate jurisdiction of the SC?
o No, unless there is SC advice and concurrence.
 Ex. OMB Act directly allowed appeals from OMB to
SC was unconstitutional.
 Can the law grant title of nobility or royalty?
o No.
Initiative and Referendum:
 What can the people do pursuant to this power?
o 1. Directly propose and enact laws
o 2. Approve and reject any act or law or part thereof passed by
Congress or local legislative body
 What are the types of initiative?
o 1. Initiative on the Constitution
 12%-3%
o 2. Initiative on Statutes (national legislation)
 10%-3%
o 3. Initiative on Local Legislation
 See local government
 Requires for petition for national initiative? of State of appointments, both
o 1. Signed by at least 10% of total number of registered voters war (joint voting and to convene
o 2. Represented by at least 3% of registered voters of each leg. session, but (if the Chairman doesn’t
separate call for meeting)
District
vote)
o 3. Petition must be registered with COMELEC
Overriding Law granting tax
 What if it’s an initiative on the Constitution? Presidential exemption (all
o 1. It must be 12% of all registered voters veto members, not just those
o 2. Represented by at least 3% of registered voters of each leg. (originating present)
District house, then
o 3. And only once every 5 years the other)
Revoking proclamation
 And then?
of President of martial
o All registered voters vote on the proposition forwarded law or suspension of
 What cannot be the subject of initiative? privilege of WHC (joint
o 1. Petition embracing more than 1 subject vote)
o 2. Statutes involving emergency powers specially vested in Extension of period of
Congress by the Constitution cannot be subject of referendum martial law or
suspension of privilege
until 90 days after effectivity
of WHC (joint vote)
 RA 6735  Initiative and Referendum Law Granting amnesty
President declares that
Summary of Congressional voting requirements: he can discharge
duties, but the Cabinet
3/4 vote 2/3 vote Majority vote 1/3 vote 1/5 says otherwise
vote Validating a treaty (only
Proposing Suspension Election of SP and Passing To Senate)
amendme of a member SOH, by their articles of record Deciding to impeach an
nts or by his respective houses (all impeachm yeas officer (Senate)
revisions respective smembers) ent and Confirming the
to the house (all (House of nays appointee as new VP is
Constitutio members) Represent (mem the present one dies
n (one atives bers (each house votes
house, alone) prese separately)
then the nt)
other, all
members) Executive Department
Calling a Constitutional
Constitution convention, if 2/3 vote is
Presidency, Vice-presidency
al not met (all members),
convention and thereafter the
question re: calling is  Executive power: vested in President
resolved in a plebiscite o Head of State
Declaration Commission on o Chief Executive – he is the Executive and no one else

16
o Marcos v. Manglapus: The Constitution’s list of powers of the
executive are not exclusive. He possesses residual unstated
powers. The Constitution just deems it best to limit certain
aspects of the President’s power to avoid abuse.
 Laurel v. Garcia: But the President may not convey
valuable real property of the government on his sole
will. It must be pursuant to a law by Congress.
o The president is also immune from suit and criminal
prosecution while in office.
o Executive Privilege
 Senate v. Ermita: What topics are covered by
privilege:
 1. Conversations and correspondence
between President and official covered by
EO 464
 2. Military, diplomatic, other national security
matters
 3. Information between inter-government
agencies prior to conclusion of treaties and
executive agreements
 4. Discussion in close-door Cabinet
meetings
 5. Matters affecting national security and
public order
 Two requisites for executive privilege to apply:
 1. It must fall within one of these matters
covered
 2. Claim of privilege must be stated with
sufficient particularity so the Congress or
court can determine whether it is legitimate
 How can communications be privileged?
 1. It must related to a “quintessential and
non-delegable power” of the President
o Ex. Power to enter into executive
agreements with other countries
 2. Communications are received by close
advisor of the President
o Test: “operational proximity”
17
 3. No compelling need (or unavailability of
information elsewhere) that would justify
limitation of privilege
o From among the Executive branch officials, only the President
is exempt from Art VI, Sec 21: the President. The executive
branch, while co-equal to the legislative, must not frustrate
power of Congress to legislate.
o Neri v. Senate: Applied privilege #1: “presidential
communication privilege.” It is presumed to be privileged. In
this case, Senate was not able to overcome the presumption.
But if the decision reached in the communication is criminal, it
cannot be privileged.
 CJ Puno, in his dissent, said that instead of relying on
this privilege, the court could have held an in-camera
session to determine whether the claim really is
privileged.
 Estrada v. Disierto: A president is immune from prosecution during
tenure. But once out of office, the immunity for non-official acts is lost.
 Qualifications of President:
o 1. NBC
 Tecson v. COMELEC: An illegitimate child of a
Filipino father is a natural born citizen nonetheless.
o 2. At least 40 years on the day of the election
o 3. Registered voter
o 4. Can read and write
o 5. On the day immediately preceding elections, at least 10 year
residency in the Philippines
 Vice President
o Same qualification as President
o Elected with, and in same manner
o Removed from office in same manner
o May be appointed as member of cabinet with no need for
CONA confirmation.
 Term:
o Six years, beginning 30 June, 12 noon
 Elected second Monday of May
o President: Not eligible for any reelection
  Erap situation: he was allowed to run because this  Defensor-Santiago v. Ramos: When the 2nd placer
was interpreted as to apply only to the incumbent who lodged a protest ran and won for Senate, she
 No person who has succeeded as President and has was deemed to have abandoned the protest
served more than 4 years qualified for reelection
o VP: No more than 2 successive terms Vacancy, sickness
 Voluntary renunciation does not interrupt
o Canvassing: Vacancy problem AT THE Solution
BEGINNING OF THE TERM OF
 By Board of Canvassers in each province/city
PRESIDENCY
 Certificates of Canvass transmitted to Congress  to P-elect fails to qualify VP is acting P until P-elect qualifies
Senate President P-elect not chosen when term is VP is acting P until P is chosen and
 Not later than 30 days from E-Day: open all supposed to start qualified
certificates in presence of both houses in joint public P-elect dies or is permanently VP becomes P
session incapacitated before term of office
 Congress determines authenticity and due Both P and VP not chosen or failed SP, (or Speaker, in that order),
execution  not just ministerial to qualify becomes acting P
Both P and VP died or became SP, (or Speaker, in that order),
 Then canvasses
permanently incapacitated before becomes acting P
 Lopez v. Senate and House: Congress start of term
may delegate preliminary count to a P, VP, SP, and Speaker all have Congress decides by law who acts
committee, as long as it approves it died, become permanently as P (not becomes) until P and VP
afterwards as a body incapacitated, or cannot assume elected and qualified
 Macalintal v. COMELEC: Proclamation of P office
and VP winners is function of Congress, not
COMELEC
Vacancy problem AFTER THE Solution
 Pimentel v. Joint Canvassing Committee: OFFICE HAS INITIALLY BEEN
Final adjournment of Congress only FILLED
terminates legislative functions, but not non- Incumbent P dies, is permanently VP becomes P
legislative functions such as canvassing. disabled, is removed, resigns
 In case of tie between two or more for highest number Both P and VP die, are permanently SP, or speaker, in that order,
of votes: disabled, are removed, resign becomes acting P until P or VP have
been elected or qualified
 Senate and HOR both vote separately 
Acting P dies, is permanently Congress provides by law who will
majority vote of ALL incapacitated, is removed, resigns act as P until new P or VP qualify
o Presidential Electoral Tribunal (PET): Vacancy in office of VP P nominates VP from either house of
 Supreme Court en banc Congress  assumes VP position
 Poe Jr. v. Arroyo: Under PET rules, only the 2nd and from majority vote of all members of
3rd placers may contest the election. The widow of Congress, vote separately
the 2nd placer may not substitute or intervene for him.
 Legarda v. De Castro: PET may correct manifest
Inability to discharge issue Result
errors in the statement of votes and certificates of
President transmits to SP and SOTH VP is acting P, until President gives
canvass.

18
written declaration that he cannot
discharge powers and duties
Majority of cabinet transmits to SP
and SOTH written declaration to
same effect
President transmits to SP and SOTH
written declaration that no inability
exists BUT within 5 days, majority of
cabinet transmits otherwise
Serious illness of the P
contrary written declaration
VP is acting P, until President gives
contrary written declaration
 Congress convenes within 48
hours with no need for call to
decide, within 10 days from
receipt of last written declaration
(or 12 days if Congress is not in
session)
 Can decide, through 2/3 vote of
both houses, voting separately,
either: a) for VP to be acting P,
b) or P to discharge duties
 Public informed about state of
health
 Who cannot be denied access
to P:
o 1. National security
adviser
o 2. Secretary of Foreign
Affairs
o 3. AFP chief of staff
o Cannot:
 Suspend convening of Congress
 Postpone special election
Privileges, benefits, limitations
 P has official residence
 P and VP salaries:
o Determined by law
o Cannot be decreased during their tenure
o Salary increases: only take effect after expiration of the term of
the incumbent when the increase happened
o NO OTHER emolument from the government or any other
source
 Estrada v. Desierto:
o President is immune from suit during his tenure
o After tenure, he can be made liable for non-official acts
o Crimes and misconducts are not official acts of the State
 Soliven v. Makasiar:
o Only President may invoke immunity from suit
o President may waive this immunity, by filing suit

Limits on positions and appointments

 Estrada v. Arroyo: GMA’s assumption of Presidency: based on finding
that Erap resigned, based on statements before he left Malacanang and
 Applies to P, VP, cabinet members, deputies and assistants:
Angara diaries
 1. Cannot hold any other office or employment
 Procedure when vacancy occurs in P AND VP office:
o What are the exceptions?
o Congress convenes at 10 a.m. of third day after vacancy
 1. Provided in Constitution (ex. SOJ sitting in JBC)
occurs
 2. Positions are ex-officio and no salary or other
 No need for call
emoluments (ex. SOF is head of Monetary Board)
o Within 7 days, enact law calling for special election
o N.B. (Compare with legislative, where they just have to give up
 Except for vacancies within 18 months from next
their position)
Pres. election
o Public Interest Group v. Elma: Chief Presidential Legal
 Held 45-60 days from time of call
Counsel (CPLC) has duty to give independent legal advice on
 Automatically deemed certified (since there is no P to
actions of heads of the executive departments and investigate
certify)
matters on presidential appointees. So the CPLC cannot
 Becomes law upon 3rd reading
simultaneously occupy a position he has to review (ex. CPLC
 Appropriations: from current appropriations (any)
and PCGG chair at the same time)
 No need for special appropriations bill

19
 2. Cannot directly or indirectly (profession, business, government
contract):
o A. practice profession
o B. participate in business
o C. be financially interested in any K, franchise, special privilege
granted by Government, S, A, I, GOCCs and subs
 3. Strictly avoid any conflict of interest
 Spouse and relatives by consanguinity or affinity of President until fourth
civil degree cannot be appointed to or as:
o 1. Con Commissions
o 2. OMB
o 3. Sec, U-Sec
o 4. Chairmen or heads of bureaus or offices (including GOCCs
and subsidiaries)
 What if the spouse/relative was already in position?
o Then he/she can continue. What is prohibited is appointment
and reappointment, not continuation in office.
 To which positions can they be appointed?
o Judiciary, ambassadors, consuls
o N.B. (I guess because the appointment is subject to JBC for
the former and competitive exams for the latter)
Three-fold limitations on appointments:
 1. Appointments by Acting President – effective unless revoked by
President within 90 days of assumption or resumption of office
 2. Midnight appointments – two months before next P election, and until
end of term:
o P or Acting P cannot appoint
o Except temporary appointments to executive positions, the
vacancy of which prejudice public service or safety
o De Castro v. JBC: Midnight ban does not apply to
appointments in the SC. Art VIII Sec 9 requires vacancies in
the SC to be filled in within 90 days from occurrence of
vacancy, and this prevails. The existence of the JBC also
prevents possible abuses in appointment
20
 3. CONA approval needed for: (basis: Sarmiento v. Mison, which limits
CONA approval to the first sentence of Art. VII, Sec 16)
o 1. Heads of executive departments
o 2. Ambassadors
o 3. Other public ministers and consuls
o 4. AFP officers from colonel or naval captain
 Soriano v. Lista: The Philippine Coast Guard is a
non-military agency and does not fall under this
provision.
o 5. Other positions, as provided by Constitution, such as:
 A. Chair and members of Con Commissions
 B. Regular members of JBC
 C. Sectoral representatives in Congress (prior to
1998)
 When CONA approval not needed:
o 1. Other officers whose appointments not provided by law
o 2. Those he is authorized by law to appoint
o 3. Those vested upon him by Congress
 Though Congress may vest appointment of other
officers lower in rank upon:
 President alone
 Courts
 Heads of agencies, boards, commissions,
departments
 Rufino v. Endriga: When authority is given to head
of collegial bodies, it is to the chairman that the
authority is given, and not to the entire body. But he
can only appoint “other officers lower in rank”; thus,
this does not include equal-ranking officers.
o Can Congress increase the number of positions that need
CONA approval?
 No. It cannot unduly expand the Constitutional
enumeration.
 What about appointments to the SC and judges of lower courts?
o By the President, but no CONA approval needed because the
JBC is there
 Ad interim appointments:
o Appointments made during recess of Congress
o Effective only until:
  Disapproval by Congress
 Or until next adjournment
o Ad interim appointments are considered permanent, not
temporary. Matibag v. Benipayo
o Ad interim appointments only apply to positions needing CONA
approval. This is different from appointments in acting capacity
which:
 1. Can apply even to other positions
 2. Can be done even when Congress is in session
 Bermudez v. Secretary: Absence of recommendation of Secretary to
the President prior to appointment is not fatal because power to appoint
is lodged with the president.
 Pimentel v. Ermita:
o Alter ego positions  President can appoint acting appointees
temporarily in these positions. These need no appointment.
The permanent appointee would need confirmation by the
CONA. Reason: expediency and need for president to have
an alter ego he can trust. Senate cannot impose upon him to
have the undersecretary be the acting secretary.
o Senators not in the CONA do not have standing to act on
behalf of the CONA.
Powers of the President
 Power of control:
o “Control of all executive departments, bureaus, offices”
o President can alter, modify, nullify, or set aside acts of ANY
executive officer, up to the lowliest clerk
o “Qualified political agency”: acts of executive officials, unless
disapproved or reprobated by the President, are presumptively
the acts of the latter. (Villena v. Sec. of Interior) Another
exception is when the President is required to act in person by
law (ex. Pardons).
 Thus, the decision of a dept. secretary, when not
reprobated by the Chief Exec., is the last step in
exhaustion of admin remedies. (Demaisip v. CTA)
 Asst. Executive Sec., acting for the President, may
reverse a decision of the Sec. of Agriculture and
Resources (Roque v. Director)
21
 Disciplinary power by the President does not flow
from the power of control, but power to appoint.
 Disciplinary power  limited by legislature
(who can provide for security of tenure). So
distinguish between control over discretion
(executive) and person (legislature)
 Orosa v. Roa: The Sec. of Justice may reverse the
act of a prosecutor and order him to withdraw an
information already filed, since the Secretary here is
acting on the President’s behalf. This action is not
directly reviewable by courts. One may appeal to the
Office of the President to exhaust admin remedies.
 Malaria Employees v. Executive Sec: The power of
control includes power to reorganize an executive
office, even if it involves reduction of personnel,
consolidation or abolition of offices.
 N.B. This is not a situation involving removal
of officers or employees (power to appoint)
because removal is only incidental to
reorganization
 Philips Seafood v. BOI: Executive control may be
limited by the SC, in its rule making power, by making
certain admin agency decisions (such as the BOI’s)
subject to appeal to courts and not appealable to the
President.
 Power of supervision:
o “Ensure that laws are faithfully executed”  does not include
power of control (whereas power of control necessarily
includes power of supervision)
o Ex. to Local Governments
Military/Extraordinary powers
 Stems from being the ceremonial, legal, and administrative head of the
armed forces.
o Gudani v. Senga: President has power over the military, and
can demand obedience. The President may prevent a
member of the AFP from testifying before legislative inquiry,
and may punish violators by court martial. REMEDY OF
 CONGRESS? May ask court to compel the President by
judicial order to allow the AFP officer to attend. The President
must comply with this.
1. Calling out powers  armed forces, to prevent or suppress lawless
violence, invasion, or rebellion
a. Standard: “whenever necessary”
b. NOT reviewable by the courts (unlike martial law or suspension
of privilege of WHC)
c. Sanlakas v. Exec Sec.: State of rebellion = calling out powers.
Factual necessity of declaring a state of rebellion is highly
dependent on President.
d. Does not include power to take over media, cause warrantless
arrests, to legislate from the executive, etc.
2. Suspend privilege of writ of HC
a. Rebellion or invasion + requirements of public safety
b. Only applies to:
i. Persons judicially charged for rebellion
ii. Offenses inherent in or directly connected to invasion
c. Safeguard: must charge anyone arrested during suspension
of the writ within 3 days, or else he should be released
3. Declare martial law
a. Rebellion or invasion
b. For the whole Philippines or a part of it
c. Martial law does not:
i. Suspend the Constitution
ii. Supplant civil courts or legislative assemblies
iii. Authorize military courts to have J over civilians
where civil courts can function
iv. Suspend privilege of writ
Procedure for suspension of writ or martial law:
 1. President makes a declaration, the period of which will cover up to 60
days
 2. Within 48 hours from declaration, the President submits report to
Congress
o If Congress not in session: Congress convenes without need
for call within 24 hours of proclamation/declaration
22
 3. Congress may revoke the proclamation, through a joint majority vote
o The President cannot set aside revocation
o N.B.it is joint to make it easier to override
o N.B. Congress cannot extend the period motu propio
 How is an extension granted?
o 1. President takes initiative and requests Congress to approve
the extension
o 2. Congress votes jointly by majority vote
o 3. Congress may extend proclamation for a period to be
determined, if cause persists and public safety requires
 How does the SC review the declaration?
o 1. Any citizen may file appropriate proceeding
o 2. SC may review factual basis of proclamation or the
extension
o 3. SC must issue decision within 30 days
Executive clemency
 A. President may grant – after conviction by final judgment:
o 1. Reprieve
o 2. Commutation
o 3. Pardon
 Absolute pardon: complete even without acceptance
 Conditional: must be accepted
 President determines whether condition
violated. Torres v. Gonzales
 Monsanto v. Factoran: pardon removes penalties
and legal disabilities. BUT it does not include
reinstatement and back wages.
 Garcia v. COA: If pardon given because he was
found to not commit the crime  reinstatement back
wages are due
 Must withdraw appeal first, before one can be granted
clemency (must be final)
o 4. Remission of fines and forfeitures
 B. Amnesty:
o Must have concurrence of all members of Congress
o General pardon for those suspected of high political offenses
o No need for final judgment
 o Cannot grant tax amnesty without concurrence of Congress. o No treaty shall be valid and effective unless concurred by at
 Llamas v. Orbos: Includes administrative penalties least 2/3 of the members of the Senate
 Limits:  USAFFE v. Veterans Association: Less formal
o 1. Not in impeachment or otherwise provided in the types of international agreements may be entered into
Constitution by P and become binding without concurrence of
o 2. Amnesty needs Congress approval Senate
o 3. COMELEC  must give favorable recommendation prior to  Guidelines:
clemency for violation of election offenses  Permanent and original: need Senate
concurrence
Amnesty Pardon  Temporary and mere implementations: no
Political offenses Ordinary offenses need
To a class of persons To individuals  What if Senate conditionally approves it, with
Concurrence of majority of Congress No need for Congress to act suggested amendments?
Public act; subject to judicial notice Private act of president; must be
proved  If re-negotiated and the Senate’s
Extinguishes offense Extinguishes penalties only suggestions are incorporated, the treaty
May or may not restore political goes into effect without need for further
rights Senate approval.
Civil Indemnities not extinguished o Foreign relations power of P:
Granted before or after conviction Granted after final judgment  1. Negotiate treaties and international agreements
 2. Appoint ambassadors, public ministers, consuls
 3. Receive ambassadors and other public ministers
Diplomatic power
 4. Contract and guarantee foreign loans for RP
 5. Deport aliens
 A. Contracting or guaranteeing foreign loans
o Sec. of Justice v. Judge Lantion: Since extradition is not a
o P may contract or guarantee foreign loans on behalf of the RP
criminal prosecution, the subject of extradition is not covered
 What are the safeguards?
by the usual guarantees in a criminal proceeding, such as
 1. Need prior concurrence of Monetary
being furnished with a copy of the extradition papers.
Board
o Pimentel v. Ermita: The President cannot be compelled to
 2. Subject to limitations under law
submit a treaty for ratification by Senate, since it is the sole
 No specific loan or kind of debt instrument prescribed
prerogative of the President whether or not to enter into treaty.
in the Constitution
This happened to the Rome Statute (on the ICC).
o Monetary Board:
 What the rule for conflicts between treaty and municipal law?
 Within 30 days from end of each quarter of every
o If in Philippine courts, the latter enactment prevails, whether
calendar year, must submit to Congress decisions on
treaty or law
applications on loans or guarantees that would have
o If in International tribunals, the treaty always wins
effect of increasing foreign debt
o Except:
 And on other matters provided by law
 If the constitutional violation was manifest and it
 B. Entering into treaties
concerns an internal law of fundamental importance
 What is the nature of an exchange of notes?

23
 o It consists of exchange of two documents, with each of the  1. Congress cannot deprive SC of jurisdiction over
parties possessing the other one signed by the representative Sec. 5 matters
of the other.  2. Congress cannot increase the SC’s appellate
o It is a form of executive agreement which needs no Senate jurisdiction without its concurrence
concurrence. o May congress abolish courts?
 Yes. Even if the judge loses his position, the rule is
Basis of Gen. Appropriations Bill simple the same as abolition of office. As long as not
done for political reasons  there must be good
 President submits to Congress: reason to do so (efficient delivery of justice, etc.).
o 1. Budget of receipts and expenditures o Can a law be passed prohibiting courts from issuing
o 2. Sources of financing injunctions in infrastructure projects of government?
 Including receipts from existing and proposed  Yes, but only to factual and technical matters, not
revenue measures legal matters.
o When? o Can the Congress amend the Rules of Court?
 Within 30 days from opening of regular session  Only if it involves substantive rights. Otherwise, it
falls in the exclusive competence of courts.
SONA
 How do you reconcile Civil code provision on judges must make
decision even without law (Art 9) to the two cases where the SC
 President appears before Congress:
did not adjudge beauty contests or honor rolls?
o 1. Opening of regular session
o If there is no statutory provision, the judge must look at
o 2. At any other time
customary law or whatever is applicable
Judicial Department  Can the SC pardon?
o No. But it retains jurisdiction over a case as long as the
 What is judicial power? penalty has not yet been meted out. This was seen in the
o 1. Power to settle actual controversies involving rights which Echegaray case where the SC refused to mete out the penalty.
are legally demandable and enforceable,  What is judicial review?
o 2. Power to determine whether there has been GADALEJ of o Power to declare a law, treaty IA or EA, or issuance
any branch/instrumentality of government. unconstitutional
 Where is it vested?  What are the essential requisites of judicial review?
o Supreme Court and lower courts o 1. Actual case ripe for adjudication
 What is jurisdiction?  What is the exception?
o Power to hear and decide a case  If lack of clarity detriments public order
 What is the role of legislature in judicial process? o 2. Locus Standi (standing of person)
o 1. Defining enforceable and demandable rights, and providing  Elements of standing:
remedies  1. Personal and substantial interest
o 2. Determining court with jurisdiction  2. Injury is fairly traceable to challenged
o But what is the limit to this power vis-à-vis the Supreme action
Court?  3. Injury likely redressed by favorable action
 What is the exception to standing?

24
  Transcendental interest
o 1. Character of funds or assets
involved
o 2. Presence of a clear case of
disregard for law by government
o 3. Lack of another party with more
direct/specific interest
 What must be the character of interest?
 Material, not just incidental or inchoate
 What are the requisites of third party standing?
 1. Litigant suffered “injury in fact” giving
sufficiently concrete interest
 2. Litigant has close relation to the third party
 3. There is some hindrance to the third
party’s ability to protect his own interests
 What are the Auxiliary requisites?
o 3. Raised at earliest opportunity
 If the case was originally in the ombudsman,
when is the earliest opportunity?
 At the CA because the OMB cannot decide
on question of constitutionality of laws.
 N.B. but in criminal cases, usually it can be initially
raised at any stage of the proceedings
o 4. It must be the lis mota
 What is lis mota?
 Determinative of the case itself. Meaning, the court
must be unable to decide the case without touching
on the question of constitutionality
 What are the requisites of a taxpayer suit?
o 1. Case involving expenditure of public funds
 Does this include augmentation powers of the
President?
 No. It has to be exercise by Congress of
taxing/spending powers.
o 2. Sufficient interest in preventing illegal expenditure of money
raised by taxation
o 3. Direct injury from enforcement of statute
 What is the effect of declaration of unconstitutionality of statute?
25
o “Operative fact”: can be a source of rights and duties
 Can lower courts conduct judicial review?
o Lower courts may conduct judicial review. But declaration
binds only the parties to that case and doesn’t set precedents.
 What are political questions?
o Questions under the Constitution that are to be decided by the
people in their sovereign capacity or where there is full
discretionary authority given to the legislative or executive
o Is the determination of what constitutes an impeachable
offense a purely political question?
 Yes. It is up to the legislature.
 When can the court decide on moot cases?
o 1. Grave violation of the Constitution
o 2. Exceptional situation and paramount public interest
o 3. Constitutional issue raised requires formulation of controlling
principles to guide the bench, bar, and public
o 4. The case is capable of repetition evading review
o N.B. Because Erap wasn’t elected into office, the question re:
his possible re-election was deemed moot
 What are the safeguards to guarantee independence of the
judiciary?
o 1. SC cannot be abolished by law
o 2. SC justices only removable by impeachment
o 3. SC jurisdiction cannot be changed by law without its advice
or concurrence
o 4. SC has administrative supervision over all lower courts and
personnel
o 5. SC has exclusive power to discipline lower court judges or
justices
o 6. Security of tenure cannot be deprived by Congress
o 7. May not be designated to any agency performing quasi-
judicial/administrative functions
 Cannot be required to act as board of arbitrations
 Cannot be charged with admin functions unless
reasonably incidental to fulfilment of judicial duties.
 Not its job to give advisory opinions.
o 8. Salaries may not be reduced. Judiciary enjoys fiscal
autonomy.
  Appropriations for judiciary may not be reduced by  Kilosbayan v. Ermita: Before one offered an appointment to the SC
legislature below amount for previous year can accept it, he must correct the entry in his birth certificate saying he
 After approval: automatically and regularly released is an alien.
 Can Congress give exemptions to legal fees to  Topacio v. Ong: Proper remedy for those contesting a person’s
GOCCs and LGUs? enjoyment of public position is Quo Warranto. May be commenced by
 No. This will reduce the judiciary Sol-Gen, public prosecutor, or in some cases, the person claiming to be
development fund and special allowances, entitled to the office. But that person must show a clear right to the
which is an impairment of the Court’s fiscal contested office.
autonomy.
o 9. SC alone may change Rules of Court (except – when Judicial and Bar Council
substantive laws are involved)
o 10. SC alone may order temporary detail of judges  What is the composition of the JBC?
o 11. SC can appoint all officials/employees of judiciary o 1. CJ as ex-officio chair
o 2. SOJ
What are the issues re: Appointments to judiciary? o 3. Rep. of Congress
o 4. Rep. of IBP
Qualifications o 5. Professor of law
o 6. Retired member of SC
SC Lower Non-collegiate o 7. Rep. of private sector
collegiate court lower court o SC clerk as ex-officio secretary
NBC NBC Phil. citizen
 What is the term of the regular members (last four)?
40 years of age Other Other
qualifications qualifications o Four year terms, staggered
provided by provided by  How are the regular members appointed?
Congress Congress o With CONA consent
15 years or more a Member of Phil. Member of Phil.  Receive emoluments as determined by SC
lower court judge bar bar o In yearly appropriations
or in practice of law
 Functions:
in Phils.
Proven CIPI Proven CIPI Proven CIPI o Primary – recommending appointees to judiciary
(competence, o Secondary – other functions and duties assigned by SC
integrity, probity,
independence) Procedure for appointment:

 JBC v. Judge Quitain: Every prospective appointee to the judiciary
must apprise the appointing authority of every matter bearing on his
fitness for judicial office. Here, he failed to disclose a previous admin
charge – and this was taken against him, even if the case was moot and
he resigned from office previously.
 1. President appoints members of SC and judges of lower courts from
list given by JBC of at least 3 nominees per vacancy
 2. No CONA confirmation is needed for appointments to the judiciary
 Contrast the rules on when vacancies must be filled:
o Vacancies in SC filled within 90 days from occurrence of
vacancy

26
 o Vacancies in lower courts filled within 90 days from submission
to the President of the JBC list
 How is the 90 day appointment rule resolved vis-a-vis the 60 day
midnight appointment ban?
o The President may appoint an SC Justice within the 60 day
ban. The midnight appointments ban only pertains to the
executive branch. The JBC is sufficient safeguard re: the
judiciary.
The Supreme Court
 CJ + 14 AJs
o En banc or divisions of 3, 5, or 7
 What must be heard en banc:
o  Decided with majority of members who actually took part in
deliberations and voted
o [constitutionality]
o 1. Constitutionality of a treaty, international or executive
agreement, or law
o 2. Constitutionality, application, operation of:
 PDs, PPs, EOs, instructions, ordinances, other
regulations
o [re: decisions]
o 3. Those required by ROC to be heard en banc
o 4. When a division cannot reach majority decision
o 5. to modify or reverse a principle or doctrine laid down en
banc
o [special powers]
o 6. Administrative cases involving discipline or dismissal or
judges of lower courts
 You cannot go directly after a judge, without going
through the SC first.
o 7. Election contests for P or VP (as PET)
o 8. Appeals from SB or Constitutional Commissions
 (N.B. take note of this  not in the Constitution)
 Division  must have at least three concurring votes. Or else, en banc
o But decisions by divisions not appealable to en banc.
o N.B. you always need at least 3 votes to get a favorable
decision from the SC
27
o Fortich v. Corona:
 Cases which are not decided upon by a division  en
banc
 Matters which are not decided upon by a division 
action is lost (ex. MR is defeated)
 Over which cases does the SC have original jurisdiction over?
o 1. Cases involving ambassadors, other public ministers,
consuls
o 2. Certiorari, prohibition, mandamus, quo warranto, habeas
corpus
 Over which cases does the SC have appellate jurisdiction over?
o 1. On constitutionality or validity of treaty, international
agreement or executive agreement, law, PD, PP, EO,
instruction, ordinance, regulation
o 2. Legality of tax, impost, assessment, toll, penalty thereto
o 3. Jurisdiction of lower court in issue
 i.e. GADALEJ
o 4. Criminal cases where penalty is RP or higher
 P v. Mateo: Does not proscribe intermediate review.
So the CA can review still before the SC.
 P v. Rocha: But while SC has jurisdiction to review
them, it is not mandatory. Review may be waived and
appeal, withdrawn.
o 5. Cases where only questions of law are involved
 i.e. Rule 45
What are the auxiliary admin-related powers of the SC court?
1. Temporarily assign lower court judges to other stations
a. As public interest requires
b. May not exceed 6 months, without consent of judge concerned
2. Order change of venue or place of trial
a. To avoid miscarriage of justice
3. Promulgate rules
a. Matters:
i. Protection and enforcement of constitutional rights
1. Ex. Amparo, Writ of Kalikasan, etc.
ii. Pleading, practice, procedure in all courts
 iii. Admission to practice of law
1. Garrido v. Garrdio: Even when the
complainant desists, this does not strip the
court from having jurisdiction over members
of the Bar. This is an aspect of the authority
to admit to the Bar.
iv. Integrated Bar
1. SC has plenary powers here. Upon passing
the Bar, you become a member of the IBP.
2. Payment of IBP is necessary consequence
of membership in the IBP.
v. Legal assistance to underprivileged
1. Ex. Student practice rule, indigent litigants
b. Principles:
i. Simplified and inexpensive procedure for speedy
disposition
ii. Uniform for all courts of same grade
iii. Not diminish, increase, modify substantive rights
c. Procedure in Q-J bodies and special courts remain effective
unless changed by SC
d. Baguio Market Vendors v. Judge: Congress has no power to
repeal, alter, or supplement Rules of Court. Lim v. CA:
However, rule making power also includes inherent power to
suspend its own rules in particular cases to do justice.
e. Republic v. Gingoyon: Rule 67 in expropriation – says
expropriation may be done even before payment of full
amount, by paying deposit to court. But RA 8974 creates an
exception in expropriation cases involving public works
projects. HELD: Congress may amend ROC here because
expropriation involves not just procedural elements but also
substantive matters, which is subject to Congress’ legislation.
f. Can the SC create a special division in the SB or other
courts?
i. Yes, this is part of the rule-making power of the SC.
(The issue here was the Estrada trial)
4. Appoint officials and employees of judiciary (according to CSL)
5. Administrative supervision over courts and personnel
Procedure on decision-making by the SC:
28
 Decisions of SC en banc or in division:
o 1. Reach conclusion first in consultation
o 2. Then assign case to a member for writing of opinion
o 3. Certification to this effect signed by CJ
 Issued and copy attached to record of case
 Served upon parties
 Consing v. CA: But absence of certification does not
mean that there was no consultation prior to
assignment of the case to a member. Presumption of
regularity prevails. The erring officer is liable
administratively though.
o 4. Member must state why:
 He took no part
 Dissented
 Or abstained
o Same requirements above – followed by lower collegiate
courts (not administrative bodies)
 What must be stated:
o 1. For decisions  must expressly clearly and distinctly facts
and law on which they are based
o 2. Petition for review or MR  cannot be refused due course or
denied without stating legal basis
 Borromeo v. CA: Resolutions disposing of petitions
fall under this paragraph, not the first. So merely
stating that there is no factual or reversible error in a
court decision sufficiently complies with paragraph 2.
 Borromeo v. CA: Minute resolutions need not follow
the same procedure outlined above (signing by all
members who deliberated, certification by CJ, etc.)
o Memorandum Decisions:
 These must be used sparingly and only where facts
are accepted by both parties, and in simple litigations
only.
 Must have the decision adopted by reference
attached, for easy reference.
 Otherwise, a full decision is still preferred because:
 1. It assures parties that the judge studied
the case
  2. Gives losing party opportunity to analyze
the decision and either appeal or accept the
loss
 3. Enrich case law
Tenure, salary, other stuff
 A. Salary of CJ and AJs and lower court judges fixed by law
o Salary cannot be decreased during continuance in office
o Nitafan v. CIR: but salary subject to income tax
 B. Tenure of judges:
o Hold office during good behavior, until 70 years old
o Or incapacitated
 C. SC en banc has power to discipline judges of lower courts or order
dismissal by majority vote of members who took part and deliberated
o P v. Gacott: But SC only has to be en banc when the case is
for dismissal, suspension for more than 1 year, fine exceeding
10K, or disbarment. (Basis: conversation of Justice Regalado
with former CJ Concepcion.)
 How judges are removed:
o 1. SC justices: ONLY by impeachment
o 2. Justices and judges of lower courts inferior to SC:
removable ONLY by SC sitting en banc
 Vistan v. Nicolas: A judge sitting on the Bench may not present himself
as a congressional candidate – this constitutes misconduct.
 Judges cannot be designated to any agency performing quasi-judicial or
admin functions.
o Ex. A judge was assigned to the Provincial Committee on
Justice of Ilocos Norte, which receives complaints and makes
recommendations on how to speedily dispose of cases.
HELD: Invalid, because these are admin functions, which the
above provision disallows appointment of judges into.
Periods to make decisions:
 SC – 24 months from date of submission
o When deemed submitted for decision: upon filing of last
pleading, brief, or memorandum required by ROC or the court
 Lower collegiate courts – 12 months
29
 All other lower courts – 3 months
o In re: delays before the Sandiganbayan: the Sandiganbayan
falls under the 3 month rule because it is a trial court, not a
collegiate court.
 Duties upon expiration of given period:
o 1. Certification issued to parties signed by the judge or CJ,
explaining why there is no decision yet
o 2. Court must decide or resolve the case without further delay
 Sesbreno v. CA: There is no automatic affirmation of
the appealed decision. The duty is simply to decide
ASAP. This rule differs from the 1973 Constitution.
Constitutional Commissions
General provisions
 “Independence” – means independence from private and public powers
 What are the safeguards ensuring independence of the
Commissions?
o 1. May not be abolished or have powers reduced by statute
o 2. Expressly described as independent
o 3. Chair and members can only be removed by impeachment
o 4. Term of 7 years (this is fairly long)
 7 years, without reappointment
 What are the prohibitions on appointment?
 In no case can there be a temporary or
acting member
 Contra: in alter-ego positions, the President
may appoint temporary officials
 What if there is a vacancy?
 Any vacancy may be filled, but the filler only
serves the unexpired portion
 Starting point for all terms is Feb. 2, 1987
 Of those first appointed,
o Chairman  7 years (term ended
Feb. 2, 1994)
 o Commissioner A  5 years (Feb. 2,
1992)
o Commissioner B  3 years (Feb. 2,
1990)
 After this, ALWAYS 7 years to keep it staggered
 Ex. Commissioner A dies and replacement is
appointed April 2, 1994. When will his term
end?
o Feb. 2, 1999. You must always
keep the staggering.
 Term starting point is always Feb. 2, even if
tenure began later. (Matibag v. Benipayo)
o 5. Chair and members may not be appointed or reappointed in
a mere acting capacity
 Is an ad interim appointment valid?
 Yes, it’s not an acting capacity
 If an ad interim appointment is not confirmed?
 Then the appointee can be given another ad
interim appointment
o 6. Salaries may not be decreased during term
 But may be increased
o 7. Fiscal autonomy
 Differentiate from fiscal autonomy for judiciary:
 Judiciary:
o 1. Appropriation may not be less
than previous year
o 2. Automatically and regularly
released
 Commissions:
o 1. Automatically and regularly
released only
 CSC v. Dept. of Budget: Reason given by Dept. of
Budget: “there are no funds”; SC said it’s sure they
can get funds. The “no report, no release” rule is
invalid.
o 9. Commissions en banc may develop rules
 But not increase, diminish, modify substantive rights
 If there is conflict between ROC and rules of
commission – what prevails?
30
 If case is before commission, their rules win.
 If before court, ROC wins.
 Can the SC or Congress review rules by the CCs?
 No. The SC power to review rules of QJAs
does not apply to CCs.
o 10. Appoint employees based on CSL
 What are the prohibitions?
o 1. Hold any other office or employment
o 2. Engage in practice of any profession
o 3. No active management and control of business directly
affected by office
o 4. No financial interest in any contract/privilege, franchise
granted by government or its subdivisions
Decision making
 Decide by majority vote of all its members, within 60 days from
submission for resolution
o Can a CC provide that decision of divisions must be
unanimous?
 No. This is unconstitutional.
o Compare with the judiciary:
 In the judiciary, one only needs majority of all those
who deliberated
 In CCs, majority of all its members
o Do you need to wait for the submission of a dissenting
opinion to deem the decision rendered and complete?
 No. Resolution or decision is complete when there is
concurrence of required majority.
o Can individual commissioners, subordinates, or legal
counsel make a decision on behalf of the CC?
 No. The commissions are collegial bodies.
o There were 6 COMELEC commissioners, but 2 retired
before the decision was promulgated. They casted their
vote, though. Are their votes counted?
 No. As there were 4 left, there must be 3 votes to
have majority of the total membership.
 How are decisions reviewed?
 o Rule 65 to SC, for GADALEJ and matters where functions
exercised is QJ
 30 days from receipt of decision
 N.B. just 30 instead of 60 because Rule 64 is actually
what is applied
o What if it’s the CSC?
 Rule 43 to CA, within 15 days
 And then Rule 45 to SC
o What is the rule for COMELEC?
 For decisions by divisions, can still have COMELEC
en banc review the decision
 Only decisions of the COMELEC en banc can go up
through certiorari
 Exception?
 When the division decides an MR, violating
the rule that COMELEC en banc has to
decide an MR. The SC may take
cognizance by virtue of certiorari.
Civil Service Commission (CSC)
 What is the composition of the CSC?
o 1 Chairman and 2 Commissioners
 Qualifications:
o 1. NBC
o 2. At least 35 y.o. upon appointment
o 3. Proven capacity for public administration
o 4. Not lame ducks
 How are they appointed?
o Appointed by President with consent of CONA
 Who are covered by civil service?
o All branches, subdivisions, instrumentalities, agencies of
government, including GOCCs with original charters
o Norm: how was it created – by special charter or under the
general Corp law?
 There has to be a special charter.
 Ex. UP, Morong Water District, EIIB
o Does this cover the National Housing Corporation?
31
 No, it’s not an instrumentality of government nor
covered by Civil Service. Follow Labor Code, not CS
Law.
 What is the basis of appointments?
o 1. Merit
o 2. Fitness
 How are merit and fitness determined, by default?
o Determined by competitive examinations
o Is merit and fitness as a requirement for appointment
applicable to all kinds of appointees?
 Yes
 N.B. this is a trick question. See next
o Are competitive examinations to determine merit and
fitness applicable to all positions?
 No. Can use other means for:
 1. Policy determining
 2. Primarily confidential
 3. Highly technical
 What is the role of CSC in appointment process?
o Only to determine if a person has qualifications under CS law
o Cannot make recommendations on who is more qualified
o Does the CSC have power to revoke certificate of
eligibility?
 Yes, as long as the process only involves rechecking
of papers and re-evaluation of documents.
o Can CSC hear and decide complaints for cheating in CS
examinations?
 Yes, it’s part of its duty to determine qualifications
o Does the RTC have jurisdiction over personnel actions?
 No.
 How are decisions of lower level officials on
personnel matters appealed?
 1. Appeal to agency head
 2. And then to CSC
 Cannot be removed or suspended except for cause provided by
law:
o 1. Cause provided by substantive law germane to position
o 2. According to procedural due process
 o May a career CSO occupying position of local assessment
operations officer III be assigned as security guard?
 No. Failure to report to duty as security guard is not
ground to dismiss him, because the new assignment
reducing rank is void.
 Do HT, PD, and PC positions enjoy security of tenure?
o Yes.
o However, it is limited to specific period, coterminous with
appointing authority, or subject to appointing power’s pleasure
(this is expiration of term and not removal)
 Does transfer of permanent employee to another permanent
position without his consent violate security of tenure?
o Yes.
o Is a temporary transfer valid?
 Yes
 But it cannot be done as just a preliminary step
towards removal, a scheme to lure him away from
permanent position, or an indirect termination of
service, or a means to force resignation.
 There can be no security of tenure, when:
o 1. There was no valid appointment in the first place
o 2. The appointee did not possess qualifications required
 Do temporary appointees enjoy security of tenure?
o No. They may be removed anytime even without cause.
 Partisan Election activity:
o Does signing and filing certification of nomination within a
political party or organization violate ban on partisan
election activity?
 No. These are only internal acts that are not deemed
to enable/ensure victory of a candidate in elections.
o Can they express views on political problems and issues,
or mention names of candidates they support?
 Yes. This is not active engagement in partisan
political activity
 Can right to self-organization be denied to government
employees?
o No. But the right to strike can be denied to some
organizations, like public school teachers.
32
 Is there a prohibition against government officials issuing a “mass
appointment” before their terms expire?
o No. This is not covered by the midnight appointment ban,
which prohibits appointments two months before Presidential
elections. HOWEVER, the CSC may review these
appointments, in keeping with goals of efficiency and
professionalism in civil service.
 Other classifications under the CSL:
o 1. Career positions
o 2. Non career positions
 What are the main characteristics of career positions?
o 1. Security of tenure
 To which does security of tenure apply?
 To the CES rank, not to the particular
position. So they may be transferred but not
have their rank diminished
o 2. Position levels
 E.O. 883 provided that lawyers occupying certain
positions in civil service automatically obtain a
certain rank in Career civil service. E.O. 2
declared all midnight appointments invalid. If you
were career civil service 2, and then due to EO
883, you obtained level 3, and you took your oath
during election ban, do you lose your entire CS
position, or do you only lose the promotion?
 The palace seems to treat acceptance of
promotion during midnight period as ground
to lose the entire position in CS.
 This is a case sub judice
o What are the positions in Career Service?
 1. Closed career positions
 Ex. HT positions
 2. Open career positions
 Examinations
 3. Career Executive Service
 Ex. U-Secretaries, bureau directors, etc.
 What is the rule under Memorandum
Circular 21?
 o Those already holding positions
once these were declared CES
remain under permanent status
o But if promoted or transferred, they
are temporary until they qualify for
that higher position
 4. Career Officers
 Ex. Those in foreign office and not belonging
to CES
 5. AFP – governed by separate merit system
 6. GOCC personnel
 7. Permanent labourers
 Skilled, semi-skilled, unskilled
 What is the characteristic of non-career positions?
o Minimal security of tenure
o Who are examples of those in non-career positions?
 1. Elective officials and their confidential staff,
 2. Holding positions at the pleasure of superior
 3. With fixed terms of office (ex. CCs)
 4. Contractual personnel and emergency/seasonal
personnel
 What is the nature of the oath/affirmation?
o Oath and affirmation to promote and defend this Constitution
 What are the disqualifications?
o 1. Lame duck provision
 No losing candidate in election, within 1 year of loss
 What if they are qualified otherwise?
 They are not allowed to be appointed
nonetheless.
o 2. Elective official: NOT eligible for appointment or designation
in any capacity to any public office or position
 Ex. Gordon had to resign from being mayor before
being SBMA chair
 Exception to this rule:
 1. The VP may be appointed as member of
the Cabinet.
 2. Member of Congress sits in the JBC.
33
o 3. Appointive officials: If otherwise allowed by law or primary
functions, may hold another office or employment in
government
 Ex. Sec of Finance is ex officio chairman of Monetary
Board
 What is the exception?
 There must be no incompatibility between
the positions (ex. PCGG Chair and Chief
Presidential Legal Council, because the
latter reviews the PCGG chair’s acts)
o 4. No additional, double, or indirect compensation unless
specifically authorized by law
 Double – compensated for two positions
 Addition – one position, then given addition
 Is this absolute?
 No. It can be authorized by law.
 Must there be a specific authorization?
 No need. There can be a general
authorization.
 Ex. SC justice who becomes examiner for
the Bar  provided in general law
 May an officer paid per diem be given bonuses?
 No, because this is additional compensation.
 A law authorizes money generated by a school to
be used for other programs or projects. Can this
include double or additional compensation?
 No.
 Can a retiree be given both separation pay and
retirement benefits?
 No, unless a law allows this.
 Does the prohibition cover pensions and
gratuities?
 No. These are allowed.
 Judge retired from judiciary, he was
getting his pension. And then given
position in City of Manila and given
compensation. Must he give up his
pension?
 o No. The pension was already  Can the COMELEC en banc decide election
earned. cases?
o Then he can still get compensation  No. COMELEC en banc cannot decide
from the city position. election cases. Otherwise, null and void. It
 If he retires from the city position, in must be by division.
calculating his retirement pay, do you  What if a case that must be filed to the COMELEC
count his judiciary position? en banc was erroneously filed to a division?
o No. He has already been  It may automatically be elevated to en banc,
compensated for that. under COMELEC Rules of Procedure.
o What about presents, emoluments, titles, or office of any  Is there simply re-consultation en banc or should
kind from a foreign government? there be a rehearing?
 May accept but only with the Consent of Congress  There must be a rehearing, as required by
the COMELEC Rules of Procedure. Failure
COMELEC to comply with this leads to GADALEJ
o 2. Other matters/admin functions
Composition
 Who has jurisdiction on prosecution of election
law violators?
 What is the composition?
 It’s an administrative function, so it falls
o Chairman, 6 commissioners
within the jurisdiction of COMELEC en banc,
 Qualifications:
not division
o 1. NBC
 Others: failure of elections, postponement of
o 2. 35 y.o. upon appointment
elections, annulment of book of voters
o 3. College degree
o 3. Mere clerical correction of manifest errors in tabulation
 Majority are members of Phil. Bar, practicing for at
 Why can COMELEC en banc act upon these?
least ten years
 Because these are mere administrative
 Contrast: CSC provides “proven capacity for
matters and not election cases
administration” and COA requires CPA or Bar
o 4. Promulgation of rules concerning pleadings and practice
member
before it
o 4. Not lame duck
 What can be raised to the Supreme Court?
 What must be decided in division:
o Only decisions of the COMELEC en banc, on certiorari AND
o 1. Election cases and pre-proclamation contests
COMELEC must have exercised quasi-judicial or adjudicatory
o 2. Petition to cancel certificate of candidacy
powers.
o 3. Appellate power over election cases coming from RTC or
o What if it’s exercising mere administrative powers?
MTC
 Appeal is to the RTC (or the CSC, as the case may
 What must be decided en banc:
be for personnel actions)
o 1. MRs of decisions
 So MRs of resolutions (non-substantive) can be Constitutional Powers and Functions
decided in division
Re: contests

34
 When COMELEC exercises jurisdiction over election contests,
what power is it exercising?
o Quasi-judicial power.
 COMELEC exercises powers over popular elections. What are
thus excluded?
o 1. Barangay federation
o 2. SK (under DILG)
o Are plebiscites popular elections?
 Yes.
 When does it have original jurisdiction?
o E,R,Q of all elective regional, provincial, city (“R, P, C”) officials
 When does it have appellate jurisdiction?
o 1. Elective municipal officials decided by RTC
o 2. Elective barangay officials decided by MTC
o Do you have to go up to the RTC from the MTC?
 No, you can go straight to the COMELEC from the
MTC
o What questions may be resolved by the COMELEC in its
appellate jurisdiction?
 Questions of fact only.
 For questions of law, go to the SC.
o Who decides these appeals, the division or en banc?
 Division. There can be an MR thereafter to reach
COMELEC en banc.
o What is the special power of the COMELEC only when it
exercises appellate jurisdiction?
 It has the power to issue writs of certiorari,
mandamus, quo warranto, and habeas corpus.
o What is the period to appeal from court to COMELEC?
 5 days (1993 COMELEC rules)
 What is the status of COMELEC decisions on contests for elective
municipal and barangay offices?
o Final, executory, and not appealable
o But can be subject to certiorari (Rule 65)
 What are the two kinds of jurisdiction the COMELEC may
exercise?
o 1. Pre-proclamation controversies: administrative/quasi-judicial
o 2. Contests: judicial
 Original in R,P,C
35
 Appellate in M,B
 Is there jurisdiction over intra-party disputes of political parties?
o Yes.
o May the COMELEC decide on questions of party
leadership?
 Yes, since it involves COMELEC’s performance of
functions under Art IX-C, Sec. 2 (ascertainment of
party’s identity and its legitimate officers)
 BUT it cannot decide on the internal party matters
such as the change of its officers.
o How does the COMELEC ascertain identity of the party
and its legitimate officers?
 COMELEC need only turn to the Party Constitution.
 Can the COMELEC issue writs?
o Yes. Can issue writs of prohibiton, certiorari, etc. Under BP
697
 May the COMELEC deputize the AFP or police?
o Yes, with concurrence of president
 What is the prohibited period for registration of voters?
o 120 days before regular elections and 90 days before special
elections.
o What if the COMELEC proves that registration cannot be
reasonably held within this period?
 It may fix other periods or dates for registration.
 What is the extent of the COMELEC’s power to prosecute election
offenses?
o 1. Conduct preliminary investigations and file information in
court
 Investigation and prosecution does not involve
physical searching and gathering of proof
 What if a public prosecutor acts?
 It must be by delegation of the COMELEC
because prosecution of election offenses is
solely by the COMELEC
 Can Congress limit COMELEC’s power to
prosecute?
  Yes, because the phrase “where
appropriate” precedes the power to
prosecute election offenses
o 2. Helps judges determine in preliminary inquiry whether there
should be a warrant issued
o 3. Can deputize prosecutors from DOJ
 When officers of DOJ are deputized by COMELEC,
what is the power of the COMELEC over them?
 COMELEC has final say
 If these deputized officials become guilty of
violation of law, COMELEC cannot discipline
them, but may only recommend to proper
authorities
 When does the jurisdiction of COMELEC end, and when does the
jurisdiction of the Electoral Tribunal begin?
o COMELEC has exclusive jurisdiction over pre-proclamation
cases.
o After proclamation, and after assumption of office, ET obtains
jurisdiction
 How about party list representatives?
o If one party list nominee is challenged by another, it is a
CONTEST within the jurisdiction of the ET
o But what is a contest?
 SC retained its definition as essentially a quo
warranto case. If the one challenging the winner is
not seeking the place of the winner, then there is no
contest.
Broad powers
 Can the COMELEC determine questions on the right to vote?
o No, it DOES NOT have this power. Congress has the power to
determine who can vote. Inclusion and exclusion cases are
also filed in the MTC, appealable to the RTC.
 Over whom does the COMELEC have power over in the media?
o Over holders of franchises only. There can be no resolution
against individual reporters from voicing out opinions on
election issues. Power is over media, and not practitioners of
media.
36
 Can COMELEC reapportion legislative districts?
o No. This is Congress’s power.
 Can COMELEC declare failure of elections?
o Yes.
 No pardon, amnesty, parole, suspension of sentence for violation of
election law can be granted by the President without favorable
recommendation of the COMELEC
o Relate this with Art. VII. This is where you first encountered
this.
 Cannot compel media to give free time or print space; there must be
some compensation.
Registration of parties
 Which political parties may not be registered?
o 1. Religious denominations
o 2. Seek to achieve goals through violent means
o 3. Refuse to uphold Constitution
o 4. Supported by foreign governments
 Free and open party system
o Two party system before  only top two parties has special
rights in election process. But there can be more than two.
 What is the extent of participation of political parties in the election
board?
o Political parties can’t be represented in election board,
registration boards, or inspectors.
o But they can appoint observers.
 Election period  determines when some laws take effect
o For instance, COMELEC at this time has power over media
and military during this period.
 When is election period?
o 90 days before Election Day and 30 days after.
 N.B. Fiscal autonomy provision applies as well.
COA
 What is the composition of the COA?
o 1 chairman, 2 commissioners
 Qualifications:
 o 1. NBC
o 2. at least 35 y.o. on day of appointment
o 3. Either CPA with ten years auditing experience, or members
of Phil. Bar practicing law at least 10 years
 Not same profession for all members
 Compare: college degree and majority Bar members
for COMELEC, proven capacity for public admin for
CSC
o 4. Not lame ducks
 Important powers:
o 1. Examine and audit all government revenues
o 2. Examine and audit all government expenditures
o 3. Settle government accounts
o 4. Promulgate accounting and auditing rules
 COA Circular 89-296 provides that there is failure
of bidding when there is only one offeror or all the
offers do not comply with what is required. In a
bid, there were 3, but 2 were disqualified. Valid?
 Yes. The “more than one bidder”
requirement does not distinguish w/n they
are qualified.
o 5. Decide admin cases involving expenditures of funds
 What does COA determine re: expenditures (#2)?
o Whether these expenditures are unnecessary, irregular,
extravagant, or unconscionable
o Can the COA overrule an entity’s general counsel re: w/n
expenditures are irregular, unnecessary, unconscionable,
etc?
 Yes
o Can the COA invalidate a valid compromise agreement
over a civil suit entered into by a city?
 No. It’s a valid transaction. The COA committed
GADALEJ.
 When may the COA settle government accounts (#3)?
o When there controversy as to what is due and how much is
due
o What kind of accounts may be settled?
 Liquidated accounts only. This means that the sum
total can be determined by arithmetical calculations
37
o A government truck bumps X’s car and X sues for
damages. Can the COA settle the account?
 No. it is not liquidated yet.
 Compare post-audit and pre-audit powers of COA:
o Pre-audit – funds cannot be released without auditing
o Post-audit – audit done only after funds are released
 What positions are subjected only to post-audit?
o 1. Constitutional bodies, commissions, offices given fiscal
autonomy
o 2. Autonomous state colleges and universities
o 3. Other GOCCs and subsidiaries
 Whether there is original charter or none
o 4. Non-governmental entities receiving subsidy or equity,
directly or indirectly, from or through the government, required
by law for the granting institution to submit such audit as
condition of subsidy or equity (this takes place of the pre-audit)
 Distinguish between non-exclusive and exclusive powers:
o 1. Power to examine and audit is non-exclusive
 Thus, there can be private auditors hired. But the
COA audit prevails.
o 2. Power to define the scope of its audit and establish
techniques is exclusive
 Can COA decide money claims?
o Yes; it must decide based on law. But if a money claim is
denied by a law, the COA has no authority to pass judgment
on the constitutionality of a law.
 Can a law be passed exempting entities of Government or a GOCC
from jurisdiction of COA?
o No.
BILL OF RIGHTS
Private acts and the Bill of Rights
 Only regulates government action – no application against acts of
private citizens (can resort to NCC)
Due Process
 What is due process?
o 1. No person deprived of life, liberty, or property without due
process of law.
o 2. No person denied of EPC.
 What is life?
o Good life, health also protected
o Includes life of the unborn, upon conception
 What is liberty?
o Freedom from outside constraint
o Is there a right to contact visits for detainees?
 No, since there is a reasonable security concern
against escapes or smuggling.
o Is there a right to bear arms?
 No, except only for those authorized by law. Even the
US provision only refers to right of militia to bear arms
o Does the limitation on police officers through monitoring
of movement, escorting when they leave camp, and
logging in the time of departure and arrival violate this
provision?
 No, there is no deprivation of liberty.
 What is property?
o All property enumerated in NCC, including employment
 Thus, cancellation of employment licenses of harbor
pilots, for instance, requires notice and hearing
 The State, however, may regulate professions,
callings, or businesses
o What is the nature of business licenses?
 They are mere privileges that may be withdrawn when
public interest requires.
 But when licenses have been enjoyed for so long and
been the subject of substantial investment and has
become the source of employment of thousands, it
can be deemed a property right
 Likewise, franchises are property, but these are
subject to police power.
o What about pension plans?
38
 Pension plans where employee participation is
mandatory ripens into a vested property right that is
protected by DP clause
o Is public office property?
 No, but it’s a protected right if one is a de jure officer
 What is the hierarchy of rights?
o Human rights enjoy primacy over property rights.
 A person may be deprived of life, liberty, or property provided
there is due process. What is due process?
o Substantive DP – against arbitrary laws
o Procedural DP – for procedural fairness
 Must publish not only laws but also EOs and PDs and
R&Rs issued pursuant to delegation by legislative
 Due process affects inherent powers of government (PP, ED, tax)
 Who exercises PP?
o 1. Police power is exercised by the Legislative dept.
 Can be delegated to local governments
 Local governments may regulate
businesses, but it may not affect licensing
and regulation of professions such as the
optical profession, which is conferred to
professional boards
 Ex. Municipalities may provide burial
assistance to indigents as exercise of PP
(police power)
 A law may close commercial blood banks or
prohibit gambling
 Can there be a policy against a company’s
employees getting romantically involved with
employees of a competitor?
 Valid if based on right to guard trade secrets,
etc. but illegal when there is no necessity
 EO requiring closure of bus terminals in the city: void
due to unreasonable means to carry out purpose
o 2. Police power is carried out by the Executive
o Does the MMDA have power to exercise police power?
 No. It is not a political subdivision, merely an
executive authority without police power. Police
power is exercised in MM by cities and municipalities.
Procedural Due Process
 What are the types of procedural due process?
o 1. Civil cases
o 2. Criminal cases
o 3. Administrative cases
o 4. Disciplinary cases in schools
 Procedural DP in courts (whether civil or criminal):
o 1. Court has jurisdiction
o 2. Jurisdiction over the person or property
o 3. Defendant must be given opportunity to be heard
 Either oral or written pleadings
o 4. Judgment based on evidence presented
 What is the difference in quantum of proof required?
o Criminal: Proof beyond reasonable doubt
o Civil: Preponderance of evidence
o Administrative: Substantial evidence
 Does an extradited person have right to evidence presented
against him?
o 1. During executive phase, no
 Is there right to bail here?
 No, because he is not yet entitled to know
proceedings or be arrested, even
o 2. During judicial, yes
 Judge determines w/n to dismiss petition or issue
warrant of arrest
 Is there right to bail here?
 Yes, there is deprivation of liberty.
 Judge must assess through clear and
convincing evidence if he is flight risk or
there are humanitarian considerations
 Does a student in a disciplinary case in school have right to
counsel?
o Yes, but no right to appear in the proceeding itself
 In cases involving teachers where dismissal is involved, is the
teacher entitled to counsel?
o Yes.
 A vague law is an invalid law. When is a law vague enough to be
invalid?
39
o It must be so vague that it cannot be understood. No amount
of interpretation can make sense of it.
o Is the plunder law void for vagueness?
 No. In the Estrada case, SC held that the Plunder law
is not vague at all (“series” and “combination” can be
understood in their ordinary meaning)
o The law must be so vague that it cannot be clarified by a
saving clause or construction
 Procedural DP in Administrative cases (Ang Tibay):
o 1. Right to hearing and submit evidence
o 2. Tribunal must consider the evidence
o 3. Need for evidence to support the decision
o 4. Substantial evidence
o 5. Decision rendered on evidence presented
o 6. Must act independently and not simply accept the views of a
subordinate
o 7. Explicate reasons behind the decision
 What about Criminal cases?
o Infra Sec. 14 of Bill or Rights
o What is the nature of deportation proceedings?
 Although deportation proceedings are not criminal in
nature, the consequences can be as serious as
criminal prosecution. Thus, criminal case provisions
in the ROC apply (Lao Gi v. CA)
 Only entitled to evidence presented in trial, but not
during investigation.
 Are notice and hearing always required in administrative
proceedings?
o No. If it’s quasi-judicial, it’s required. If quasi-legislative, no.
o Ex. The NTC requiring PHILCOMSAT to reduce its existing
rates is a Q-J function that requires notice and hearing
(PHILCOMSAT v. Alcuaz); but there can be temporary setting
of rates provided there are hearings within 30 days (Radio
Comm. v. NTC)
Substantive Due Process
 When is a law valid substantively?
o 1. It must be for a valid purpose
 o 2. The means employed must be reasonable
 City of Manila v. Judge Laguio:
o There was an ordinance prohibiting videoke bars. SC said this
was unreasonable because it encompassed night clubs,
discos, dance halls, motels, inns, etc. which are not per se
offensive to morality
 White Light v. City of Manila vis-à-vis Ermita-Malate:
o Ermita-Malate  Hotel operators cannot challenge law
regulating motel short time on ground of privacy, because their
right of privacy is not being violated
o White Light  Third party standing: if the client is not in the
position to challenge based on privacy, then the motel
operators can
 Banning those reviewing for board exams from attending review classes
to avoid leakage is unreasonable and arbitrary (Lupangco v. CA)
 A City Ordinance requiring movie houses to charge children from 7-12
half prices has no discernible relation to public health, safety, morals,
etc. (Balacuit v. CFI)
 There can be no law banning sodomy inside the house. This intrudes
into private conduct (Lawrence v. Texas)
Equal Protection
 EPC does not prohibit classification. But it must satisfy four
grounds:
o 1. Substantial distinction
o 2. Germane to the purpose of the law
o 3. Not limited to existing conditions
o 4. Apply equally to all members of the same class
 Is there substantial distinction between male and female?
o Yes.
o But you have to check whether it is germane to the purpose of
the law.
o N.B.: before there was reasonable classification between male
and female as to being bartenders. But now, it might not be
germane anymore.
o ISA v. Quisumbing – cannot make distinction between local
and foreign hire teachers as far as salary, but can make
distinction for benefits
40
 Is there a valid distinction between appointed and elective
officials? (Ex. Appointive officials deemed resigned upon filing
COC while elective officials are not)
o Yes, you can make a distinction, because the elective officials
were chosen by the people. (Latest decision: Quinto v.
COMELEC – Dec 2009)
 There can be a distinction between businesses within the “fenced in”
area of the old American base and those outside, because the purpose
of RA 7227 is to facilitate conversion of the former bases into an
economic zone (Tiu v. CA)
 Parreno v. COA: Law ordering discontinuance of pension of retired
military officer if he becomes a citizen of another country upholds EPC.
 Serrano v. Gallant Maritime Service: Law that distinguishes between
separation pay of overseas employees and other employees: invalid for
violating EPC.
 British American Tobacco v. Camacho: distinctions made between
old cigarette manufacturers and new entrants
o In making distinctions on economic grounds, all that is required
is that there must be a reasonable basis
o Here, the reasonable basis is ease in implementation of
collection of taxes
 Can a law initially valid, become invalid based on EPC?
o Yes, based on developments of the law. This is the principle of
“Relative unconstitutionality.”
o For instance, employees of GOCCs.
o Central Bank Employees v. Bangko Sentral –
 There were laws amending charters of various
GOCCs. Only Central Bank Employees were still
given some restraints, but others were not.
 Does the EPC prohibit the state from passing discriminatory laws?
o No.
 Can make valid distinctions between City and Municipal Election
Officers of the COMELEC, who are not allowed to hold office in the
same city/municipality for more than 4 years, and other officials,
because the purpose is to avoid fomenting familiarity between
COMELEC officials and the people of the place of assignment (De
Guzman v. COMELEC)
 A law provides that police officers being investigated may be
preventively suspended beyond the usual 90 days – valid because
police officers carry guns which may be used to intimidate witnesses
(Himagan v. P)
Writ of amparo, habeas data
 What is protected?
o 1) life, 2) liberty, 3) security
o Does not involve protection from threatened demolition of
dwelling?
 No. See that property is not the third item in the
enumeration, but “security”
o Reyes v. CA: Does not cover right to travel.
 “Security” is defined as “freedom from fear/threat”
 Does WOA or WHD require proof beyond reasonable doubt?
o No. Petition must be supported by substantial evidence:
 This is taken from totality of circumstances
 And depending on evidence available to petitioner at
the time
Searches and Seizures
 What is covered by this right?
o Right of persons to be secure against unreasonable search or
seizure
o What is just prohibited is unreasonable search or seizure
o Purpose: protect privacy of individuals
 When is it unreasonable?
o In general, when without a warrant
o Except when under the three exceptions
o Is there presumption of regularity in search and seizure
cases?
 There is NO presumption of regularity in search and
seizure cases (Sony Music v. Judge)
 N.B. in warrantless arrests under Environment Cases,
there is presumption of regularity (see Rem Law
notes)
 Are checkpoints illegal?
41
o Not illegal per se, especially when there is grave peril or public
security is on the line. Routine inspection and a few questions
are fine.
o BUT for thorough search to be justified there must be probable
cause. (In any case, there can be warrantless search of a
moving vehicle)
 Does the BOR prohibit the violation of search and seizure clause
by private individuals?
o No. Bound by Art. 32 of the Civil Code, if private individuals
 Essential requisites of valid warrant:
o 1. Must be issued upon probable cause
 Not proof BRD
 Need evidence to produce “probable cause,” and not
mere conclusions of law
 Proof of probable cause must point to a specific
offender for warrants of arrest, but no need if for
search warrants
o 2. Determined personally by a judge
 Doesn’t mean the judge must personally examine
witnesses (the word “personally” modifies determine,
not examine)
 The judge may rely on report of investigating
authority, and if he is satisfied, then he can issue the
warrant. But he must decide, not the investigating
officer
 If he’s not satisfied, may ask for additional supporting
documents.
 Who cannot issue warrants of arrest?
 1. The Commissioner on Immigration
CANNOT issue warrants of arrest, since he
is not a judge.
o But he many order the arrest of an
alien for the purpose of carrying out
a deportation order that has
become final.
o Cannot, however, issue a warrant
of arrest purely for investigative
purposes
  2. Neither may the PCGG issue search
warrants.
o 3. Examination under oath of the complainant and the
witnesses he may produce
 What is required is personal DETERMINATION, not
examination by the judge. Usually, it is the
investigating officer that does the examination
 If the judge chooses to examine under oath the
complainant and witnesses, the affidavits of the
complainant and witnesses are insufficient to fulfill this
purpose. He must take the depositions in writing, so
the judge may properly determine probable cause
 Tabujara v. P: There is GADALEJ when a
judge issues a warrant based merely on an
unsworn statement.
 NOTE: for search warrants, the judge must personally
ask searching questions to the witnesses/applicant
o 4. Warrant must particularly describe the place to be searched
or person to be arrested
 What is the standard?
 “As specific as the circumstances will
ordinarily allow”
 “An undetermined amount of marijuana” is
sufficiently particular, because technical
precision is not required; otherwise, no
warrant would issue (P v. Tee)
 Is a John Doe warrant valid?
 Yes, if there is description of person to be
arrested (descriptio personae)
 A mere typographical error is excusable, especially
when the executing officer is the same affiant who
had prior knowledge of the place intended to be
searched (Burgos v. Chief of Staff)
 Mistake in identification of the owner of the place is
excusable if the place is properly described
 Where to apply for warrant?
o Where there is a case already pending, with that court
o Where there is none, in the court with jurisdiction over the
territory
42
o But for compelling reasons, it can be with any other court, but
there must be justifying reasons
 What is the rule on examination of bank deposits?
o Usually these are protected. (See Commercial Law notes)
o But the bank deposits may be examined:
 1. If depositor assents in writing
 2. Needed in impeachment cases
 3. When the subject matter is subject to litigation
 Are drug tests allowed?
o American jurisprudence – allowable in public schools
o In private schools: same reasoning may be used
o Requisites:
 1. Not for criminal purposes
 2. Under parens patriae duty of State
 3. Need for it is established
o What about public employees in government offices?
 Yes, same reasoning for public schools
o For candidates for national office?
 NO. Because this is equivalent to adding to
constitutional qualifications.
o For candidates of local office?
 NO. Unreasonable violation of privacy.
 Search or seizure without warrant or invalid warrant – effects?
o Evidence obtained is inadmissible for any purpose, and in any
proceeding
o Goods seized must be returned, unless possession is
prohibited by law
 Can third parties object on behalf of a person whose constitutional
right against unlawful search or seizure has been violated?
o No. Objection to an unlawful search or seizure is a purely
personal right and cannot be availed by third parties
 Does an application for bail have effect of waiver of right to
challenge the validity of warrant?
o No.
 Is ownership essential for right against unreasonable searches?
o No. The person to be searched need not own the place to be
searched. Control or possession is enough.
Warrantless searches
 1. Search incidental to lawful arrest
o Requisites?
 1. Contemporaneous to arrest
 2. Only within vicinity, reach, control of the person
arresting (vicinity test)
o Ex. So if the arrest is in the sala, you cannot enter the rooms
o What is the test for vicinity?
 “Within immediate control” of the person
 2. Seizure in plain view
o When the officer enters the place accidentally and there is no
prior intent to get something.
o Requisites?
 1. Prior valid intrusion into the place
 2. Evidence inadvertently discovered
 3. Illegality of evidence immediately apparent
 4. No further search needed
 3. Search of moving vehicle
o What is the reason?
 When you get a warrant, the vehicle would be gone
o Prior requirement?
 The must be probable cause to believe that the
vehicle is involved in illegal activity
 The police officer decides this
 4. Waiver (consented warrantless search)
o Ex. “Feel free, look into my house”
o Who must give consent?
 The person giving consent must have authority over
the house
o Requisites?
 1. Right over property exists
 2. Actual or constructive knowledge of the right
 3. Intent to relinquish the right
o Vergara v. P: Even when petitioner opens his bag when the
police asks to see its contents, it does not necessarily follow
that he waived his rights. It might have been mere passive
conformity out of fear.
o In Lopez v. Commissioner, the consent to search was given by
a mere manicurist. I don’t think this case is doctrinal, because
the officers thought that the manicurist was the wife. Had they
43
known she was a mere manicurist, I don’t think they would ask
her to give consent to search.
 5. Customs search or seizure
o This happens in airports, etc.
o Situations where you do not have expectation of privacy
o Exception: cannot search domicile, pursuant to customs
search
 6. Exigent circumstances or emergency situations
o Ex. Coup attempt, where rebels go in and out of buildings
 7. “Stop and frisk” rule
o Terry v. Ohio – If a police officer of experience sees a person
behaving in a manner which he thinks might be harmful, he
can approach the person, identify himself, and frisk the person
o Generally, this rule is for weapons. But if he finds something
else like illegal drugs, this is still valid.
o A mere suspicion or hunch will not validate a stop and frisk. A
genuine reason must exist based on the experience of the
police officer.
o What is special about this exception?
 This is the only exception where probable cause need
not exist (P v. Aruta)
 Compare Aminudin from Lo Ho Wing:
o Aminudin case – here, the police officers had every opportunity
to get a search warrant, but didn’t.
o Lo Ho Wing case – The police also knew in advance (2 days)
about the arrival of suspects with shabu but did not get a
warrant. They alighted from an airplane and passed through
customs, then allowed to get into a taxi. The vehicle was
stopped and searched. Moving vehicle exception applied.
 May a Fishing vessel violating fishery law be seized without a
warrant?
o (1) it is usually equipped with powerful motors – moving vehicle
o (2) it is incidental to valid arrest
Warrantless arrest
 1. In flagrante delicto
o Distinguish between entrapment (allowed) vs. inducement (not)
o Continuing offenses – can be arrested without warrant
 2. An offense has been committed and he has personal knowledge that
the person indeed committed the offense
o The offense IN FACT must have been committed, not just
reasonable belief on the part of the officer
o The officer must have personal knowledge of the commission
of the crime
o Passage of 19 hours will militate against the crime being “just
committed” (People v. Manlulu)
 3. Escaping from place where he is serving final judgment or temporary
confinement, or during transfer from one place of confinement to
another place
 [4. Waiver – can be considered as #4 exception]
o NOTE: posting bail is not a waiver to question validity of arrest
 When must objection to the arrest be made?
o Any objection to the arrest must be interposed before one
enters his plea in arraignment – otherwise, the objection is
deemed waived
Privacy of Communication and Correspondence
 Privacy of communication and correspondence: generally inviolable
 Exception:
o 1. Lawful order of court
o 2. When public safety or order requires otherwise (as
prescribed by law)
 This is without judicial order. So there can be
discretion by executive officers.
 But they need prior authorization from the president.
 This power is subject to judicial review.
 What if there is violation of this right?
o Renders the evidence inadmissible
 RA 4200 – Anti-Wiretapping Law
o Crimes where there can be court-authorized taps –
 Treason, espionage, provoking war and disloyalty in
case of war, piracy, mutiny, rebellion, conspiracy and
proposal to commit rebellion, inciting rebellion,
sedition, conspiracy to commit sedition, inciting to
sedition, kidnapping
44
o N.B. these are mostly crimes against law of nations and
crimes against public order + kidnapping
Freedom of Expression
 What are protected in this right?
o 1. Freedom of speech or expression
o 2. Freedom to peaceably assemble to demand redress from
government
 What is “speech”?
o Any form of communication
 Distinguish:
o 1. Content-neutral regulation
 Merely concerns time, place, manner of speech
without reference to what the speech contains
 This is more easily allowed
o 2. Regulation that aims at the content of the speech
 If the speech is directed towards content, apply two main rules:
o 1. No prior restraint
 Where a person is prevented from speaking or
communicating if without authorization from
government
 Usual examples: censorship, licensing administered
by executive officer, movie censorship, judicial prior
restraint (injunction), license taxes measured by gross
receipts for privilege of engaging in advertising
business, or flat license fees to sell religious books
o 2. No subsequent punishment
Prior restraint
 Constitution allows COMELEC to regulate speech during election period
o Even if there is prior restraint exercised by COMELEC in
election period, there is no presumption of unconstitutionality
 Basis: Art. IX(C)(4) of Constitution giving COMELEC
power to regulate election-related speech
o But prohibiting placing of campaign decals on private cars is
overbroad, and thus invalid prohibition (Adiong v. COMELEC)
 o Banning the publishing of survey results is also overbroad
because it does not meet the O’Brien test, since it suppresses
one type of expression while allowing others like editorials
(SWS v. COMELEC)
o Cannot prohibit columnists from using their columns or
programs to campaign against or for a plebiscite choice, since
the authority given by the Constitution is over holders of
franchises and to give candidates equal opportunity and equal
access to media – not restrain free discussion. (Sanidad v.
COMELEC)
 Can exit polls and surveys be prevented?
o No. Prevention of this is prior restraint
o Cannot ban exit polls because the evils envisioned are merely
speculative (ABS CBN v. COMELEC)
 Is movie censorship allowed?
o US jurisprudence: an administrative officer cannot prevent the
showing of a movie. He has to go to court
o Phil. jurisprudence: we don’t follow this rule. The censorship
board may restrain the showing of a movie
o MTRCB has power to review both religious shows like the INC
program, as well as public affairs and documentary programs
like The Inside Story (MTRCB v. ABS-CBN)
 May live TV coverage of a criminal trial be prohibited?
o Yes. Reason: to maintain the fairness of the proceedings
 Are there situations where prior restraint may be allowed?
o Yes. For exigent circumstances.
 Ex. Attempted coup – radio stations may be
prevented from broadcasting the movements
 Ex. Recent hostage taking – could have restrained
broadcast
 What is the rule for Commercial speech?
o Definition: speech that proposes commercial transaction.
o Speech that has greatest protection is “core” speech: political
and religious speech. Commercial speech does not enjoy
same protection.
o Is commercial speech protected?
 Yes.
o Conditions for regulation: (Central Hudson Gas v. PSC)
45
 1. Speech must be truthful and should not propose an
illegal transaction
 2. Government has a substantial interest to protect
 3. Regulation directly advances the interest
 4. Not more extensive than necessary
o Best example – advertisement of artificial milk. There was a
total prohibition. While this fulfilled the first three requisites,
this was deemed too broad, thus failing requisite #4.
Subsequent punishment
 What are three tests to determine whether speech may be
punished?
o 1. Dangerous tendency test
 Here, all that was required was a logical relation
between the prohibition and the object of the
prohibition. This is the early accepted standard.
 Ex. “Cut of G.G. Wood’s head!” or “Tuloy ang welga
hanggang sa magkagulo na!”
o 2. Clear and present danger
 Immediately resulting into danger
 Speech may still be punished even if the evil that is
contemplated does not happen
o 3. Balancing of interests
 Ex. Electoral process v. freedom of speech
 Ex. RA 4880 prohibiting too early nomination of
candidates and limiting period of political activity.
This promotes the preservation of the political process
and prevents its debasement.
o So what applies?
 For sedition cases, it seems dangerous tendency is
still applicable
 But with the restoration of democracy, CPD is coming
into favor
 When can non-verbal or symbolic speech be regulated? (O’Brien
test)
o 1. Within constitutional power of government
o 2. Furthers government interest unrelated to suppression of
speech
 o 3. No greater than what is needed o Do you use national standard or local standard to
 When can there be a facial challenge? determine what an average person is?
o Over-breadth of a prohibition is a constantly recurring test.  In Philippines, there seems to be no difference
o Over-breadth, leading to a facial challenge, only applies to anyway.
freedom of expression cases o Stricter rules on television, radio, and speech in schools
 Not every form of speech is protected. There are two forms not o What is “Relative obscenity”?
protected:  Ang Dating Daan case –obscene to certain people.
o 1. Libel  Basis: there are still children watching when the show
o 2. Obscenity is on
 A. Libel o May sex on the internet be banned?
o A) Allegation of a defect  No law banning sex on the internet has ever been
o B) Publication upheld.
 There is publication when it has been written, and  You can protect children another way and adults have
then made known to someone other than the person a right to look at sex
to whom it has been written  What is the heckler’s veto?
o C) Identity of the person o When speech by an acting party is banned not because of
o D) Malice what they are saying but due to the potential reaction of the
 If there is no malice, there is no libel reacting party
 But every defamatory imputation is PRESUMED to be o Is this ground to ban speech?
malicious, even if it is true  No, unless there is CPD
 Exceptions:
 i. Private communication to someone with a Right to assemble in order to petition
right to know
 What standards are used?
 ii. When the object of the defamatory
o Use the same standards in freedom of speech and press for
imputation is a public officer.
assembly and petition, since the right to assembly and petition
o The person suing for libel must
is equally important
prove actual malice: one must know
o Assembly and petition may be punished when it presents CPD
it was false or with reckless
of a substantive evil
disregard to veracity
 JBL Reyes v. Bagatsing and BP 880:
o How far down do you go?
o 1. To rally, you need a permit. The application must be early
 Barangay official
enough to give authorities chance to decide.
 Iii. Fair commentary on public matters
o 2. The authorities must decide whether to allow or not.
 B. Obscenity
Decision must be based on CPD.
o It’s very difficult to find something obscene
o 3. It must be made early enough so you have time to go to
o Miller v. California test:
court to question it.
 1. Average person’s perspective
 What is the extent of discretion of authorities?
 2. Take the work as a whole
 3. Appeals to prurient interest
 4. Lacks serious political, literary, or artistic value

46
 o Authorities have reasonable discretion to determine or specify
streets or public places to be used, to secure convenient use
by others and maintain public safety/order
 When is there no need for a permit?
o No need for a permit if in a freedom park.
 Is Calibrated preemptive response (CPR) valid?
o No. It cannot replace maximum tolerance.
 Strikers’ placards are protected by guarantee of free speech. Words
used cannot be expected to be polite. (PCIB v. Philnabank)
Freedom of Religion
 N.B. The first sentence of the provision is complete already
 What are the two prohibitions?
o 1. Establishment of religion
 Ex. Making an official religion of a State
o 2. Violation of free exercise of religion
Non-establishment of religion
 What the State cannot do:
o Set up a church, pass laws that aid one religion or all religions,
or prefer one religion over another
o It cannot participate in affairs of religious organizations
 Does this mean the State cannot do anything that would have the
effect of favoring a particular religion?
o No. If the primary purpose is not religious but there is
incidental effect of benefiting a particular religion, it is allowed.
 What are required for it to be valid?
o 1. It must have secular purpose;
 State sponsored Bible readings are invalid (School
District v. Schempp)
o 2. Primary effect neither advances or inhibits religion;
 Aglipay church objected to stamps that advertised the
Eucharistic congress. HELD: The stamps were valid.
It was for tourism. Benefit to Catholic Church is
incidental.
 Money used to purchase religious statute. HELD: it
was valid since private funds of the municipality were
47
used. Also, a fiesta is not a religious affair but a
socio-religious affair which is an ingrained tradition in
rural communities.
o 3. No excessive entanglement with recipient institutions
 Lending secular textbooks to parochial school kids is
allowed (Board of Education v. Allen) but not when
there is close government supervision since there is
excessive entanglement (Lemon v. Kurtzman)
 State has no business intervening in purely ecclesiastical affairs.
o Matter can be decided by internal rules of the church
o A case involving a minister who failed to account for funds and
was dismissed is not an ecclesiastical affair since it did not
involve doctrines or religious teachings (Austria v. NLRC)
o Excommunication is a purely ecclesiastical affair
o Certifying food as halal – can the government do this?
 No. It’s just the religion that can do this.
 Other Consti provisions expressing non-establishment:
o 1. Art VI, Sec 29 – no public money/property given to religious
sect or minister/religious personnel (except for those assigned
to Army, penal institution, government orphanage or
leprosarium)
o 2. Art II, Sec6 – Separation of church and State is inviolable
o 3. Art IX(C), Sec 2(5) – No religious sects can be registered as
political parties
 Constitutional exceptions to non-establishment clause:
o 1. Art VI, Sec. 28(3) – charitable institutions, churches, etc and
all lands, buildings, improvements A,D,E used for religious,
charitable, or educational purposes exempt from taxation
o 2. Art VI, Sec. 1(2) – [Cited above: the Armed Forces, penal
institution, government orphanage or leprosarium]
o 3. Arv XIV, Sec 3(3) – At the option in writing of parents or
guardians, religion can be taught in public elementary and HS
within regular class hours
o 4. Art XIV, Sec 4(2) – usually there is citizenship requirement
for ownership of educational institutions (60%), but not for
those established by religious groups and mission boards
Free exercise of religion
 Differentiate right to believe from right to externalize one’s belief: o Exemption from compulsory education based on religious
o Right to believe – this is absolute grounds, since their sect has a system of informal education
o Right to externalize one’s belief is not. (Wisconsin v. Yoder)
 Will it be proper for public officers to make derogatory remarks o But religion cannot be an excuse to violate narcotics laws,
towards religion? such as in the case of those who ingested sacramental peyote
o No. (Employment Division v. Smith)
 Is requiring permit for selling religious items valid?
o It depends. Liberty of Abode and Freedom of Movement
o Ex. Selling books for profit  may require permit
 What is Liberty of abode?
o Ex. Selling books without profit and only for apostolic work 
o Freedom to choose where you want to live
may not require permit
o It cannot be impaired except upon lawful order of court
 Ex. American Bible Society – selling bibles not for
 What about right to travel?
profit. Cannot be taxed (else this is a prevention of
dissemination) o Can be impaired even without lawful order of court
o For what reasons?
o But a general administrative fee like registration fees for the
VAT are allowed, since it is not imposed on the exercise of a  1. National interest
privilege, but a mere operation fee and it is so incidental to the  2. Public security
exercise of religious freedom that it’s impossible to differentiate  3. Public health
it from other economic impositions (Tolentino v. Sec of o And how is it impaired?
 As provided by law.
Finance)
o Likewise, a State may impose regulations on solicitations for  But it can also be impaired through lawful order of
religious purposes to protect the public court
 Ang Ladlad case – you cannot use belief as basis to disqualify
Right to Information
homosexuals
 Estrada v. Escritor (2003, reaffirmed 2006) – “benevolent neutrality”  Two rights:
o Lady clerk of court living with someone else without marriage. o 1. Right to information on matters of public concern
There was an effort to dismiss her as clerk. Court found that o 2. The corollary right of access to official records and
her belief was sincere that it was fine, she had blessing of documents
pastor. Court did not disturb the relationship, because there  To whom does the right belong to?
was no harm. o ALL citizens of the Philippines
o What is “benevolent neutrality”? o Everyone has right and standing to challenge any violation of
 Morality based on religion can be accommodated as this right
long as it does not offend compelling State interest  As a corollary, who may invoke the right to privacy?
 Must prove sincerity of belief o Right to privacy may only be invoked by the individual involved
 Examples of religion as basis to exempt person from compliance and not the government agency compelled, because there is
with certain laws: no injury to the feelings, etc of a juridical entity.
o Exempted from compliance with the Flag Law (Ebralinag v.  What does this right cover?
Division Superintendent) o “Matters of public concern”

48
 o Jurisprudence lacks very precise definition. It embraces broad
spectrum of subject
 What is the remedy when a government agency or court refuses to
disclose records?
o If you are seeking information, and government refuses to give
it to you, the remedy is mandamus
 Ex. Refusal of COMELEC to reveal names of Party-
list seat nominees
 Contract negotiations: May PCGG be compelled to reveal contents
of a compromise agreement?
o It depends. Distinguish between soft proposals and firm
proposals:
o A. If there is no firm proposal yet, there is no right to be
informed
o B. If there is a firm proposal, even when there is no contract
yet, you have a right to know
 What about information regarding negotiations for treaties and
executive agreements prior to conclusion of the agreement?
o These is privileged information according to Senate v. Ermita.
 What is this right’s relationship to publication of laws and
regulations?
o Laws and regulations affecting the public are non-binding
unless published, intended to make full disclosure and proper
notice to people.
 Is there a right to access court records?
o It depends. Distinguish between decisions and opinions of the
court vis-à-vis pleadings filed by parties.
o Decisions and opinions are public concern.
o W/N pleadings may be accessed is left to the court’s discretion
 Because these need not be of public concern
o What is the limitation in access to court records?
 When the purpose of the examination is unlawful or
sheer, idle curiosity
 What does the right to information not cover?
o 1. National security info
o 2. Trade secrets
o 3. Information with respect to criminal prosecution that may
jeopardize criminal process
o 4. Privileged information
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 Does this include a right over a summary of the information?
o No. An office who gave you information has no obligation to
give a summary of this information (Valmonte v. Belmonte)
Right to association
 What is the limit to the right to associate?
o The group must not be contrary to law – really means “for
purposes not contrary to due process”
o So this right may be abridged but in accordance to due
process
 What is the test for w/n the rights of the union may be abridged?
o Depends on the kind of union or association
o Apply “hierarchy of rights”:
 If a union/organization is for the purpose of
propagating preferred rights (freedom of religion or
speech)  apply CPD test
 If for property rights  apply reasonableness test only
 What is the rule for government employees?
o Government employees – have right to form unions but right to
strike may be limited
 Is a closed-shop agreement legal?
o Yes, since it is a valid form of union security. (Villar v. Inciong)
 Prohibiting managerial employees from forming unions is valid because
the legal prohibition has a valid purpose (ensuring freedom of unions)
(United Pepsi Cola v. Laguesma)
Eminent domain
 What is the concept of eminent domain?
o Private property shall not be taken for public use without just
compensation
 Can the government take public property?
o No need. It already owns these.
 Who possesses power of eminent domain?
o Inherently possessed by the State. Exercised by the National
Government.
o By delegation, it can be possessed by local governments,
other public entities, and public utilities.
 o By implication, can the executive limit the right of eminent
domain?
 No. The power of eminent domain cannot be limited
by an EO. The guidelines provided by an EO cannot
be considered as conditions precedent for eminent
domain. (Republic v. Juan)
 Elements of exercise of power of eminent domain?
o 1) taking of private property
o 2) for public use
o 3) just compensation
 What court has jurisdiction?
o Always the RTC (because value of the property is only
incidental for just compensation, not jurisdictional)
Taking
 When is there taking?
o 1. Expropriator must enter or take possession of the property
o 2. Entry must not be for a momentary period; must be
permanent
o 3. Entry must be under warrant or color of legal authority
o 4. The owner is deprived of ownership or permanent use of the
property.
 Is a right of way taking?
o Yes, it is equivalent to taking, when it has effect of depriving
owner of his property.
o Ex. Right of way through installation of transmission lines over
the property is expropriation through easement.
 What if entry is with permission given by the owners?
o If entry is with permission by the owners, this is not yet taking.
Usually, expropriation would have to follow. (Garcia v. CA)
 Distinguish taking in eminent domain from police power?
o Police power – regulate or destroy property
o Eminent domain – transfer of ownership
o Thus, when government decides to destroy noxious property
like trees infested by pests with communicable diseases. The
government may destroy these trees, and there is no “taking.”
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o Requiring cemeteries to give 6% of land area to paupers:
expropriation because there is taking of private property for
public use. (Government v. Ericta)
 When municipal property is taken by the State, when is there
compensation?
o Compensation needed if it is patrimonial property of the
municipality, acquired with private funds in its corporate or
private capacity.
o No compensation needed for public buildings or legua
communal held by the municipality in trust for inhabitants.
 What can be taken?
o Anything except money and choses in action.
Public use
 What is public use?
o 1. Something that is open to the public.
o 2. Something for public benefit, then it is already taking.
o Similar to “public welfare” in PP.
o Ex. Socialized housing is public use.
 What if the expropriating authority instead sells the property to a
private person?
o Violation of property right.
 What are the rules upon abandonment of real property condemned
for public purpose:
o 1. Owner has right to recover it.
o 2. Recovery is through payment of value by which he was paid
by the government. (Repurchase)
 Public use also requires that the expropriator use it for purposes
specified in the petition. If used for another purpose, then it is violation
of the constitutional right.
 Cases on w/n there is public purpose:
o Tourism is a public purpose (Ardona v. Reyes)
o Expropriation of the birth place of Felix Manalo, founder of INC,
to make it into a historical landmark is also public use
(Manosca v. CA)
Just compensation
 What is just compensation?
o Remedying the loss suffered by the owner
 What is the measure?
o Measure is the LOSS of the owner, not the GAIN of the
expropriator
o Usually means “market value.” This means the value of the
property will command in the free market, if the owner is not
bound to sell and the expropriator is not bound to buy.
o Generally: market value + consequential damages –
consequential benefits = just compensation
 If there is failure to pay just compensation, can the owner file a
case to recover possession?
o No, he can just demand payment of just compensation
because the first stage of the hearing (taking) is already over
and settled.
o What is the exception?
 When government fails to pay just compensation
within 5 years of finality of judgment of expropriation,
the owner can file for recovery of possession. (RP v.
Lim)
 When is there right to repurchase or re-acquire property?
o Owner’s right to repurchase the property depends on the title
acquired by the expropriator. For example, if there is a
condition that when the purpose is ended, the property shall
revert to the owner, then the owner can re-acquire the
property.
 When eminent domain is exercised, who is entitled to
compensation?
o 1. The owner
o 2. Those whose property rights may have been violated
 Ex. Upon taking, the lessee of a property can also be
compensated for loss of value
 This other person who is not an owner but has an
interest in the property may intervene in the action to
get his just share (De Knecht v. CA)
 Can the Executive provide for laws that establish formulae in
determining just compensation?
51
o No. PDs issued that provide for a formula in determining just
compensation are all void for encroaching on judicial
prerogatives (EPZA v. Dulay)
 Construction of NAIA 3 was already complete when it was deemed
contrary to law and PP. When government took it from the contractor, it
still needed to pay just compensation (Republic v., Judge Gingoyon)
o In this case, the SC said that there must be direct payment of
the compensation to the contractor, instead of deposit under
Rule 67. Puno and Carpio dissented, saying that this is an
undue amendment of the ROC.
 In terms of time, when is the value of the property to be
calculated?
o General rule: what determines just compensation is the value
of the property at the time of the filing of the petition
 But this is normally because the filing of the petition
and the taking has a short interval
o But what if property is entered into prior to filing the petition?
 If the increase of the value of the property is due to
the expropriation by government (ex. It was
developed), just compensation is value of property at
the time of the taking + legal interest
 If the increase of the value of the property went up
independently of the expropriation, just compensation
is based on the time of the filing of the petition
o What if it’s a Local Government Unit (RA 7160) taking?
 Value at the time of actual taking
 Does it earn interest?
o Yes, at 6% because it’s not a forebearance or loan
o But it’s 12% if it is interest due to delays, which is tantamount
to damages – forebearance of money
 The concept of just compensation includes promptness in the payment.
If there is long delay in the payment, then what is due to the owner may
be more.
 How is the value of the property measured?
o Commissioners are appointed by court to determine.
 X, a landowner, challenges the valuation of his property. Can he
withdraw the money deposited as just compensation in the
meantime?
 o Yes. Otherwise, he would be unjustly deprived of property for
a long time without compensation.
 Must compensation be in money?
o No. Can be in government bonds, as long as equivalent to the
value of the property.
o Can be, for instance, in the form of Land Bank notes.
(Maddumba v. GSIS)
 Is power of eminent domain subject to judicial review?
o Yes.
o Courts may review:
 1. Adequacy of compensation
 2. Whether taking was for public use
 3. Necessity of the taking (new)
 This is where the controversial De Knecht
ruling comes in, where the Court substituted
its judgment for the legislative’s, by stating
that path #1 would only affect motels and
path #2 would displace a lot of residences.
o What property is subject to be taken is not subject to judicial
review.
 What about res judicata? Ex. Government went to court to expropriate
a property and it was rejected because the use was not for public use.
Can the government attempt to expropriate it again?
o Yes. The public use may change.
o Government is not precluded from attempting to expropriate
again property that it failed to successfully expropriate before.
But res judicata applies in so far as it cannot raise the same
issues in a prior infirm expropriation in another court
proceeding. It should just correct the infirmity. (Paranaque v.
VM Realty)
 Government entered into contract to buy property. The price turned out
to be too high. Can the government expropriate the property
instead?
o No. You cannot substitute expropriation for a valid contract.
 Who possesses power of eminent domain?
o National government, through legislature.
o But executive carries it out.
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o It may be delegated to local government or public corporations.
But what they possess is not eminent domain but their power is
inferior domain.
 What is needed is not a mere resolution but an
ordinance.
 Eminent domain by local government:
o REQUISITES:
 1. Ordinance enacted by local legislative council
authorizing local chief executive to exercise eminent
domain
 2. Exercised for public use, purpose or welfare
 3. Just compensation
 4. Valid and definite offer previously made to the
owner of property, but it was not accepted
o Cannot expropriate on the strength of a sanggunian resolution
alone (Suguitan v. Mandaluyong). It must be an ordinance.
o LIMITS on local government power of expropriation:
 1. Must follow order of priority in acquiring land for
socialized housing. Private lands rank last in the order
of priority.
 Also, for socialized housing, cannot
expropriate small property owners’ lands
 2. Resort to expropriation: Can only be done after
OTHER modes of acquisition exhausted
 When is there immediate entry allowed for expropriation under
Rule 67?
o 1. Filing of complaint + due notice to defendant and
o 2. Deposit with authorized government depositary an amount
equivalent to the assessed value of the property
 When is there immediate entry allowed for expropriation under the
LGC?
o 1. Filing of complaint for expropriation sufficient in form and
substance and
o 2. Deposit of amount equivalent to 15% of FMV of the property
to be expropriated, based on latest tax declaration
 When is there immediate entry allowed for expropriation under RA
8974 (acquisition of property for right of way or for government
infrastructure projects)?
 o 1. Filing of complaint + immediate payment of 100% assessed
value of the property and the improvements (same rule as Rule
67)
o 2. If there is no zonal valuation AND the expropriation is of
utmost importance: Filing of complaint + payment of proffered
value of the property
Contract clause (non-impairment)
 What is the contract clause?
o No law shall be passed that impairs contracts
 Who is limited by this right?
o This is a limitation to the legislative department, not the
judiciary
 When is there impairment?
o There is impairment when the terms of the contract are
changed as between the parties to the contract
 La Insular v. Machuca: A and B had a contract of sale of cigars. A law
is passed imposing sales tax on the seller. Was there impairment?
o HELD: No impairment because it does not change the
obligations of seller to buyer; it just establishes a new
obligation to a new party (i.e. the government)
 Co v. PNB: Imposing stricter redemption rules on foreclosed property.
Was there impairment?
o Yes, this would impair contracts.
 Manila Trading v. Reyes: Mere change in procedural remedies does
not impair.
 The sanctity of contracts and franchises are subject to police power.
o Chavez v. COMELEC: Ex. Removal of billboard of a
commercial endorser who ran for public office. The police
power exercised by government is to protect the sanctity of
elections. No impairment.
 A corporation owes money to a lot of people. It applies for a
rehabilitation plan. The rehabilitation plan is submitted to court.
o If the plan only results to postponement of payment, there is no
violation of obligation of contracts
o If the plan changes relationship between company and its
creditors, there is violation of obligation of contracts
 Kuwait Airways v. PAL
53
o Sold to private owner. The government’s contracts do not bind
the new owner.
 May a license be impaired or changed?
o Yes. It is a mere privilege.
o This same principle applies to timber licenses and franchises.
Legal assistance and free access to courts
 Free access to courts, QJ bodies, and adequate legal assistance shall
not be denied to a person due to poverty
Rights of Suspects
 In sum: “Miranda Rights”
 Who has rights under this section?
o 1. Those under criminal investigation, not administrative
o 2. And they must be under the custody of the law
 This has been modified by statute: If a person has
been “invited” by the police, even if not under the
custody – they are already protected by this section/
 What are his rights?
o 1. Right to be silent
o 2. Right to counsel, preferably of own choice
 If he cannot afford counsel, he will be given one
o 3. Right to be informed of his rights
o 4. No torture, CIDT, incommunicado, or other similar detention
conditions
 Can these rights be waived?
o These rights cannot be waived, except in writing and in
presence of counsel
o What if the person in custody said that he did not need a
lawyer and he will tell the truth?
 There can still be no waiver without counsel.
 P v. Gamboa: Constitutional protections only apply to testimonial
compulsion, but not object evidence, such as paraffin tests.
 What about re-enactments?
o These rights cover re-enactments of crimes, which are
communicative in nature.
 Who and what are not covered by this protection?
 o 1. One who voluntarily presented himself to the police to
surrender
o 2. One who made spontaneous admissions without
questioning or coercion
 When did these rights take effect in the Philippines?
o Jan. 17, 1973 – when the 1973 Constitution took effect,
inspired by the Miranda case
 Can officers invoke presumption of regularity?
o No. There is no presumption of regularity in the performance of
official functions here.
 Is a person in a police line-up entitled to counsel?
o No, he is not yet under investigation. He must be singled out
first.
 When do Sec. 12 rights begin to apply?
o When investigation is not anymore a general inquiry into crime,
but has begun to focus on a particular suspect, and he has
been taken into police custody
 When do Sec. 12 rights end?
o Upon filing of criminal case in court or in prosecutor’s office,
because custodial investigation has ended. Upon this time,
Sec. 14 will start to apply.
 A person talks to a mayor. Is he entitled to these rights?
o It depends. If he approached the mayor as “spiritual
counsellor” then this is not covered. If he approached the
mayor as an official, then covered.
o Similarly, making an admission during procedure where a
person is pleading to be a state witness: admissible
 A suspect signed booking sheets. Is this a confession?
o No, it’s just a record of the fact of arrest and its circumstances,
and not a confession that he committed the suspected offense.
 What about a person interviewed on television?
o Admissible, since it is not an investigation.
 An admission to a bantay-bayan?
o He is considered a public official and this provision applies.
 Right to be informed of his rights – how must a person be
informed?
o In a manner understandable to him.
 Who is a competent and independent counsel:
54
o Competent – member of Bar
o Independent – free from government pressure
o P v. Mojello: If counsel is assigned by the investigators and
the person under custody did not raise any objection, it is
deemed to be “of his own choice.”
 What are examples of non-independent counsels?
o Municipal attorney
o Barangay captain
o Counsel of police
o Test: is the interest of the lawyer serving the government?
 If yes, then he is not independent.
 The interest of the lawyer must be to protect the
person under investigation.
 What is the legal effect of violation?
o Inadmissible as confession against the person
o Also inadmissible against others
 Exception: “interlocking confession”
o P v. Lucero: Counsel must be there from first moment and all
throughout.
o P v. Marcos: But statement in open court that a confession
given without counsel was voluntarily signed CURES the
infirmity.
o Aballe v. P: A knife with blood was found due to an
uncounseled EJ confession. This knife, even if it is object
evidence, is inadmissible because it is the fruit of an invalid
interrogation.
 Difference between admission and confession?
o Confession – acknowledging that you have committed a crime
o Admission – admitted having performed some act; not
necessarily criminal, but may be connected
 Requisites of a valid EJ confession?
o 1. Voluntary
o 2. Made with assistance of independent and competent
counsel
o 3. Confession is express
o 4. Confession is in writing
o 5. Signed or thumb marked by confessant
 Tantamount to confessions without counsel:
o P v. Galit: Signing receipt of seized property
 o P v. Bagano: Asked to affix signature on marijuana bags
Rights of the accused
Bail
 Who are entitled to bail
o All persons
o Except those charged with offenses punishable by RP when
evidence of guilt is strong, are entitled to bail
o N.B. You only lose right to bail if the evidence of guilt is strong
(for life and RP). Thus, loss of right to bail is NOT automatic.
 What if you are charged with crime punishable by life
imprisonment?
o Right to bail is withheld as well (as established by
jurisprudence)
 What are the duties of trial judge upon application of bail (by one
not automatically entitled to it)?
o 1. He must notify the prosecution
o 2. He must decide whether evidence of guilt is strong
 Tolentino v. Camanao: When the prosecutor refuses
to adduce evidence in opposition of application for
bail, the court may ask questions to the prosecution to
ascertain strength of the evidence.
o 3. If the evidence of guilt is not strong, the accused has right to
bail. If evidence of guilt is strong, judge has discretion to give
bail still.
 When is there right to bail?
o You need to be in custody to have right to bail
 Is there bail in Extradition cases?
o Extradition cases are not criminal cases, so there is no right to
bail because it is under discretion of executive.
o BUT later decisions recognize the right to bail even in
extradition cases, when the risk of flight is not likely.
 What is the rule on amount of bail?
o Cannot require excessive bail – this is practically denying bail
 When is bail a matter of right?
o 1. Before or after conviction in MTC
55
o 2. Before conviction in RTC, when offense not punishable by
RP/life
o 3. Before conviction in RTC, when offense is punishable by
RP/life but evidence of guilt is not strong
 When is it discretionary?
o 1. After conviction in RTC of an offense not punishable by
RP/life/death
 When must bail be denied?
o 1. Capital offense
o 2. Before conviction in RTC, when offense is punishable by
RP/life and evidence of guilt is strong
o 3. After conviction in RTC, when offense is punishable by
RP/life/death
 Does the suspension of the privilege of WHC prevent a person
from filing bail?
o No. It is not suspended.
Criminal due process
 Refers to substantive and procedural due process
 Military tribunals: usually not reviewed by SC
Presumption of innocence
 What is the effect of this presumption?
o No one can be convicted unless there is proof of guilt BRD
 It is possible for the state to shift burden of proof to defendant, when
there is prima facie evidence of guilt.
o E.g. when one is in possession of a stolen carabao, there is a
logical conclusion that he stole the carabao
o E.g. Accountable public officer unable to account for money
assigned to him
 When does presumption of innocence end?
o It ends when acquittal is already final.
o When the case is on appeal, does the accused still enjoy
presumption of innocence?
 Yes
 What is the equipoise rule?
 o When there is even balance in the evidence adduced by both
sides, the presumption tilts decision in favour of the accused
 Can circumstantial evidence prevail over presumption of
innocence?
o Yes, if: a) there is more than one circumstance, b) the facts
from which the inferences are drawn are proven, c) the
combination can produce a conviction beyond reasonable
doubt
Right to be heard
 Right to be heard – involves several components:
o 1. Right to be present at trial
o 2. To counsel
o 3. To impartial judge
o 4. Confrontation
o 5. Compulsory process
Right to be present at trial:
 Is the right to be present in trial waivable?
o Yes, you may waive this right. But the waiver must be very
precise so that there is no doubt that whatever happens has
reference to the accused
 What are the requisites before one may be tried in absentia?
o 1. Must have been arraigned
o 2. Must have been notified of the trial
o 3. No justifiable reason for absence
 Can bail still be forfeited?
o Bail has condition that when needed, you may be summoned
Right to counsel
 What is required for counsel?
o Counsel must be qualified: member of the Bar
o If after one’s conviction, you find out that the counsel is not a
member of the Bar, that nullifies the conviction
 What is the duty of the judge if a person appears without counsel?
o Judge must ask you if you want counsel. (“Yes.”) Then if you
can afford one. (“No sir.”)
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o Then judge appoints a counsel de officio.
 Can the accused waive his right to counsel?
o No, never.
 The counsel de officio must also actively represent his client, not merely
act pro forma
 If a person has his own lawyer but the lawyer is always absent, can
he demand that a counsel de officio be appointed?
o No.
 Question: during Martial Law, right to counsel may be generally
waived?
o No.
 Accused had Counsel de parte X. X was absent. Court appointed
Counsel de officio Y. Accused claimed violation of right to choose
counsel. Valid objection?
o No. The right to choose counsel more properly pertains to
custodial investigation, and what is inviolable during trial is
right to counsel and not an absolute right to choose. Here, in
the interest of finishing the trial, the court properly appointed
the counsel de officio.
 Is the mistake of the counsel the mistake of the party?
o Yes. Except when it is so gross as to have prejudiced the
constitutional right of the accused.
Right to impartial judge
 When is judge partial?
o E.g. Judge already received judicial confession, but the trial is
not yet ended.
o Study circumstances, then establish reasons to show judge is
against one’s interest
Right of confrontation
 What is the “right to confrontation”?
o The right to confront the witness face-to-face
 What is the reason for this?
o To enable you to test the testimony of the witness by cross-
examination
 To enable the judge to observe the demeanor of the witnesses, face-to-  What is the remedy for violation of right to speedy trial?
face with person he/she is accusing o Ask for dismissal of the case. The dismissal is equivalent to an
 Are there exceptions? acquittal, and thus bars second prosecution for same offense
o 1. Dying declaration  Are you entitled to a speedy decision?
o 2. Trial in absentia o Not under this section, but there is another section (speedy
disposition of cases) where you have the right to expedite
Right to compulsory process disposition of all cases against you

 Two things: Right to public trial

o 1. Compel attendance of witnesses
o 2. Right to have evidence in one’s favor produced  There are exceptions:
 1935 Constitution spoke of right to secure attendance of witnesses in o When evidence is offensive to decency and public morals
one’s behalf  When there Is publicity, they behave properly
 1973 and 1987 added “compulsory process” to secure not just
witnesses but also other kinds of evidence Waiver of rights

Right to be informed  The presumption is always against waiver

 Prosecution must prove:
 What must one be informed about? o 1. Fact of waiver
o 1. Nature of the accusation o 2. Voluntariness of waiver
 Ex. Murder, theft, homicide
o 2. Cause of the accusation Speedy disposition of cases
 These are the facts alleged against you
 Which is more important?  Applies to judicial, Q-J, and admin bodies
o Cause  Guerrero v. CA: 10 years trial, and no decision yet, without
o Because even if the nature of allegation is erroneous but the explanation. The case was transferred to a second court. When the
facts are there, you are sufficiently informed new judge ordered a re-hearing, the accused filed for dismissal based
 Reasons: on violation of speedy trial. Valid?
o 1. To prepare for defense o No. Because the delay was not the fault of the prosecution.
o 2. Protection against double jeopardy  Roque v. OMB: Remedy is mandamus to dismiss.
o 3. To inform the judge to see if the facts alleged constituted a
Writ of Habeas Corpus
crime
 When is the WHC suspended?
Right to speedy trial
o Only in cases of invasion or rebellion, when public safety
 N.B. Speed is relative requires it
 When is there a violation of the right to speedy trial?  What is the “Privilege of writ of HC”?
o 1. Delays were unreasonable o The right to have immediate determination of legality of
o 2. Caused by the prosecution deprivation of physical liberty
 Who suspends this?

57
 o The President. See Article VII.
 Dizon v. Eduardo: Respondents’ defense against petition for HC is that
they have released the person detained. But there is still no sign of him.
Did the burden shift?
o No. The burden is on the respondents’, by interposing an
affirmative defense, to establish the fact of release.
Self-incrimination clause
 What is the purpose of this provision?
o 1. to prevent witness from having to lie
o 2. to prevent extorting confession by duress
 What is covered?
o Questions that have tendency to incriminate: for instance,
establishing an element of the crime charged
o Only TESTIMONIAL COMPULSION
 What about object evidence or physical examination?
o Right does not cover physical examination or object evidence
o Ex. Examining body of witness, putting on pair of pants, taking
of pictures of accused
 What about handwriting?
o Handwriting is protected against self-incrimination, because it
is not just a mechanical act but one that requires intelligence
o Marcelo v. Sandiganbayan: But merely affixing handwriting
on envelopes to authenticate the envelopes as the ones that
were seized from accused is not a violation of this provision
 Can one compel accused to produce private books and papers?
o No.
o Exception?
 When the state has the right to inspect books or
documents such as in police or taxing power
 Who are protected by this right?
o Only natural persons are protected by this right
o May a corporate officer refuse to produce books on the
ground of self-incrimination?
 No. Because he is not incriminating himself, but it is
the corporation incriminating him
 When can you raise the defense of self-incrimination, and in what
situations?
58
o In any situation where one is being examined or asked officially
– may be admin, civil, or criminal
 The right against self-incrimination of a person accused differs
from one not accused:
o 1. The accused can absolutely refuse to go to the witness
stand
 (This same principle can apply to respondents in an
administrative proceeding where he may be subjected
to sanctions of a penal character such as cancellation
of license to practice medicine)
o 2. The non-accused cannot refuse to take the stand; but he
can raise the defense only when an incriminating question is
asked
 Differentiate transactional immunity from “use and fruit” immunity:
o 1. Transactional – witness is immune from criminal prosecution
for an offense to which his compelled testimony relates
o 2. Use and fruit – cannot use testimony and its fruits in any
manner in connection with criminal prosecution of the witness
 Can this right be waived?
o Yes.
Involuntary servitude and Political Prisoners
 What is the rule on political prisoners?
o No person may be detained solely due to his political beliefs
o For political prisoners: “solely” is key word
 What is involuntary servitude?
o Covers forceful service against one’s wish
 Exceptions:
o 1. To punish a crime
o 2. In interest of national defense (ex. Military or civilian service)
o 3. Return to work order
 This does not violate involuntary servitude because
you do not have to follow it, with consequences
o 4. Posse comitatus (peace officer can have able bodied
persons assist him)
o 5. Patria potestas (parent over children)
Excessive Fines and Cruel and Inhuman Punishments
 What kind of fines cannot be imposed? Double Jeopardy
o Excessive fines shall not be imposed.
 When is a fine excessive?  If an act is punished by a law and an ordinance, does conviction
o The fine must be excessive in relation to the offense, not in under one bar conviction under another?
relation to the person o Yes.
o So one can be a millionaire, and then you are fined P100K for  Two types of DJ:
jaywalking. This may be nothing for the person, but this is still o 1. Second jeopardy for same offense
excessive as to jaywalking o 2. Second jeopardy for same act
 Death penalty shall not be imposed except with compelling reasons for  This is the law-ordinance type
heinous crimes  Elements:
o It may (and was) restored, but it was suspended again o 1. There was a first jeopardy (put in situation where one could
o It may be revived again be punished)
 What determines whether a crime is heinous? If congress passes o 2. The first jeopardy terminated by conviction, acquittal, or
a bill saying “rape is a heinous crime,” does this settle the matter? dismissal without consent of accused
o No. Whether or not a crime is heinous is a question of fact. o 3. The second jeopardy must be for the same offense as the
o Legislative fact – just enough fact enough to justify passing a first
law  When can you say that you have been placed in jeopardy?
o Judicial fact – enough fact to convict (this is a higher bar) o 1. Valid information
 When is a punishment cruel and degrading? o 2. Court has jurisdiction
o Ex. Covering a person in honey and placing him on an anthill  Ex. If you are a civilian tried before a military court,
 What if death penalty is imposed under law right now? there is no 2nd element
o Death Penalty imposed is reduced to RP o 3. Valid arraignment
o But we are not a party to the treaty that prohibits the Death  Termination of jeopardy – when does it end?
Penalty o 1. Acquittal
 Is death by injection cruel and unusual?  Includes violation of right to speedy trial
o No.  Includes demurrer to evidence
 Does the death penalty violate equal protection because it is o 2. Final conviction
usually imposed only on the poor who cannot defend themselves? o 3. Dismissal without express consent of accused
o SC: No, that is too sweeping  You raised a defense of lack of jurisdiction of the court. The court
 What is duty of judge when accused pleads guilty to capital dismissed, although it turned out that it had jurisdiction. What is
offense? this:
o The judge cannot impose the penalty immediately. Look into o Dismissal without express consent of the accused. This is
facts to check if death indeed is the proper penalty considered “waiver or estoppel”
 Dismissal for undue delay/lack of speedy trial:
Non-imprisonment for Debts o This is already a judgment on the merits
 Dismissal, however, must be in writing and signed by the judge.
 This covers contractual debts Without this, there is no dismissal yet.
 This does not cover debts imposed by law like a criminal fine, where
imprisonment may be a substitute

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 You are convicted of attempted homicide. You are acquitted. You
are charged with physical injuries instead for the same act. Is this
double jeopardy?
o Yes. Same offense.
 You are charged with frustrated homicide. You are convicted. The
victim then dies. You are charged with homicide. Is this DJ?
o No, because the homicide did not yet exist when you are
convicted of frustrated homicide.
 What are supervening events?
o 1. When the second offense is not yet in existence during first
prosecution
o 2. Facts constituting graver offense only were discovered after
filing of complaint/information
o 3. The plea of guilty to a lesser offense was without consent of
the fiscal and offended party, or either
 When the defendant appeals, the case is opened again, and you may
get a higher penalty than the first one.
 Is there a situation where the prosecution may ask for a review of
an acquittal?
o Yes, if the prosecution can show GADALEJ
Ex post facto laws and Bills of Attainder
 What is an ex-post facto law?
o Criminal law that is retroactive
o But if the criminal law is in favor of the accused, it is not an ex-
post facto law
 Examples of ex-post facto law:
o A substantive law that changes penalty to a higher one or a
procedural law that lessens defenses available to the accused
 What are its characteristics?
o 1. Refers to criminal matters
o 2. Retroactive in application
o 3. Prejudices accused
 If a law is passed transferring jurisdiction over one case from the
RTC to the Sandiganbayan, is it an ex post facto law?
o This is not ex-post facto because rights of the accused are not
changed.
 What is a bill of attainder?
60
o A law or statute that imposes a penalty without a trial.
 Ex. A law is passed saying that all those who served the government
under the Japanese occupation are not qualified to run for office:
o This is a bill of attainder. It imposed the penalty of
disqualification without trial.
CITIZENSHIP
 Who are the citizens of the Philippines?
o 1. Citizens upon adoption of the 1987 Constitution
o 2. Fathers or mothers are citizens of the Philippines
o 3. Born before January 17, 1973 of Filipino mothers, who elect
Philippine citizenship upon reaching age of majority
 To which constitution does this apply to?
 1935 constitution, because under the 1973
constitution, those born of Filipino mothers
are already Filipino citizens
 When must the mother be a Filipino citizen?
 At the time of her marriage
 N.B. so if a Filipina married an alien under
the 1935 constitution, her child can still elect
Filipino citizenship upon reaching age of
majority
 N.B. because the Filipina becomes an alien
too upon marrying the alien spouse. In any
case, because of the “time of marriage rule,”
the child can still elect Filipino citizenship.
 When must election be made?
 Within reasonable period after reaching age
of majority
o 4. Naturalized according to law
 What is the rule for an illegitimate child of a foreign mother
(Tecson a.k.a. FPJ case)?
o If the father is unknown, follow the mother’s citizenship
o If the father is known and is Filipino, he is a Filipino. Prove the
paternity.
 What are the modes of acquiring citizenship?
 o 1. Jus soli – according to place of birth
 Not followed by Philippines
o 2. Jus sanguinis – according to blood relationship
o 3. Naturalization – adopting an alien and giving him citizenship
 Either for original acquisition (CA 473)
 Or reacquisition (CA 63)
 What is the effect of naturalization?
 1. The minor legitimate children become
Filipinos as well
 2. The spouse, if not disqualified, becomes
naturalized too
 Who are natural born citizens?
o 1. Citizens of the Philippines from birth who do not need to
perform any act to acquire Philippine citizenship
o 2. Those who elect Philippine citizenship under #3 above
o 3. Repatriated (see Cruz case below)
 How is there loss of citizenship?
o 1. Naturalization in foreign country
o 2. Cancellation of certificate of naturalization
o 3. Serving in armed forces of enemy country
o 4. Being a deserter in the armed forces
o 5. Taking oath of allegiance to laws/constitution of foreign
country
o 6. Express renunciation of citizenship
o Is marriage with an alien a ground to lose Philippine
citizenship?
 No, unless there is renunciation
 How is citizenship reacquired?
o 1. Direct act of Congress
o 2. Naturalization
o 3. Repatriation
 What is RA 9225’s policy on dual citizenship?
o (Since Aug. 29, 2003)
o 1. A Filipino who previously renounced Filipino citizenship can
reacquire it without renouncing the foreign citizenship
 How?
 Repatriation
o 2. A Filipino who acquires foreign citizenship after RA 9225
retains his Filipino citizenship
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 What is repatriation?
o Natural-born Filipinos who are deemed to have lost citizenship
may re-acquire it through repatriation proceedings
 Do they regain Natural born citizenship?
 Yes. (Cruz)
o What does it involve?
 1. Oath of allegiance
 2. Filing the oath with the civil registry
 No need to file in court
o What is the nature of repatriation?
 It is a privilege, and not a right. The State has
ultimate discretion.
o What is its difference with naturalization?
 It’s speedier than naturalization, because the ones
who are entitled to repatriation used to be natural
born citizens.
o Who may be repatriated?
 1. Women who lost citizenship by marriage
 2. Natural born citizens and their minor children who
lost citizenship due to political or economic necessity
o Who may not be repatriated?
 1. Those who oppose organized government or
belong to groups that oppose organized government
 2. Those who support the necessity or associate for
propriety of violence, personal assault
 3. Convicted of crimes involving moral turpitude
 4. Suffering from mental alienation or incurable
contagious diseases
o What is “derivative citizenship”?
 The unmarried child below 18 of those who
reacquired their citizenship by repatriation are
deemed citizens too
 Distinguish dual citizenship from dual allegiance:
o Dual citizenship is concurrent application of laws of two or
more states, where a person is simultaneously considered a
citizen of both States
o Dual allegiance is where a person simultaneously owes, by
some positive act, loyalty to two or more States
 What if a person possessing dual citizenship wants to run for  What is the effect of impeachment?
public office? o 1. Only removes from office
o They simply have to elect Philippine citizenship to terminate o 2. Disqualifies to hold any office
dual citizenship status upon filing certificate of candidacy o 3. Not criminal
 What happens to the right to vote of those who retain or reacquire o What if the officer resigns?
Filipino citizenship?  He can still be impeached
o Must still comply with Overseas Absentee Voting Act o What about other public officers?
 Does reacquisition of Philippine citizenship automatically translate  They may be removed through provision of law, but
to reacquisition of domicile? not impeachment
o No. You need to establish animus mandendi and non  Procedure for impeachment:
revertendi o 1. Filing of verified complaint
 Only house can initiate
 Started by member of congress or citizen with
PUBLIC OFFICERS endorsement by congressman
o 2. Submitted to committee
 After the complaint is included in order of business
Article XI of the Constitution within 10 session days
 It is referred to the committee within 3 session days
 What is the nature of public office? after the inclusion
o Public office is not proprietary o 3. Submitted to house: can reject or recommend
 Who are impeachable officers?  1/3 vote (if passed, these become the articles of
o 1. President impeachment)
o 2. VP  Vote is within 60 days from referral from committee
o 3. Members of SC  What if the committee rejects the impeachment?
o 4. Members of Constitutional Commissions  The 1/3 vote can still pass the articles of
o 5. OMB impeachment
 What are the grounds for impeachment? o 4. Senate decides with 2/3 vote (16 seats)
o 1. Culpable violation of Constitution,  How is impeachment deemed initiated and what is is the value of
o 2. Treason knowing this?
o 3. Bribery o Impeachment initiated upon filing of complaint and referral to
o 4. Graft & Corruption committee
o 5. Other high crimes o Material, because an officer can only be impeached once a
o 6. Betrayal of public trust year
 Can the list of impeachable officers or impeachable offenses be  What are the roles of the different officers?
changed by Congress? o Senate has sole power to try and decide cases of
o No. impeachment
 Can impeachment be stymied by condonation? o If the President is on trial, the CJ presides but does not vote
o No. It is beyond power of executive clemency. o The Supreme Court can determine if Congress committed
GADALEJ (ex. Recognizing two impeachment complaints)

62
 What is the jurisdiction of the Sandiganbayan? o See the prohibition in running for elections immediately after
o Over offenses of public officers, done in connection with their cessation office, mentioned below
functions  Is there need for CONA appointment for the OMB?
o Private individuals may be tried if charged as co-principals, o No. No need for CONA appointment
accomplices, or accessories o Appointed by President from list of 3 nominees given by JBC
 Azarcon v. SB: So if a private individual is deemed a (first appointment: 6 people)
custodian of public funds, he is still not a public officer  When must vacancies be filled?
over which the SB can take jurisdiction over o All vacancies filled within 3 months after they occur
o It is a statutory court; its existence is only confirmed by the  What are the disqualifications?
Constitution o 1. Cannot hold any other office or employment
o Can SC judges be prosecuted before the SB? o 2. Cannot engage in practice of profession or active
 Yes management of business which may be affected by functions
 Who is the Tanodbayan? Who is the Special Prosecutor? of office
o OMB is the Tanodbayan. o 3. Cannot be financially interested in contracts, franchises, or
o The Tanodbayan before became the Special Prosecutor privileges granted by government, GOCCs, or subdivisions
o SP may not exercise powers conferred to OMB under the o 4. Cannot run for elective office in the election succeeding
Constitution. Since power to investigate is given to the OMB, cessation from office
the SP may only investigate and file cases when authorized by  What are the functions of the OMB?
the OMB o 1. Investigate
 What is the jurisdiction of the OMB?  On whose initiative?
o Can investigate any illegal act of public officials, even if not  On its own or on complaint in any form
related to public functions  It may be delegated
 Qualifications of OMB and deputies:  What penalties can it impose?
o 1. NBC  A. OMB can suspend local officials
o 2. At least 40 upon appointment  B. Can dismiss only local officials but not
o 3. Of recognized probity and independence elective officials (only the court can do this)
o 4. Member of Phil. Bar  C. Can impose administrative penalties on
 At least 10 years practice of law or judge in practice of public officers and employees (except
law impeachable officers + members of
o 5. Not lame ducks Congress)
 Composition?  Can the OMB deputize public prosecutors to
o 1 OMB investigate or prosecute?
o 1 over-all deputy  Yes.
o 1 deputy each for Luzon, Visayas, Mindanao  Which GOCC officers can the OMB investigate?
o Can have 1 deputy for military establishment  Only GOCCs with original charter
 Q: how long should the OMB appointee serve? The remaining term  Ex. PAL, while owned by government, has
of the predecessor or 7 years? no special charter
o Depends on the nature of the appointment. If it says that he  Can OMB investigate public school teachers?
will just fill in the remaining years, then do so. Else, 7 years.

63
  Yes. The Magna Carta, which confers
jurisdiction to the DECS was enacted 1966,
which was modified by both the Constitution
and the OMB Act.
o 2. Direct any public officer or employee to perform any act
required by law or stop, prevent, and correct any impropriety
o 3. Direct officer to take appropriate action against
employee/official at fault, and recommend removal,
suspension, demotion, fine, censure, or prosecution
 Can the OMB use mandamus to compel a fiscal to
prosecute?
 Yes
 What is the nature of the “recommendation”?
 It’s actually mandatory, not just
recommendatory
o 4. Direct officer concerned to furnish it with documents relating
to contracts and transactions involving use of public funds and
report irregularities to COA
o 5. Request any government agency for assistance and
information necessary to discharge duties
o 6. Publicize matters covered by investigation if circumstances
so warrant, and with due process
o 7. Determine cause of mismanagement, red tape, inefficiency,
fraud and corruption and make recommendations for
elimination and observance of ethics/efficiency
o 8. Promulgate rules of procedure and exercise other functions
or duties provided by law
 Can Congress add to duties of OMB?
 Yes
 Who determines the qualifications, etc. of other
officials and employees apart from the OMB
deputies – the OMB or CS?
 OMB, because the OMB must be an
independent office. The CSC has no power
to do so.
 Does it enjoy fiscal autonomy?
o Yes. The appropriations must be automatically and regularly
released.
 What are the judicial review remedies?
64
o Non-administrative cases  Rule 65 to SC
o Administrative cases  Rule 43 to CA
o Does appeal stop the execution of the decision being
challenged?
 No, or it would render the punishment toothless
 When can the government recover ill-gotten wealth?
o Recovery of ill-gotten wealth does not prescribe
o But the crime can prescribe
 What are prohibited financial transactions?
o Cannot obtain for business purposes:
 Loans
 Guarantees
 Other financial accommodations
o What if the loan is for personal purposes, and not
business?
 Valid.
 Ex. Housing loan
o Who are covered by the prohibition?
 1. P, VP
 2. Members of Cabinet
 3. Members of Congress
 4. Members of SC
 5. Members of CCs
 6. Other Constitutional Offices
 8. Officers of AFP with general or flag rank
 When is a public officer required to submit a declaration under
oath of assets, liabilities, and net worth –
o Upon assumption of office
o And as often as required by law
o What is the character of the SALN?
 It is sworn
 And made accessible to public
General Principles
 What are the elements of public office?
o 1. Created by law or by authority of law
o 2. Possess a delegation of portion of sovereign powers of
government, for benefit of the public
 o 3. Powers conferred and duties imposed defined by filled by someone who meets all the requirements
Constitution, legislature, or by its authority save for the CS eligibility
o 4. Duties performed independently and only controlled by law  No security of tenure
 Unless placed under general control of superior office  What are the implications of temporary
or body appointments?
o 5. Permanent or continuous  No definite tenure and is dependent on the
 How are public offices created? pleasure of the appointing authority
o 1. Constitution  Cannot exceed 12 months
o 2. Law (statutory enactments)  Can be replaced sooner if there is an eligible
o 3. By authority of law replacement
 Distinguish from a clerk or employee:  If the temporary appointee gains eligibility,
o Officers’ duties involve exercise of discretion there is no automatic conversion; he needs a
o When used in reference to a person having authority to do an new appointment
act or perform a particular function, the officer is the one who  What if the position appointed to is a career civil
has authority to do the act or exercise service position?
o What is the most important distinction?  Still a temporary appointment if not qualified
 Officer is delegated some sovereign function of  Does designation confer security of tenure?
government, to be exercised for the public’s benefit  No. The person only occupies the position in
an acting capacity.
Modes of Acquiring Title to Public Office/Appointments
o 3. Provisional
 Not qualified in an appropriate examination but
 How are official relations commenced?
otherwise meets the requirements for appointment to
o 1. Appointment
a regular position in competitive service
o 2. Election
 Whenever there is vacancy and filling of position is
 What is the difference between appointment, commission, and
needed for public interest
designation?
 And there are no eligible candidates at the time
o 1. Appointment is selection, by authority vested with the power,
 X was appointed to a higher position, but did not possess the
of an individual who is to perform the functions of a given office
requisites needed. What is the nature of the appointment?
o 2. Commission is the written evidence of appointment
o Temporary.
o 3. Designation is the imposition of additional duties of a person
o Is X deemed ipso facto resigned from his old position?
already in public service, usually through law
 Yes.
 What are the kinds of appointments?
o If X is terminated from his temporary appointment, can he
o 1. Permanent
demand reinstatement to his old position?
 To a person who meets all the requirements
 No. There is no cause to demand reinstatement.
 Enjoys security of tenure
 X is appointed to a position, and the appointment says “unless
o 2. Temporary/Acting appointments
terminated sooner.” What is the nature of the appointment?
 Issued in the absence of eligible candidates, when in
o It is coterminous with the project and thus the employee serves
the necessity of public interest, the position must be
at the pleasure of the appointing authority.

65
 X is given a temporary appointment with a fixed period. How can X
be terminated?
o For any cause, upon expiration of the period  When is attestation of the CSC regularly required?
o For just cause, before expiration of the period o N.B. confirmation by the CSC is called “attestation”
o X is given temporary appointment with a fixed period but it o When the appointment is to career service position.
also says “unless terminated sooner.” Can X be Attestation leads to security of tenure.
terminated at will? o When must the appointment be submitted to the CSC for
 No. If before the end of the period, it must be with attestation?
just cause.  Within 30 days of appointment
 Differentiate regular appointment from ad-interim appointment: o What is the effect of lack of certification of the CSC?
o N.B. this distinction applies to positions confirmable by the  There is no permanent appointment yet, and thus it
CONA can be revoked/withdrawn
o What is the CSC tasked to do here?
Regular Ad-interim  Just check if the appointee possesses the needed
Made by the President when Made by the President when qualifications
Congress is in session Congress is not in session, with no o What is the implication when the appointment is not yet
CONA confirmation yet complete because not all the acts required have been
Confirmed by the CONA Immediately effective performed?
Continues until end of the term Still a permanent appointment
 No security of tenure vests yet.
Valid, until:  What if the position to which the appointment is being made is not
1. Disapproved by CONA, or vacant?
2. Bypassed by CONA until next o The appointment is invalid.
adjournment of Congress o This contemplates situations, for instance, where the original
holder of the position is being transferred without his consent,
and thus the position is not yet empty when the replacement is
Steps for appointment:
being appointed.
 Who has ultimate discretion in who will be appointed?
Regular Ad-interim No confirmation
needed o The appointing authority.
Nomination Appointment Appointment o What is the CSC role?
Confirmation by CONA Issuance of Issuance of  The CSC is just there to determine minimum
commission commission qualifications, but cannot substitute judgment for the
Issuance of Acceptance by Acceptance by appointing authority.
commission appointee appointee o Can the appointing authority disregard the next-in-rank
Acceptance by Confirmation by the rule?
appointee CONA
 Yes. It is not bound by such, although this is
N.B. the President may generally considered.
revoke the appointment o Is the President bound by the recommendations for
prior to CONA appointment by his cabinet secretaries, or can he appoint
confirmation someone else?

66
  Can appoint someone else. The appointing authority
has ultimate discretion.
o Does discretion include type of appointment (permanent
or temporary)?
 Yes.
 Can the CSC convert a temporary appointment
into a permanent one?
 No.
 Can the CSC convert a permanent appointment
into a temporary one?
 Yes, if the appointee does not possess the
needed qualifications.
 What is the scope of judicial review of appointments?
o Only political questions, and cannot go into discretion.
o Who can file a case for usurpation of office?
 Only one who claims valid title to office
Eligibility and qualification requirements
 Differentiate:
o Eligibility – state of being legally fit to be chosen
o Qualification – acts which a person is required to do before
entering upon position (ex. Taking oath, giving bond, etc.)
o Who gives bonds?
 1. Accountable public officers or those entrusted with
collection and custody of public money
 2. Ministerial officers whose acts may affect rights and
interest of individuals
 What are the two meanings of “qualification”?
o 1. Endowments, qualities, or attributes that make an individual
eligible for public office
o 2. Act of entering into performance of public office
 When must an individual possess the qualifications for public
office (understood in first sense)?
o During appointment or election and continuously as long as the
official relationship continues
o The LGC does not mention when the candidate must
possess Filipino citizenship. X was elected to a public
position requiring Filipino citizenship. When he ran, he
67
was still an alien. But when he took his oath, he was
already naturalized. Was X qualified?
 Yes, because an official only begins to govern upon
proclamation and on the day his term begins.
 The LGC after all speaks of qualifications of elected
officials, not candidates.
o Are property qualifications for public office allowed?
 No.
o What happens when a person loses these qualifications
during incumbency?
 Loss of office.
 Understanding qualification in the second sense, what acts or
failures can affect the officer’s title?
o 1. Prolonged failure or refusal to take oath of office could result
to forfeiture of office
 BP 881: Failure to take oath within 6 months of
proclamation – leads to vacancy in office, unless
failure is for a cause beyond his control
o 2. Until the officer has taken his oath, he has no right to enter
into the position
 What is the effect of taking an oath before a
person without authority to administer it?
 No effect
 What happens as long as the proclaimed winner
has not taken his oath yet?
 The incumbent is still a hold-over.
 X was proclaimed and duly sworn into office. Y
filed an election protest. Can X assume office?
 Yes.
 Can Congress add to qualifications of officials?
o If Constitutional office, no.
o If statutorily created, yes, as long as:
 Germane to the office
 Not too specific as to fit a particular, identifiable
person, depriving the appointing authority of
discretion
 Can Congress provide for disqualifications?
o Same rule as above – distinguish between Constitutional and
statutory offices.
 o The disqualifications, however, must not violate the
Constitution
 What are the general DQs under the Constitution?
o 1. Lame duck bar
o 2. No elective official is eligible for appointment or designation
to any public office or position
o 3. No appointive official can hold any other position in
government UNLESS allowed by law or primary functions of
his position
o Can an appointive official hold an ex officio position
without violating this provision?
 Yes. An ex officio position is actually not any other
position but is a part of the principal office. Thus he
cannot be paid additional for the ex officio position,
because it is compensated for in the main position.
 What are the specific DQs under the Constitution?
o 1. P, VP, cabinet, deputies and assistants cannot hold any
other office or employment during tenure
 Unless provided in the Constitution
 An EO provided that Cabinet secretaries can hold
two other offices. Valid?
 No.
 An EO provided that Cabinet secretaries hold
other positions in an ex officio capacity. Valid?
 Yes.
o 2. Congress: may not hold any other office or employment in
government, subdivision, agency, or instrumentality, including
GOCCs without forfeiting his seat
 When is the prohibition absolute?
 Appointed to an office which was created
during his term, or which emoluments have
been increased during his term
o 3. Members of SC and other courts cannot be designated to
any agency performing QJA or administrative functions
o 4. Member of Con-Com, OMB, deputies –
 Cannot hold any other office or employment
 Term is 7 years, without reappointment
o 5. OMB and deputies –
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 Cannot run for office in the election immediately
succeeding cessation of office
 Cannot be candidates for elective position in the
elections immediately preceding appointment
o 6. Spouse and relatives by consanguinity or affinity within 4th
civil degree of the President, during his tenure, cannot
appointed as:
 Members of Constitutional Commission
 OMB
 Cabinet (sec, u-sec, head, chairmen)
 GOCC
o Compare this with the nepotism provision in the Civil
Service Law:
 It’s just 3rd degree of consanguinity or affinity
 Covers appointment of relatives of the appointing
authority, the chief or head of the bureau, or persons
exercising immediate supervision over him
 Covers all branches, GOCCs, LGUs, etc.
o What if they marry each other after being appointed?
 This is fine. Not covered by the nepotism provision.
o Who are exempted from the rules on nepotism?
 1. Persons employed in confidential capacity
 2. Teachers
 3. Physicians
 4. Members of AFP
o Does this rule cover subsequent political actions (such as
promotion, etc.)?
 Yes, otherwise, the rule can be circumvented
 What is the rule on divestment?
o Any person who has conflict of interest must resign from
position in private business within 30 days or divest of all
shareholdings of interest within 60 days
 Distinguish the spoils system from the lame duck bar:
o Spoils system –
 No elective official can be appointed or designated
during his tenure
 Exceptions:
 1. VP can become cabinet member
 2. Congress may be member of JBC
  3. Elected official must first resign from office
o But for Congressmen, cannot be
appointed to an office created
during his term
o Political lame duck –
 Candidates who ran in the prior elections cannot be,
within 1 year of elections:
 Appointed to government office
 Or GOCCs/subsidiaries
 Member of CSC
 Exception  losing candidates in barangay elections
Powers and duties of public officers
 What powers does the authority of public officers comprise?
o 1. Expressly conferred by act appointing him
o 2. Expressly annexed to the office by law
o 3. Powers under doctrine of necessary implication
 When does an officer have authority to exercise powers?
o Only when he is holding that office
o N.B. there are cases where judges have resigned but still
promulgated decisions. These decisions are invalid.
 Differentiate ministerial from discretionary powers:
o Ministerial powers are those whose discharge requires neither
judgment nor discretion
o Discretionary powers are those whose discharge involves
judgment by the officer as to how and when the duty shall be
performed
o For which power does mandamus apply?
 Only to ministerial powers
o What is the exception laid down in Lopez v. OMB?
 Where there is GADALEJ, equivalent to a denial of a
settled right to which the petitioner is entitled, and
there is no other plain, speedy, or adequate remedy,
writ of mandamus will issue
o In general, for discretionary acts, what is the extent to
which mandamus, if ever, would apply?
 Only to compel the exercise of discretion, but not the
discretion itself.
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 What are the general duties of public officers?
o 1. To be accountable to the people, to serve them with utmost
responsibility, integrity, loyalty, and efficiency; to act with
patriotism and justice; and to lead modest lives
o 2. Submit a declaration under oath of assets, liabilities, and net
worth upon assumption of officer and thereafter as may be
required
o 3. Owe the State and Constitution allegiance at all times
 What is the nature of the Sol-General’s duty to represent the
government?
o It’s mandatory. While he can exercise discretion w/n to
prosecute a case or withdraw, it must be exercised pursuant to
the best interest of the State.
 Is the government estopped from questioning the acts of its
officials?
o No.
Prohibitions against officials:
 1. Partisan political activity
o What is the extent allowed?
 To exercise right to vote
 Cannot use authority or influence to coerce political
activity
o Does this prohibition cover expression of views on current
affairs or mentioning the names of candidates they
support?
 No. This is allowed.
o Who are covered?
 Officers or employees in the civil service
 Who are not covered?
 Those holding political offices
o Ex. cabinet members
 Active members of the armed forces, not
those in the reserve force
o What is prohibited for these exempted officials?
 Cannot solicit contributions from subordinates or
subject them to any act that would violate this
prohibition
 o Distinguish from the prohibition in BP 881?
 Under BP 881, it is unlawful for any person or political
party to engage in election campaign or partisan
political activity except during campaign period.
 2. Additional or double compensation
o What is the prohibition?
 1. Cannot receive additional, double, or indirect
compensation unless authorized by law
 2. Cannot accept present, emolument, office, or title
from a foreign government without the consent of the
Congress
o Are pensions and gratuities covered by this?
 No.
 Can a person receiving pension for a government
position subsequently take a different
government position?
 Yes. But he cannot credit the years of
service in the first position because this is
adequately covered by the pension.
 3. Loans
o See above discussion (under Constitutional provisions, where
loans for business purpose are disallowed)
 4. Laborers
o Cannot be assigned to perform clerical duties
 5. Detail or reassignment
o When is detail or reassignment prohibited?
 Within 3 months before any election
o What is the exception?
 If approved by COMELEC
 6. Nepotism
o See above discussion in disqualifications (the 3rd degree rule,
as opposed to the 4th degree rule for the President)
De Facto Officers
 What are the elements of a de facto officer?
o 1. Validly existing public office
o 2. Actual physical possession of said office
o 3. Color of title to the office.
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o What are examples of this?
 Reputation or acquiescence: the public, without
inquiry, relies on the supposition that he is the public
officer he purports to be
 Failure to conform to requirement imposed by law,
although there is a known and valid election or
appointment
 If unknown to the public that: the office is not eligible,
there is want of authority in electing or appointing
authority, irregularity in appointment or election
 Under a known appointment or election under an
unconstitutional law before it was declared as
unconstitutional
 What is the effect of his acts?
o They are valid, binding, and have full legal effect
o This is intended to protect the public and individuals who get
involved in the apparently official acts of the de facto officer
 Can the rightful incumbent recover from the de facto officer the
salaries received?
o As a general rule, yes he may, even if the de facto officer took
the office in GF and under color of title.
o What if there is no de jure public officer?
 Then the de facto officer acting in GF who has
discharged duties of the office is legally entitled to
emoluments for actual services rendered.
 Can he file appropriate action to recover salary,
fees, and other compensations?
 Yes.
o N.B. this is the latest ruling + exception based on Gen.
Manager v. Monserate G.R. 129616
 What is the remedy?
o Quo warranto, by the Solicitor General in the name of the RP
or a person claiming title to the office
Liability of Public Officers
 What is the general rule on liability?
o A public officer is not liable for injuries sustained by another
due to official acts done within the scope of his authority
 o What are the exceptions?
 1. Bad faith
 2. Malice
 3. Negligence
 4. Death or injury to persons or damage to property
 What are the liabilities of public officers under statute?
o 1. Art 27, NCC: injury caused by failure without just cause to
perform official duty
o 2. Art 32, NCC: violation of constitutional rights of individuals
o 3. Art 34, NCC: peace officers who fail to respond to persons in
danger of injury to life or property
o 4. Sec 38(2), Ch. 9, Book 1, Admin Code: public officer who
without just cause neglects to perform a duty within a period
fixed or within reasonable period – liable for damages
 What is the liability under contracts?
o Public officer only personally liable for contracts entered into
without or in excess of authority
 What are their liabilities under tort?
o Only if he exceeds scope of authority or powers conferred by
law (ultra vires)
o What if during execution of judgment X is no longer a
public officer?
 Still personally liable
o When would a public officer act ultra vires but not be
liable?
 If there is no malice or if the acts are presumptively
valid and enforced as such by the officer
 When is the President immune from suit?
o Only during his tenure – this is absolute
o Can he invoke immunity after his tenure?
 No, he cannot invoke immunity for damages arising
from ultra vires acts done by him while holding the
Presidency.
o Can the President institute a lawsuit?
 Yes (Soliven v. Makasiar)
 What is the 3-fold liability rule?
o The wrongful acts or omissions of a public officer may give rise
to criminal, civil, and administrative liability
o Dismissal of one type of action does not extinguish the others.
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 What are the types of liability of ministerial officers?
o 1. Nonfeasance
 Neglect or refusal to perform act which is his legal
duty to perform
o 2. Misfeasance
 Failure to use degree of care, skill, or diligence
required
o 3. Malfeasance
 With ignorance, inattention, or malice
 When can a head be responsible for the wrongful acts or
omissions of his subordinates?
o He should have actually authorized by written order the act or
misconduct
Rights of Public Officers
 1. Right to Office
o Just and legal claim to exercise powers and responsibilities of
public office
 2. Right to wages
o Basis for this right?
 1. Legal title to the office, and
 2. the law attaches compensation to the office
o X was appointed to office by one without authority to do
so. Can he claim salaries?
 No. No legal title, no compensation.
o What is the right of a de facto officer to salary?
 If he in good faith had possession of the office and
discharged duties thereof.
 See notes on de facto officers when there can be and
can be no salary
o Can a public officer’s salary be garnished or unearned
salaries assigned?
 No, this is contrary to public policy.
o There was reorganization and X’s position was abolished.
X requested retention and was appointed to a lower
position. Can X claim salaries of the higher office?
 No. X is in estoppel.
o What if compensation, allowances, and benefits of an
officer are not approved by the Dept. of Budget and
Management?
 These are void. DBM approval is needed.
o Can the COA withhold an officer’s salary to the extent of
alleged shortage?
 Yes. But the withheld amount cannot be applied to
liabilities that are still being litigated.
o What are the Constitutional provisions re: salaries?
 1. No increase in salaries of members of Congress
take effect until expiration of full term of members who
approved the increase
 2. Salaries of P and VP may not be decreased during
their tenure. No increase takes effect until full term is
served.
 3. Salaries of judiciary members cannot be decreased
during service.
 4. Additional, double, indirect compensation
prohibited unless authorized by law
 5. Salaries are standardized
 Recall the Central Bank Employees case
(relative constitutionality and EPC)
o LWUA officials and employees were given rice subsidy. Is
this a violation of RA 6758 (Salary Standardization law)?
 No, because it was shown that: a) these benefits
existed before effectivity of RA 6758, and grant is
limited to incumbents by a certain period (as to not
result in diminution of pay)
o When is separation pay given?
 If reason for separation is not for cause but for
reorganization.
o What are the types of preventive suspension?
 1. Preventive suspension pending investigation under
the Admin Code
 2. Preventive suspension pending appeal if the
penalty imposed by the disciplining authority is
suspension or dismissal, and after review, respondent
is exonerated
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 Is there right to salary for period of preventive
suspension?
 As a rule, no, even if he is exonerated.
 When is there payment of salary?
 The employee is exonerated AND the
suspension was unjustified.
 For the second situation, what is the remedy if the
employee is exonerated?
 1. Reinstatement
 2. AND back salaries for period of
suspension pending appeal
o Is an illegally dismissed employee entitled to back
salaries?
 Yes.
 When is there no entitlement to back salaries?
 When the exoneration is not due to finding of
illegal dismissal but an act of liberality of the
Court.
 3. Right to preference in promotion
o N.B. this however does not prevail over discretion of the
appointing authority
 4. Right to vacation and sick leave
o Do elective officials enjoy vacation and sick leave?
 Initially the SC held that they do not, because they do
not have official hours of work. But under the LGC
(RA 7160), elective officials are entitled to the same
leave privileges as those enjoyed by appointive
officials.
o Can an official be declared absent on Saturdays, Sundays,
or holidays?
 No, they are not required by law to work then. Thus,
they cannot be deprived of salary accruing on these
days even if they did not report to work on the day
prior to or after these days. Otherwise, there would
be unjust deprivation of property without due process
of law.
 5. Right to maternity leave
 6. Right to retirement pay
 o What is the general principle?
 Retirement laws are construed liberally in favor of the
retiree.
o Is the period of work where an officer is paid on a per diem
basis, and not on fixed salary, creditable for purposes of
retirement?
 Yes.
o X worked at a certain position in public office. When the
secretary of finance was indisposed, X was appointed as
acting secretary of finance, and thereafter was returned to
his original position. X retired. What is the basis of the
money value of his terminal leave computed on? His
regular position of his higher, albeit temporary position?
 The terminal leave pay is calculated based on the
highest monthly salary received by an official. Thus, it
must be based on his salary as acting secretary.
o CSC MC No. 27 only allows extension of up to 1 year of
service to complete the required 15-year service period for
retirement purposes. However, PD 1146 allows extension
to complete the 15-year requirement. Which wins out?
 Initially, the SC held that PD 1146 should prevail. But
then it considered the general principle why
compulsory retirement at 65 is imposed. So CSC Mc.
No. 27 prevails, although officials in their discretion
may still allow an extension over 1 year to meet the
required 15 year service period.
 What is the rule in the judiciary?
 Extension is allowed if the court is satisfied
that the career of the retiree is marked by
competence, integrity, and dedication to
public service.
o When is totalization of service credits allowed (that is, to
tack service term in one position onto another completely
different position – ex. DOH service and GOCC service)?
 ONLY when the retiree does not qualify for benefits in
either or both of the systems.
 7. Other rights
o Right to reimbursement for expenses incurred in due
performance of duty
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 Does this include transportation allowance for
those using government vehicles?
 No.
o Right to be indemnified against liabilities they may incur in
bona fide discharge of duties
o Right to longetivity pay
Termination of Official Relationship
 1. Expiration of term or tenure
o When a public officer holding office at the pleasure of the
appointing authority gets replaced, what is the legal
effect?
 Expiration of term, not removal
o Can the Congress call for delayed elections?
 No, this effectively reduces the term of the new
officials, lower than what the Constitution requires
o When does a term begin?
 If a statute fixes the period by which the officer may
arrange his affairs and qualify for the office – his term
begins upon qualification
 Where no time is fixed by law – upon appointment or
election
 Where the law fixing the term is ambiguous – the one
that fixes the term at a shorter period prevails
 Where the duration of the term and commencement
and termination are fixed by constitutional or statutory
provisions (ex. staggered) – term is only the
unexpired portion of such
 Where only the duration is fixed – then the term will
be served in full, and not the balance
 When an office is created or an officer is appointed for
the performance of a particular act – term expired
upon accomplishment of such
o What is the hold-over principle?
 In the absence of an express prohibition, the public
officer is entitled to hold office until a successor is
qualified, to prevent hiatus in public service
 What is the status of the officer?
  Still de jure  Resignation, because in his final press
 What if the law fixes a specific date for the end of release he acknowledged GMA’s
the term? presidency, that he left the palace for the
 No hold-over is allowed sake of healing, that he was thankful for the
 2. Reaching the Age Limit opportunity to serve, and called his
o What is the compulsory retirement age? supporters to join him in promotion of
 70 for members of the judiciary national reconciliation
 65 for other government officers and employees o What is the second essential element of resignation?
(GSIS charter)  Acceptance by the competent authority, expressly or
 If there is a special retirement law fixing optional impliedly
retirement upon reaching a certain number of  What is the relevant RPC provision?
years of service, and the officer avails of this,  An officer who abandons his position prior to
what is the legal effect? acceptance of the resignation is criminally
 Tantamount to termination by reaching the liable
age limit  What if the officer is mandated by law to hold-
o See above discussion on the principles of retirement and what over?
happens when there is a conflict between statutes and  The resignation is only effective upon
circulars providing for minimum years of service (“right to appointment or election of a successor
retirement pay”) o Who are authorized to accept resignations?
 3. Resignation
o What is this? Rank Who accepts resignation
 Act of giving up the office and renunciation of further President and Vice President Congress
Member of congress Respective house
right to it
Governor and Vice Governor; Mayor President
 And the acceptance of the competent and lawful
and Vice Mayor of HUC or ICC
authority Mayor and Vice Mayor of Governor
o What is the first essential element of resignation? municipality or CC
 Voluntariness. If it is not voluntary; i.e. procured by Sanggunian member Sanggunian concerned
fraud or duress, the resignation may be repudiated. Barangay officials City or municipal mayor
 What about a courtesy resignation?
 It lacks element of voluntariness and is not
valid, therefore o When is a resignation deemed accepted?
 But in Collantes v. CA the courtesy  When not acted upon within 15 working days from
resignation was treated just like any other receipt thereof
o What if the law is silent as to who should accept the
resignation, and any promise thereafter of
another position was rendered ineffectual, resignation?
because public office is a public trust – it is  If the public officer is appointive, then to the
not subject to personal promises appointing authority
 What is the legal justification behind the Estrada  If elective, then to the officers authorized by law to call
removal? an election order to fill the vacancy

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 o What is the effective date of resignation?
 The date specified in the tender
 What if no date is specified?
 Date when the public officer receives the
notice of acceptance of his resignation
 4. Recall
o What is this?
 Termination of an elective official for loss of
confidence prior to expiration of his term, through the
will of the electorate
o Who exercises recall?
 Registered voters of a LGU to which the official
belongs to
o Who can initiate recall?
 Registered voters of the LGU
 Can the Preparatory Recall Assembly initiate
recall?
 Not anymore. The LGC allowed it, but it was
amended by RA 9244
o How is it initiated?
 Petition by at least 25% of the registered voters in the
LGU – based on the election under which the official
was elected (if not more than 20K voters; 20% if 20K-
75K; 15% if 75k-300k [but never less than 15k]; 10%
if 300k+ [but never less than 45k])
 What is the requirement for the petition?
 1. Signed before the election registrar (or his
representative)
 2. In the presence of the representative of
the petitioner and representative of the
official sought to be recalled
 3. Signed in a public place in the LGU
 4. Filed with the COMELEC through its LGU
office
 What is the notice requirement?
 Posting in a public and conspicuous place
for 10-20 days, to verify authenticity of
petition and signatures
 What happens after?
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 The COMELEC announces acceptance of
candidates to the position, and it shall
include the officer sought to be recalled
o When is recall held?
 COMELEC representative shall set the date which is
not later than 30 days after filing of resolution/petition
for barangay, city, or municipal officers
 Not later than 45 days for provincial officials
o Can the local official resign during recall process?
 No.
o What are the limitations on recall?
 1. An elective local official may be subject of a recall
only once during his term of office
 2. No recall shall take place within 1 year from date of
official’s assumption to office, or 1 year immediately
preceding a local election
 What does “regular local election” mean?
 An election where the position of the officer
shall actually be contested, not just any other
election (ex. as to a mayor, the barangay
elections is not a bar)
 5. Removal
o What are the grounds for removal or disciplinary action
under the CSL?
 1. Discourtesy in course of official duties
 2. Refusal to perform official duty or render OT
service
 3. Falsification of official documents
 4. Habitual drunkenness
 5. Inefficiency and incompetence in performance of
official duties
 6. Wilful refusal to pay just debts or taxes due
 7. Oppression or Grave Misconduct
 What is grave offense?
o Conduct prejudicial to the best
interests of the service
 When is there dismissal?
o It is a penalty for a second offense
 8. Dishonesty
  What is dishonesty? o X is a public school teacher for Grade 6, and was
o Concealment or distortion of truth in transferred to Grade 4. Is there violation of security of
a matter of fact relevant to one’s tenure?
office or connected to the  No. The choice of grade, subject area, level, school,
performance of one’s duty or district is a question of pure policy and in the
o Ex, using spurious Civil Service absence of arbitrariness, is best left to the
Eligibility administrators.
 9. Misconduct o What are the two grounds in the Admin Code of 1987 to
 What is misconduct? remove an officer or employee from service?
o Unlawful behavior and gross  1. Unsatisfactory conduct
negligence  Ex. Inefficiency, incompetence in official
o Not a mere error in judgment, but a duties (poor performance)
wrongful intention  2. Want of capacity
o Ex. Concealment in Personal Data o X filed an affidavit of complaint against Y, a public official.
Sheet of information such as prior Investigation ensued. The X filed an affidavit of
conviction desistance. Is the case dismissed?
 10. Disgraceful and immoral conduct  No. The investigation is impressed with public
 11. Neglect of duty interest and is not a purely private matter.
 12. Physical or mental incapacity due to immoral or o What is the standard of proof in disciplinary cases?
vicious habits  Substantial proof, not clear and convincing evidence,
 13. Conviction of crime of moral turpitude and not proof beyond reasonable doubt.
 14. Notoriously undesirable o Who has original jurisdiction in disciplinary cases?
 15. Gambling  Head of the ministry/agency/instrumentality, province,
o What is the general principle for removal? city, or municipality
 It can only be for just cause and following procedure  When is the decision final?
 What if there is removal not for just cause or non-  If the penalty is suspension of not more than
compliance with procedure? 30 days or fine not exceeding 1 month salary
 The official is deemed to have never been  When is it appealable?
removed  For other cases, where it can be appealed to
 What is he entitled to? the department head, and then to the CSC
o 1. Reinstatement o Who has appellate jurisdiction?
o 2. Back salaries  The Civil Service Commission
o 3. Non-loss of seniority  Is the penalty executory during appeal?
o What is the legal effect of demotion without cause?  Yes.
 It is invalid too, tantamount to removal without just  Exception?
cause  For removal. It needs prior confirmation by
 What about unconsented transfer resulting in the Department head.
demotion in rank or salary?  Does the CSC only exercise appellate
 Same. jurisdiction?

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  No. While it usually does, the case can be
filed directly with the CSC and the latter may
decide the case or deputize a
department/agency to hear it.
o What is the special rule on discipline cases for public
school teachers?
 There must be a representative of the teachers’
organization in the committee. The Dep. Ed. cannot
be the one to appoint, because it must be a
representative acting in behalf of the teacher.
o What are the types of preventive suspension?
 1. Preventive suspension pending investigation under
the Admin Code
 2. Preventive suspension pending appeal if the
penalty imposed by the disciplining authority is
suspension or dismissal, and after review, respondent
is exonerated
o What are the grounds for preventive suspension?
 1. Dishonesty
 2. Oppression or grave misconduct
 3. Neglect in performance of duty
 4. Reasons to believe that the respondent of charges
which would warrant removal from service
o What is the nature of preventive suspension?
 It is not a penalty per se; it is a measure intended to
enable the disciplining authority to investigate charges
against the respondent, and prevent him from
jeopardizing the investigation (ex. intimidation, etc).
 Thus, there can be preventive suspension even
without hearing.
o When is the preventive suspension lifted?
 1. Lapse of 90 days without decision
 2. Respondent is found innocent of charges
o Can the OMB preventively suspend?
 Yes, the OMB possesses concurrent authority to
preventively suspend.
 The period is a maximum of 6 months.
o Can the RTC preventively suspend?
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 Yes, because removal from office is within the court’s
power (ex. in RA 3019), then preventive suspension is
necessarily included in its powers.
o Is the public officer entitled to backwages during
preventive suspension (type 1)?
 NO.
 What is the exception?
 Not just that the public officer was
exonerated, but that the preventive
suspension was not justified.
o What about preventive suspension pending appeal (type
2)?
 There can be back salaries if eventually found
innocent, and thereby reinstated.
 The maximum amount is 5 years pay
o What is the time period to file an appeal (or prior to that, a
petition for reconsideration)?
 15 days
o What are the grounds for a petition for reconsideration?
 1. Newly discovered evidence
 2. Decision not supported by evidence
 3. Errors of law or irregularities
o How are CSC decisions appealed?
 Within 15 days, to the Court of Appeals, under Rule
43
 Within 15 days, Rule 45 Certiorari to the SC
o Can the CSC or the agency/ministry/instrumentality appeal
a decision exonerating a public officer to the CA?
 YES. Before the rule was no, but this was overturned
by CSC v. Dacoycoy.
o Is summary dismissal (Sec. 40 of CSL) for cases where the
guilt is strong, recidivism, or notorious undesirability still
in effect?
 No. It was repealed by RA No. 6654.
o Can the president remove administrative penalties or
disabilities?
 Yes, of course, subject to terms and conditions he
may impose hinged on the commutation or removal of
penalties.
  NOTE: if the pardon was based on the ground that
the person did not really commit the offense, he is
entitled to his office ipso facto and back wages.
 6. Abandonment
o What is abandonment?
 Voluntary relinquishment of office with intent to
terminate possession and control thereof
o Distinguish from resignation:
 Resignation is formal relinquishment
 Abandonment is relinquishment through non-user
o What is the most important element?
 Intent to abandon. So if he leaves due to incapacity,
or through compliance with an order, there is no
abandonment.
o Is delay in qualifying for office abandonment?
 No. But see BP 881 where failure to qualify within 6
months in an elective office renders it vacant.
o When is an officer or employee automatically deemed to
have abandoned his office?
 Failure to return to service after 1 year LOA without
pay
 What does the CSL Omnibus Rules provide?
 Absence for at least 30 days without
approved leave is considered AWOL and is
ground to drop the officer from service, after
due notice
 7. Acceptance of incompatible office
o What is the test of incompatibility of offices?
 When by nature and relation of the two offices, there
is contrariety in the attempt by one person to faithfully
and impartially discharge the duties of one, toward the
incumbent of the other.
o Distinguish from forbidden office:
 This is expressly prohibited by Constitution or law.
o What is the effect of accepting incompatible office?
 It ipso facto vacates the other.
o What is the exception?
 When the officer is authorized by law to accept the
other office. Ex. SOJ is also a member of the JBC.
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 8. Abolition of office
o Who has the power to abolish an office?
 In general, the Congress.
 What are the exceptions?
 1. Constitutional offices cannot be abolished
by Congress
 2. No law shall be passed reorganizing the
judiciary when it undermines the security of
tenure of its members
o Valid abolition of office does not constitute removal.
o What are the requisites of a valid abolition of office?
 1. In good faith
 2. With clear intent to do away with the office
 3. Not for personal or political reasons
 4. Must be implemented in manner consistent with
law
o What is the nature of the President’s power to reorganize
government offices?
 He has continuing authority to reorganize the national
government, including the power to group,
consolidate, abolish, transfer, and create offices.
 9. Prescription of the right to office
o What is the prescriptive period to ask for reinstatement?
 Within 1 year of ouster or dismissal
 Raison d’etre?
 To not subject public office to continued
uncertainty
 Does an administrative proceeding or MR
suspend this period?
 No. Must file quo warranto within this period.
 10. Impeachment
o See Constitutional Law I discussion
 11. Death
 12. Failure to assume office
o N.B. this is the 6 month rule stated above: failure to qualify and
take oath within 6 months of proclamation
 13. Conviction of crime
o When does conviction terminate public office?
  When one of the accessory penalties is  Does the next-in-rank rule bind?
disqualification  No, it doesn’t bind the appointing authority,
o What is the nature of a plenary pardon? although he must specify the reasons for not
 It extinguishes the accessory penalty of appointing the next-in-rank officer.
disqualification BUT in order to restore public office,  When does the automatic reversion rule apply?
there must be another appointment.  If there is a series of promotions, and all
o Is filing a COC a ground to deem an officer ipso facto promotional appointments are
resigned from office? simultaneously submitted for approval to the
 If elective official, not resigned. If appointive, CSC, and the commission disapproves the
resigned. (Quinto v. COMELEC, overturning appointment of a person to a higher.
Farinas)  What is the effect?
o 1. They are all automatically
The CSC and personnel actions restored to their old positions
o 2. But they get paid for higher
 What cases are within the exclusive jurisdiction of the CSC?
salary for services actually
o 1. Disciplinary cases
rendered for the higher position
o 2. Personnel action affecting CS employees
o 2. Transfer
 Ex. appointment through certification, promotion,
 What is transfer?
transfer, reinstatement, reemployment, detail,
 Movement from one position to another
demotion, separation, etc.
which is of equivalent rank, level, or salary
o 3. Employment status and qualification standards
without break in service
o Can the CSC recall an appointment which was initially
 May it be imposed as an administrative penalty?
approved, when it finds out that it actually disregarded CS
 Yes.
laws?
 When is employee consent required?
 Yes
 When the transfer results in
o Can the CSC terminate employment or drop members
promotion/demotion, advancement or
from rolls?
reduction, or a transfer that lures him away
 No. It is only allowed to approve, review
from his permanent position
appointments to determine compliance with CS Law.
 X was transferred from Pampanga to Cagayan
 It cannot terminate on its own.
after the BIR commissioner issued an RR
 What is the scope of civil service?
redefining jurisdictions and re-number RDOs of
o Embraces all branches, subdivisions, instrumentalities,
the BIR. Is this invalid transfer?
agencies of government, including GOCCs with original
 No, the respondent was unable to show the
charters
patent illegality of the CIR’s action.
 Does the NLRC or RTC have jurisdiction over cases involving
 Can those in CES be shifted from one office to
these employees/officers?
another without violating security of tenure?
o No. The CSC has exclusive jurisdiction.
 Yes. Because security of tenure attaches to
 What are the other personnel actions?
rank, not office.
o 1. Promotion
o 3. Reinstatement

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  What is reinstatement?
 A person permanently appointed in career
service who was separated without just
cause may be reinstated to a position in the
same level for which he is qualified.
 X was temporarily appointed to a position. He
was then terminated. He subsequently obtained
eligibility and qualification. Can he compel
reinstatement by mandamus?
 No. Appointment is still discretionary and
other factors are taken into account through
this process. He was temporarily appointed
when he was terminated.
 What is the nature of reinstatement?
 It is actually the issuance of a new
appointment. The courts cannot interfere
with such exercise of discretionary authority.
 Can one convicted but subsequently given
plenary pardon by the President demand
reinstatement?
 No.
 But what if a person was pardoned because he
did not truly commit the offense?
 His name is cleansed and he need not apply
for reinstatement – he is restored ipso facto
upon issuance of the clemency and is
entitled to back wages.
o 4. Detail
 What is the nature of detail?
 Movement of an employee from one agency
to another without appointment
 Allowed only for temporary period
o 5. Reassignment
 What is this?
 Transfer from one organizational unit to
another in the same agency, without
reduction in rank, status, or salary
 Does this violate security of tenure?
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 No.
 What is the limitation?
 Like detail, it must have a definite date or
duration.
 The lack of specific duration is tantamount to
a floating assignment, and is thus a
diminution of status/rank
 Note – distinguish if the reassignment is actually a
transfer without consent, which is invalid.
o 6. Reemployment
 What is the procedure?
 If a permanently appointed employee was
separated due to reduction in force or
reorganization, then his name will be placed
in a list.
 This list is from whence reemployment can
be taken from.
 What is the right of those separated from position
due to the 1986 reorganization or those who
tendered their resignations pursuant thereto?
 1. Separation pay, retirement and other
benefits
 2. In lieu of this, they can be reemployed in
government
ADMINISTRATIVE LAW
General Principles
 What is administrative law?
o Branch of public law which fixes organization and determines
competence of administrative authorities and indicates
individual remedies for violation of rights
 What is an administrative body or agency?
o Organ of government other than a court or legislature that
affects rights of private parties either through rule-making or
adjudication
 o How do you determine if they are administrative bodies? o 2. Quasi-judicial (adjudicatory)
 Even when it conducts hearings and determines o 3. Determinative powers (fact finding, investigative, licensing,
controversies, its function is primarily regulatory rate-fixing)
 Even when it quasi-legislates, it just provides details
to enforce the law, not determine what the law is Quasi-legislative
 How are they created?
o 1. Constitution  What is the nature of QL power?
o 2. Law o Fixing details as to what the law should be
o 3. Authority of law o Within the confines of the delegating statute and the rules on
 What are the function-types of administrative agencies? delegation of powers
o AO 308 issued by the President imposes a national
o 1. Where the government is offering gratuity
computerized ID system. Can the President claim to have
 Ex. Bureau of Lands
been merely implementing the Administrative Code of
o 2. Where the government is seeking to carry on actual
1987?
government business
 Ex. BIR  No. The National ID System requires adjustment of
o 3. Where the government is performing business service for state policies, national security, privacy rules, and
public choice of policies. It’s not merely an implementing
 Ex. MWSS order.
o What is the effect of rules set out by the administrative
o 4. Where the government is regulating businesses affected by
bodies?
public interest
 Ex. LTFRB  If within the power delegated to them, it has the force
o 5. Where the government regulates private businesses and of law
o Can the administrative body determine w/n it should
individuals through police power
implement a law?
 Ex. SEC
o 6. Where the government is adjusting individual controversies  No. Its duty is to enforce it.
because of strong social policy involved  What are the kinds of administrative rules and regulations?
 Ex. ECC o 1. Supplementary or detailed legislation
o 7. Where the government is a private party  Detail-fixing
 Ex. GSIS  Expressly or impliedly granted
 What is the nature of the MMDA?  Must be published
o It lays down policies and coordinates with various agencies, o 2. Interpretative legislation
organizations, and private sector. It may enforce, but not enact  Construing provisions of statute
ordinances.  Binding on all until they are changed.
o It does not exercise police power, just administrative power.  Have effect of law and enjoy presumption of legality
 What is the effect of erroneous application of the
Powers of administrative bodies law by public officers?
 Does not bar subsequent correct application
 What are the powers of administrative bodies? of law
o 1. Quasi-legislative (rule making)  Expressly or impliedly granted

81
  Need not be published
o 3. Contingent legislation
 Rules made by an administrative authority on the
existence of certain facts upon which enforcement
depends
 Must be expressly granted
 Must be published
o 4. Procedural
 Method by which the agency carries out its functions
 Expressly or impliedly granted
 Must be published
o 5. Internal
 Issued by a superior administrative or executive
officer to his subordinates to carry out the law
 Expressly or impliedly granted
 Need not be published
o 6. Penal
 See below
 What are the requisites for validity of these issuances?
o 1. Under authority of law
o 2. Within scope and purview of law
 What is required for “filling in” legislation?
 It must be germane to objectives of law and
it does not contradict standards in the law
(Recall legislative delegation)
 Ex. RA 6657 provides that just compensation for
property must be cash or land bank bonds. So DAR
Circular 9 which allows opening of trust account is
beyond the scope of law.
 RA 8171 (Lethal Injection law) requires that rules and
regulations must be issued by Sec of Justice and
Director of Bureau of Corrections. The rules,
however, allowed Director to prepare the manual
without approval of Sec of Justice. This is abdication
of responsibility and is against the law, which grants
rule-making power to the Sec of Justice.
o 3. Reasonable, uniform in operation, not unfair/discriminatory
o 4. Publication in OG or newspaper of GC
 When is just posting allowed?
82
 For interpretative rules and regulations or
those merely internal in nature
 A DBM circular prevents payment of allowances
and additional compensation to government
employees. Is this merely internal?
 No. It must be published.
 Same with POEA MC No. 2 which sets
schedule of placement and documentation
fees – must be published.
 What are requirements for rules with penal sanctions?
o 1. Act punishable under the law itself
o 2. Law must define or fix penalty for the violation
o 3. Rules and regulations published in OG, newspaper of GC,
AND archived at the UP Law Center
 What is the test of a valid delegation?
o 1. Completeness
o 2. Sufficient Standards
o When are standards not required?
 1. Handling of state property and funds
 2. Law does not involve personal or property rights
 3. Matters of internal administration
 4. Power of the board to make a recommendation
 5. Matters involving privileges (use of property,
engaging in profession, etc.)
 6. Regulation or exercise or police power
 Is notice and hearing necessary?
o No requirement of hearing for promulgation of general
regulation of administrative body.
o No notice required for:
 1. Procedural rules
 2. Mere legal opinions
 3. Substantive rules where the class affected is so
large and the questions to be resolved involve use of
discretion by the rule-making authority
 What about rate-fixing? What is its nature?
o Quasi-legislative if the rates are meant to apply to all
enterprises of a given kind or character  no need for notice
and hearing
 o Quasi-judicial if they apply exclusively to a particular party
based on finding of fact  need notice and hearing
o But can there be provisional increases?
 Yes, but subject to final determination in the main
case.
 Does a writ of prohibition apply to exercise of QL functions?
o No. Since the party must be exercising judicial, quasi-judicial,
or ministerial functions and with GADALEJ, it only applies to
the exercise of QJ functions.
Determinative powers
 1. Enabling –
o Permit or allow something which the law regulates
o Ex. Licenses for business
 2. Directing –
o Ex. Assessment by BIR or BOC
 3. Dispensing –
o To exempt from general prohibition or relieve an individual or
corporation from affirmative duty
o Ex. Zoning boards can vary zoning ordinances
 4. Examining –
o Investigatory power; requiring production of books, records,
etc.
o Includes attendance of witnesses and having them testify
o Can administrative bodies compel attendance of
witnesses, by default?
 No. It’s not an inherent power.
 But an administrative officer authorized to take
testimony can administer oath, summon witnesses,
require production of documents, etc.
o Can the admin body punish for contempt?
 No, unless expressly granted.
 If granted, only applicable to QJ functions.
 5. Summary –
o To apply compulsion or force against persons/property to
effectuate a legal purpose without a judicial warrant to
authorize the action
o Ex. Abatement of nuisance, health inspections, etc.
83
Quasi-judicial
 What is this power?
o To make determinations of facts in the performance of official
duties and apply the law as they construe it, to the grounds so
found
 What is the concept of jurisdiction in QJ proceedings?
o Two elements –
 Over subject matter
 Over person
o 1. If without J, the acts are void and open to collateral attack
o 2. Admin bodies have limited J, so the validity is entirely
dependent on the statutes granting power
o Can the admin body or the parties confer J over the admin
body itself?
 No, the body cannot enlarge its own jurisdiction
 Neither can the parties dictate w/n the body has
jurisdiction
 The admin body’s determination as to its own
jurisdiction is not conclusive upon the courts
o What if the statute expires?
 It does not deprive the admin body of jurisdiction over
acts committed while the statute was in effect, where
a general saving statute continues the liabilities
o Can lack of previous notice be cured?
 Yes. It may be cured by subsequently giving the
party an opportunity to be heard.
 It can be through an MR too, because there, a party
has the chance to be heard.
 What is the doctrine of primary jurisdiction?
o Where the determination requires the expertise, specialized
skills, and knowledge of admin bodies because technical
matters are involved, the relief must first be obtained in an
admin proceeding before remedy will be supplied by the courts
(discussed further below as “doctrine of prior resort”)
 Can the admin body promulgate its own rules of procedure for QJ
proceedings?
o Yes.
 o As long as these do not diminish, increase, or modify
substantive rights.
 What is admin due process (review of BOR – Ang Tibay)?
o 1. Right to hearing
o 2. Tribunal must consider evidence presented
o 3. Decision has basis
o 4. Substantial evidence
o 5. Decision based on evidence adduced at the hearing or
contained in the record
o 6. Board/judges act on independent consideration, and not just
views of subordinate
o 7. Decision rendered in manner where parties know the issues
and basis for decision
 On who conducts hearing and issues decisions –
o If the law requires an admin officer to exercise judgment and
discretion  there can be delegation to subordinates for
hearing and receipt of evidence (but the superior officer has
control)
o If the admin agency acts as a collegiate body  powers cannot
be exercised by one officer alone
 Is a formal or trial-type hearing required?
o Not at all times; the essence of due process is being given the
opportunity to explain one’s side or seek reconsideration
o Does it have to be oral proceedings?
 No. It can be based purely on written pleadings.
o Must there be a cross-examination?
 No need.
o When are actual adversarial proceedings in termination
cases or other admin cases needed?
 When there is need for clarification or propounding of
searching questions to witnesses with vague
testimonies
 But the party must ask for it because it’s not an
inherent part of the summary proceedings that attend
admin cases
 Is there right to notice where the owner of a property subject to
forfeiture is known?
o Yes. Mere posting is not enough.
 Is there right to counsel?
84
o Not necessarily.
 When is notice and hearing not required?
o [temporary actions]
o 1. Granting provisional authority for increased rates
o 2. Preventive suspension of public officer/employee
o 3. Padlocking of filthy restaurants or theatres showing obscene
movies (or “lock-up” campaign of BIR)
o [summary actions]
o 4. Summary proceedings of distraint and levy upon delinquent
taxpayer’s property
o 5. Summary abatement of nuisance
o 6. Cancellation of passport for criminal prosecution
o 7. Replacement of a temporary or acting appointee
o [equity]
o 8. Urgency of immediate action
o 9. Right was previously offered but not claimed
 What is the coverage of the right against self-incrimination in
admin proceedings?
o Respondent can refuse to take witness stand if the penalty
involves a penal-like sanction.
 Ex. Testimony may result in forfeiture of property
under RA 3019.
 Ex. Medical practitioner may lose his privilege to
practice medicine.
o What if he ends up taking the witness stand voluntarily?
 He can still invoke the right against self-incrimination
against particular questions which call for an answer
that incriminates him of an offense other than that
which is charged.
 Who has the power to punish for contempt?
o When the admin body is engaged in performance of QJ
powers
 When can there be right of appeal?
o Where provided by law.
o Can the appellate admin agency conduct additional
hearings?
 Yes, if necessary.
o What is the implication of the President’s power of
control?
  The President by himself, or through an alter ego, can
affirm, modify, alter, or reverse admin decisions of
subordinate officials and employees.
 Does res judicata apply?
o Yes, decisions and orders of admin bodies have force and
binding effect of final judgment, akin to RJ.
o What is the special rule re: citizenship?
 RJ only applies when the following conditions apply:
 1. Question of citizenship is resolved by a court or
admin body as a material issue after a full-blown
hearing
 2. There was active participation of the Solicitor
General
 3. The finding by the admin body is affirmed by the
SC
o When else does RJ not apply?
 When the admin decision of the ECSIF awards the
employee less than what the law provides.
 (I guess, to extrapolate a general rule, when the
decision is clearly contrary to law.)
 Specific cases:
o 1. The Laguna Lake Dev’t Authority (LLDA), as regards
pollution and fishing cases can issue a cease-and-desist order.
Its charter (special law) gives it power to issue permits for fish
pens and enclosures in the Laguna de Bay. It trumps the LGC.
o 2. The DECS Regional Director has authority to issue RTWO
for striking public school teachers and to investigate
o 3. The HLURB hears cases of unsound real estate business
practices and specific performance and has exclusive
jurisdiction over disputes of homeowners associations
o 4. The Prosecution and Enforcement Division is the
adjudicatory arm of the SEC
o 5. It is the DOE, not the ERB, that has jurisdiction over
disputes re: direct connection of electrical power
 Does the Presidential Electoral Tribunal exercise QJ powers?
o No. The PET exercises judicial powers.
 What is the rule for controversies among government offices and
corporations under the Administrative Code?
o Questions of law:
85
 Submitted to Sec. Of Justice as Attorney-General
 His ruling binds the parties concerned
o Questions of fact and law:
 1. Sol-Gen if the dispute involves only departments,
bureaus, offices, agencies of the National
Government and GOCCs
 2. SOJ in all other cases not mentioned above
o What is the exception where the findings of the Sol-Gen or
SOJ are not final and binding?
 When the claim involves at least 1M pesos, wherein it
can be appealed to the Office of the President
Judicial Recourse and Review
 What are the primary doctrines you must know?
o 1. Finality of administrative action –
 Decision of tribunal must be final first before courts
can review it
o 2. Primary jurisdiction –
 Initial action must be taken by an admin agency when
it concerns matters of technical expertise
o 3. Exhaustion of admin remedies –
 Applicable to QJ powers; judicial relief can only be
had after completing all available administrative
recourse
o 4, Ripeness for review –
 Same principle as exhaustion, but as for rule-making
and administrative powers
 There must be a real and problem, and not one which
is future, imaginary, or remote
 What is the general rule on where appeal is made?
o Rule 43
o When is the remedy Rule 65, instead of Rule 43?
 1. DOJ Sec.  CA
 2. OMB (non-admin cases)  SC
 Whereas OMB admin cases go to the CA by
Rule 43
 3. COA/COMELEC  SC
 Whereas CSC cases go to CA by Rule 43
 o When is the remedy Rule 45, instead of Rule 43?
 1. CTA en banc (from CTA div.)  SC
 2. NLRC (from LA)  CA via rule 65, then SC via rule
45
 What are the exceptions to finality of admin action (meaning,
courts interfering even before finality of admin action)?
o 1. Relief is to preserve status quo pending further admin action
o 2. Essential to protect rights
o 3. Allowed by law
o 4. Order is not reviewable and the complainant will suffer great
and obvious damage if order is carried out
o 5. Interlocutory order affecting merits of controversy
o 6. Admin officer acts in violation of constitution/law
o 7. Order made in excess of power
o N.B. So most of these are really just: 1. GADALEJ, and 2.
Urgency depending on facts of case, and 3. TRO/injunction
(preserve status quo)
 What are the exceptions to primary jurisdiction/prior resort?
o 1. Congress does not intend that the issues be left solely to the
admin agency for initial determination
o 2. Issues involve questions of law
o 3. Concurrent jurisdiction of courts and admin agencies
o Can the courts determine the Manny Villar double
insertion case even before the Senate Committee decides
in it?
 Yes, because the issues do not require expertise,
specialized skills, and knowledge of respondent for
resolution. What are involved are purely legal
questions.
o Even when the case is already pending with the SC, if there
are supervening events that change the factual backdrop of the
case, within the competence and expertise of an admin
agency, it can refer the back to them.
 Can the court raise the issue of primary jurisdiction motu propio?
Can the parties waive it?
o Yes, the courts can raise it motu propio. No the parties cannot
waive it.
o The rule is not for the convenience of the parties, but for proper
distribution of power.
86
o What can the court do in such a case?
 1. Suspend judicial process pending referral to the
admin body
 2. Dismiss the case without prejudice if the parties
would not be unfairly disadvantaged
 What is the implication of exhaustion of admin remedies?
o Premature invocation of the court’s intervention is fatal to one’s
cause of action.
o It is a ground for motion to dismiss.
o What are the reasons for exhaustion?
 1. Enable admin superiors the chance to correct
errors of subordinates
 2. Separation of powers
 3. To not saddle dockets with admin cases
 4. Usually, the remedy is an SCA which requires no
other plain, speedy, available remedy
 5. Less expenses and faster to resort to admin
remedies
 What are the exceptions to exhaustion of admin remedies?
o [where there is already a reviewable act]
o 1. Doctrine of qualified political agency
 Meaning the officer was acting as the President’s alter
ego already, so there has been exhaustion
 EXCEPT when the law expressly provides
that you have to go up to the President
 But if an appeal has been filed to the President
already, and then it is withdrawn to go to the courts,
there is failure to exhaust because the petitioner has
already recognized the OP as an available remedy.
 EXCEPT when the OP hasn’t acted for a
long time (in a case, 2 months)
o 2. Purely legal questions
 Legal question  which law applies to a particular set
of facts
 (Rule 45)
o 3. Law does not make exhaustion a condition precedent
o 4. Admin action is patently illegal/GADALEJ
o 5. When there is denial of due process
 Ex. No notice and hearing
  (Actually a form of GADALEJ)  What are the grounds for reversal of admin findings? (NOTE: this
o 6. Rule does not provide a PSA remedy is almost the same as Rule 45 grounds where findings of facts can
 (under GADALEJ, this is a ground) be overturned))
o [equity] o [abuse]
o 7. Admin remedy is fruitless o 1. GADALEJ
 Ex. Suit to recover title to office must be within 1 year o 2. Prejudice to rights of party because findings violated
of legal ouster or else it prescribes. constitution or law, or was vitiated
o 8. Estoppel on part of the admin agency o 3. Irregular procedures or violations of DP
o 9. Unreasonable delay or official inaction o 4. Agency went beyond issues of case
o 10. Irreparable injury or threat thereof unless judicial recourse o [shoddy fact-finding]
is had o 5. Inferences made are manifestly mistaken or impossible
 Ex. Petitioner’s security agency contract has been o 6. Misapprehension of facts
terminated and the replacements were already hired – o 7. Findings grounded on speculations/conjectures
appeal to the Board of Trustees of the NFA and then o 8. Findings not supported by substantial evidence
the Secretary of Agriculture was not a PSA remedy.
They have to go to courts already.
o 11. Observance of doctrine will result in nullification of the ELECTION LAW
claim
o [based on subject matter] General Principles
o 12. Land cases, where the subject matter is private land
o 13. Special reasons or circumstances (ex. Matters of strong  What are covered by the right to suffrage?
public interest) o 1. Election
 Ex. PARO did not immediately take action on protest o 2. Plebiscite
of petitioner. It only forwarded protest to DAR in one o 3. Initiative and referendum
year. DAR then kept asking petitioner to submit  What are the theories re: election?
documents that were already attached to the protest. o It is a privilege and a right
In the meantime, the PARO had already cancelled the o Follow strict secrecy
petitioner’s title and issued a new one to the farmer-  What is the election period?
beneficiary. (Poor petitioner.) o 90 days before election and until 30 days after elections
o 14. Amount is relatively small to make rule impractical  N.B. Please read the COMELEC part of CCs again to review regarding
 What are the powers of the courts vis-a-vis reviewable questions? jurisdiction of the COMELEC, COMELEC en banc, and lower courts
o 1. Of fact  general rule is that the courts will not disturb the
findings of admin bodies Voters – qualification and registration
 Except if not supported by substantial evidence
o 2. Of law  can be appealed because judiciary has inherent  Qualifications for suffrage?
power to review all questions of law o 1. At least 18 years old
o 3. Mixed  if the questions of law and fact are so intertwined o 2. Resided in the Philippines for at least 1 year
and inseparable, the default treatment by the courts is to deem  What is the exception in Sec 5(d) of RA 9189
it a question of fact (same rule as #1) (Overseas Absentee Voting Act)?

87
  Even a Filipino immigrant or resident in a
foreign country is entitled to vote if:
 1. He/she executes an affidavit declaring that
he/she shall resume actual physical
permanent residence in the Philippines not
later than 3 years from approval of
registration as an absentee voter
 2. He/she hasn’t applied for citizenship
abroad
 N.B. this replaces the residence
requirements in the enumeration
 What is the consequence of failure to return?
 Removal of names from registry of absentee
voters and permanent DQ from absentee
voting
 What are the two types of absentee voting?
 1. Domestic absentee voting – public officials
like policemen and public school teachers
stationed in places other than where they are
registered can vote in this place of work
 2. Overseas absentee voting – qualified
Filipinos abroad
 What is the meaning of “residence” here?
 It means domicile: 1) physical presence, 2)
animus manendi, 3) animus non revertendi,
4) voluntary
 For dual citizens, what act must they perform to
vote?
 They must swear oath of allegiance
 Contrast with running for public office – must
renounce foreign citizenship
 Contrast with being appointed to public office
– must renounce AND swear oath of
allegiance
o 3. Resided in the place where they intend to vote at least six
months preceding the election
 What if a person transfers residence due to
occupation?
88
 Not deemed to have lost original residence
 What is the meaning of “residence” here?
 At least temporary residence, but can also
be domicile obviously
o 4. Not disqualified
 What are the disqualifications?
 1. Person sentenced by final judgment of
imprisonment for not less than 1 year
o When is the right reacquired?
 Upon expiration of 5 years
after service of sentence
 2. Person adjudged by final judgment of
having committed a crime involving disloyalty
to the government or crime against national
security
o When is the right reacquired?
 Upon expiration of 5 years
of service
 3. Insane or incompetent persons declared
by competent authority
o 5. Philippine citizen
 What cannot be imposed as requirement for suffrage?
o Literacy, property, substantive requirement
Registration
 What is the nature of registration?
o It does not confer the right to vote; it is just a condition
precedent to the exercise of the right
o What is the prevailing system of registration?
 It is general and continuing
o When is the only period when registration is not allowed?
 120 days before regular election
 90 days before special election
 N.B. compare with election period (90 for regular)
o Who are not disqualified to register and instead are
assisted in their registration by election officer, member of
citizen’s arms?
 1. Illiterate person
  2. Disabled person
 May be assisted by relative within 4th degree
of consanguinity or affinity
 What is the composition of Election Registration Boards?
o 1. Election Officer (chairman)
 N.B. as many ERBs in a city/municipality as there are
Election Officers
o 2. Most senior public school official
o 3. LCR or city/municipal treasurer
 Differentiate challenge of registration from inclusion/exclusion and
annulment of book of voters?
o Challenge of registration is pre-approval remedy
o Inclusion, exclusion, and annulment are post-approval
remedies
Challenge of registration
 Who may challenge registration?
o Any voter, candidate, representative of a registered PP
 Where is the challenge posed?
o Election Registration Board
 What must be included in the challenge?
o 1. Statement of grounds for challenge, either:
 Not qualified
 Fictitious
o 2. Under oath, attached the application
o 3. Proof of notice of hearing to the challenger and applicant
 What is the time table of challenges?
o Before second Monday of the month – Oppositions
o Third Monday of the month – hearing
o Before end of the month – decision
 Whose registration can be deactivated by the ERB?
o See above disqualifications #1-3 (imprisonment of at least
one year, disloyalty, insane/incompetent)
o 4. Person who did not vote in two successive preceding regular
elections (regular elections do not include SK elections)
o 5. Court order of exclusion
o 6. Person who has lost Filipino citizenship
 When is a registration reactivated?
89
o Submit a sworn application for reactivation with the Election
Officer
o N.B. this must also respect the registration ban period (120/90)
 When must the voter’s list be posted?
o 90 days before regular election, 60 days before special
election
o Posted alongside deactivated voters’ list
o Where posted?
 Office of the Election Officer
 Bulletin board of the municipal or city hall
 What are the post-approval remedies?
o 1. Petition for inclusion
o 2. Petition for exclusion
o 3. Annulment of book of voters
Inclusion and exclusion proceedings
 What court has jurisdiction over inclusion and exclusion cases?
o ALWAYS the MTC – has original and exclusive jurisdiction
o Appealable to the RTC within 5 days of receipt of decision
(RTC must decide within 10 days of receipt of appeal)
o Is an MR allowed?
 No MRs are allowed
 What is the period to file petition for inclusion?
o Anytime after registration is denied or name is excluded except
105 days before regular election/75 days before special
election
o Decided within 15 days of filing
o N.B. 105/75 the registration ban minus 15 days
 What is the period to file petition for exclusion?
o Anytime except 100 days prior to regular elections or 65 days
before special elections
o Decided within 10 days of filing
 Rules on the petition:
o 1. Notice of place, date, time of hearing served upon ERB
members and challenged voter upon filing
o 2. Petition must refer to one precinct only
o 3. Implead the ERB as respondents
 Are costs awarded? 105
o Usually none, against either party. The exception is when the days
application was filed solely to harass. 100
days
 Who may intervene?
90 days Last day
o Any voter, candidate, political party affected by the to
proceedings release
 What is the basis of the decision? decision
o Must be based on evidence presented and NEVER on on book
stipulation of facts. If the question is w/n the voter is real or 75 days
fictitious, non-appearance in hearing is prima facie evidence of 65 days
non-existence Election
day
 Time tables?
30 days
o Heard and decided within 10 days after filing after
o ALL cases, decision must come out not later than 15 days
before the election
Political parties
Annulment of book of voters
 What are the types of political parties?
 When can a book of voters be annulled? o 1. Non-registered parties
o 1. Not prepared according to law o 2. Registered parties
o 2. Prepared through irregularity/vitiation  Dominant majority and majority – entitled to ER copy
o 3. Found to contain statistically improbable data  Top 3 – can appoint principal watcher; get COC copy
 Who files?  Bottom 3 – can appoint principal watcher
o A voter, election officer, or PP may file a verified petition o National party
 To whom is this petition filed?  Constituency spread across majority of regions
o COMELEC en banc (since it’s an admin procedure) o Regional party
 When is the last day for release of ruling/decision annulling a book  Constituency spread over geographical territory of
of voters? majority of cities and provinces in a region
o Within 90 days before an election o Sectoral party
 Is annulment of book of voters a ground for pre-proclamation  When are votes in favor of political parties valid?
contest? o Only for those registered under Party List (PL) system.
o No.  What are the rights of parties registered under the PL system?
o 1. Appoint poll watchers
Table of periods o 2. Occupy 20% of seats in the HOR
 When must registration of a political party be done?
Election Rego Rego Incl. Incl. Excl. Excl.
o Not later than 90 days before the election
period ban ban ban ban ban ban
(regular) (special) (reg) (sp) (reg) (sp)  What cannot be political parties?
120 o 1. Religious denominations/sects
days o 2. Those advocating violence or unlawful means

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 o 3. Refuse to uphold and adhere to the Constitution notwithstanding DQ of the person the
o 4. Supported by foreign governments substitute is replacing.
 What are the grounds to cancel registration of political parties? o What is the general rule?
o 4 mentioned above, plus:  No substitution for independent candidates. Only
o 5. Violation of election laws those with political parties and are nominated by such
o 6. Declaration of untruthful statements in its petition can be substituted.
o 7. Ceased to exist for at least 1 year  Who are independent candidates?
o 8. Fails to participate in the last two preceding elections [or  Not members of political party, members of
fails to obtain at least 2% of votes cast under PL system in two unregistered PPs
preceding elections]  declared unconstitutional  Even if member, not validly nominated by PP
 What is the power of the COMELEC?  Nominated by party in excess of what is
o To ascertain the identity of the political party and its legitimate allowed; or candidate accepts more than 1
officers nomination
o Exception?
Candidates/certificate of candidacy  Candidate for elective barangay office can be
substituted by spouse.
 When must qualifications be possessed? o For substitution, do votes cast for substituted candidate
o From the start (proclamation and oath) of his term, until the count for the replacement?
end of the term  No, these are considered stray. Unless same
 What are the grounds for substitution of candidate? surname.
o 1. Death o Up until can there be substitution?
o 2. Withdrawal  Up to mid-day of Election Day.
 N.B. no candidate who has withdrawn his  What are the two aspects of DQ cases?
COC can be eligible as substitute candidate o 1. Electoral
for any other position  Summary
o 3. Disqualification  Disqualified upon preponderance of evidence
 But if the COC is illegally filed from the beginning, he o 2. Criminal
cannot be substituted. He was deemed to never have  Prosecuted by the COMELEC
filed the COC at all (from Atty. Agra)  Filed with court, and subject to full blown hearing
 Contra, from Nachura: X filed his COC for vice-  Penalties include criminal conviction and possible DQ
mayor, but withdrew it after the last day of filing of from future public office
COC. Y, from the same party, filed application as
substitute for X. X was found to have been Disqualifications:
unqualified to run in the first place (too young).
Should Y be DQ? Omnibus Election Code Local Government Code
 No. The duty to accept substitution is Declared insane or incompetent Insane or feeble-minded
ministerial if the substitute is found to have Sentenced by final judgment for Sentenced by FJ for offense
complied with all requirements, rebellion, subversion, insurrection or punishable by one year or more of
any offense where penalty is more imprisonment, within 2 years after
than 18 months; or by final serving sentence

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judgment for crime involving moral  Political  capacity to wage nationwide campaign,
turpitude N.B. One under probation may run slate, organization/machinery, PP support
because the probation suspends the  Track record  performance in prior elections,
accessory penalty of DQ as well platform, political exposure
Permanent resident or immigrant of Permanent resident or immigrant of
 Background  Popularity, properties, education,
foreign country foreign country
Election offenses (vote buying, acts Dual citizenship (actually, dual profession, income, qualifications
of terrorism, unlawful expenditure, allegiance)  Intent  bona fide intent to run, similarity in name
solicited or made prohibited  What are the requisites for a false and material representation?
contributions, prohibition against For natural dual citizens, mere filing o 1. False
release of public funds, unlawful of COC is enough. o 2. Material
campaign) o 3. Deliberate
For repatriated persons, filing of
o The following are not material and false representation:
N.B. if other election offenses not COC and renunciation of foreign
enumerated are committed, file with citizenship must concur.  1. Stating false job or using surname of common law
RTC as election offense, but not spouse
ground for DQ  2. Candidate is actually qualified even if the COC
Nuisance candidate Convicted by FJ for violating oath of shows he’s not
allegiance to the Philippines  3. No intent to deceive; candidate believed in GF that
Material misrepresentation Fugitive from justice he is qualified
No valid certificate of candidacy Removed from office due to
 Who is a candidate?
administrative case
Filing two COCs for different offices o 1. Filed COC
(DQ from both) o 2. Is seeking public office
o 3. Campaign period has started
 N.B. this is important, because he is not liable for
 What are prohibited campaign contributions and expenditures that unlawful acts and omissions before becoming a
may be a ground to DQ? candidate
o Transportation, food, drinks  How must a COC be filed?
o Form public/private financial institutions, public o Personally or through representative. Cannot be by mail or
utilities/exploitation of natural resources, public contractors, fax.
franchise holders from government, educational institutions  What is the effect of a formal defect in the COC?
with government grants, officials of civil service or AFP, o Not enough to annul the election of a candidate
foreigners or foreign corporations  Ex. Improperly sworn COC, defective notarization,
o Raise funds through lotteries, cockfights, bingo, boxing, beauty etc. – not sufficient to DQ a candidate
contests, etc. o What is the effect of withdrawal of COC?
o Cannot contribute to churches, school buildings, roads,  DQ of the one who filed the COC.
bridges, clinics, etc.  When must withdrawal of a withdrawal be made?
 Who is a nuisance candidate?  Within period for filing COC. (NOTE:
o One with no bona fide intent to run and would thus prevent a withdrawal of withdrawal)
faithful determination of the will of people o What is the effect of filing two COCs for different offices?
o Factors to consider?

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  DQ for both offices, unless he withdraws one before not availed of
the end of the period for filing COC. Lacking COMELEC Before Quo warranto
o What is the effect of DQ? qualifications or division proclamation
 1. Cannot be voted for in the election with DQ
Election offenses COMELEC Before Election protest or
 2. If there is no FJ yet before election, and he
division proclamation charge with
receives highest votes, the COMELEC will still retain election offense
jurisdiction and hear the trial. If the evidence of guilt Nuisance COMELEC Within 5 days of None
is strong there can be suspension of proclamation candidate division last day of filing
ordered by COMELEC. COC
 What is the scope of powers of the COMELEC as to filing of COC? Material COMELEC Within 25 days None
o It is ministerial. Can only deny upon matters appearing upon misrepresentation division from filing COC
the face of the COC. See exceptions below
N.B. this can
 When can the COMELEC go beyond the face of the COC? never be
o 1. Nuisance candidates motu propio;
o 2. Material misrepresentation must be from
o 3. DQ under BP 881 petition
 What is the power of the COMELEC to suspend
proclamation?
Campaign, propaganda, contributions, expenses
 When there is no final judgment in the DQ
case yet, and the challenged candidate
 When is the campaign period?
receives the highest number of votes.
o Under Sec. 3 of the OEC: 90 days for P/VP, 45 days for
 The evidence of guilt must be strong,
Congress and local officials, 15 days for barangay
justifying the COMELEC to suspend
 What is election campaign or partisan political activity?
proclamation of the candidate.
o Act designed to promote the election or defeat of a particular
 This power is merely permissive, not
candidate to public office
obligatory.
o What if it is done for the purpose of enhancing the
 Should the votes casted in favor of the
chances of aspirants for candidacy to be nominated?
disqualified candidate be rendered null and void?
 It is not election campaign.
 No, because this disenfranchises the voters. o What is the prohibition on election campaign?
 What is the exception?
 It cannot be done except during campaign period
 When the electorate knows in fact and law  Note that early campaigning can only be done when a
that the candidate was disqualified, but still person is already deemed a candidate for office (there
voted for him – this is tantamount to are cases of this, when a candidate hasn’t filed his
notoriously misapplying or throwing away COC yet when he prematurely campaigned; this is not
votes. These must not be counted. early campaigning because he is not yet a candidate)
 What is the rule on public rallies?
Ground Where filed When filed Secondary
remedy, if o 1. The candidate or party must notify election registrar that
primary remedy they intend to organize and hold within the city/municipality

93
 o 2. Submit to election registrar a statement of expenses in
connection therewith
 What justifies the COMELECs power to determine prohibited
election propaganda?
o Police power, to avoid perversion of electoral apparatus
o Does this apply to plebiscites?
 No, because the electorate is voting for issues, not
candidates
o What happens to print advertisements, media campaigns,
or other propaganda existing before the candidate filed his
COC (ex. Lucy Torres has a Bench billboard and she ran
for Congress)?
 They may be removed when the person becomes a
candidate, because otherwise, it is premature
campaigning.
 What is the limit on expenses?
o P and VP – P10 per voter
o Other candidates – P3 per voter
 But if no political party – P5 per voter
o Political parties – P5 per voter
 What is a statement of contributions and expenses?
o That statement submitted by candidates and treasurers of
parties within 30 days from election itemizing all contributions
and expenses
 Filed in duplicate with the offices of the COMELEC
o What is the consequence of non-filing?
 1. Cannot enter upon duties of the office until it has
been filed
 2. Administrative offense involving fines and perpetual
disqualification to hold office
 Does not apply to barangay officials
o Does this cover those who withdrew candidacies after
filing COC?
 Yes, because the law does not distinguish
 What is rule on contributions and gifts?
o No person or organization may solicit or accept gifts,
contributions, food, transportation, or donation (cash/kind) from
election period until election day
o What is the exception?
94
 Normal and customary religious stipends, tithes,
collections
 What are prohibited means of raising funds?
o Cinema or theatre performances, boxing, beauty contests,
dances
o Cockfights, lotteries, bingo, entertainment and games
 What invalid forms of campaigning?
o 1. Display of materials outside authorized common poster
areas or in private areas without consent of owner
o 2. Non-removal of premature campaign materials within 3 days
from notice
o 3. Print, publish, or broadcast election propaganda donated to
candidate without written acceptance of candidate
o 4. Foreign intervention
o 5. Campaigning outside campaign periods
o 6. Removal or destruction of lawful election propaganda
o 7. Removal, confiscation, or destruction of prohibited
propaganda other than by COMELEC or its officers
o 8. Written or broadcast materials that do not bear inscription
“political advertisement paid for” and the name/address of
benefiting candidate or party
o 9. Advertisements beyond allowed time/space
o 10. Transportation, food, drinks during and 5 hours before and
after public meetings
o 11. Movie or video on candidate
o 12. Cinematography or documentary portraying life or
biography of candidate
o What about media personalities?
 Will be deemed resigned or LOA, as required by
employer, during campaign period
 Who are prohibited contributors?
o [Public officers or entities]
o 1. Public utilities or those exploiting natural resources of nation
o 2. Public or private financial institutions
 Except loans to parties or candidates
o 3. Members of AFP
o 4. Officials/employees of civil service
o [foreigners]
o 5. Foreigners, foreign corporations
 o [grantees of government privileges or loans]  Must prove:
o 6. Grantees of franchises, incentives, exemptions, or  1. Each certificate of canvass was executed,
allocations by government signed, thumb-marked by the Chair and
o 7. Persons who have been granted loans of more than 100K transmitted to Congress
by the government within 1 year prior to election day  2. Each certificate contains the names of all
o 8. Persons with contracts to supply government with goods or candidates and votes in words and figures
service, or perform construction  3. No discrepancy in authentic copies
o 9. Educational institutions which have received grant of public o What if incomplete?
funds of at least 100K by government  The Senate President must require the Board of
Canvassers (local) to transmit by personal delivery
Canvassing the missing election returns
o What if there appears to be alterations or erasures which
 What is the composition of the Board of Canvassers?
cast doubt in veracity of number of votes and may affect
result of election?
Provincial BOC City BOC Municipal BOC
Chair Provincial election City election Election registrar  Upon request of the P/VP candidate or his party,
supervisor or supervisor or or COMELEC Congress shall count the votes as appearing just to
COMELEC regional COMELEC representative verify the actual number of votes cast for P/VP
office lawyer lawyer o Can Congress delegate preliminary determination of
Vice Provincial fiscal City fiscal Municipal authenticity and due execution of the certificates to a Joint
treasurer Congressional Committee?
Member Provincial City Most senior  Yes.
superintendent of superintendent district school
o What if Congress had adjourned its regular session?
schools of schools supervisor (or
school principal,  It may continue canvassing even without call for a
if absent) special session
Substitute 1. Provincial auditor 1. City auditor 1. Municipal  Who is the Board of Canvassers for Senatorial Elections?
members, 2. Registrar of deeds 2. Registrar of administrator o The COMELEC en banc
in order 3. Clerk of court deeds 2. Municipal o Not the provincial board
nominated by executive 3. Clerk of court assessor
 What is the duty of a Board of Canvassers?
judge nominated by 3. Clerk of court
4. Other available executive judge nominated by o Purely ministerial: to compile and add results as appearing in
appointive provincial 4. Other executive judge the results transmitted to it
officer available 4. Other available o Does the COMELEC have direct control and supervision
appointive city appointive over the Board of Canvassers?
officer municipal officer  No.
 What is the nature of proceedings?
o Administrative and summary in nature
 Who is the Board of Canvassers for President and Vice President?
o What vote is needed to render a decision?
o Congress
 Majority vote of all its members (it is a collegial body)
 Will determine authenticity and due execution of
o What if there are written objections to the returns?
certificates of canvass for P and VP

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  It can only be filed during this stage. It is only at this
time that inclusion or exclusion of any return is in
issue
o Who can be there and who cannot?
 Parties or coalition can have a representative, or the
candidate himself can be present
 But cannot touch canvass
 Can file challenges
 Military or police officers, or special forces, etc.
cannot enter the canvassing room or within 50 meters
from such room
o Can the COMELEC order annulment of certificates of
canvass by only examining copies of the return of the
municipal judge and COMELEC, and not the Municipal
Board of Canvassers?
 Yes, because all copies are original copies
 Proclamation
o When does proclamation occur?
 After canvass of election returns, in the absence of a
perfected appeal to COMELEC, the Board of
Canvassers declares winning candidates
 Is the petition to restrain canvass and
proclamation or suspend proclamation the appeal
contemplated here?
 No.
o Is an incomplete canvass of votes valid?
 No. A canvass must include all returns. Any
proclamation stemming from this is null and void. So
the remedy is not election protest because there was
no valid proclamation in the first place. The
COMELEC still has jurisdiction.
o What is the reglementary period to file petition to annul
election when there is no proclamation yet?
 None.
 What is the period?
o 25 days from filing COC
 Can the COMELEC decide motu propio?
o No: Sec. 78 of BP 881 provides that it must be upon a verified
petition of any interested party.
 What is the remedy sought in this action?
o To refuse to give due course to or cancel a COC.
o N.B. notice that the grounds indicate this is how you declare
someone a nuisance
 What are the grounds?
o 1. COC filed to put election in mockery or disrepute
o 2. Causes confusion among voters due to similarity of names
o 3. Other circumstances showing that candidate has no bona
fide intention to run for office
 Compare with petition for DQ?
o There is substitution in petition for DQ (the candidate officially
became one, but violation OEC/LGC)
o There is no substitution in petition to deny due course
(because the candidate materially misrepresented and was not
deemed to have been a candidate)
 Compare with petition for quo warranto?
o In petition for QW, it is based on 1) ineligibility or 2) disloyalty
to RP.
 Within 10 days after proclamation of results
o It petition to deny due course, the qualifications are
misrepresented in the COC.
 Before elections
 What if the one who filed the COC and was denied due course filed
an MR?
o The COMELEC decision is not yet final. He can still be voted
for and proclaimed. In this case, the jurisdiction transfers to
the ETs.
Postponement or Failure of Elections

Remedies and Jurisdiction under Election Law Postponement of Failure of elections

elections
Petition to Deny Due Course to COC Where COMELEC en banc COMELEC en banc
Initiation Petition or motu propio Petition only

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Common Force majeure, violence, Force majeure, violence,  Regular election protest
grounds terrorism, analogous cases terrorism, analogous cases  Who has jurisdiction over ALL pre-proclamation cases?
Unique Loss or destruction of Fraud o The COMELEC
grounds election paraphernalia o But I thought that the COMELEC only has appellate
Condition Serious and impossible to Failure to elect and it affects
jurisdiction over election contests for municipal offices?
have free and orderly results of election
elections  Yes, but that’s for election contests.
Illegality must affect more  For pre-proclamation cases, the COMELEC always
than 50% of votes cast has original jurisdiction.
When Grounds must exist before Election not held or
voting suspended, after voting, At this point, it must be noted that with the automated election system, most
during preparations or of the grounds for pre-proclamation cases have been rendered moot. The
transmission of returns, or two usual grounds are (1) questioning proceedings and composition of BOC,
canvassing
and (2) questioning election returns. Obviously, ground 1 is still available,
but ground 2 is barely applicable.
Pre-proclamation controversy
Grounds still available in light of automation:
 What is a pre-proclamation controversy?
Objections allowed Objections not allowed
o Any question pertaining to or affecting the proceedings of the
During voting 1. Proceedings and Rules on appreciation of
Board of Canvassers which may be raised by any candidate or and couting composition of Board of ballots
registered political party, or coalition Inspectors
o To whom may it be raised?
 To the BOC or the COMELEC itself 2. Voters related
o On what matters?
 Relating to preparation, transmission, receipt, 3. Poll watchers related
custody, and appreciation of election returns 4. Marked ballots
 What is the difference between pre-proclamation case from an During 1. Proceedings and 1. Material defects,
action for annulment of election results or declaration of failure of canvassing composition of Board of material errors under
elections? Canvassers (N.B. BOC automated system
o For pre-proclamation cases: COMELEC is restricted to and COMELEC have
examination of election returns on their face concurrent jurisdiction) 2. Rules of appreciation,
violence, voting
o For action for annulment of election results or declaration of
2. Poll watchers related procedure, eligibility of
failure of elections, the COMELEC can go beyond returns voters
o What is the exception to the general rule that the 3. Data storage delayed,
COMELEC cannot go beyond and behind the face of the destroyed, falsified
election returns?
 When the returns do not appear to be authentic and
duly accomplished on their face For academic purposes, here is the discussion under manual counting:
o What if the returns appear authentic and duly
accomplished, on their face, what is the remedy?  Do pre-proclamation controversies apply to national officials?

97
 o No. No pre-proclamation controversies apply to elections for
President, VP, Senator, and HOR
o What are the two exceptions? I.E. WHAT ARE THE ONLY
GROUNDS FOR PPC FOR NATIONAL OFFICIALS?
 1. Manifest errors in the certificate of canvass or
election returns before it
 Canvassing body may act motu propio or
upon written complaint of interested person
 Those appearing on the face of the
certificate of canvass or the election returns
 The objections must be made before the
Board of Canvassers and specifically noted
in the minutes
 2. Questions affecting the composition or proceedings
of the Board
 What is the period for questions
pertaining to illegal composition or wrong
proceedings of the Board?
o Within 3 days from ruling thereon
 Filed either with BOC or directly to
COMELEC
 What issues may be raised (GROUNDS FOR PPC for non-national
positions)?
o 1. Illegal composition or proceedings before the Board of
Canvassers
 When must it be filed?
 As soon as the Board begins to act
 Petition filed beyond five days from
proclamation of the Board is out of time
 What if the petitioner has participated in the
proceedings?
 Deemed to have acquiesced to the
composition of the Board
 N.B. also applies to national positions
o 2. Canvassed returns are incomplete, contain material defects
 A. ERs are delayed, lost, destroyed
 In this case, the Board can use any of the
authentic copies
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 Or terminate canvass if the missing returns
will not affect the results anyway
 B. Missing requisites
 Board calls for members of the BEI to
complete or correct the return. DON’T
EXCLUDE, if correctable
 C. ERs are tampered, falsified, altered after these left
the hands of BEI, not authentic, prepared under
duress, force, intimidation, etc.
 Resort to other ERs
 If all are tampered, can have ballot boxes
reopened and counted
 D. Discrepancies in other authentic copies of the
returns or discrepancies in the votes of any candidate
in words/figures – and these would affect results of
the election
 Order opening of ballot boxes for recount
o 3. ERs prepared under duress, threats, coercion, intimidation,
obviously manufactured
 When is it “obviously manufactured”?
 According to the SC, when it follows the
doctrine of statistical improbabilities
 “Statistically improbable data”
o 4. Substitute or fraudulent returns in controverted polling
places are canvassed, and the results materially affect the
standing of candidates
 Where do you raise a pre-proclamation question?
o 1. If it involves contested composition/proceedings of the
Board To the COMELEC
o 2. For the contested ERs (the four under #2 above)  To the
BOC at first instances
 What is the nature of these proceedings?
o Summary – decide within 7 days, and final and executory
within 7 days
 How do dispute contested ERs?
o “Two objection rule”
  A. Candidate, PP, or coalition raises oral objections city official
during presentation of the ER, and the Board of Municipal official RTC (10 days) COMELEC (5 day
Canvassers logs it in the minutes period, MR does not
 The Board will defer canvass of the return toll)  SC, rule 65
Barangay official MTC (10 days) COMELEC (5 day
and proceed to other ERs
period, MR does not
 B. Then submit written objections + evidence within toll)  SC, rule 65
24 hours of objection
 Board summarily rules upon it. The losing
party can inform the Board if it intends to  What are the two actions that may be filed?
appeal the decision o 1. Election protest
o What is the period and to whom must appeal be made? o 2. Quo warranto
 After all the uncontested ERs have been canvassed,  N.B. Both must be filed within 10 days from proclamation of results
within 48 hours, the losing party files a written and (except for actions before the PET, which allows 30 days)
verified notice of appeal to the BOC
 And then the notice will be elevated to the Election Protest
COMELEC, along with records
o Can there be a proclamation in the interim?  What are the requisites for an Election Protest?
 No. No proclamation can be made from incomplete o 1. Filed by candidate who has filed a COC and has been voted
canvass upon for the same office
o Exception to this?  What is the special rule for PET?
 Partial proclamation of candidates not affected by the  Only the 2nd or 3rd placer may file the protest
pre-proclamation controversy o 2. Filed within 10 days from proclamation of results
 Usually, in cases what has been held as not a proper subject to  Except P/VP, which is 30 days
raise in pre-proclamation controversies?  Period to file EP is suspended during pendency of
o Misappreciation of ballots, which is not a ground included PPC
 What is the effect on the reglementary period to file an election  A counter-protest must also comply with the
protest when a candidate, party, or coalition files a petition to reglementary period
suspend or annul a proclamation? o 3. On grounds of: 1) election fraud/terrorism, and 2)
o It gets suspended irregularities or illegal acts before, during, or after casting and
counting of votes
Election Contests  So the usual prayer is a setting aside of count based
on returns in favour of a revision and recount of
Jurisdiction over election contests: ballots
 What can be considered:
Position elected Original jurisdiction Appellate jurisdiction  Ballots, ERs, COCs, data-storage devices
President, VP SC as PET (30 days SC, rule 65  When an election protest is filed, it abandons a prior
from proc)
pre-proclamation controversy filed with the
Senator SET (10 days) SC, rule 65
Congressman HRET (10 days) SC, rule 65 COMELEC and bars subsequent ones. Once the
Regional, provincial, or COMELEC (10 days) SC, rule 65

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 tribunal has acquired J over an election, the
COMELEC loses its jurisdiction.
 What are the exceptions to the rule that when the ET obtains
jurisdiction, it precludes the COMELEC from exercising powers
over PPC?
o [Grounds where there was no valid proclamation]
o 1. BOC was improperly constituted
o 2. Proclamation was null and void
o [Wrong remedy]
o 3. Quo warranto is not the proper remedy
o 4. What was filed was a petition to annul a proclamation, and
not QW or Election Protest
o [Express]
o 5. Election contest expressly made without prejudice to PPC or
it was made ad cautelam (cautionary)
o When can there be simultaneous adjudication of PPC and
Election protests?
 Elective provincial offices, because it is both the
COMELEC that exercises PPC and EP powers.
Note, however, that the case that upheld this doctrine
involved facts that similarly treaded both the PPC and
EP.
 What is the effect of a successful election protest?
o Not only is the proclaimed winner unseated, but the challenger
is installed into the office (but sometimes, even a non
protestant [a third candidate] wins)
o (Whereas in quo warranto, the petition may or may not be
claiming the office for himself)
 What are the additional requirements for election protest?
o 1. Payment of docket fee
 Failure to pay is ground to dismiss the case
 Exception  estoppel by the other party, by raising it
too late
o 2. CNFS
 What if the protestant dies?
o Unlike ordinary civil actions, this does not terminate the action.
o The successor becomes the real party in interest for the
continuation of the proceedings.
 How does the role of the COMELEC shift from PPC to ECs?
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o In PPC it is exercising admin/QJ powers
o After proclamation and EC is filed, it exercises QJ powers
o (This is for provincial, city, and regional officials where both
PPC and EC is lodged with COMELEC)
Quo Warranto
 What are the requisites of Quo Warranto?
o 1. Filed by any registered voter in the constituency
o 2. Grounds:
 a) Ineligibility
 b) Disloyalty to the RP (ex. Having a greencard)
o 3. Within 10 days from proclamation of results
 When a proclaimed officer was DQ by Quo Warranto, can the
second placer be declared the winner?
o No. He has no mandate.
o What is the exception?
 When the one who got highest votes has been DQ
and the electorate is fully aware of this fact – but they
still voted for him (meaning, they threw away their
votes)
o What is the rule for an appointive office?
 The court can determine who among the parties has
legal title to the office.
Common provisions for EP, QW
 Is execution pending appeal allowed?
o Yes, the court may grant a motion to that effect. But it must be
for urgent reasons.
o What are some allowable reasons?
 1. Public interest involved
 2. Shortness of remaining term
 3. Length of time that the contest is pending
o A combination of any 2 will grant the petition, but not shortness
of remaining term alone as reason
o This is to prevent abuses through the “grab the proclamation,
prolong the contest” tactic.
o When is motion for execution pending appeal filed?
  During period to file the appeal.
 Can damages be awarded in QW or EP cases?
o Yes.
o When can there be indemnification for expenses for the
election case as spent by the winner?
 When there is a wrongful act or omission clearly
attributable to the losing party
o What if the election case has become moot (ex. The right
to office no longer exists because it has taken so long)?
 There can still be award of damages
 In this case, can there be indemnity for damage
suffered by the other party due to the execution
pending appeal?
 No. It is damnum absque injuria.
Election offenses
 When are election offenses committed?
o Only as soon as campaign period starts. Any supposed
premature campaigning cannot be prosecuted before start of
campaign period.
 What are some of the prohibited acts?
o 1. Vote-buying or vote-selling
o 2. Wagering upon result of the election
o 3. Threats, intimidation, terrorism, use of fraudulent devise,
forms of coercion
o 4. Appointment of new employee
 Except when there is urgent need
 What is required?
 Notice given to COMELEC within 3 days
from appointment, creation of new positions,
promotion, or granting salary increase
o 5. Carrying deadly weapon within radius of 100 meters from
precinct
 Must the weapon be seized within the prohibited
radius?
 No, as long as he entered the prohibited
radius anytime during the period
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o 6. Transfer or detail of government official or employee without
COMELEC approval
 When will it not be penalized?
 If done to promote efficiency in government
service
 What are the elements of the violation?
 1. Fact of transfer or detail within election
period
 2. Transfer or detail made without prior
approval of COMELEC
 Is good faith a defense?
o No. Offenses are mala prohibita.
 Who has jurisdiction over election offenses?
o 1. COMELEC has exclusive jurisdiction to investigate and
prosecute cases involving violation of election laws.
 It may validly delegate to the Provincial Prosecutor.
o 2. Trial and decision – the RTC has exclusive original
jurisdiction to try and decide election laws
 What is the exception?
 MTC  over offenses relating to failure to
register or to vote
 What is the prescriptive period for election offenses?
o 5 years from date of commission
o What if the offense is discovered during an election
contest proceeding, when does prescription start?
 From the date the judgment becomes final and
executory
 What is the rule on preferential disposition?
o 1. Investigation and prosecution given priority by the
COMELEC
o 2. Courts also give preference to disposition of election cases
 Except over habeas corpus
 What is the full list of election offenses under Sec. 68 of the OEC
(N.B. these are grounds for DQ too)?
o 1. Vote-buying
o 2. Acts of terrorism
o 3. Spending in excess of allowable limit
o 4. Soliciting, receiving, or making prohibited contributions
 o 5. Campaigning outside period
o 6. Tamper with election propaganda
o 7. Prohibited election propaganda
o 8. Coercing subordinates to aid, campaign, or vote for a
candidate
o 9. Using threat, intimidation, terrorism, fraudulent, devises
o 10. Soliciting votes or electioneering during registration day
and election day within polling place or within 30 m radius
o 11. Public official or employee who releases, disburses, or
expends public funds 45 days before election or 30 days
before special election
o 12. PP holds political conventions or meetings to nominate
official candidates earlier than allowed period
o 13. Destroying or cancelling a COC which has not been
cancelled
o 14. Misleading BEI by submitting false or spurious COC to
detriment of a candidate
o 15. Receiving COC out of allowed time and making it appear it
was filed on time; or coercing the officer to perform this act
o 16. Interference with radio or TV broadcast of lawful political
program
o 17. Soliciting votes on election day
 What are other offenses laid out in RA 6646?
o 1. Causing printing of official ballots and ERs by printing
establishments not on contract with COMELEC or undertaking
unauthorized printing
o 2. Tampering, increasing, decreasing votes received by
candidate (or refusing to correct the votes even after proper
verification and hearing)
o 3. Refusing to issue certificate of voters to accredited watchers
(committed by BEI member)
o 4. Prohibited forms of election propaganda
o 5. Failure to give notice of meetings to other members of the
board, candidate, or PP (by chairman of board of canvassers)
o 6. Person declared as nuisance candidate continues to
misrepresent himself as a candidate and public officers who
induce or abet such misrepresentation
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o 7. Chairman of BEI fails to affix his signature at the back of the
official ballot, in the presence of the voter, before giving the
ballot to the voter
LOCAL GOVERNMENT
Constitutional provisions
 What are the territorial and political subdivisions?
o Provinces, cities, municipalities, barangays
o Autonomous regions: Cordillera, Muslim Mindanao
o What if you want to change the subdivisions?
 There must be a constitutional amendment
 Ex. Adding a third autonomous region
 Autonomy versus decentralization:
o Decentralization – there is a hierarchy only
o Autonomy – can make decisions without going up
o What is given to LGUs?
 Administrative autonomy/decentralization of
government authority
o What is given to autonomous regions?
 Political autonomy
o Congress can change government structure; except what is
provided by the Constitution
 What does the LGC provide?
o Initiative and referendum  can cover both ordinances and
resolutions
o Recall  juridical entities may also initiate recall elections
under the LGC. It is not an exclusive prerogative for the
people to initiate recall elections
 N.B. but RA 9244 removed the power of the
Preparatory Recall Assembly in the LGC to initiate
recall elections
 What is the supervisory power of the President?
o 1. General supervision over all LGUs
 Can only interfere if the LGU acted against law
  Power of general supervision includes power to
suspend and remove
o 2. But in particular, President exercises direct supervision over:
 Provinces
 Autonomous regions
 Independent cities
o 3. Provinces exercise direct supervision over:
 Component cities
 Municipalities
o 4. Cities and municipalities exercise direct supervision over:
 Barangays
o Can the Secretary of Justice pass judgment over
constitutionality of local tax measures?
 Yes. This is NOT power of control, but supervision
because he is checking compliance with laws.
o What is the power over the MMDA?
 Also of general supervision, since it is part of local
governments
 Council of MMDA consists of mayors, although some
members are department secretaries, they do not
have voting power – merely advisory
 What is the nature of taxing power of local governments?
o Now constitutional; before, it was statutory
o What can limit taxing power of local governments?
 Only statutes. So it cannot be limited by EOs or AOs.
o This provision removed tax immunities of certain companies.
Local governments could tax them. If the charter is changed to
exempt them again, then they are exempt.
o How is the power of LGUs to tax interpreted?
 Liberally interpreted in its favor as against the State
 Strictly interpreted against it as against taxpayers
o QC v. ABS-CBN: ABS-CBN pays franchise tax equivalent to
3% of all gross receipts “in lieu of all taxes.” This exemption
does not clarify against which the exemption applies. Settled:
ABS-CBN pays income tax and franchise tax. But whether this
exemption applies to local tax: unclear. ABS-CBN has burden
to prove this. They did not.
 Smart v. Davao: “In lieu of all taxes” must expressly
mention local taxes for the exemption to extent to this.
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 LGUs have share in national taxes (IRA – Internal Revenue
Allotment):
o But national government has no share in local taxes
o Share is national taxes is automatically and fully released
o Cannot place conditions or provide that release is gradual
o What is required in appropriation of its annual IRA?
 At least 20% must be spent according to local
development plan – development or infrastructure
projects
o President can make adjustments in IRA upon
recommendation of:
 1. DOF Secretary
 2. DILG Secretary
 3. DBM Secretary
o Is the IRA included in considering whether an LGU has
complied with the income requirement for conversion into
another political subdivision (ex. Municipality to city)?
 Yes.
 NOTE, however, that RA 9009 expressly excludes
IRA form counting w/n a municipality is qualified to be
a city
 League of Cities v. COMELEC: “Cityhood Laws”
were first deemed violative of EPC, because 16
municipalities were allowed to convert into cities in
spite not meeting the requisite income requirement.
But it was REVERSED on MR. The 16 municipalities
had pending cityhood bills prior to the passage of RA
9009 which increased the income requirement from
20M to 100M. The 16 were the only ones left among
the more than 50 who had simultaneously pending
cityhood bills, and were unfairly left behind.
 What is the right of LGUs over the national government utilizing
and developing national wealth in their areas?
o 1. Equitable share in the proceeds of such; or
o 2. Direct benefits to inhabitants
o What is the particular LGC provision?
 LGUs get 40% share of collection within territory
derived by national government from mining taxes,
royalties, forestry and fishery chares, other taxes,
 fees, and charges, and share in co-production, JV, or
production-sharing agreement
 In sum, what are the sources of income of an LGU?
o 1. Local taxes, fees, charges
o 2. IRA
o 3. Share in proceeds of utilization of local natural resources
o 4. Other sources of revenue in its public or proprietary capacity
 What is the term of elective local officials?
o No elective official shall serve for more than 3 consecutive
terms
o TWO requisites:
 1. Must be elected three consecutive terms
 2. Must have fully served three consecutive terms
o What is not an interruption:
 1. Voluntary renunciation
 2. Suspension
o X served 3 terms fully then ran in recall election. The
interruption was just 2 months. Valid?
 The interruption was sufficient.
o Does changing of municipality to city constitute
interruption?
 No, because there is no change in the constituency or
territory
o X, a municipal councillor was by operation of law elevated
to vice-mayor. Was there interruption?
 Yes, there was interruption in his term as councillor.
o What is the rule for barangays?
 The Congress determines the length of their term. It
can also be 3 years (and it is)
 LGU creation, division, merger, abolition, substantial alteration of
boundary:
o 1. Must be according to criteria in LGC
 Ex. RA 9009 increased requirement of income from
P20M to P100M (which was the root of the cityhood
laws controversy)
o 2. By act of congress
o 3. And subject to approval by majority of votes in plebiscite in
directly affected political units
 Municipality to city  in city
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 Province split into two  in whole province
 Province included in another  in both
o What doesn’t require a plebiscite?
 Reapportioning of districts (ex. splitting one electoral
district into two), because you are not creating a new
LGU per se. However, conversion of a municipality
into a city requires a plebiscite because you are
creating a new LGU.
 Special Metropolitan political subdivision:
o Retain basic autonomy
o Have own local executives and legislative assemblies
o Jurisdiction limited to basic services needing cooperation
o What is needed to form this?
 Assembly and plebiscite
o Does the MMDA fall under this provision?
 No. MMDA is not under the above section. It was not
subject to plebiscite
 MMDA is not a local government entity. Thus it has
no police power, power to expropriate, or tax
 What are the three kinds of cities?
o 1. Highly Urbanized city (HUC)
 As determined by law
o 2. Independent component cities
 Non-HUC but charters prohibit voters from voting in
provincial elections
o 3. Component cities
 Still under provincial control
 Which do not vote in provincial elections?
o HUCs and independent component cities
o Neither can their residents run for provincial office
 Local governments may group themselves voluntarily; no need for
legislation
 What are regional development councils?
o Composed of:
 1. LG officials
 2. Regional heads of departments and other
government offices
 3. Representatives of NGOs within region
o Purposes:
  1. Administrative decentralization
 2. Strengthen local autonomy
 3. Accelerate economic and social growth
Autonomous regions
 Only two allowed (Cordillera, MM)
o Anymore and you amend the Constitution
 Creation of organic act does not create the autonomous region; there
must be a voting
o Those who voted against may still join in the future, but there
must be another plebiscite involving all
o What if only 1 province approved the law in a plebiscite?
 It fails. There has to be at least 2 provinces.
 President has general supervision over autonomous regions
 Powers of A.R. are enumerated. Those not enumerated remain with
national government
 What powers remain with national government?
o 1. National defense and security remains with national
government
o 2. Foreign relations
o 3. Monetary affairs
 Pandi v. CA: Ordinary statute cannot amend an organic act. It must be
by plebiscite.
 Sema v. COMELEC: Only Congress can create provinces and cities,
because creation of such will lead to creation of legislative districts too.
So ARMM Regional Assembly cannot create provinces and cities.
 What does the organic act contain?
o 1. Basic structure of government – must have elective and
representative legislative assembly and executive department
o 2. Special courts with jurisdiction over personal law, family law,
and property law
 What are the two types of public corporations?
o 1. Quasi-corporation – created by the State for a narrow
purpose
o 2. Municipal corporation – body politic and corporation
constituted by the incorporation of the inhabitants for the
purpose of local government
 What are the elements of municipal corporations?
o 1. Legal creation or incorporation by law
o 2. Corporate name
o 3. Inhabitants
o 4. Territory
 What is the dual nature of municipal corporations?
o 1. Political subdivision
o 2. Corporate entity representing inhabitants
 What is their dual function?
o 1. Public/governmental
 Agent of the State to govern territory and inhabitants
o 2. Private/proprietary
 Agent of community in administration of local affairs
 Who may create municipal corporations?
o Congress.
o It may also abolish, merge, create, and divide them by law.
o Can Congress delegate to the ARMM the power to create
provinces, cities, barangays, and municipalities?
 There is no provision that prevents delegation of
power to create municipalities and barangays
 But the power to create provinces and cities may not
be delegated because it necessarily entails the
creation of legislative districts which only congress
can do.
 What are the rules for creation/conversion?
o See discussion above (re: plebiscite, etc.)

Public corporations What are the current indicators to meet?

 Classify corporations according to purpose: Income Population Land area

o Public –for the government of a portion of the State Barangay N/A 2k N/A
o Private –for some private purpose or aim Barangay (in N/A 5k N/A
o Quasi-public – private corporation that renders public service MM or HUC)

105
Municipality 2.5 M 25k 50 sq. km  What is devolution?
City 100 M (amended 15k 100 sq. km o Transfer of power from National government agencies to local
by RA 9009) government, to perform specific functions and responsibilities
HUC 50 M 200k N/A  It is power-specific and expressly mentioned. If not
Province 20 M 250k 2000 sq. km
devolved, then it still belongs to the national
government.
 What is rule for division/merger?
o Covers people, assets, services, regulatory powers
o Same, but the new units must not go below the minimums set
o “Political decentralization”
above
 What is de-concentration/decentralization?
 When can there be abolition?
o Transfer of powers from National Government Agencies to
o When the income, population, or land has been reduced to an
their respective regional offices
irreversible extent.
 Need not be expressly provided in the LGC
o Must provide which LGU it will be incorporated with.
o Covers just powers/functions
 When is the beginning of its corporate existence?
o “Administrative decentralization”
o Upon election and qualification of chief executive and majority
 Is power to expropriate a devolved power?
of sangguinian members
o No. It is a delegated power.
o Unless provided otherwise by the law/ordinance making it
o Example of devolved powers:
 Requisites for a de facto municipal corporation?
 Approval of subdivision plans
o 1. Valid law authorizing incorporation
 Franchising tricycles
 If the basis is an E.O., there is no valid law
 Regulating cockfighting
o 2. Attempt in GF to organize
 Primary health care
o 3. Colourable compliance with law
 In case of doubt, how is a law interpreted if it can be resolved in
o 4. Assumption of corporate powers
favor of higher or lower LGU?
 How must an attack against validity of incorporation be
o The lower LGU, in case there is doubt (favouring devolution)
undertaken?
o It must be direct, through quo warranto or any other direct General Welfare Clause
proceeding
o What if the challenge was raised too late (ex. 30 years, 16  What is the General Welfare Clause?
years)? o It is the statutory grant of police power to LGUs
 The corporation can be treated as de jure, due to o So it’s not inherent; it’s granted by law.
estoppel  What are the branches of the GWC?
 Distinguish between municipal corporation by prescription from de o 1. General legislative power –
facto municipal corporation:  To enact ordinances and regulations necessary to
o De facto needs valid law carry out duties
o For prescription, just passage of time o 2. Police power proper –
 N.B. So there can be municipal corporations without  To enact ordinances as necessary and proper to
charters (prescription) provide for health, safety, prosperity, improvement of
morals, peace, good order, etc.
Powers of LGUs  What are the limitations to exercise of GWC?

106
 o 1. Only within territorial limits of the LGU
 Except: for protection of water supply
o 2. EPC
o 3. Due process clause
o 4. Must not be contrary to Constitution and the laws
 Authority over police units is provided by law.
 Which of the following does not fall under general legislative
branch of the general welfare clause?
o Imposition of curfew on minors. This is actually PP.
o Which fall under the general legislative branch of the
GWC?
 Power to zone
 Abatement of nuisance per se
 Power to issue business permits
 Curbing vagrancy
Basic Services and Facilities
 Where are these basic service and facilities found?
o LGC, Sec. 17
 Can the LGU use funds to widen and improve sidewalks in
subdivisions?
o No. Subdivision streets are private until donated to the
government or expropriated
 What about public works and infrastructures funded by the
national government?
o Not covered by Sec. 17, except when the LGU is tasked to
implement such projects
Power to generate and apply resources
 This is discussed above (sources of LGU revenue)
 What are the principles in LGU taxation?
o 1. Taxation must be uniform
o 2. Taxes, fees, charges are equitable and based as far as
practicable on ability to pay; levied and collected for public
purposes; not unjust, excessive, oppressive or confiscatory,
not contrary to law, PP
o 3. Collection must not be let to any private person
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o 4. Revenue must solely inure to the benefit of the LGU, unless
provided in the LGC
o 5. Progressive system of taxation, as far as practicable
 What is the relationship of LGU power to tax vis-a-vis Congress?
o Congress can limit this power of LGCs, but cannot take away
the power to tax
Eminent Domain
 Check the general provisions on eminent domain
 What are the additional limitations?
o 1. Exercised by local chief executive, acting pursuant to valid
ordinance
o 2. For public use/purpose/welfare, for benefit of poor or
landless
o 3. Only after a valid and definite offer is made to and not
accepted by the owner
 Can expropriation be through resolution?
o No, it must be an ordinance.
 Differentiate procedure between local expropriation and national
expropriation (for immediate entry):
o Local  1) file complaint, 2) deposit amount equivalent to 15%
of FMV of property based on tax declaration
o National  1) file complaint, 2) deposit amount equivalent to
assessed value of the property
 When do you have to follow the Urban Development and Housing
Act?
o Only if private land is expropriated for socialized housing
 Can the RTC determine the existence of genuine public necessity?
o Yes.
 In the exercise of local eminent domain over agricultural land, a
city must:
o Show the genuine necessity of the exercise of power
o No need to secure approval of the DAR
 Can the Provincial Government disapprove the municipality’s act
of expropriating a parcel of land for government use?
o No. The power of eminent domain belongs to the municipality,
under the LGC.
 The province, in reviewing a municipal expropriation ordinance,  How is this done?
has the power to: o Through ordinance, approved by at least 2/3 of the members of
o ONLY to declare the ordinance ultra vires for non-compliance the sanggunian
with requirements in the 1991 LGC. o And when necessary, an adequate substitute is provided
o Again, supervision, not control. Cannot:  Can be temporary or permanent
 Choose another property o What cannot be permanently closed?
 Set just compensation, etc.  National road
 Public plaza
Reclassification of lands  Freedom park  unless there is a substitute
o A national road can be temporarily closed for a local fiesta,
 Done by a city or municipality through ordinance passed after public rally, agricultural or industrial fair, or undertaking of
conducting public hearings public works and highways
 When can agricultural lands be reclassified and their utilization o A national road cannot be temporarily closed for athletic,
and disposition be provided for? cultural, or civic activities not officially sponsored, recognized,
o 1. When the land ceases to be economically feasible and or approved by the LGU
sound for agricultural purposes (determined by DOA)  Additional limitations?
o 2. Land has substantially greater economic value for o 1. Adequate provisions for public safety
residential, commercial, or industrial purposes o 2. Property may be used or conveyed for any purpose for
 Limited by percentages of allowable agricultural land which other real property may be lawfully used and conveyed
to be reclassified  EXCEPT freedom parks, which must be transferred or
 Even DAR has to comply with these percentages relocated elsewhere
 What is the limitation on percentages of reclassified agricultural  Includes parks, markets, etc.
land:
Legislative power
HUC and ICC 15%
CC and 1st to 3rd class 10%  Distinguish ordinance from resolution:
municipalities
o Ordinance – permanent rule of conduct
4th to 6th municipalities 5%
o Resolution – temporary character or expresses sentiment
 What are the requisites for validity?
 What cannot be reclassified?
o 1. Not contravene Constitution or law
o Those distributed through CARL
o 2. Not unfair or oppressive
 What is the power of the President?
o 3. Not partial or discriminatory
o With NEDA recommendation, can authorize a city or
o 4. Not prohibit, but may regulate trade
municipality to exceed the limits set here
o 5. Not unreasonable
 What if there is need for approval by a national agency for
o 6. General in application and consistent with PP
reclassification?
 Who exercises the power to veto?
o Failure to act on a proper and complete application within 3
o The LCE. It is intra-LGU
months from receipt is deemed as approval
 What about power of supervision?
Closure and Opening of Roads o It is inter-LGU

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 Note: there is a veto (local CE) and 2/3 veto-override (sanggunian)
system here too, between the local chief executive and the members of
sanggunian. This is akin to the national legislative process.
o What is the exeception?
 The punong barangay has no veto power. He has no
choice but to sign the ordinances enacted by the
sanggunian Barangay
o Remember: there are two kinds of “veto” – first, within the
sanggunian itself, exercised by the local CE; second, by a
higher sanggunian (power of supervision)
 What is the review system of the provincial government over
ordinances/resolutions of the municipal or component city
governments?
o 1. Within 3 days of approval, the secretary forwards the
approved ordinance or resolution to the sanggunian
panlalawigan.
o 2. It has 30 days to disapprove it, if it is beyond the power
conferred upon the component city or municipality.
 N.B. The rule on consistency between higher and
lower LGUs does not apply to provinces and
municipalities, just municipalities and barangays.
o 3. If there is no action within 30 days, it is deemed approved.
o N.B. Since this is pursuant to the power of supervision, it can
only check the legality of the subordinate legislation
 What is the review system of the municipal or component city
governments over ordinances/resolutions of the barangay?
o Same as above, except there is no veto. The higher
sanggunian can only recommend revisions and the barangay
ordinance will be suspended until the revision is made.
 What if the subordinate local government unit still enforces the
ordinance/resolution notwithstanding veto by the province or
suspension by the municipality or component city?
o It is a ground for disciplinary action
 When do ordinances/resolutions take effect?
o 10 days after posting in entrance of the LGU capitol + in 2
conspicuous public places
o What about publication?
 Publish main features in a newspaper of GC in the
province of that local legislative body. If there is
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none, post ordinance in all the municipalities/cities in
the province.
 For HUC and Independent Component Cities, main
features published in a newspaper of GC within the
city. If none, then any newspaper of GC.
 What is the procedure for local initiative?
o 1. File petition with local legislative body to enact, adopt,
repeal, or amend any law, ordinance, or resolution
 At least 2000 for autonomous regions, 1000 for
provinces and cities, 100 for municipalities, 50 for
barangays
o 2. If the body takes no action within 30 days, then the people
can give notice to the body that they are invoking their power
of initiative
o 3. Proponents attempt to get required number of signatures:
 120 days for autonomous regions
 90 days for provinces and cities
 60 days for municipalities
 30 days for barangays
 How many signatures are needed?
 Province or city: at least 10% of registered
voters, including 3% for each legislative
district
o If there is only one legislative
district, the 3% requirement applies
to municipalities (for province) or
barangays (for city)
 Municipality: at least 10% of registered
voters, including 3% for each barangay
therein
 Barangay: at least 10% of registered voters
 Where is it signed?
 Before the election registrar, and in the
presence of a representative of the
proponent and representative of the
legislative body concerned in a public place
in the LGU
o 4. After period, the COMELEC certifies whether the required
number of signatures were met
 o 5. After certification, COMELEC sets initiative date where
registered voters approve/reject the proposition:
 Within 90 days for autonomous regions
 Within 60 days for provinces and cities
 Within 45 days for municipalities
 Within 30 days for barangays
o 6. Initiative itself, on the date set, where results are certified
and proclaimed by the COMELEC
 When do local propositions become effective?
o 15 days after certification of the COMELEC of its passing
 What are limitations on local initiative?
o Power of local initiative only exercisable once a year
o Only on matters within legal powers of the local bodies
concerned
o If any time before the initiative is held, the local body adopts
the proposition in toto, the initiative is cancelled
 What are the limitations on local bodies?
o 1. Cannot repeal, modify, or amend ordinance or resolution
passed through initiative within 6 months from date thereof
(absolute prohibition)
o 2. Can only repeal, modify, or amend it within 3 years by a vote
of 3/4 of all its members (stricter repeal in certain period)
 N.B. for barangays within 1 year from expiration of
first 6 months
 What is the procedure for local referendum?
o Any local body can submit to the registered voters the question
of whether to approve or reject any ordinance or resolution
o When is the referendum held?
 Within 60 days for provinces and cities
 Within 45 days for municipalities
 Within 30 days for barangay
o Certified by the COMELEC
Corporate Powers
 1. Continuous succession
 2. To sue and be sued
o Who can sue?
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 In general, local executive with authority of
Sanggunian
 Except when City Councillors bring action to prevent
unlawful disbursement of city funds
o Who must represent the municipality?
 The provincial fiscal or municipal attorney.
 Can only employ a private attorney if the two above
are disqualified and the reasons for such are
provided. There are several cases on this.
o When is Sanggunian prior approval required?
 If the LCE enters into a contract, but NOT if he files a
suit (except if there is ratification of a contract initially
ultra vires)
 3. To have and use a corporate seal
 4. To acquire and convey real or personal property
o Through any manner provided by law.
o What can it alienate?
 Only patrimonial property
o What is the presumption on character of property?
 If there is no proof that it was acquired through
corporate or private funds, it is presumed to have
come from the State upon creation of the municipality.
 Thus, it is governmental/public property.
o What is the character of public plazas?
 Public, and is beyond commerce of man. It cannot be
leased or subjected to contractual undertakings.
 Same with public streets.
o What is the rule on open spaces in a subdivision?
 They should be donated to LGU where the
subdivision is found.
 The donation can be subject to conditions, which
must be legal.
o What is the rule on procurement of supplies?
 Must be by public bidding.
 If the amount is minimal, then it can be by personal
canvass of at least three responsible merchants.
 5. To enter into contracts
o What are the requisites?
 A. LGU has the power to enter into that contract
  B. It must be entered into by the proper department,
board, committee, officer, or agent.
 Local chief executive must have sanggunian
concurrence
 C. Contract complies with certain substantive
requirements:
 Ex. Actual appropriation and availability of
funds
 D. Comply with formal requisites of contracts
o What if there is non-compliance with #1 or 3?
 Ultra vires and void. Cannot be ratified, because they
are acting beyond jurisdiction.
o What if there is non-compliance with #2 or 4?
 Can be ratified. (Only formal or procedural matters)
o When can a contract be impaired?
 Exercise of police power.
o Can the local chief executive negotiate and secure grants?
 Yes, with authority from the sanggunian, from local
and foreign assistance agencies.
 No need to secure clearance from national
government, unless there are national security
implications.
Municipal liability
 What is the general rule?
o LGUs and officials are not exempt from liability for death or
injury to persons or damage to property.
o But see qualifications below.
 What are the specific provisions of law in the NCC?
o 1. LGU is liable in damages for death or injury due to defective
condition of streets, public buildings, or other public works
 Does the city have to own that road?
 No. As long as it exercises control or
supervision over the road.
 So even if it enters into managing contract
with a private entity, it can be held liable
o 2. State is responsible when it acts through a special agent
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o 3. LGU liable in damages for injuries suffered due to failure or
refusal of police force to render aid and protection in case of
danger to life or property.
 When is the LGU liable for tort?
o 1. If the LGU is engaged in governmental function, it is not
liable for tort.
 Ex. Prosecution of crimes
 Ex. Public works, like usage of dump truck
o 2. If the LGU is engaged in proprietary function, it is liable.
 Ex. Granting of proprietary ferry service franchise to
another, notwithstanding prior grant to an entity
 Ex. Town fiestas
 Ex. Operation of public cemetery
o Is the municipality liable for illegal dismissal of its
employees?
 Yes.
 When is a local official personally liable?
o When they act in a malicious and wanton manner and injure
individuals rather than discharge a public function
 Can an LGU be held liable for violation of law?
o Yes. Ex.: failing to indemnify persons in expropriation, failure
to pay minimum wage, failure to abide by TRO
 What is the LGU’s liability for contracts?
o Like an ordinary person, liable for contracts, if intra vires. If
ultra vires, it is not.
o What is the expectation from private individuals who deal
with municipal corporations?
 The private person knows the extent of power or
authority of the municipal corporation as re: contracts.
o Does estoppel apply to municipal corporations?
 Ordinarily, no.
 Estoppel cannot make an ultra vires contract valid,
because that effectively would make the municipal
corporation do what it cannot do.
o But what is the doctrine of implied municipal liability?
 The LGU is obligated to pay reasonable value of the
benefits accepted or appropriated by it as to which it
has the general power to contract. This is an “implied
contract.”
 o Illustrate: o N.B. so they can appear in admin
 The LGU cannot set up the plea that the contract was proceedings, but not charge
ultra vires and still retain benefits under it.  4. Cannot use property and personnel of
government, except when the sanggunian
Local Officials member is defending interest of the
government
 What are the prohibited interests of both elective officials and  For doctors of medicine –
appointive officials?
 May practice even during official hours of
o 1. Business transactions with his own LGU and where money work for emergencies
or anything of value is given
 But they should not derive monetary
o 2. Hold interests in cockpit or other games licensed by LGU
compensation from it
o 3. Purchase other property forfeited in favour of LGU
 What are the two prohibitions re: appointment applicable to
o 4. Be a surety for a person doing business with LGU when one
elective and appointive officials?
is required
o 1. Cannot be appointed or designated in any public office
o 5. Can’t possess or use public property for private purposes
 Except for positions that are allowed by law or primary
o 6. Prohibitions in RA 6713:
functions of office
 A. Financial or material interest with office transaction
o 2. Lame duck provision applies
 B. Outside employment and other related activities
 Except for losers in barangay elections
like recommending persons to positions in private
enterprises transacting with him Elective officials
 C. Disclosure or misuse of confidential information
 D. Solicitation or acceptance of gifts  What are the qualifications of elective officials?
 What is the rule on practice of profession by elective and o 1. Citizen of Philippines
appointive officials?  When must one be a citizen?
o Governors, mayors (whether city or municipality)  cannot  Upon proclamation
practice profession or any other occupation  X filed his certificate of candidacy. After, his
o Sanggunian members: application for repatriation was granted. And
 May practice occupation except during session hours then, he won and took his oath. Is this allowed?
 For those who are lawyers –  Yes, because you only need to possess
 1. Cannot appear as counsel in civil case qualifications upon proclamation
where adverse party is the LGU  And repatriation retroacts
o N.B. so they can defend the LGU o 2. Registered voter in the LGU (or for sanggunian member, in
 2. Cannot appear as counsel in criminal case the district) where he intends to be elected
where any public officer, national or local, is o 3. Resident therein for at least 1 year immediately preceding
accused of offense related to office election
o N.B. this is any public officer o 4. Can read and write Filipino or local language
 3. Cannot collect any fee for appearance in o 5. On election day, must be at least:
administrative proceedings involving LGU
where he is an official 23 years old 21 years old 18 years old 15 years old

112
Governor Mayor of ICC City sanggunian Sangguniang Governor Vice Governor
(non-HUC) Kabataan Mayor Vice Mayor
(until 21 years Vice Governor or Vice Mayor Highest ranking sanggunian
old) member, in order (according to
Vice Governor Vice Mayor of Municipality number of votes in elections)
ICC sanggunian Barangay captain Highest ranking sanggunian member
Provincial Mayor of CC Punong Sanggunian member in province, Appointed by President
sanggunian Barangay HUC, or ICC
Mayor of HUC Vice Mayor of Barangay Sanggunian member in CC or Appointed by Governor
CC sanggunian municipality
Vice Mayor of Mayor of Sanggunian member in barangay Appointed by city or municipal mayor
HUC municipalities SK member Official next in rank
City sanggunian Vice Mayor of
of HUC municipalities
 What are the two rules that must be complied with for appointed
replacements?
Guide: all sanggunians are 18 (except HUC). All mayors and vice mayors
o 1. There must be recommendation by the sanggunian
are 21 (except HUC). HUCs are always 23. Province, Gov, Vice Gov are
concerned
23.
o 2. The replacement must be from the same political party of
the one replaced, if there is one
 Who are disqualified from running for office?
o 1. Sentenced by FJ for offense involving moral turpitude or Rules on succession for temporary vacancies:
offense punishable by one year or more of imprisonment
 Within two years of serving sentence Rank Temporary official in charge
o 2. Removed from office as result of administrative case Governor Vice Governor
o 3. Convicted by FJ for violating oath of allegiance to RP Mayor Vice Mayor
o 4. Dual citizens (in fact, dual allegiance. See citizenship Barangay Captain Highest ranking sanggunian member
section)
o 5. Permanent residents in foreign country with desire to
continue staying abroad  For which positions does this provision apply?
o 6. Fugitives from justice in criminal or non-political cases here o Local Chief Executives (Governor, city or municipal mayor, or
or abroad punong barangay)
 No need to have actually been convicted o For what situations?
 Note that political offenses are excluded  LOA, travel abroad, suspension, etc.
o 7. Insane or feeble-minded  What powers can they not exercise?
 When are elections? o Appoint, suspend, terminate, or dismiss
o 2nd Monday of May every 3 years o What is the exception?
 When temporary incapacity lasts for more than 30
Rules on succession for permanent vacancies: working days
o What is the rule for travel within the country but outside
Rank Replacement LGU jurisdiction for period up to 3 days?

113
  The LCE appoints an officer-in-charge, and specifies o 6. Abuse of authority
powers, which does not cover appointment, o 7. Unauthorized absence for 15 consecutive working days
suspension, termination, dismissal  Except for members of sanggunians
 What if the LCE fails to appoint an OIC? o [catch basin]
 The Vice (governor/mayor) or highest o 8. Other grounds in the LGC and laws
ranking sanggunian member (brgy. Capt.)  Who has jurisdiction over the complaint?
can take over from the fourth day. o 1. Elective officials of provinces, HUCs, or ICCs  President
 How is resignation effected?  How does the Constitution and the LGC divide
o Only upon the acceptance by the following authorities: powers among branches as re: discipline?
 The Constitution gives the President power
Rank Who accepts resignation to supervise LGUs
Governor, Vice Governor; Mayor and President  The Constitution gives Congress power to
Vice Mayor of HUC or ICC
specify provisions for removal of officials
Mayor and Vice Mayor of CC or Governor
o In the LGC  Congress effectively
municipality
Barangay official City or municipal mayor delegates this to the President
Sanggunian member Sanggunian concerned  The President thereafter validly delegated in
AO 23 to the DILG Secretary the
investigation (just investigation, not power to
 When is it deemed accepted? discipline per se).
o If not acted upon within 15 working days  The elective official has a right to a formal
o For sanggunian members, if presented before an open session investigation (confront witness, right to appear and
and entered into records defend self in person, to counsel, etc.)
o 2. Elective municipal or CC officials  Sanggunian
Discipline of Local Officials panlalawigan
 How is appeal done?
 What are grounds for disciplinary action against elective officials?  To the Office of the President
o [disloyalty provisions]  Does appeal suspend execution of the decision?
o 1. Disloyalty to RP
 Generally, no
o 2. Application for or acquisition of foreign citizenship or
 But it can be suspended by the President
residence/status as immigrant
(AO 18)
o 3. Culpable violation of Constitution
o 3. Elective barangay officials  Sanggunian panlungsod or
o [violating acts]
Sangguniang bayan (municipality)
o 4. Dishonesty, oppression, misconduct in office, gross
 What is the nature of the decision?
negligence, dereliction of duty
 Immediately final and executory
 Case: Acts of lasciviousness – not a ground to
 But this does not mean it cannot be
suspend per se; the official must be convicted in
appealed
criminal action
 Where is appeal made?
o 5. Commission of any offense involving moral turpitude or
 To sanggunian panglalawigan concerned
offense punishable by at least prision mayor

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 Due process:
o There must be a formal hearing. While submission of position
papers is allowed after formal hearing, the investigating
authority cannot rely solely on these.
o Can an official file a motion to dismiss?
 Yes, this is not prohibited.
 Preventive suspension –
o Grounds:
 1. evidence of guilt is strong
 2. given gravity of offense, continuance in office could
influence witnesses or pose threat to safety/integrity
of evidence or records
o Who can suspend?
 President, governor, or mayor
o How long?
 60 days maximum per suspension
 And no more than 90 days in a single year
for the same ground
 After which, automatically reinstated
o What about the OMB?
 The OMB can concurrently exercise power of
preventive suspension, but under RA 6770 – it can be
up to 6 months
 Who may remove an elected LG official from office?
o ONLY THE COURTS. The sanggunians, and other officials
have no power to impose removal from office.
o What is the nature of suspension as penalty?
 1. It may not exceed 6 months or the remaining period
of his term
 2. It is not a bar to subsequent re-election
 What is the effect of re-election into office as regards an
administrative case that is pending?
o It is tantamount to a condonation by the people of the past
offense. It bars the continuation of the investigation. (Doctrine
of condonation)
o What if there is a decision already but an MR was filed?
 It’s not yet final so re-election condones the offense.
 How are appointive local officials and employees disciplined?
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o In accordance with CS law and rules.
o Is there preventive suspension too?
 Yes, for period of not more than 60 days.
 What are the grounds?
 1. Charge involves dishonesty, oppression,
grave misconduct
 2. There is reason to believe he is guilty of
charges, that would warrant removal from
office
 What is disciplinary jurisdiction over acts of appointive officials?
o Local Chief Executive may impose penalty of:
 Removal from service
 Demotion of rank
 Suspension of at most 1 year without pay
 Fine in amount not exceeding 6 months’ salary
 Reprimand
 N.B. Note that for appointive officials, the LCE is the
one that exercises jurisdiction, and then appeal is to
the CSC. Meanwhile, elective officials it’s usually the
higher legislative body (except Congress, which
delegated to the President punishment of officials in
Provinces, ICCs, and HUCs)
o When is the decision final?
 When the suspension without pay is not more than 30
days
o What if the penalty is heavier?
 It is appealable to the Civil Service Commission
o What is the special rule for City Revenue Officers?
 It is the City Treasurer, not the City Mayor that has
jurisdiction over them
Recall
 See public officers part
Settlement of boundary disputes
 What is the first principle for boundary disputes among LGUs?
o It must be settled amicably as much as possible
 Where must disputes be referred to: o To the RTC, within 15 days (because it says “within time
prescribed in ROC”)
First disputant Second disputant Where referred to
Barangay Barangay in same city Sanggunian
of municipality panglungsod or NATIONAL ECONOMY AND PATRIMONY AND OTHER PROVISIONS
Sanggunian
pangbayan
Municipality Municipality in same Sanggunian National Economy and Patrimony
province panlalawigan
Municipality or Municipality or Jointly referred to  What is the three-fold goal of national economy?
component city component city in respective Sanggunian
o 1. Equitable distribution of wealth
different province panlalawigans of both
provinces o 2. Increase of wealth
Municipality or HUC Jointly referred to o 3. Increased productivity
component city Sanggunian  What is the relationship between agriculture and industrialization?
Panlalawigan and o There is synergy between the two
Sanggunian
panlungsod Regalian doctrine
HUC HUC Jointly referred to
Sanggunian  What is the Regalian doctrine?
panlungsod of both
cities o Everything belongs to the State; anyone claiming must go
Municipality ICC in the same RTC of the province through the State
province o What is imperium? Dominium?
Why: because the LGC  Imperium – government authority possessed by the
missed this particular State which is appropriately embraced in sovereignty
situation, so the default  Dominium – capacity of State to own and acquire
rule that cases are filed property. Refers to lands held in proprietary character
in the RTC applies
(Kananga v. Madrona) o What are State-owned?
 Lands of PD, waters
 Minerals, coals, petroleum, sources of potential
 What is the power of the sanggunian panlalawigan in boundary energy
disputes?  Fisheries and forests/timber
o Not just amicable settlement but hearing and deciding the case  Wildlife, flora, fauna, natural resources
according to law.  Does the Regalian Doctrine imply that when colonizers arrived,
o N.B. it cannot alter boundaries – must base decision on law they took away properties from Filipinos?
 How long does the sanggunian have to decide the case? o No. There is recognition of native title. Original Filipinos have
o 60 days from referral  try to arrive at amicable settlement this. (Carino v. Insular Government)
o If it cannot, it issues certification to this effect, and decides  Can natural resources be alienated?
within 60 days of certification o Generally, no. With the exception of agricultural lands, all
 Which has appellate jurisdiction? other natural resources cannot be alienated.

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 o Unclassified forested area cannot be acquired by acquisitive
prescription, because it is inalienable.
 What is the special provision on marine wealth?
o State protects marine wealth in archipelagic waters, territorial
seas, and EEZ
o Reserve use and enjoyment exclusively to Filipino citizens
 What is the nature of timber licenses, permits, and other such
privileges?
o They yield to police power. They are not contracts under the
due process clause. They can be modified according to
ecological needs.
 Can public land become private land?
o Yes. But only agricultural land can become private land, when
ownership transferred to private individual.
o Forest lands – until reclassified into alienable lands, they are
public lands
o Can the PEA dispose reclaimed lands?
 Yes, but only after they have been made alienable.
(Chavez v. PEA)
Exploration, development, utilization of natural resources
 What is the manner of development and exploitation of natural
resources now?
o 1. Developed and exploited directly by the State, OR
o 2. Co-production, JV, or production sharing with Filipinos or
Filipino Corporations (60% owned)
 N.B. they do not become agents of the State; they are
co-contracting parties
o Basic principle: always under full control and supervision of
the State
o May the State enter into service contracts with foreign
owned corporations?
 Yes, but only for financial and technical agreements
with respect to large scale development of minerals,
petroleum, and other mineral resources
o When service contract is entered into by the State with a
completely foreign corporation, can there be management
powers given to the latter?
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 Yes, but only to the extent necessary to carry out the
technical and financial agreement
o What is the period on all such arrangements?
 Period cannot exceed 25 years, renewable up to 25
more years
 What is the limit on water rights, water supply, fisheries, and
industrial uses of water?
o Beneficial use of such is the measure and limit of grant.
o N.B. Limitation not applicable to development of water power
 La Bugal:
o Constitution still allows service contracts
o Financial and technical assistance allowed  but only for the
A) provided resources, and it must be B) LARGE SCALE
 Can a foreign corporation buy shares in excess of 40% of a
corporation?
o Yes. But when this happens, the corporation is no longer
Filipino.
 What is the rule on aliens?
o 1. Aliens are excluded from acquiring private land.
 See exceptions below (ex. intestate succession)
o 2. But an alien may buy a house or a condominium unit (so
they may own real property, just not lands)
Classification of lands
 How are lands of public domain classified?
o 1. Agricultural
 Further sub-qualified into various types, depending on
purpose
o 2. Forest or timber
o 3. Mineral
o 4. National parks
o What determines classification?
 Legal nature, and not actual nature
 Where are we now (referring to Ateneo Rockwell)?
o Constitutionally, agricultural land
o Statutorily, public commercial land
 May a private corporation acquire alienable public lands?
o No. May NOT acquire land from public domain
 But may a private corporation lease alienable public lands? reclamation and distribution as housing. If it were not impliedly
o Yes, it MAY lease lands of public domain reclassified, then there can be no distribution.
o What is the period for lease? o Apex Mining v. Southeast Mindanao Gold: Reclassification
 Not exceeding 25 years, renewable for 25 years from forest reserves into non-forest reserves – now exclusively
o Area: only up to 1,000 hectares a DENR prerogative; no need to wait for Congressional
 May a private corporation acquire private lands? concurrence.
o Yes, because they are qualified to hold lands of the public  How does land of public domain become private land?
domain (by lease), as required by the Constitution o 1. Acquired from government by purchase or grant
o So the corporation must wait for the land to become private o 2. Uninterrupted possession by occupant and his
 What is the limitation for acquisition or lease of alienable public predecessors-in-interest since time immemorial
lands by Filipino citizens?  The presumption is that the land was never part of the
o Can lease up to 500 hectares only public domain
o Can acquire up to 12 hectares only (by purchase, homestead, o 3. Open, exclusive, undisputed possession of alienable public
or grant) land for period of 30 years (imperfect title)
 After lapse of period, the land becomes private
Alienable public land Private land property ipso jure without need for judicial sanction
Private corporation Lease only (1000 ha) Lease or acquire  Count from when it was converted into public
Filipino individuals Lease (500 ha) or Lease or acquire alienable land, not when it was still forest land
acquire (12 ha)
Aliens N/A Generally, N/A Rights of indigenous cultural communities
But, alien individuals
 Ancestral domain and ancestral lands
may acquire only
through: 1) intestate o Ancestral domain – refers to lands which are considered as
succession or 2) if pertaining to a cultural region
former NBC o Includes lands not actually occupied like deep forests
 Both are considered PRIVATE land
 Ancestral domain
 Who classifies land into agricultural, mineral, etc.? o Larger area, that is generally assigned to the community
o The President. It is an executive power. o Not owned by anybody, but considered PRIVATE land
 But this power is already delegated. Strictly speaking,  Ancestral land
it is Congress that must do it; but Congress delegated o Those which are actually owned by individuals
it to the President.  IPRA
o Except that once the Congress has set the limits on forest o Declared as constitutional by the SC
lands and national parks, the limits may be changed only by o Because the voting was 7-7 – err in favor of constitutionality
Congress as well, not by the President.
 Use of property bears social function: must be for common good
o Chavez v. NHA: There can be implied classification of land to
alienable and disposable. For instance, when the President Private lands
issued MO 415 conveying Smokey Mountain to NHA for
 To whom can private lands be conveyed to?

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 o 1. Filipino citizens
o 2. Domestic corporations with at least 60% Filipino capital
 Both incorporation and control test
 What are the exceptions to these two?
o 1. Aliens may only acquire private land through intestate
succession
 Thus, it is not correct to say aliens may not OWN
private land. Many own private lands before the
Constitutional prohibition. But new acquisitions are
hereby prohibited.
 Prior to 1935 Constitution, aliens could acquire land.
o 2. NBC who has lost Philippine citizenship may be a transferee
of private land
 AS LONG AS it is just used for residential purposes
(derivative title)
o 3. Foreign states, but embassy and staff residence only
 NOT for Non-Filipino religious institutions
 No conveyance or transfer of land except to those qualified to hold
lands of public domain
o An alien gave money to his Filipino wife to purchase land, with
the understanding that they become co-owners. The
relationship soured. HELD: Not co-owned because there is
prohibition on alien acquisition of land.
 What is the “curing provision”
o Transfer to a Filipino of land illegally held by an alien before
cures the prior illegality. Same if the alien becomes Filipino.
 What are the limitations on the capacity to acquire private lands?
o Depends if the land is urban or rural land.
o If it is urban land, the limit is 3000 sqm
o If it is rural land, 3 hectares
o RA 8179  the limit now is only on the size, nothing else
 What if the Filipino citizen lost his citizenship after acquiring the
land?
o No adverse effect; he can still hold the land
 Aliens cannot acquire private land, in general. What rights can
they have?
o 1. Usufruct or lease
o 2. Mortgagee (but cannot acquire possession or bid in
foreclosure)
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 What are remedies to recover private lands from disqualified
aliens?
o 1. Escheat proceedings
o 2. Action for reversion under Public Land Act
 N.B. only the State can file action for reversion
o 3. Action by former Filipino owner to recover land
Ownership and Investment restrictions
 Congress may establish independent economic planning agency
headed by the President
o Now, this is the NEDA
 When national interest dictates, may limit ownership of certain
enterprises to 60% Filipino owned corporations or Filipino citizens
o Upon recommendation of NEDA
o But Congress MAY impose such limit even without NEDA
recommendation
 In the grant of rights, privileges, concessions covering national
patrimony: State gives preferential right to qualified Filipinos
o Manila Prince case – Manila Hotel was selling some of its
shares. The Malaysian bidder gave a higher bid, but the SC
held that it must go to the Filipino, because of this provision
o This decision is oft-criticized. The SC has been retreating from
Manila Prince. Tanada v. Angara case: we respect
preferences in the GATT, notwithstanding this provision
 Exercise authority over foreign investments over national jurisdiction
Sec 11 – Filipinization of public utility franchise
 What are public utilities?
o Corporations rendering service to the public in general, for
compensation
 If only for certain select segments or areas, it is not a
public utility corporation
o No franchise granted except to citizens of the Philippines
 May a foreigner own the ASSETS of a public utility corporation?
o Yes. What is not allowed is the grant of the franchise.
 What are the caveats?
o Up to 50 years only
 o NOT exclusive in character
 Franchise subject to modification, amendment, repeal by Congress  Practice of professions limited to Filipinos
when public need dictates o But this can be opened up by law to foreigners
o Exception to the general non-impairment of contracts rule  Congress cannot by law create private corporations
 State should encourage equity participation o Must incorporate under the general Corporation law.
 May foreigners participate in the governing body of public utility o Cannot be created by special law.
corporations? o But public corporations may be created by special law
o Yes, to the extent of their participation in the ownership
o So maximum is 40% participation  National emergency
o What is the absolute prohibition? o When public interest requires, under reasonable terms, the
 From being appointed as executive and managing State may temporarily take over the operation of:
officers because these positions are only for Filipino  any privately owned public utility
citizens  or those with public interest
 Can the Congress delegate power to grant franchises? o When it says “the State” may take over private
o Yes, such as Congress empowerment of the Toll Regulatory businesses, what branch is acting?
Board to issue road toll projects  Congress
o But subject to Constitutional grants, such as the 50 year  If for instance, Aquino declares State of Emergency due to flood.
maximum Can he take over the operation of transportation facilities?
o No. Apply by analogy, David v. Ermita. This power to take
Exploitation of natural resources Filipino citizens over operation of public utilities can only occur if Congress
60% Filipino corporations gives to the President emergency powers.
Operation of public utilities Filipino citizens  Contrast with expropriation:
60% Filipino corporations
o Just compensation is required
Practice of all professions Filipino citizens only
(Congress may prescribe otherwise)  Ex. As in transfer to public ownership of vital
Mass media Filipino citizens industries the government seeks to nationalize
100% Filipino corporations o But for temporary takeover, there is no such requirement of
Advertising Filipino citizens just compensation
70% Filipino corporations  State shall regulate or prohibit monopolies when public interest requires.
Educational institution Filipino citizens o So in general, monopolies are NOT prohibited. But they may
60% Filipino corporations
be prohibited when public interest requires.
Exception? Schools established by o So what is actually prohibited?
religious groups/mission boards.  1. Unfair competition
(Congress may increase  2. Restraint of trade
requirements for all education o Avon v. Luna: Exclusivity contracts per se are not void. They
institutions) must be viewed vis-à-vis all circumstances surrounding the
Other economic activities Congress may by law prescribe to agreement to see whether there will be unfair competition.
Filipinos or Filipino corporations
(60% or more investment as  Independent Central Monetary Authority:
requirement) o Monetary Board of BSP.

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 Foreign loans may only be incurred according to law and with  Luisita issue:
concurrence of monetary authority o Farmers get share in the corporation instead
o 1/3 of agricultural land of Luisita  equivalent value given in
Social justice and Human Rights form of stock shares
o So 7000 farmers own 1/3 of shares of Luisita corp. 2/3 still
Social Justice belongs to Cojuangco family
 What is required is just compensation to compensate for transfer of land
 What is social justice in a nutshell?
o Just compensation involves not just value of loss to the owner,
o “Those who have less in life should have more than law”
but prompt payment
 Are these immediately executory provisions?
o But a lot of owners have not yet been paid
o No. These provisions have to be implemented by Congress
 Size of land to be given: determined by Congress
 What is the provision on treatment of OFWs?
 May agricultural land held by the Church in trust be subject to land
o Rights of OFWs cannot be less than those working in the
reform?
Philippines
o Yes. Archbishop v. Secretary. The land reform law does not
 Can selected sectors of labor be prohibited from striking?
make a distinction between the various forms of ownership,
o Yes, ex. Policemen, firemen, public school teachers
whether in trust or absolute title.
 Do laborers have right to participate in policy making of
 When does ownership transfer?
corporation?
o Upon full payment
o Yes, but only to matters affecting the workers and their welfare.
 Must compensation be in cash?
o But not for example, with respect to how the business must be
o No need.
run.
 What is the right of urban or rural poor dwellers?
 Agrarian reform
o Cannot be evicted except according to laws
o What are the aims of agrarian reform?
o Who can be evicted: (DIC)
 1. Efficient production
 1. Persons occupying dangerous areas
 2. Equitable distribution of land recognizing right of
 2. When government infrastructure projects with
farmers and landless
allocated funding are going to be implemented
 3. Just share of other or seasonal farm workers in
 3. When there is court order for eviction and
fruits of the land
demolition
o Two types of agrarian workers:
 Maglakas v. NHA: NHA has authority to order relocation of persons
 Regular (tenants)
and demolition of their property as part of its mandate to improve
 Others (seasonal)
blighted areas.
 N.B. Only regulars can be beneficiaries in land
 People’s organizations:
reform; others, only shares
o Covered by right to form associations not contrary to law
o Agricultural lands  those used for agricultural production can
 Roma Drug v. RTC: Third person private parties now can import drugs,
be subject to land reforms
and these will not be considered counterfeit under the Cheaper Meds
 What is the nature of agrarian reform powers?
Act.
o 1. Police power – prescribing retention limits for landowners
o 2. Eminent domain – depriving owners of excess land and
Human rights
giving just compensation

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 Commission on Human Rights (CHR) o 2. Recommend to Congress, request assistance from branch
 What is the status of the CHR? or institution of government;
o Not on the same level as the 3 independent commissions o 3. Appoint officers and employees,
 What is the composition? o 4. Other functions and duties
o 1 Chair, 4 members  What is its jurisdiction?
o Qualifications? o Only over human rights, not economic rights
 NBC o This can be expanded by law
 Members of Bar
 Provision on budget? Education, Family, Other Provisions
o Automatically and regularly released
 What is the duty of the State as regards education?
 Is appointment subject to CONA?
o Duty to provide education accessible to all
o No need for confirmation
o While private schools do so voluntarily
 What are the powers of the CHR?
 What are the twin values to be obtained for public education?
o A. Just investigatory and recommendatory
o 1. Quality
 What can it investigate?
o 2. Accessibility
 1. Violations committed by public officers,
 What is the rule on standards in school?
civilians, or rebels
o Students must meet standards set by school
 2. Violations of civil or political rights
o As long as reasonable and not arbitrary
o Not social rights
 Due process rules for disciplinary action by schools:
o Not situations where no rights are
o 1. Students informed of charge in writing and nature and cause
violated (Ex. There is no right to
o 2. Allowed to answer charges
squat)
o 3. Informed of evidence against them
 N.B. Cannot adjudicate cases involving HR violations
o 4. Allowed to adduce evidence on their behalf
(only investigation and recommendation)
o 5. Evidence must be considered
o B. Adopt guidelines, procedures
 What is the power to dismiss students?
o C. Cite for contempt violations of rules according to ROC
o Schools may dismiss students, after due process, for
 What can the CHR do?
disciplinary reasons
o 1. Initiate court proceedings on behalf of HR violation victims
o Acts committed outside the school may be ground for
o 2. Recommend prosecution of HR violators,
disciplinary action if:
o 3. Grant immunity from prosecution to person whose testimony
 1. Involves violations of school policies connected
or documents are necessary or convenient to determine the
with school-sponsored activities
truth in an HR issue
 2. Misconduct affects the student’s status, or the good
 What can the CHR not do?
name/reputation of the school
o 1. Prosecute the cases by itself
 Integrated system of education:
o 2. Issue TROs or injunctions against HR violators. Regular
o Free movement from one school to another; or public to private
courts must issue these
and back. So this means there is the same program
 Hodgepodge of powers:
o Elementary education is compulsory
o 1. Visit, research, monitor government compliance;

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  N.B. but cannot be subject to penal sanction; it is a  1) it must be non-stock, non-profit; so no dividends
moral, not legal compulsion distributed
o Free education:  2) Must be a school
 1. Elementary  Note: YMCA is not.
 2. HS o Basis for exemption is USE and not the source. So the income
 All educational institutions must include study of Constitution in its can be from cafeteria, etc. but if used for education, it is
curriculum (this obviously failed, according to Fr. Bernas) exempt.
 What are the requirements for the teaching of religion during class  What about proprietary schools?
hours of public schools? o They are exempted under Article 6, but only for buildings. May
o 1. At option expressed in writing by parents or guardians be granted exemption by statutes
o 2. Taught within regular class hours  Academic freedom
o 3. Instructors designated and approved by the proper religious o Enjoyed by institutions
authorities o What does this freedom mean?
o 4. No additional cost to government (else it would violate non-  1. Who may teach
establishment)  2. What may be taught
 Filipinization:  3. How it shall be taught
o Educational schools must be owned solely by citizens of  4. Who may be admitted to study
Philippines or at least 60% Filipino corporations o Professors also enjoy academic freedom
 Congress may increase this o Students also enjoy academic freedom:
o What is the exception?  You may choose your own course, but that’s just
 Schools established by religious groups or mission about it
boards o What are the limitations?
o Control and administration vested in Philippine citizens  1. Dominant police power of State
 This covers “line positions” like the President and  2. Social interest of the community
Dean  “Highest budgetary priority” does not mean education always gets the
 But the faculty members may be foreigners biggest slice of the pie. It just must be considered and given priority.
o No school established exclusively for aliens and aliens cannot  Freedom of expression is not absolute within school grounds. So one
constitute more than 1/3 of enrolment in any school may be dismissed for sexually explicit material in school newspaper.
 1. EXCEPT for schools for foreign diplomats and their  What is the national and official language?
dependents o National language must be expressive of Filipino soul.
 2. And other foreign temporary residents National language is Filipino.
 What is the special exemption for NSNP educational institutions? o Official language is used for official communication. Official
o All revenues and assets of non-stock, non-profit educational languages are Filipino and English
institutions used actually, directly, and exclusively for  Common though: English version will prevail in case
education: EXEMPT FROM taxes and duties of conflict
 N.B.: in Article 6, buildings dedicated exclusively to education are o N.B. Spanish and Arabic on voluntary optional basis
exempt from property tax
o Here, all. But there are requirements: Transitory Provisions

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 Sec. 3 – important  Dualist:
o All existing laws, EOs, proclamations, etc. not inconsistent with o Two different spheres of law
the Constitutional remain effective o International law has no role in domestic conflicts
o UNLESS repealed, amended, or declared unconstitutional  Monist:
 So Marcos and Aquino’s legislations when they still o Belong to only one system
had legislative power are effective o International law is superior to domestic law
 Aquino had until July 27, 1987  How international law becomes municipal law for dualists:
o Any treaty – either renewal or completely new o 1. Transformation
 Needs concurrence of 2/3 of senate o 2. Incorporation
 Metropolitan Authority:  Law of nations adopted as part of the law of the land
o Not as a political subdivision  Followed by the Philippines, in light of dualist theory
o But as an administrative agency  Conflicts:
 Private armies: o International rule: cannot invoke domestic provisions, unless
o Dismantled violation was manifest and concerned rule of internal law of
o Must be under Dept. of Defense or Military to be legitimate fundamental importance
 Visiting Forces Agreement: o Municipal law (when before domestic court):
o In effect, affirmed, and is valid  Usually given construction consistent with
o Argument: it should be seen as invalid because it is not international law
recognized as domestic law in the US  If there conflict between law and treaty:
 Solution: it is irrelevant because the VFA is being  The one passed on a later date prevails,
implemented here. since they are of same rank
o Only Americans are allowed, under this provision. It’s not in  But the SC can declare a treaty
the text, but that is the intent of the Constitution. unconstitutional – but this only applies to
domestic matters. It is still good international
law
PUBLIC INTERNATIONAL LAW
Sources of PIL
Concepts
 Article 38, ICJ Statute:
 Obligation erga omnes: o 1. International conventions, whether general or particular,
o Obligation owed to the community of all States as a whole. All establishing rules expressly recognized by contesting states
States thus have a legal interest in the protection of that right. o 2. International custom, as evidence of a general practice
 Jus cogens: accepted as law
o Peremptory norm of International Law from which no o 3. General principles of law recognized by civilized nations
derogation is allowed o 4. Judicial decisions and teachings of most highly qualified
 Ex aequo et bono: publicists (subsidiary means)
o Decide according to equity  Custom:
o Basic elements:
International Law and National Law  1. State practice

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  A. Duration
o Exception: instant custom
 B. Consistency
 C. Generality
o But possible to bind only several
states or even just two countries
 2. Opinio juris sive necessitates
 Belief that certain behavior is obligatory
 UN Resolutions are not sources of
International Law per se but may evince
opinio juris
o What is the rule on dissenting States?
 Still bound by custom except if they were persistent
objectors since formation of the rule (Anglo-
Norwegian Fisheries)
 A State joining the system after the practice has
become law: bound
o Martens Clause: “laws of humanity” and “dictates of public
conscience” placed on same level as “usages of States” – thus
no need for thousands of civilians to be killed before ban
becomes effective
 Treaties:
o Pacta sunt servanda – obligation to honor agreement
 Party may not invoke provisions of internal law
 Except: violated laws of fundamental importance
o Conflict between treaties and custom:
 Whichever is later should prevail
 Although there must be effort to reconcile
them to comply with pacta sunt servanda
(esp. If the treaty is earlier)
 But if treaty contradicts jus cogens – custom prevail
 General principles of Law:
o Principles of municipal law common to legal system
o Equity may either fall under this source or ex aequo
o Different kinds of equity:
 1. Intra legem – within law
 2. Praeter legem – beyond law
 3. Contra legem – against law
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 Judicial decisions and teachings of highly qualified publicists:
o There is no stare decisis in PIL (ICJ, Art 59) but highly
persuasive
Subjects of PIL
 Differentiate:
o Subjects: entities endowed with rights and obligations and
capacity to take certain actions
o Objects: indirectly have rights, or beneficiaries
States
 Elements of a State: (Montevideo)
o 1. Permanent population
o 2. Defined territory
 Even if boundaries not finally settled
o 3. Government
 Temporary absence of government does not
terminate existence of the State
o 4. Capacity to enter into relations with other States
(sovereignty)
 Independence from outside control
 Dependent on recognition (an entity may possess all
elements but if some States do not recognize it, it
cannot establish relations)
 Recognition of States:
o A. Declaratory view – recognition is merely declaratory of the
possession of required elements
o B. Constitutive theory – recognition is what confers legal
personality to a State
o As long as State meets requirements of State – it cannot be
“derecognized”
 Recognition of government:
o If ordinary constitutional procedure – recognition of new
government is just a matter of course
o If recognition is withheld not because of inquiry into its de facto
sovereignty and government control but because of its irregular
origin – non-recognition loses weight (Tinoco)
 o Just because a State doesn’t recognize the existence of a  Created through treaty among two or more states (constituent
government, a de facto government still exits and can create document)
private rights (Upright v Mercury Business Machines) o Only states are members of IOs
o Mere recognition of a government does not mean approval  IOs can bring forth claims against governments – established by
o Recognition of de facto governments: necessary implication from Charter (Reparations case)
 1. Control government  BUT powers are not unlimited
 2. Not confronted with active resistance o Limited by constituent document
 3. Live up to international obligation  Immunities:
 State Succession o To extent of exercise of functions
o Methods: o Immunities come from constituent document (ex. IRRI and
 1. Decolonization ADB)
 2. Dismemberment  United Nations:
 3. Secession o Enjoined from intervening in matters essentially within
 4. Annexation domestic jurisdiction (Art 2(7) of UN Charter)
 5. Merger o International Constitutional Supremacy Clause: conflicts
o Territory: rights, capacities, duties of predecessor as to that between obligations under UN Charter and other IOs – UN
territory – assumed and continued Charter prevails
o State property: successor gets property in the territory it o General Assembly:
receives  Plenary powers: can discuss any matter w/n scope of
o Public debts: remain with predecessor, except: charter
 rights and obligations under the contract are part of  Important questions – decided by 2/3rds majority
succeeded territory  Other questions – majority
o Treaties: o Security Council:
 Clean slate rule  15 member states
 Except territorial boundaries (uti possidetis juris)  5 permanent (US, UK, Russia, China,
 Fundamental rights of States: France
o 1. Independence  Others – elected for 2 year terms
o 2. Equality – legal equality (one state, one vote)  Vote for non-procedural matters: 9 affirmative
o 3. Peaceful co-existence (non-interference, non-aggression) votes, plus no veto from permanent 5
 State may not be sued without its consent (par in parem non habet o Secretariat:
imperium) based on equality of States  Sec-Gen – 5 year term
o Immunity only for acts jure imperii (governmental acts)  Elected by GA, recommended by SC, subject to veto
 Act of State doctrine:  Chief administrator
o Courts of one country will not sit in judgment on the acts of
government of another, done within its own territory Individuals
o But does not apply for purely commercial transactions
 Before, mere object; but now, can have individual criminal responsibility
International organizations o Under ICC:
 1. Genocide,

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  2. CAH,
 3. War crimes,
 4. Aggression
 Still rely on states for diplomatic protection, but now can petition to
international bodies in light of violations
Diplomatic and Consular Law
Diplomats
 Purpose of diplomatic immunity: functional – so they can perform duties
properly
 Actions that give or remove authority to send/accept envoys:
o 1. Agrement (not “agreement” ha): official approval by a
government of a proposed envoy from a foreign government
o 2. Persona non grata
 What are the diplomatic immunities?
o 1. Premises of mission:
 Premises inviolable from search, requisition,
execution, taxes
 Archives and documents, official correspondence,
diplomatic bag, couriers also protected
o 2. Diplomatic agent’s person: inviolable
 Cannot be arrested or detained
 Immunity from criminal action
 Immunity from civil and administrative action, except:
 1. Real action re: personally-owned private
immovable property in receiving State’s
territory
 2. Hereditary or testamentary succession
 3. Private professional/commercial activity
 Cannot be obliged to give evidence as witness
o 3. Private residence of diplomatic agent also inviolable
o 4. Agent exempt from social security of receiving States
 Extends to private servants, as long as not
nationals/residents of receiving State and covered by
SS of sending State
o 5. Agent exempt from all taxes, except:
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 VAT, private immovable property taxes, transfer
taxes, taxes from private commercial activity
o 6. Exempt from customs:
 Official articles
 Personal items and articles of agent
 Who may waive the immunity?
o Sending State
o Nature of waiver:
 Must be express
 Waiver from immunity from proceedings separate
from waiver from execution of judgment
 To whom else does the immunity extend to?
o 1. Family members of agent forming part of household
o 2. Administrative and technical staff for acts in course of duties,
and their family
o 3. Service staff, for acts in course of duties
o 4. Private servants, from taxes and dues on emoluments
o Which family members are not exempt?
 Those who are nationals of the receiving State
 When immunities begin and end:
o From entry into territory of receiving State or upon receipt of
notice of appointment of receiving State until he leaves the
country or expiration of reasonable period
Consuls
 What is the equivalent of the agrement for consuls?
o Exequatur by receiving State
o Also, persona non grata rule applies
 What are the freedoms and immunities of consuls?
o 1. Freedom of movement
o 2. Freedom of communication, protection of official
correspondence and consular bag
o 3. Communication and contact with nationals of sending state
 Receiving state informs consul of sending state if
national of latter state is arrested or imprisoned or in
custody pending trial
 Consular officers must be able to visit the detainee
without delay
 o
4. Immune from arrest or detention  2. Heads of diplomatic missions for States
 EXCEPT for grave crimes (not complete, like their duties pertain too
diplomats)  3. Representatives to IO or conference
o 5. Immunity from jurisdiction o 2. Authentication of text
 For acts done in exercise of official consular functions  Signing of document authenticates it
 EXCEPT:  Adoption: 2/3rds vote of States present and voting
 1. Contracts entered into privately o 3. Expressing consent to be bound
 2. By third party, for damage from accident in  How to express consent to treaty:
receiving State by vehicle, vessel, aircraft  1. Signature
o 6. Liability to give evidence  2. Exchange of instruments
 May be called upon to attend as witnesses in course  3. Ratification, acceptance, approval, or
of judicial/admin proceedings accession
 Cannot decline to give evidence; but if they decline,  What the RP follows: ratification
no penalty/coercive measure allowed  What is the obligation between the time when the
 Who may waive the privileges and immunities? State signs and ratifies a treaty?
o Sending State  State required not to engage in acts which
can defeat treaty’s purpose
Treaties  What follows ratification?
 Bilateral: exchange of ratification
 Elements of treaty:
 Multilateral: deposit of ratification
o 1. International agreement between States
o 4. Accession (for States which did not participate in initial
o 2. Written
negotiation)
o 3. Governed by PIL
 What are reservations?
o 4. Single instrument/two or more related instruments
o Unilateral statement made by State excluding or modifying
 No particular form prescribed, so the following are “treaties” too:
certain provisions of treaty in application to itself
o Exchange of notes between heads of State (Qatar v Bahrain)
o N.B. only applies to multilateral treaties. If bilateral, there must
o Unilateral declaration concerning legal or factual situations
be renegotiation.
(Nuclear Test cases)
o When there can be no reservation?
 Making a treaty:
 1. Prohibited by treaty
o 1. Negotiation
 2. Treaty only allows specified reservations
 Who can negotiate with full powers?
 3. Reservation incompatible with object and purpose
 1. He who produces appropriate full powers
of treaty
 2. Practice of State: consider that person as o Who must consent to reservation?
representing the State for such purpose  1. Reservation allowed by treaty: none needed from
 Who represent the State w/o having to produce
other States
full powers:
 2. Reservation defeats object and purpose of treaty:
 1. Heads of State, Heads of Government, consent of all parties required
Ministers for Foreign Affairs

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  3. Reservation to treaty which s constituent  How do treaties terminate?
instrument of IO: requires IO’s organ’s consent o 1. Consent of parties
 N.B. Reservation deemed accepted if no rejection in o 2. Treaty has period
period of 12 months o 3. Purpose has been achieved
o When does the reservation take effect? o 4. Material breach
 As soon as one other contracting States accepts  If bilateral, it entitles the other to terminate
 Effect: Modifies application of the treaty to another  If multilateral, other parties by unanimous agreement
party, as mentioned, but it doesn’t affect relations with may be terminated by:
other parties  All, as to the breaching party
 When treaties enter into force:  Specially affected party, who may suspend
o 1. On date agreed upon  Any party, if it radically changed everyone’s
o 2. If none, when consent is given position as regards obligations
o 3. Usually, multilateral treaties provide specific number of o 5. Impossibility
States for it to come into effect o 6. Rebus sic stantibus
 Priority of rules on interpreting treaties:  How is a treaty terminated?
o 1. Objective: ordinary meaning, in light of object and purpose o 1. Notify other parties in writing
o 2. Teleological: context o 2. If no one objects in 3 months, party may carry out action
 Instruments/agreements relating to its conclusion o 3. If there is objection, settle dispute through peaceful means
 Preamble and annexes
o 3. Subjective (subsequent agreement, subsequent practice, Nationality and Statelessness
PIL rules)
o 4. Special meaning given to terms  States have jurisdiction over its nationals, even those outside the State
 Supplementary sources – only for ambiguities o Ex. can tax citizens or subpoena them abroad
 Different languages of text – particular text prevails as  Nationality gained by:
agreed upon o 1. Jus sanguinis
 When are treaties invalid? o 2. Jus soli
o 1. Error of fact o 3. Naturalization
o 2. Fraud (induced)  BUT there must be a reasonable connection or “effective link” between
o 3. Corruption of State representative the State and the national – consent alone is not enough for him to be
o 4. Coercion of State representative recognized by other States as a national (Nottebohm)
o 5. Coercion by State through threat/force o To determine which of two states has right to give diplomatic
o 6. Violates jus cogens protection of person of dual nationality
 What is the difference between amendment and modification of  Maritime vessels – State has jurisdiction over vessels flying its flag
treaty? o “Flags of convenience”: may be challenged for lack of
o Amendment is in negotiation stage of the treaty and binds all sufficient link (where nationality of owner is different from
parties to it country of registration)
o Modification is after treaty has come to effect, involving only  Stateless persons:
some of the parties and only if not disallowed by the treaty and o De jure stateless – lost their nationality and have not acquired
won’t defeat the others’ rights. a new one

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 o De facto stateless – those with nationality but protection denied
by their state when they are out of it
o Still covered by protections of IHRL (UDHR, etc.)
Treatment of aliens
 When are States obliged to admit aliens?
o 1. There is treaty requiring it
o 2. Treaty imposes legal standards for admission
 How are aliens protected by their own States?
o Through diplomatic protection, under the theory that injury to a
national abroad is injury to his State. This power is
discretionary.
o Recall: effective link doctrine
 Two standards for protection of aliens:
o 1. National treatment/equality of treatment
 Treat aliens in same manner as nationals
o 2. Minimum international standard (more widely accepted)
 Imposes certain minimum standards of humane
protection
 Neer Claim: This standard applies if the treatment of
the alien constitutes an outrage readily recognizable
by every reasonable/impartial person
 What is denial of justice?
o When there is unwarranted delay, obstruction of access to
courts, gross deficiency in processes, failure to provide
indispensable guarantees, or manifestly unjust judgment
o N.B. mere error w/o manifest injustice is not denial of justice
 What is extradition?
o Surrender of an individual by the State within whose territory
he is found and under whose laws he is alleged to have
committed a crime/where he was convicted of crime
o Unlike deportation, which need not be pursuant to a request by
another State
 Principles of extradition:
o 1. No State is obliged to extradite unless in a treaty
o 2. Differences in legal system can be an obstacle in
interpreting treaties (double criminality requirement)
o 3. Religious and political offenses are non-extraditable
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 An extradition treaty does not prohibit all means of gaining presence of
an individual outside of its terms (US v Alvarez-Machain)
 Due process:
o No need for notice and hearing, because he might flee when
given notice,
o Not a criminal proceeding but an executive process
o Just prima facie – not beyond reasonable doubt
o Bail is now available in extradition cases (HK v Olalia)
International Human Rights Law
 What is IHRL?
o Inalienable and fundamental rights essential for life as human
beings
o The way nations treat people is no longer a domestic concern
but one that calls for attention of international community
 Remember: non-intervention clause in Art. 2 Sec 7 of the UN Charter
(cannot intervene in matters essentially within domestic jurisdiction of
member nations)
o Although human rights are now not within exclusive domestic
sphere of nations
 What is the nature of the UDHR?
o Not a law but a common standard (moral and political)
o Moral rules which are not self-executory
o Contra: covenant – imposes specific duties and obligations,
and places parties on position to bring laws and practices
according to these obligations
 What does the ICCPR cover?
o 1. Protection of life, liberty, and property
 Bias for abolition of the death penalty; but it allows its
imposition but only for the most serious crimes
 Although nothing in the article can be used
to delay or prevent abolition of death penalty
 No DP for minors and pregnant women
 Second additional protocol requires
abolition of death penalty, but RP is not a
party
  No publicity of criminal proceedings where there is
interest of juvenile persons, matrimonial disputes, or
guardianship of children
 Anyone unlawfully arrested or detained must have
enforceable right to compensation and victim of
miscarriage of justice shall be compensated
o 2. No torture, ill-treatment, and prison conditions must be good
o 3. Freedom of movement
 Limit: public health, safety, morals, order, etc.
 Right to return – cannot be deprived arbitrarily
 Exile is now prohibited by customary law
 Right of aliens not be expelled without due process
o 4. Legal personality guaranteed but capacity to act may be
limited
o 5. Thought, conscience, religion, expression, political freedoms
 Limit: public safety, order, health, morals,
fundamental rights of others
o 6. No war propaganda
o 7. Associations and unions
 But silent on right of govt employees to form unions
o 8. Minorities can enjoy own culture, own religion, own
language
 What are the two aspects of self determination?
o Internal SD: Right to freely determine political status and eco-
socio-cultural development, and to freely dispose of natural
wealth and resources for own ends
o External SD for those under colonial domination or racist
government
 Generally: no right to secede – because this disrupts
territorial integrity – except for those here
 What is the optional protocol to the ICCPR?
o Enables private parties who are victims of HR violations to file
complaints against States that have ratified the Protocol to the
Human Rights Commission
o RP is a party to this
 What rights does the ICESCR cover?
o 1. To work and favorable conditions of work
o 2. To form free trade unions
o 3. To social security and insurance
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o 4. Special assistance for families
o 5. To adequate standard of living
o 6. To highest standard of physical and mental health
o 7. To education including compulsory primary education
o 8. Enjoyment of cultural and scientific benefits and international
contacts
 What is the duty to implement ICESCR rights?
o 1. Bring laws and practices into accord
o 2. Not to introduce new laws or practices contrary to these
o 3. Provide remedies to enforce these
 Contrast rules of implementation of ICCPR and ICESCR:
o ICCPR: immediate implementation
o ICESCR: implemented gradually and dependent on
development conditions (“progressive realization”)
 What are the two different procedures under the Human Rights
Commission?
o 1. Confidential consideration
 Working group of not more than 5 members meet in
private to consider all reports which revolve patterns
of gross and reliably attested violations of HR
 CHR submits report/recommendation to ECOSOC
o 2. Public debate
 Annual public debates where governments and NGOs
can identify situations that deserve attention
 Methods of implementation:
o 1. Name and shame
o 2. Pressure on governments
o 3. Appointment of Special Rapporteur to examine/report
o 4. Request to Security Council to take up issue
IHL and neutrality
 Distinguish:
o Jus ad bellum – law governing use of force outside of armed
conflict
 Ex. self-defense, counter-measures, etc.
 N.B. Self defense is usually just against States that
engage in unlawful armed attack, and is attended by
proportionality and necessity. However, the ICJ in the
 Palestinian Wall advisory opinion (Sep. Op., Higgins)
recognized that there can be self-defense against
non-State actors (some say this is instant custom)
o Jus in bello – law governing conduct of armed conflict (laws of
war)
 What is IHL?
o Law that governs hostilities of war
o Results in cutting of all normal relations, except treaties of
humanitarian character (so IHRL can still apply subsidiarily)
 Who are protected under the Geneva Conventions?
o 1. Wounded and sick in the field
o 2. Wounded, sick, and shipwrecked at sea
o 3. Prisoners of War (POWs)
o 4. Civilians
 What are categories of armed conflict?
o 1. International armed conflict
 Between States
 Apply GCs (and Common Article 3) and Additional
Protocol I (AP I)
 Grants combatant status to those participating
o 2. Internal or non-international armed conflict
 Between States and non-state armed groups or
insurgents engaged in protracted armed violence (not
mere internal disturbance)
 Apply Common Article 3 and Additional Protocol II
(AP II) if applicable
 To which groups does AP II apply (insurgent
groups)?
 1. With responsible command, and
 2. Control over territory, and
 Insurgent groups have treaty making capacity
o 3. Wars of national liberation
 Between States and those fighting against colonial
domination or racist regimes
 Apply rules on international armed conflict
 What is guaranteed by Common Article 3?
o No violence to life and person
o No taking of hostages
o No outrages against personal dignity
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o No passing of sentences/executions without prior judgment
 What is the law on neutrality?
o Belligerents must respect rights of neutral parties
o Neutrals must not interfere with belligerents
o In civil wars, governments can ask for help from other States,
but States generally can’t aid rebels
o But for insurgent groups governed by AP II, other States must
maintain neutrality
Law of the Sea
 What is the nature of the sea, in general?
o Res communis (open to all)
 Sovereignty of State extends to:
o 1. Internal waters
o 2. Archipelagic waters
o 3. Territorial sea
 What is the territorial sea?
o Maritime belt by littoral states, as indivisible part of their
domain
o What is the extent of the territorial sea?
 Baseline until 12 nautical miles
 If there is overlap with adjacent State: dividing line is median
equidistant from opposite baselines
 Differentiate baselines:
o Normal – follows curvature of coast
o Straight – collecting selected points on coast without
appreciable departure from general shape
 Length must not exceed 100 n.m. (except 3% of total
baselines may go up to125 n.m.)
 Cannot cut off high seas or EEZ of another State
 Give due publicity
o From where do you count the baseline?
 Count from low-water-mark
o What does the RP follow?
 Straight baselines
 What is the sovereign right over territorial sea?
o Same as sovereignty over land, but subject to right of innocent
passage in territorial sea and straits (Corfu Channel)
 o What is NOT innocent passage:
 1. Threat/use of force, exercising defense/security
functions
 2. Load/unload commodity contrary to customs, fiscal,
immigration, sanity laws
 3. Fishing activities
 4. Research/survey
 What are internal waters?
o These are all waters landward from the baseline. There is no
right of innocent passage.
o Bays are considered internal waters.
 Merely an indentation if it is NOT larger than the semi-
circle whose diameter is a line drawn across the
mouth of the indentation
 If distance between low water marks between natural
entrance points of bay X exceed 24 nautical miles:
may enclose and treat as internal
 If more than 24 – straight baseline of 24 n.m. may be
drawn to enclose maximum area of water
 Exception to the “24” rule: historic bays, which are
treated as internal waters based on historic rights
 What is the rule on archipelagic waters?
o When straight baselines enclose as internal waters those not
previously considered internal waters – right of innocent
passage remains
o But the RP considers archipelagic waters as internal waters,
contrary to 1982 Convention on Law of the Sea
 N.B. Although since we did this in 1973, it preceded
1982 Convention, which only talked about waters “not
previously considered internal”
 What is the extent of the contiguous zone?
o 12-24 n.m. from baseline
o N.B. contiguous zone is already part of the high seas
 Authority of coastal State within contiguous zone?
o To prevent and punish infringement of customs, fiscal,
immigration, or sanitation (CFIS) laws
 What is the extent of the Exclusive Economic Zone (EEZ) or
patrimonial Sea?
o 24-200 n.m from baseline
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 What is the right over the EEZ?
o 1. Right over economic resources in the sea, seabed, subsoil
o 2. Not affect right of navigation and over-flight of other states
o What is the reciprocal obligation?
 Must ensure proper conservation and management,
and optimum utilization of living resources (must
maximize allowable catch, or else, grant other States
this right
 What are the areas covered by the continental/archipelagic shelf?
o 1. Seabed and subsoil adjacent to coastal state but outside
territorial sea
o 2. Seabed and subsoil adjacent to islands
 Rights over the shelf:
o 1. Explore and exploit natural resources
o 2. Erect installations
o 3. Erect safety zone
 What about the deep seabed?
o It is beyond any national jurisdiction and cannot be
appropriated
 What is the rule on islands?
o It must be naturally formed (not artificial). Follow usual
provisions.
o For rocks which cannot sustain human habitation or economic
life, it just has a territorial sea and not CZ or EEZ.
 What is covered by the high seas?
o All parts of the sea not included in the territorial sea or internal
waters. Includes CZ and EEZ.
 What are the freedoms in the high seas?
o 1. Navigation
o 2. Over-flight
o 3. Fishing
o 4. Laying submarine cables/pipelines
o 5. Constructing artificial islands/structures
o 6. Scientific research
 What is the rule on hot pursuit?
o A ship which has violated law or regulations of the coastal
State (or CFIS, if in the contiguous zone, or EEZ rights if the
EEZ) can be pursued to the high seas.
o Stopped when the ship enters another State’s territorial sea.
 o The pursuing State cannot sink the ship.
 How are disputes settled?
o Compulsory peaceful settlement
o If it fails, submit to tribunal clothed with jurisdiction (choose):
 1. International Tribunal for Law of the Sea
 2. ICJ
 3. Arbitral tribunal constituted under convention

International Environmental Law

 What is Principle 21 of the Stockholm Declaration?

o 1. States have sovereign right to exploit their own resources
pursuant to their own environmental policies, and
o 2. The responsibility to ensure that activities within their
jurisdiction or control do not cause damage to the environment
of other States or of areas beyond the limits of national
jurisdiction.

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