2019 Pre Week Bar Review in Admin & Public Officers & Election & Local Govt and PIL PDF

2019 Bar Reviewer in Administrative Law, 10/29/2019
Law on Public Officers, Election Law, Local

Government & Public International Law
2019 PRE-WEEK BAR REVIEW

IN ADMINISTRATIVE LAW,
PUBLIC OFFICERS,
ELECTION LAW,
LOCAL GOVERNMENT &
PUBLIC INTERNATIONAL LAW
By: Atty. Enrique V. dela Cruz, Jr.
ADMINISTRATIVE LAW
Copyright@ Atty. Enrique V. dela Cruz, Jr. 1

Bar Questions (Definitions)

1. What is administrative power?
2. What is an administrative Order?
3. What are the different kinds of
administrative rules?
4. What is an executive order?
* Please read: Ople vs. Torres, July 23, 1998; and Sec.
2, Introductory Provisions, Executive Order No. 292
(Administrative Code of 1987)
Bar Questions (Definitions)

1. What is meant by the phrase
“Government of the Republic of the
Philippines”?
2. What is a government instrumentality?
3. What is a regulatory agency?
4. What is a chartered institution?
5. When is a government-owned or
controlled corporation deemed to be
performing proprietary function?
governmental function?

Is the PNRC (Red Cross) a GOCC, therefore its employees

are within the jurisdiction of the CSC?
• Yes. As ruled by this Court in Liban, et al. v. Gordon, the
PNRC, although not a GOCC, is sui generis in character,
thus, requiring this Court to approach controversies
involving the PNRC on a case-to-case basis.
• In this particular case, the CA did not err in ruling that the
CSC has jurisdiction over the PNRC because the issue at
hand is the enforcement of labor laws and penal statutes,
thus, in this particular matter, the PNRC can be treated as a
GOCC, and as such, it is within the ambit of Rule I, Section
1 of the Implementing Rules of Republic Act 6713.
• Thus, having jurisdiction over the PNRC, the CSC had
authority to modify the penalty and order the dismissal of
petitioner from the service. [Torres v. De Leon, G.R. No.
199440. January 18, 2016]
• Is the Boy Scouts of the Philippines a Quasi-Public

Corporation?
• A: NO. The BSP is a public corporation or a government

agency or instrumentality with juridical personality, which
falls within the audit jurisdiction of the COA.
• Not all corporations, which are not government owned or
controlled, are ipso facto to be considered private
corporations as there exists another distinct class of
corporations or chartered institutions which are otherwise
known as "public corporations."
• These corporations are treated by law as agencies or
instrumentalities of the government which are not subject to
the tests of ownership or control and economic viability but
to different criteria relating to their public purposes/interests.
[BSP v. COA, G.R. No. 177131. June 7, 2011].

• Q: Are Local Water Districts considered government

instrumentalities, private corporations or GOCC’s?
• A: GOCC’s.
• LWD’s are not private corporations because they are
not created under the Corporation Code. LWDs are not
registered with the Securities and Exchange
Commission.
• P.D. No. 198 constitutes the special charter by virtue of
which local water districts exist.
• LWDs are government-owned and controlled
corporations with a special charter since they are
created pursuant to a special law, PD 198.
• They are covered by COA audit jurisdictions and their
employees are subject to CSC Rules. [Feliciano v. COA,
January 14, 2004; De Jesus v. COA, June 10, 2003]
• QUESTION:
• The Legal Education Board was created by law
to regulate law schools around the country,
including admission process and curriculum
development.
• It is the purpose of the law to ensure competent,
globally competitive and ethical candidates for
the admission to the practice of law.
• As part of AY 2017-2018 legal education reform
measures, the LEB issued a memorandum
which will require aspirants for a law career to
take the Philippine Law School Admission Test
(PhilSAT).

• QUESTIONS:
• 1. Is the Legal Education Board a government
instrumentality or a GOCC?
• 2. Can the LEB exercise quasi-legislative powers
to promulgate rules for admission to law school
thru the PHILSAT?
• 3. Are officers of the LEB considered “public
officers”?
• 4. The LEB has a sectoral representative from law
students, appointed by the President. If this law
student commits a crime in relation with his
functions as a member of LEB, will he be under
the jurisdiction of the Sandiganbayan?
• QUESTION:
• To qualify to take the PhilSAT, the aspirant must meet
the following requirements:
• (1) Graduated with bachelor’s degree, or is expecting
to graduate with a bachelor’s degree at the end of the
regular semester immediately preceding the school
year when he/she intends to commence the study of
the basic law course; and
• (2) Had obtained a general weighted average not
below 2.50 or 80% in the bachelor’s degree earned,
or if a graduating student has a general average of no
less than 80% from the 1st up to third year of his/her
study.
• Are the requirements constitutional? Decide with
reasons.
10

• Q: DISTINGUISH QUASI-LEGISLATIVE FROM

QUASI-JUDICIAL POWERS?
• A:
• Quasi-legislative or rule-making power is the power
to make rules and regulations which results in delegated
legislation that is within the confines of the granting
statute and the doctrine of non-delegability and
separability of powers.
• The rules and regulations that administrative agencies
promulgate, which are the product of a delegated
legislative power to create new and additional legal
provisions that have the effect of law, should be within
the scope of the statutory authority granted by the
legislature to the administrative agency. [SMART v.
NTC, August 12, 2003]
11
• Q: DISTINGUISH QUASI-LEGISLATIVE FROM

QUASI-JUDICIAL POWERS?
• A:
• Quasi-judicial or administrative adjudicatory power
is the power to hear and determine questions of fact
to which the legislative policy is to apply and to decide in
accordance with the standards laid down by the law
itself in enforcing and administering the same law.
• The administrative body exercises its quasi judicial
power when it adjudicates adverse rights or performs
in a judicial manner an act which is essentially of an
executive or administrative nature, where the power to
act in such manner is incidental to or reasonably
necessary for the performance of the executive or
administrative duty entrusted to it. [SMART v. NTC,
August 12, 2003]
12

When do administrative rules take effect?
• 15 days after publication not 15 days

from date of filing with the UP Law
Center (Sec. 4, Admin. Code; Republic v Express
Telecomm (2002)).
• Failure to comply with the requirements of
publication and filing of administrative
issuances with the ONAR renders them
ineffective. [Republic v. Pilipinas Shell,
April 8, 2008]
13
• NOTE:
• Administrative Code of 1987, Section 3 of
Chapter 2, Book VII states:
• Filing. — (1) Every agency shall file with
the University of the Philippines Law
Center three (3) certified copies of every
rule adopted by it.
• Rules in force on the date of effectivity of
this Code which are not filed within three (3)
months from the date shall not thereafter be
the basis of any sanction against any party
or persons.
14

Is publication necessary for validity?
• Yes. Rules and Regulations must be

published if their purpose is to enforce or
implement existing laws pursuant to a valid
delegation.
• The publication must be in full or its no
publication at all. (Tanada vs. Tuvera, 146 SCRA 446).
• Exceptions:
• (a) Interpretative Rules;
• (b) Internal Rules;
• (c) Letters of Instructions.
15
• Q: Define and explain the

following:
• 1. Legislative Rule
• 2. Interpretative Rules
• 3. Contingent Rules
16

• A:
• Legislative rules are in the nature of
subordinate legislation and designed to
implement a primary legislation by providing
the details thereof.
• They usually implement existing law,
imposing general, extra-statutory obligations
pursuant to authority properly delegated by
Congress and effect a change in existing
law or policy which affects individual rights
and obligations. [Republic v. Drugmakers
Laboratories, March 5, 2014]
17
• A:
• Interpretative rules are intended to interpret,
clarify or explain existing statutory regulations
under which the administrative body operates.
• Their purpose or objective is merely to construe
the statute being administered and purport to do
no more than interpret the statute.
• Simply, they try to say what the statute means
and refer to no single person or party in particular
but concern all those belonging to the same
class which may be covered by the said rules.
[Republic v. Drugmakers Laboratories, March
5, 2014]
18

• A:
• Contingent rules are those

issued by an administrative
authority based on the existence
of certain facts or things upon
which the enforcement of the law
depends. [Republic v.
Drugmakers Laboratories,
March 5, 2014]
19
Rules with Penalties
• Every rule establishing an offense or

defining an act which, pursuant to law is
punishable as a crime or subject to a
penalty shall in all cases be published
in full text. (Sec. 6, Admin. Code)
• The law itself must so declare the act as
punishable.
• The rule cannot amend, modify, or expand
the provisions of the law (People v. Maceren)
20

Is notice & hearing necessary?
• No. Where the rule is procedural, or

merely legal opinions, or even
substantive rules implementing the
law. (See Corona v. United Harbor Pilots Association of the
Philippines, G.R. No. 111953, December 12, 1997)
• Exceptions:
• A. Subordinate legislation
• B. Rate-Fixing (Increasing Burdens)
21
Rules on Rate-Fixing
– If it’s pursuant to a legislative
function (i.e., increasing fees for
renewal of driver’s license or NBI
clearance), prior notice or hearing
is NOT REQUIRED. (See Philippine Consumers
Foundation v. Secretary, DECS, 153 SCRA 622)
– As regards rates prescribed in the

exercise of quasi-judicial function,
prior notice and hearing are
REQUIRED.
22

• QUESTION:
• If the Office of the President revokes FTAA’s
entered into by the President, is it exercising
quasi-judicial or adjudicatory powers?
• ANSWER: NO.
• Quasi-judicial or administrative adjudicatory
power is the power of the administrative agency
to adjudicate the rights of persons before it.
• The OP's cancellation and/or revocation of the
FTAA is obviously not an "adjudication" in the
sense above-described.
• [Narra Nickel v. Redmont, G.R. No. 202877,
December 09, 2015, PERLAS-BERNABE, J.]
23
• NOTE:
• The FTAA is a contract to which the OP
itself represents a party, i.e., the Republic.
• It merely exercised a contractual right by
cancelling/revoking said agreement, a
purely administrative action which should
not be considered quasi-judicial in nature.
• Thus, absent the OP’s proper exercise of
a quasi-- judicial function, the CA had no
appellate jurisdiction over the case, and its
Decision is, perforce, null and void. [Narra
Nickel v. Redmont, G.R. No. 202877, December
09, 2015, PERLAS-BERNABE, J.]
24

When the Office of the Mayor issues notices /demolition

orders, is it exercising quasi-judicial powers?
• YES. Under existing laws, the office of the mayor is
endowed with authority to hear issues involving property
rights of individuals and to come out with an effective order
or resolution thereon. In this manner, it exercises quasi-
judicial functions.
• It cannot be denied as well that in determining whether or
not a structure is illegal or it should be demolished, property
rights are involved thereby needing notices and opportunity
to be heard as provided for in the constitutionally
guaranteed right of due process. In pursuit of these
functions, the city mayor has to exercise quasi-judicial
powers.
• City Engineer of Baguio vs. Hon. Domogan, G.R. No.
150270, 26 November 2008
25
Can one invoke the right against

self-incrimination in admin cases?
• Yes. Cabal v. Kapunan, 6 SCRA 1064,
• It was held that since the administrative charge of
unexplained wealth may result in the forfeiture of
property, the complainant cannot call the
respondent to the witness stand without
encroaching on his right against self-
incrimination.
• In the case of Pascual v. Board of Medical
Examiners, 28 SCRA 345, the same rule was
followed since the proceedings could possibly
result in the loss of his privilege to practice
medicine.
26

Will “res judicata” apply to cases involving

exercise of administrative power?
• As a rule, the doctrine of res judicata applies only to judicial
or quasi-judicial proceedings, and not to the exercise of
administrative powers. [Montemayor v. Bundalian, 453
Phil. 158, 169 (2003)].
• As an exception, when the administrative proceedings take
on an adversary character, the doctrine of res judicata
certainly applies. As held in the case of Fortich v. Corona
[52 Phil. 461 (1998)].:
• “The rule of res judicata which forbids the reopening of a
matter once judicially determined by competent authority
applies as well to the judicial and quasi-judicial acts of
public, executive or administrative officers and boards
acting within their jurisdiction as to the judgments of
courts having general judicial powers.”
27
Doctrine of Primary Jurisdiction

• A case that requires for its determination the
expertise, specialized skills, and knowledge of
some administrative board or commission because
it involves technical matters or intricate questions of
fact, relief must first be obtained in an appropriate
administrative proceeding before a remedy will be
supplied by the courts although the matter comes
within the jurisdiction of the courts.
• The application of the doctrine does not call for the
dismissal of the case in the court but only for its
suspension until after the matters within the
competence of the administrative body are threshed
out and determined. [Mateo v. DAR, February 15,
2017]
28

When will the Doctrine of Primary Jurisdiction apply?

• A: The doctrine of primary jurisdiction applies only
where the administrative agency exercises its quasi-
judicial or adjudicatory function.
• Thus, in cases involving specialized disputes, the practice
has been to refer the same to an administrative agency of
special competence pursuant to the doctrine of primary
jurisdiction.
• The courts will not determine a controversy involving a
question which is within the jurisdiction of the
administrative tribunal prior to the resolution of that
question by the administrative tribunal, where the
question demands the exercise of sound administrative
discretion requiring the special knowledge, experience
and services of the administrative tribunal. [SMART v.
29
Q: When will the Doctrine of Exhaustion

of Administrative Remedies apply?
• A: In questioning the validity or
constitutionality of a rule or regulation issued
by an administrative agency, a party need not
exhaust administrative remedies before going
to court.
• This principle applies only where the act of
the administrative agency concerned was
performed pursuant to its quasi-judicial
function, and not when the assailed act
pertained to its rule-making or quasi-legislative
power. [SMART v. NTC, August 12, 2003]
30

• Q: CAN THE COURTS EXERCISE JUDICIAL

REVIEW OVER ADMINISTRATIVE RULES?
• A: YES.
• Where what is assailed is the validity or
constitutionality of a rule or regulation issued by
the administrative agency in the performance of
its quasi-legislative function, the regular courts
have jurisdiction to pass upon the same.
• The determination of whether a specific rule or
set of rules issued by an administrative agency
contravenes the law or the constitution is within
the jurisdiction of the regular courts.[SMART v.
31
• Q: IF THE DISPUTE IS BETWEEN GOVERNMENT

AGENCIES OR GOCCs, HOW SHOULD IT BE
RESOLVED?
• A:
• SEC. 66. [Administrative Code]. — All disputes,
claims and controversies, solely between or among
the departments, bureaus, offices, agencies and
instrumentalities of the National Government, including
GOCCs, such as those arising from the interpretation
and application of statutes, contracts or agreements,
shall be administratively settled. This rule, however,
not apply to disputes involving the Congress, the
Supreme Court, the Constitutional Commissions, and
local governments. [CIR v. Secretary of Justice, July
9, 2018]
32


RESOLVED?
• A:
• SEC. 67. [Administrative Code]. Disputes Involving
Questions of Law. — All cases involving only
questions of law shall be submitted to and settled or
adjudicated by the Secretary of Justice as Attorney-
General of the National Government and as ex
officio legal adviser of all government-owned or
controlled corporations. His ruling or decision
thereon shall be conclusive and binding on all the
parties concerned. [CIR v. Secretary of Justice,
July 9, 2018]
33

RESOLVED?
• A:
• SEC. 68. [Administrative Code]. Disputes Involving
Questions of Fact and Law. — Cases involving mixed
questions of law and of fact or only factual issues shall be
submitted to and settled or adjudicated by:
• (1) The Solicitor General, if the dispute, claim or
controversy involves only departments, bureaus, offices and
other agencies of the National Government as well as
government-owned or controlled corporations or entities of
whom he is the principal law officer or general counsel; and
• (2) The Secretary of Justice, in all other cases not falling
under paragraph 1. [CIR v. Secretary of Justice, July 9,
2018]
34

PUBLIC
OFFICERS
35
What makes an office - a “public office”?
• The most important characteristic is the

delegation to the individual of some of
the sovereign functions of government,
to be exercised by him for the benefit of
the public;
• Unless the powers conferred are of this
nature, the individual is not a public
officer. [Veterans Federation of the
Philippines v. Hon. Angelo Reyes, G.R. No.
155027. February 28, 2006]
36

Who is a public officer?

• Under Article 203 of the Revised Penal
Code, a public officer is any person who,
by direct provision of law, popular election
or appointment by competent authority,
shall take part in the performance of
public functions in the Government of
the Philippine Islands, or shall perform in
said Government or in any of its branches,
public duties as an employee, agent or
subordinate official, of any rank or class.
37
• QUESTION:
• Ramirez was appointed as Executive Assistant III,
on contractual basis by then Chairman Eufemio
Domingo of the PAGC, effective Sept. 3, 2001,
• On Sept. 20, 2001, Chairman Domingo resigned
and Buenaflor was appointed as the new PAGC
Chairman Buenaflor terminated the employment of
Ramirez on the ground that he is co-terminous.
• Ramirez filed a suit in the RTC and argued that
since his appointment is contractual and no period
was stated, it is clearly understood that the term is
for a period of one (1) year from Sept. 3, 2001 and
subject to renewal. Is he correct?
38

• ANSWER: NO.
• It cannot be disputed that Ramirez's complaint was thereby
challenging the validity of his termination from the service,
and that he thereby wanted the RTC to pry into the
circumstances of the termination.
• Such challenge was outside of the RTC's sphere of authority.
Instead, it was the CSC that was vested by law with
jurisdiction to do so.
• Disciplinary cases and cases involving personnel actions
affecting employees in the Civil Service, like appointment or
separation from the service, are within the exclusive
jurisdiction of the CSC.
• Indeed, the Constitution vests in the CSC the jurisdiction over
all employees of the Government, including all its branches,
subdivisions, instrumentalities, and agencies, as well as
GOCC’s. Buenaflor v. Ramirez, G.R. No. 201607.
February 15, 2017.
39
• QUESTION:
• Vigilant Investigative and Security Agency
Incorporated or VISAI is a security firm owned by
Solicitor General Jose Calida. The solicitor general
resigned as president and chairman of the
company in June 2016, but remained as holder of
60% of company shares, while the remaining 40%
is evenly spread out among his wife Milagros and
their 3 children.
• Since he became Sol Gen on July 30, 2016, VISAI
bagged 12 contracts from 6 government agencies,
including the DOJ.
• Is there probable cause to charge Sol Gen Calida
for violating RA 6713? Explain.
40

• ANSWER: YES.
• Section 6 of the Code of Conduct of Public Officials states
that “a public official or employee shall avoid conflicts of
interest at all times.”
• The law adds: “When a conflict of interest arises, he shall
resign from his position in any private business
enterprise within thirty (30) days from his assumption of
office and divest himself of his shareholdings or
interest within sixty (60) days from such assumption.”
• The law explicitly states that when a conflict of interest
arises, an official has 60 days to resign and/or divest his
shares from the time he assumed office.
• Divestment is mandatory if the official is a substantial
stockholder “even if he has resigned from his position.”
• Thus, resigning is not enough.
41
A female official of the Bureau of Customs (BOC) referred

to House Speaker Pantaleon Alvarez as an “imbecile” in
one of her Facebook posts. Can she be charged with
Grave Misconduct and removed from office?
• A: NO. Misconduct in office, by uniform legal definition, is
such misconduct that affects his performance of his duties
as an officer and not such only as affects his character as a
private individual.
• To warrant removal from office, it must have direct relation
to and be connected with the performance of official duties
amounting either to maladministration or willful, intentional
neglect and failure to discharge the duties of the office.
• It becomes grave if it “involves any of the additional elements of
corruption, willful intent to violate the law or to disregard
established rules, which must be established by substantial
evidence.” [Garcia v. Molina, January 11, 2016 (Bersamin)]
42

• Q: Can active members of the AFP be

designated or detailed to civilian positions
in the Bureau of Customs?
• NO. Section 5(4), Article XVI of the 1987

Constitution states:
• “No member of the AFP in the active service
shall, at any time, be appointed or designated
in any capacity to a civilian position in the
government including GOCC’s.”
• See also Executive Order 371 (1987)
43
The Ombudsman filed charges of “Usurpation of

authority” against Former President Noynoy Aquino. If a
certiorari petition is filed with the SC to review this act of
the Ombudsman, will such a petition prosper?
• A: The Ombudsman has the discretion to determine whether
a criminal case, given its attendant facts and circumstances,
should be filed or not.
• The Ombudsman may dismiss the complaint should the
Ombudsman find the complaint insufficient in form or
substance, or the Ombudsman may proceed with the
investigation if, in the Ombudsman’s view, the complaint is
in due form and substance.
• Hence, the filing or non-filing of the information is primarily
lodged within the “full discretion” of the Ombudsman.
• [Soriano v. Ombudsman, AUGUST 19, 2015 (Bersamin)]
44

The general Rule is that the decision of the Ombudsman

on who and what to charge is beyond judicial review.
What are the exceptions?
• A: In the following instances, the courts may interfere with the
Ombudsman’s investigatory powers:
• To afford protection to the constitutional rights of the accused;
• When necessary for the orderly administration of justice or to
avoid oppression or multiplicity of actions;
• When there is a prejudicial question which is sub judice;
• When the acts of the officer are without or in excess of authority;
• Where the prosecution is under an invalid law, ordinance or
regulation;
• When double jeopardy is clearly apparent;
• Where the court has no jurisdiction over the offense;
• Where it is a case of persecution rather than prosecution;
• [Soriano v. Ombudsman, AUGUST 19, 2015 (Bersamin)]
45
May the President discipline a deputy ombudsman?

A: NO. Subjecting the Deputy Ombudsman to discipline and
removal by the President, whose own alter egos and officials in
the Executive Department are subject to the Ombudsman's
disciplinary authority, cannot but seriously place at risk the
independence of the Office of the Ombudsman itself.
The Office of the Ombudsman, by express constitutional

mandate, includes its key officials, all of them tasked to support
the Ombudsman in carrying out her mandate.
What is true for the Ombudsman must be equally and

necessarily true for her Deputies who act as agents of the
Ombudsman in the performance of their duties. The
Ombudsman can hardly be expected to place her complete
trust in her subordinate officials who are not as independent as
she is, if only because they are subject to pressures and
controls external to her Office. [Emilio Gonzales III vs. Office
of the President, G.R. No. 196232. January 28, 2014].
46

May the President discipline the Chairman and other

officers of the Commission on Human Rights?
• No. As the term of office of the Chairman (and Members) of
the Commission on Human Rights, is seven (7) years,
without re-appointment, --- their tenure cannot be made
dependent on the pleasure of the President.
• It is extremely difficult to conceptualize how an office

conceived and created by the Constitution to be
independent — as the Commission on Human Rights —
and vested with the delicate and vital functions of
investigating violations of human rights, pinpointing
responsibility and recommending sanctions as well as
remedial measures therefor, can truly function with
independence and effectiveness, when the tenure in office
of its Chairman and Members is made dependent on the
pleasure of the President. [Bautista v. Salonga, G.R. No.
86439. April 13, 1989].
47
Is the CHR considered as a Constitutional Body enjoying

fiscal autonomy?
• No. From the 1987 Constitution and the Administrative
Code, it is abundantly clear that the CHR is not among the
class of Constitutional Commissions.
• Nor is there any legal basis to support the contention that
the CHR enjoys fiscal autonomy. In essence, fiscal
autonomy entails freedom from outside control and
limitations, other than those provided by law.
• It is the freedom to allocate and utilize funds granted by law,
in accordance with law, and pursuant to the wisdom and
dispatch its needs may require from time to time.
• Only the Judiciary, the Civil Service Commission, the
Commission on Audit, the Commission on Elections, and
the Office of the Ombudsman, which enjoy fiscal autonomy.
[CHREA vs. CHR, G.R. No. 155336. November 25, 2004]
48

INCOMPATIBLE OFFICE
Unless otherwise allowed by law or
the primary functions of his position,
no appointive official shall hold
any other office or employment in
the Government or any subdivision,
agency or instrumentality thereof,
including government-owned or
controlled corporations or their
subsidiaries. [Section 7, paragraph
(2), Article IX-B of the 1987
Constitution]
49
Holding Two Concurrent Positions

• Elena bautista was DOTC Usec. She was designated
as OIC of MARINA in a temporary capacity. Is this
valid?
• No. The Constitutional ban on dual or multiple
positions refers to the holding of the office, and not to
the nature of the appointment or designation, words
which were not even found in Section 13, Article VII
nor in section 7, Article IX-B.
• To “hold” an office means to “possess or occupy” the
same, or to be “in possession and administration”,
which implies nothing less than the actual discharge
of the functions and duties of the office.
• FUNA vs. ERMITA, G.R. No. 184740, February 11,
2010, 612 SCRA 308.
50

• Q: Can the Acting Secretary of Justice concurrently

serve as Acting Solicitor General?
• NO. That is a clear violation of the constitutional

prohibition under Section 13, Article VII of the 1987
Constitution.
• The prohibition against dual or multiple offices being
held by one official must be construed as to apply to
all appointments or designations, whether
permanent or temporary, for it is without question
that the avowed objective of Section 13, is to
prevent the concentration of powers in the
Executive Department.
• Funa vs. Agra, G.R. NO. 191644, FEBRUARY 19, 2013.
51
• Q: State the exceptions to the ban against the

holding of 2 or more positions.
• The only two exceptions against the holding of
multiple offices are: (1) those provided for under
the Constitution, such as Section 3, Article VII,
authorizing the Vice President to become a member
of the Cabinet; and (2) posts occupied by
Executive officials specified in Section 13,
Article VII without additional compensation in ex
officio capacities as provided by law and as
required by the primary functions of the officials’
offices.
• Funa vs. Agra, G.R. NO. 191644, FEBRUARY 19, 2013.
52

• Q: Before the nullification of his designation, what is the

status of Sec. Agra – de jure or de facto?
• A: Agra did not validly hold the position of Acting Secretary
of Justice concurrently with his holding of the position of
Acting Solicitor General. Accordingly, he was not to be
considered as a de jure officer for the entire period of
his tenure as the Acting Secretary of Justice.
• A de jure officer is one who is deemed, in all respects,
legally appointed and qualified and whose term of office has
not expired.
• That notwithstanding, Agra was a de facto officer during
his tenure as Acting Secretary of Justice. During their
tenure in the questioned positions, respondents may be
considered de facto officers and as such entitled to
emoluments for actual services rendered.
• Funa vs. Agra, FEBRUARY 19, 2013 [J. BERSAMIN].
53
• Q: Who is de facto officer?

• A:
• A de facto officer is one who derives his appointment from
one having colorable authority to appoint, if the office is an
appointive office, and whose appointment is valid on its
face.
• He may also be one who is in possession of an office, and
is discharging its duties under color of authority, by which
is meant authority derived from an appointment, however
irregular or informal, so that the incumbent is not a mere
volunteer.
• Consequently, the acts of the de facto officer are just as
valid for all purposes as those of a de jure officer, in so far
as the public or third persons who are interested therein
are concerned. Funa vs. Agra, FEBRUARY 19, 2013 [J.
BERSAMIN].
54

Q: Can the President, thru an Executive Order, include the

CSC Chairperson as Ex-Officio Board Member of several
GOCC’s?
A: NO. When the CSC Chairman sits as a member of the
governing Boards of the GSIS, PHILHEALTH, ECC and HDMF,
he may exercise powers and functions, which are not anymore
derived from his position as CSC Chairman.
He will likewise be under the control of the Chief Executive
when he sits in the board of GOCC’s.
Also, he will receive per diem, a form of additional
compensation that is disallowed by the concept of an ex officio
position by virtue of its clear contravention of the proscription
set by Section 2, Article IX-A of the 1987 Constitution.
This situation goes against the principle behind an ex officio
position, and must, therefore, be held unconstitutional. [Funa
v. Duque III, 742 SCRA 166 (2014)].
55
Q: What characterizes the career service and what

are included in the career service?
A: According to Section 7, Chapter 2, Title I,
Book V of the Administrative Code of 1987,
the career service is characterized by (1)
entrance based on merit and fitness to be
determined as far as practicable by
competitive examination or based on highly
technical qualifications;
(2) opportunity for advancement to higher
career positions; and
(3) security of tenure.
56

The career service includes:

1) Open career positions for appointment to which prior
qualifications in an appropriate examination is required;
2) Closed career positions which are scientific or highly
technical in nature;
3) Positions in the career executive service;

4) Career officers other than those in the career executive
service, who are appointed by the President;
5) Commissioned officers and enlisted men of the Armed
Forces;
6) Personnel of government – owned or controlled
corporations, whether performing governmental or pro-prietary
functions, who do not fall under the non-career service; and
7) Permanent laborers, whether skilled, semi-skilled, or
unskilled.
57
QUESTION:
To improve the computer system in giving tests to
professionals, the Professional Regulations Commission (PRC)
hired an IT expert to study, improve, and manage their
computer system. PRC hired Computer Specialists Anna Garcia
for the job. Unfortunately, Anna got involved in a scandal where
topics for the 2010 Nursing Exam were leaked. The Civil
Commission investigated the matter.
In 2011, while investigation was ongoing, Garcia resigned from

the PRC and transferred to the Court of Appeals Management
Information Systems Office to maintain the Court Docket
Computer System.
In 2013, the Civil Service Commission found Garcia guilty of

dishonesty and ordered her dismissal from service.
58

QUESTION:
A. What is the classification of her position in
relation to her appointing process?
Choose only ONE and explain.
1. Competitive position
2. Non-competitive position
3. Career service position
4. Non-career service position
B) Does the CSC have the power to order her

removal from the Court of Appeals? Explain.
59
BAR QUESTIONS (personnel action)

• 1. What is promotion?
• 2. What is the next-in-rank rule?
• 3. What is meant by transfer?
• 4. What is reinstatement?
• 5. What is detail?
• 6. What is re-assignment?
• 7. What is re-employment?
• 8. What is demotion?
60

Sample Question
• Does the “next-in-rank” rule

import any mandatory or
peremptory requirement that the
person next-in-rank must be
appointed to the vacancy?
• What is nepotism?
• What are the situations covered by the
law on nepotism?
61
Sample Question
• What is a primarily confidential

position? What is the test to determine
whether a position is primarily
confidential or not?
• What are the exceptions to requirement
of competitive examinations (to
determine merit and fitness)
• Distinguish term from tenure in the law
on public officers.
62

Q: Under Civil Service Law, when can preventive

suspension be imposed on a government employee?
A: Section 19 of Rule II of the CSC Rules provides:
(1) that the proper disciplining authority has served a formal
charge to the affected officer or employee; and
(2) that the charge involves either dishonesty, oppression,
grave misconduct, neglect in the performance of duty, or if
there are reasons to believe that the respondent is guilty
of the charges which would warrant her removal from the
service.
Proof must also be shown that the said employee may unduly
influence the witnesses against her or may tamper the
documentary evidence on file in her office is not among the
prerequisites. [Trade & Investment Development Corp., v.
Ma. Rosario Demegillo, September 18, 2012 (BERSAMIN)]
63
Q: Can the period of preventive suspension

pending investigation be credited to the imposed
penalty of suspension?
A: NO.
Preventive suspension is merely a preventive
measure, a preliminary step in an administrative
investigation. It is not a penalty.
Thus, the period within which one is under preventive
suspension pending investigation is not considered
part of the actual penalty of suspension—service of
the preventive suspension cannot be credited as
service of the penalty. [QUIMBO v. GERACIO G.R.
No. 155620, 9 August 2005]
64

Q: Can the period of preventive suspension

pending appeal be credited to the imposed
penalty of suspension?
A: YES.
the period when an employee was preventively
suspended pending appeal shall be credited to form
part of the penalty of suspension imposed.
An employee is considered to be on preventive
suspension pending appeal while the administrative
case is on appeal.
Such preventive suspension is punitive in nature and
the period of suspension becomes part of the final
penalty of suspension or dismissal. [Yamson v.
Castro, July 20, 2016]
65
Q: What is the maximum period for preventive suspension?

A:
We have to point out that preventive suspension is of two
kinds.
The first is the preventive suspension pending
investigation (90 days), and 2nd is preventive
suspension pending appeal (reasonable time).
If the proper disciplinary authority does not finally decide
the administrative case within a period of 90 days from the
start of preventive suspension pending investigation, and
the respondent is not a presidential appointee, the
preventive suspension is lifted and the respondent is
"automatically reinstated in the service."
[FRANCISO T. BACULI v. OFFICE OF THE PRESIDENT, G.R.
Nos. 188681 and 201130, 8 March 2017]
66

Preventive Suspension under the LGC
• This may be imposed by the mayor /

governor upon recommendation by
the Sanggunian;
• Maximum of 60 days per case but
not exceeding 90 days suspension in
one year;
• The suspended official is deemed
automatically reinstated after the
period of suspension (Section 63,
LGC)
67
Salary During Preventive Suspension (LGC)
• An elected official preventively

suspended from office shall
receive no salary during such
suspension;
• But upon reinstatement, he shall
be paid full salary including all
emoluments accruing during
such suspension. (Section 64,
LGC)
68

Penalty of Suspension (LGC)

• An elected official may be suspended by
the Sanggunian for a period of not more
than six (6) months;
• This can only be imposed after due notice
and hearing;
• The investigation must be terminated
within 90 days from the start of the
proceedings.
• The sanggunian must decide the case
within 30 days after the case is submitted
for decision. (Section 66, LGC)
69
Q: Under Civil Service Law, what is NEPOTISM?

A: Sec. 59. Nepotism. (1) All appointments to the
national, provincial, city and municipal governments or
in any branch or instrumentality thereof, including
government owned or controlled corporations, made in
favor of a relative within the third degree either of
consanguinity or of affinity of the appointing or
recommending authority, or of the chief of the bureau
or office, or of the persons exercising immediate
supervision over him, are hereby prohibited.
(2) The following are exempted from the operations of
the rules on nepotism: (a) persons employed in a
confidential capacity, (b) teachers, (c) physicians, and
(d) members of the Armed Forces of the Philippines.
70

• Q: What is the Doctrine of Administrative

Condonation? Is this still applicable?
• A:
• The rule that public official cannot be removed for
administrative misconduct committed during a prior
term, since his re-election to office operates as a
condonation of the officer’s previous misconduct to
the extent of cutting off the right to remove him
therefore. Note that this has no application to
pending criminal cases. (Aguinaldo v. Santos, G.R.
No. 94115, Aug. 21, 1992)
• This Doctrine was already abandoned by the
Supreme Court in the case of Mayor Junjun Binay
[Carpio-Morales, vs. CA, November 10, 2015]
71
• Q: Why was the Doctrine of Administrative Condonation

abandoned?
• A: To begin with, the concept of public office is a public
trust and the corollary requirement of accountability to
the people at all times, as mandated under the 1987
Constitution, is plainly inconsistent with the idea that an
elective local official's administrative liability for a misconduct
committed during a prior term can be wiped off by the fact
that he was elected to a second term of office, or even
another elective post.
• Election is not a mode of condoning an administrative
offense, and there is simply no constitutional or statutory
basis in our jurisdiction to support the notion that an official
elected for a different term is fully absolved of any
administrative liability arising from an offense done during a
prior term.[Carpio-Morales, vs. CA, November 10, 2015]
72

• NOTE:
• The abandonment of the doctrine of condonation is
prospective in application, hence, the same doctrine
is still applicable in cases that transpired prior to the
ruling of the SC in Carpio-Morales v. CA and BinayJr.
• The most important consideration in the doctrine of
condonation is the fact that the misconduct was done
on a prior term and that the subject public official was
eventually re-elected by the same body politic.
• It is inconsequential whether the said re-election be on
another public office or on an election year that is not
immediately succeeding the last, as long as the
electorate that re-elected the public official be the
same.[OFFICE OF THE OMBUDSMAN v MAYOR JULIUS
CESAR VERGARA G.R. No. 216871. December 6, 2017]
73
Q. Is appeal available in administrative disciplinary cases?
A: It depends on the penalty imposed:

Appeal is available if the penalty is:
Demotion, Dismissal, or Suspension for more than 30 days or
fine equivalent to more than 30 day salary (P.D. 807, Sec.37
par [a]).
Appeal is not available if the penalty is:

Suspension for not more than 30 days
Fine not more than 30 day salary
Censure; Reprimand; or Admonition
Note: In the second case, the decision becomes final and

executory by express provision of law.
74

Q. Will the filing of a Motion for Reconsideration or an

appeal stay the execution of a decision of the
Ombudsman in an administrative case?
Answer: No. Appeals from decisions of the

Ombudsman in administrative cases do not stay the
execution of the penalty imposed.
This is pursuant to Section 7, Rule III of the Rules of
Procedure of the Ombudsman which explicitly states that
an appeal shall not stop the decision from being
executory.
No vested right is violated because pending appeal the
appellant is considered as preventively suspended and
will be paid backwages in case he wins in his appeal.
(Facura, et al., v. CA, GR No. 166495, Feb. 16, 2011)
75
Q. If a government official is convicted by a

regional trial court in a criminal case in relation
to his office, where should he file his appeal?
Answer: He should file his appeal with the

Sandiganbayan. Pursuant to RA 8249, the
Sandiganbayan shall exercise exclusive appellate
jurisdiction over final judgments, resolutions or
orders of RTC’s in criminal cases involving
government officials whether in the exercise of their
own original jurisdiction or appellate jurisdiction.
(Filomena v. People, GR No. 188630, Feb. 23,
2011)
76

ELECTION LAW
77
• Who may vote?

• Filipino citizenship
• At least 18 years of age
• Resident of the Philippines for at least
one year
• Resident of the place where he
proposes to vote for at least 6 months;
and
• Not otherwise disqualified by law
78

• Who are not qualified to vote?

• Those convicted by final judgment to suffer
imprisonment for not less than one (1) year;
unless pardoned or granted amnesty.
• Those convicted by final judgment of crimes

involving disloyalty to government or against
national security.
• Note: Right to vote is only reacquired upon the expiration
of five (5) years after service of sentence.
• Those who are insane or incompetent persons as

declared by competent authority.
79
PETITION FOR INCLUSION

Any person whose application for
registration has been disapproved by the
Board or whose name has been stricken
out from the list may file with the court a
petition to include his name in the
permanent list of voters in his precinct at
any time EXCEPT 105 days prior to a
regular election or 75 days prior to a
special election. The petition shall be
decided within 15 days after its filing. (Sec.
34, RA 8189)
80

PETITION FOR EXCLUSION

Any registered voter, representative of a
political party or the Election Officer, may
file with the court a sworn petition for the
exclusion of a voter from the
permanent list of voters giving the name,
address and the precinct of the
challenged voter at any time EXCEPT
100 days prior to a regular election or
65 days prior to a special election.
The petition shall be decided within 10
days from its filing. (Sec. 35, RA 8189)
81
• Q: Who may file a petition in an inclusion or exclusion

proceedings?
• A:
– Inclusion
• Any private person whose application was disapproved by
the Election Registration Board or whose name was
stricken out from the list of voters
• COMELEC
– Exclusion
• Any registered voter in the city or municipality
• Representative of political party
• Election officer
• COMELEC (BP 881 Omnibus Election Code)
82

• Q: Do decisions in an inclusion or exclusion

proceedings acquire the nature of res judicata?
• A: No. The proceedings for the exclusion or inclusion of
voters in the list of voters are summary in character.
• Except for the right to remain in the list of voters or for being
excluded therefrom for the particular election in relation to
which the proceedings had been held, a decision in an
exclusion or inclusion proceeding, even if final and
unappealable, does not acquire the nature of res judicata.
• In this sense, it does not operate as a bar to any further
action that a party may take concerning the subject passed
upon in the proceeding. Thus, a decision in an exclusion
proceeding would neither be conclusive on the voter’s
political status, nor bar subsequent proceedings on his right
to be registered as a voter in any other election. (Domino
vs. COMELEC, G.R. No. 134015, July 19, 1999)
83
• Q: Can a voter be excluded for stating a fake

address?
• A: That Asistio allegedly indicated in his Certificate of
Candidacy for Mayor, both for the 2007 and 2010 elections,
a non-existent or false address, or that he could not be
physically found in the address he indicated when he
registered as a voter, should not operate to exclude him as
a voter of Caloocan City.
• These purported misrepresentations in Asistio’s COC might
serve as basis for an election offense under the Omnibus
Election Code (OEC), or an action to deny due course to
the COC. They do not serve as proof that Asistio has
abandoned his domicile in Caloocan City, or that he has
established residence outside of Caloocan City. (Asistio v.
Aguirre, G.R. No. 191124, April 27, 2010)
84

• Q: What is the effect of transfer of

residence?
• A: Any person, who transfers residence

solely by reason of his occupation,
profession or employment in private or
public service, education, etc., shall not
be deemed to have lost his original
residence. (Asistio v. Aguirre, G.R.
No. 191124, April 27, 2010)
85
• Q: AGE QUALIFICATION
• Age requirement: (Sec. 39, LGC)
• 23 – gov; vice gov; mayor; vice mayor;
councilor (highly urbanized cities);
• 21 – mayor; vice mayor (component
cities / municipalities);
• 18 – sanggunian brgy. members and
punong barangay
• 15 to 30 – can vote in SK elections
• 18 to 24 – can run as SK official
86

• Q: What is the effect if a former dual citizen resumes

using his foreign passport?
• A: This will effectively negate his Affidavit of
Renunciation of foreign citizenship. He will be deemed
a foreign national. Citizenship is not a matter of
convenience. It is a badge of identity that comes with
attendant civil and political rights accorded by the state to
its citizens.
• It likewise demands the concomitant duty to maintain
allegiance to one's flag and country. While those who
acquire dual citizenship by choice are afforded the right of
suffrage, those who seek election or appointment to public
office are required to renounce their foreign citizenship to
be deserving of the public trust. Holding public office
demands full and undivided allegiance to the Republic and
to no other. (Maquiling v. COMELEC, April 16, 2013)
(Arnado v. COMELEC, August 18, 2015)
87
• Q: What is the effect if a former dual citizen

resumes using his foreign passport?
• A: He is deemed to have thereby effectively
repudiated his oath of renunciation.
• Consequently, his continued exercise of his rights
as a citizen of the USA through using his USA
passport after the renunciation of his USA
citizenship reverted him to his earlier status as a
dual citizen.
• Such reversion disqualified him from being elected
to public office in the Philippines pursuant to
Section 40(d) of the Local Government Code.
• (Agustin v. COMELEC, November 10, 2015) (J.
Bersamin)
88

• Q: Distinguish the two kinds of dual citizens

• A:
• Dual citizens by virtue of birth (Born Dual), are not
required by law to take the oath of renunciation as
the mere filing of the certificate of candidacy
already carries with it an implied renunciation of
foreign citizenship.
• Dual citizens by naturalization (Acquired Dual), on
the other hand, are required to take not only the
Oath of Allegiance to the Republic of the
Philippines but also to personally renounce foreign
citizenship in order to qualify as a candidate for
public office. (Maquiling v. COMELEC, G.R. No.
195649. April 16, 2013)
89
• QUESTION:
• “A” is a naturalized citizen of
another country who reacquires
Filipino citizenship. On the other
hand, “B” possesses dual
citizenship by birth.
• If they desire to run for elective
public office, what requirement must
they comply with as regards their
citizenship?
90

• Answer:
• “A” must comply with the requirements set in
R.A 9225. Sec 5(3) of R.A. 9225 states that
naturalized citizens who reacquire Filipino
citizenship and desire to run for public office
shall “…make a personal and sworn
renunciation of any and all foreign
citizenship before any public officer
authorized to administer an oath” aside from
the oath of allegiance prescribed in Section
3 of R.A. 9225.
91
• Answer:
• “B” need not comply with the twin requirements of
swearing an oath of allegiance and executing a
renunciation of foreign citizenship because he is a
natural-born Filipino who did not subsequently
become a naturalized citizen of another country.
• It is sufficed, if upon the filing of his certificate of
candidacy, he elects Philippine citizenship to
terminate his status as person with dual citizenship
considering that his condition in the unavoidable
consequence of conflicting laws of different States.
(Cordora v. COMELEC, G.R. No. 176947,
February 19, 2009).
92

• Q: Explain the following legal

processes and the consequent
effects on the exercise of one's
constitutional rights under
Philippine Law.
• 1. Repatriation
• 2. Naturalization
• 3. Re-acquisition
• 4. Retention
93
• Q: Distinguish between RETENTION and RE-

ACQUISITION of Philippine Citizenship under RA 9225:
• A: The law makes a distinction between those natural-
born Filipinos who became foreign citizens before and
after the effectivity of R.A. 9225. [Sept 17, 2003]
• Under the first paragraph are those natural-born Filipinos
who have lost their citizenship by naturalization in a foreign
country before RA 9225 - who shall re-acquire their
Philippine citizenship upon taking the oath of allegiance to
the Republic of the Philippines. [Citizenship was lost]
• The second paragraph covers those natural-born Filipinos
who became foreign citizens after R.A. 9225 took effect,
who shall retain their Philippine citizenship upon taking the
same oath. [Citizenship was NEVER LOST].
• [David vs. Agbay, 753 SCRA 526 (2015)]
94

• Q: Distinguish between RETENTION and RE-

ACQUISITION of Philippine Citizenship under RA 9225:
• A: The reacquisition will apply to those who lost their
Philippine citizenship by virtue of Commonwealth Act 63 or
before the effectivity of RA 9225. -- the Filipinos who lost
their citizenship is deemed to have reacquired their
Philippine citizenship upon the effectivity of the act. Hence
they are not deemed Natural Born but only naturalized.
• The second aspect is the retention of Philippine citizenship

applying to future instances. For these citizens, who lost
their citizenship after the effectivity of RA 9225 -- they are
deemed NEVER to have LOST their Filipino citizenship.
Does, upon taking their oath they are deemed to have
retained their NATURAL BORN status.
• [David vs. Agbay, 753 SCRA 526 (2015)]
95
• Question:
• X was a natural-born Filipino who went to the
USA to work and subsequently became a
naturalized American citizen.
• On 28 March 2007, he applied for
reacquisition of his Philippine Citizenship.
• He then filed a Certificate of Candidacy for
Mayor of the Municipality of General
Macarthur, Eastern Samar for the May 2007
election.
• When should his residence be reckoned?
Since birth or only at the time he renounced
his foreign citizenship?
96

• ANSWER:
• X’s reacquisition of his Philippine citizenship under
R.A. No. 9225 had no automatic impact or effect on
his residence/domicile.
• The length of his residence therein shall be
determined only from the time he renounced his
foreign citizenship and made the Municipality of
General Macarthur, Eastern Samar as his domicile
of choice.
• His residence shall not retroact to the time of his
birth. It is the fact of residence that is the decisive
factor in determining whether or not an individual
has satisfied the residency qualification requirement.
(Japzon v. COMELEC, G.R. No. 180088, Jan.19, 2009)
97
Q: What is the effect of filing a certificate of candidacy on

the tenure of incumbent government officials?
A:
Any person holding a public appointive office or
position, including active members of the Armed
Forces of the Philippines, and other officers and
employees in government-owned or -controlled
corporations, shall be considered ipso facto resigned
from the office and must vacate the same at the start
of the day of the filing of COC.
Any person holding an elective office or position
shall not be considered resigned upon the filing of a
COC whether for the same or any other elective office or
position. (Section 10, Rule II, COMELEC Res. No. 9984, August 18,
2015) (Quinto v. COMELEC, G.R. No. 189698, February 22, 2010)
98

Q: When can a person be considered a candidate?

A:
“Any person who files his certificate of candidacy
within the filing period shall only be considered a
candidate at the start of the campaign period for
which he filed his certificate of candidacy."
Any person may thus file a certificate of candidacy on
any day within the prescribed period for filing a
certificate of candidacy yet that person shall be
considered a candidate, for purposes of determining
one’s possible violations of election laws, only during
the campaign period. (Penera v. COMELEC, G.R.
No. 181613, Nov. 25, 2009)
99
Section 19. Substitution of Candidates in Case of

Death, Disqualification or Withdrawal of Another. – An
official candidate of a duly registered PP or Coalition who
dies, withdraws or is disqualified for any cause after the
last day for the filing of COCs may be substituted by a
candidate belonging to, and nominated by, the same PP
or Coalition.
No substitute shall be allowed for any independent
candidate.
The substitute of a candidate who has withdrawn may file
a COC for the Office affected on or before November 29,
2018 so that the name of the substitute will be reflected
on the official ballots.
No substitution due to withdrawal shall be allowed
after November 29, 2018.
100

Q: What are the new rules for substitution?

If the death or disqualification should occur
between November 30, 2018 and mid-day of
election day, the substitute candidate may file
his Certificate of Candidacy, provided that:
(1) the substitute and the substituted

candidate have the same surnames;
(2) They belong to the same political party;
(3) Independent candidates cannot be
substituted. (Section 19, Rule II, COMELEC Res.
No. 9984, August 18, 2015)
101
Q: Can there be substitution in a barangay

election?
A: YES. The absence of a specific provision
governing substitution of candidates in barangay
elections can not be inferred as a prohibition against
said substitution.
An election is the embodiment of the popular will, the
expression of the sovereign power of the people.
The winner is the candidate who has obtained a
majority or plurality of valid votes cast in the election.
Sound policy dictates that public elective offices are
filled by those who receive the highest number of
votes cast in the election for that office. (Rulloda v.
COMELEC, G.R. No. 154198. January 20, 2003)
102

Q: A Mayor ran for his 4th consecutive term but was later
disqualified by final judgment before election day due to a
petition for cancellation of COC under Sec 78 of the OEC.
Can he be substituted?
A: No. He was absolutely precluded from asserting an
eligibility to run as Mayor of Lucena City for the fourth
consecutive term. Resultantly, his CoC was invalid and
ineffectual ab initio for containing the incurable defect
consisting in his false declaration of his eligibility to run.
Since his COC was cancelled, for all intents and purposes the
COMELEC’s declaration of his disqualification had the effect
of announcing that he was no candidate at all.
We stress that a non-candidate had no right to pass on to his
substitute. (Talaga v. COMELEC, G.R. No. 196804 and
197015, October 09, 2012)
103
Q: Since the substitution is invalid, can the second

placer be proclaimed winner?
A: No. Since the cancellation of the CoC came

after he was already proclaimed, his failure to
qualify and assume the position created a permanent
vacancy in the office of Mayor of Lucena City.
Such vacancy should be filled pursuant to the
law on succession defined in Section 44 of the
LGC.
Consequently, the Elected Vice Mayor must succeed
and assume the position of Mayor due to a
permanent vacancy in the office.
(Talaga v. COMELEC, G.R. No. 196804 and
197015, October 09, 2012)
104

RENATO M. FEDERICO v COMELEC

G.R. No. 199612, January 22, 2013
Edna Sanchez (Edna) and Osmundo M. Maligaya (Maligaya)

were vying for the position of municipal mayor of Sto. Tomas
Batangas in the May 10, 2010 Elections.
Armando Sanchez, Edna’s husband who was the
gubernatorial candidate, died on April 27. Two (2) days later,
Edna withdrew her Certificate of Candidacy (COC) for mayor
and filed a new COC for governor as substitute candidate for
her husband.
Six (6) days later, due to Edna’s withdrawal as a mayoralty
candidate, Renato M. Federico (Federico) filed his COC for
mayor of Sto. Tomas as substitute candidate for mayor.
The Commission on Elections (COMELEC) En Banc gave due
course to the COC of both Edna and Federico.
105
RENATO M. FEDERICO v COMELEC

G.R. No. 199612, January 22, 2013
However, since the official ballots had already been printed,

the name “SANCHEZ, Edna P.” was retained in the list of
candidates for mayor and garnered the highest number of
votes against Maligaya.
On May 11, 2010, the Municipal Board of Canvassers
(MBOC) printed the certificate of Canvass of Votes and
Proclamation of Winning Candidates (COCVP) showing
“SANCHEZ, Edna P.” as the winning mayoralty candidate.
A second print-out of the COCVP was issued by the MBOC
bearing the same time and date with the same number of
votes garnered by Edna being credited to Federico.
Who should be proclaimed as Mayor -- Edna? Federico?
Or the Vice Mayor?
106

ANSWER:
Federico’s substitution of Edna Sanchez was not valid having
been filed beyond the period prescribed under COMELEC
Resolution No. 8678.
There being no valid substitution, the candidate with the
highest number of votes should be proclaimed as the duly
elected mayor.
As Federico's substitution was not valid, there was only one
qualified candidate in the mayoralty race in Sto. Tomas,
Batangas -- Maligaya. Being the only candidate, he received
the highest number of votes. Accordingly, he should be
proclaimed as the duly elected mayor in the May 10,2010
elections.
The vice mayor cannot be proclaimed because there is simply
no vacancy. When there is no vacancy, the rule on succession
under Section 4442 of the LGC cannot be invoked.
107
Petition to Cancel Certificate of Candidacy

A petition to cancel a certificate of candidacy may
be filed by any person exclusively on the ground
that any material representation contained in
certificate of candidacy as required by law is
false.
The petition should be filed not later than 25 days
from the filing of the certificate of candidacy.
It should be decided not later than 15 days
before the election, after due notice and hearing.
(Section 78, OEC, Rule 23, Section 1, COMELEC
Resolution No. 9523, Sept 25, 2012)
108

Q: What are the requisites for the grant of a

petition to deny due course to or cancel a
certificate of candidacy?
A:Material misrepresentation in the qualifications for
elective office, which includes age, residency,
citizenship, and any other legal qualifications
necessary to run for an elective office;
Deliberate attempt to mislead, misinform or hide a
fact which would otherwise render a candidate
ineligible.
Note: These two requirements must concur to
warrant the cancellation of the certificate of
candidacy.
109
QUESTION:
On October 25, 2012, Luis Villafuerte (LV) filed
with the COMELEC a Verified Petition to deny
due course to or cancel the Certificate of
Candidacy (COC) of his grandson Miguel, Jr. on
the ground of intentional and material
misrepresentation of a false and deceptive name
or nickname that would mislead the voters.
LV alleged that Miguel deliberately omitted his
first name “Miguel”, which was recorded in
his Birth Certificate, and instead used
“MigzBaby” as nickname.
This is also the nick name of his father
Miguel, Sr. who is the incumbent Governor of
the province.
Should the COC of Miguel, Jr. be canceled?
110

ANSWER: NO.
No. Section 78 of the Omnibus Election Code states that the
false representation in the contents of the Certificate of
Candidacy (COC) must refer to material matters in order to
justify the cancellation of the COC.
Material misrepresentation under the Omnibus Election
Code refers to “qualifications for elective office”
(residency, age, citizenship, or any other legal
qualifications necessary to run for local elective office as
provided in the Local Government Code) coupled with a
showing that there was an intent to deceive the electorate.
The nickname written in the COC cannot be considered a
material fact, which pertains to his eligibility and thus
qualification to run for public office. (LUIS R. VILLAFUERTE
v. COMELEC and MIGUEL VILLAFUERTE, G.R. No.
206698. February 25, 2014)
111
Q: What is the distinction between a petition under Section

78 and Section 68 of the OEC? (2015 Bar Exam)
A:
(1) a Section 78 petition is proper when a statement of a
material representation in a certificate of candidacy is false; and
(2) a Section 68 petition is proper when disqualification is
sought on account of having committed electoral offenses
and/or possession of status as a permanent resident in a
foreign country.
(3) The pivotal consideration in a Section 78 petition is material
misrepresentation relating to qualifications for elective public
office. A Section 78 petition thus, squarely applies to instances
in which a candidate is fully aware of a matter of fact that
disqualifies him or her but conceals or otherwise falsely depicts
that fact as to make it appear that he or she is qualified.
(4) A petition for disqualification, on the other hand, may apply
in cases where a disqualification exists but, because of an
attendant ambiguity (such as an unsettled legal question), a
candidate acts in good faith and without any deliberate attempt
to conceal or mislead. [Fermin v. COMELEC, 595 Phil. 449
(2008)]
112

Petition to Declare a Nuisance Candidate
Section 69 of the Omnibus Election Code provides:
"Section 69. Nuisance candidates. -- The Commission may

motu proprio or upon a verified petition of an interested
party, refuse to give due course to or cancel a certificate of
candidacy if it is shown that said certificate has been filed to
put the election process in mockery or disrepute or to
cause confusion among the voters by the similarity of the
names of the registered candidates or by other
circumstances or acts which clearly demonstrate that the
candidate has no bona fide intention to run for the office
for which the certificate of candidacy has been filed and thus
prevent a faithful determination of the true will of the
electorate."
113
Section 2. Who May File Petition to Declare a

Candidate as Nuisance Candidate. — The COMELEC
motu propio or any registered candidate for the same
position may file a verified Petition to declare a candidate
as a nuisance candidate.
Section 3. Period to File the Petition. — The Petition

shall be filed personally or through an authorized
representative, within five (5) days from the last day for
the filing of certificates of candidacy. In case of a
substitute candidate, the Petition must be filed within five
(5) days from the time the substitute candidate filed his
certificate of candidacy.
Section 4. Motu Proprio Cases. — The Commission

may, at any time before the election, motu proprio,
declare a candidate as a nuisance candidate subject to
an opportunity to be heard. (Rule 24, COMELEC
Resolution No. 9523, Sept 25, 2012)
114

Q: If the name of a nuisance candidate whose

certificate of candidacy had been cancelled by the
Commission on Elections (COMELEC) was still included
or printed in the official ballots on election day, should the
votes cast for such nuisance candidate be considered
stray or counted in favor of the bona fide candidate?
A: The votes cast for a nuisance candidate declared as

such in a final judgment, particularly where such nuisance
candidate has the same surname as that of the legitimate
candidate, are not stray but must be counted in favor of the
latter.
The voters’ constructive knowledge of such cancelled

candidacy made their will more determinable, as it is then
more logical to conclude that the votes cast for the nuisance
could have been intended only for the legitimate candidate.
(Martinez vs. HRET, G.R. No. 189034, January 11, 2010 )
115
Q: Why can we not just consider the votes cast

for such nuisance candidate be considered stray?
A: The possibility of confusion in names of
candidates if the names of nuisance candidates
remained on the ballots on election day, cannot be
discounted or eliminated, even under the automated
voting system especially considering that voters who
mistakenly shaded the oval beside the name of the
nuisance candidate instead of the bona
fide candidate they intended to vote for could no
longer ask for replacement ballots to correct the
same.
(Dela Cruz v. COMELEC, G.R. No. 192221,
November 13, 2012 )
116

Q: Should the votes cast for such nuisance

candidate be credited in favor of the legitimate
candidate even if the decision became final after
the election?
A: YES. in a nuisance petition, the votes of the
nuisance candidate shall be credited to the legitimate
candidate once the decision becomes final and executory,
whether before or after the elections.
Accordingly, when there is a final and executory judgment
in a nuisance case, it shall be effective and operative as
of election day.
It is as if the nuisance candidate was never a candidate to
be voted for because his candidacy caused confusion to
the electorate and it showed his lack of bona fide intention
to run for office. [Santos v. COMELEC, September 4,
2018]
117
QUESTION:
The COMELEC motu propio declared a candidate as
“nuisance” without any hearing. Is this valid?
ANSWER:
No. Under the OEC, to minimize the logistical confusion
caused by nuisance candidates, the COMELEC may cancel
their certificates of candidacy or deny them due course.
This denial or cancellation may be “motu proprio or upon
a verified petition of an interested party,” “subject to an
opportunity to be heard.”
Respondent in this case declared petitioner a nuisance
candidate without giving him a chance to explain his bona
fide intention to run for office. This was a violation of his right
to be heard. [JOSEPH B. TIMBOL vs. COMMISSION ON
ELECTIONS, G.R. No. 206004, February 24, 2015]
118

What is a petition for disqualification?
It is the remedy against any candidate who does not possess

all the qualifications required by the Constitution or law, or
who commits any act declared by law to be grounds for
disqualification.
Note: A petition for disqualification must be filed any day
after the last day for filing of certificates of candidacy
BUT not later than the date of proclamation.
The petition is heard summarily.
However, the COMELEC cannot disqualify a candidate
without hearing and affording him opportunity to adduce
evidence to support his side and taking into account such
evidence
119
What are the grounds for a petition for

disqualification?
OEC, SEC. 68. Disqualifications. — Any candidate who, in
an action or protest in which he is a party is declared by final
decision of a competent court guilty of, or found by the
Commission of having:
(a) given money or other material consideration to influence,
induce or corrupt the voters or public officials performing
electoral functions;
(b) committed acts of terrorism to enhance his candidacy;
(c) spent in his election campaign an amount in excess of that
allowed by this Code;
(d) solicited, received or made any contribution prohibited
under Sections 89, 95, 96, 97 and 104; or
(e) violated any of Sections 80, 83, 85, 86 and 261,
paragraphs d, e, k, v, and cc, subparagraph 6, shall be
disqualified from continuing as a candidate, or if he has
been elected, from holding the office.
120


disqualification?
OEC, SEC. 68. Disqualifications. —
Any person who is a permanent
resident of or an immigrant to a
foreign country shall not be qualified
to run for any elective office under this
Code, unless said person has waived his
status as a permanent resident or
immigrant of a foreign country in
accordance with the residence
requirement provided for in the election
laws.
121

disqualification?
Omnibus Election Code Sec. 12. Disqualifications.
— Any person who has been declared by competent
authority insane or incompetent, or has been sentenced
by final judgment for subversion, insurrection, rebellion
or for any offense for which he was sentenced to a
penalty of more than eighteen months or for a crime
involving moral turpitude, shall be disqualified to be
a candidate and to hold any office, unless he has
been given plenary pardon or granted amnesty.
The disqualifications to be a candidate herein
provided shall be deemed removed upon the
declaration by competent authority that said insanity or
incompetence had been removed or after the
expiration of a period of five years from his service
of sentence, unless within the same period he again
becomes disqualified. (Emphasis supplied)
122

Q: Is a person convicted of Libel by final

judgment --- disqualified from running for public
office?
A: YES. Having been convicted of the crime of libel,
Pichay is disqualified under Section 12 of the Omnibus
Election Code for his conviction for a crime involving
moral turpitude.
A crime still involves moral turpitude even if the
penalty of imprisonment imposed is reduced to a
fine. Thus, Pichay made a false material
representation as to his eligibility when he filed his
certificate of candidacy.
Since Pichay's ineligibility existed on the day he filed
his certificate of candidacy and he was never a valid
candidate for the position of Member of the House of
Representatives, the votes cast for him were
considered stray votes. [Ty-Delgado v. HRET, G.R.
No. 207851 July 8, 2014]
123
Q: Is a prior court judgment required before the

remedy under Sec. 68 of the OEC can prosper?
A: NO. The doctrine in Poe was never meant to apply
to Petitions for Disqualification.
This is highlighted by the provision itself, which
contemplates of two scenarios: first, there is a final
decision by a competent court that the candidate is guilty
of an election offense and second, it is the Commission
itself that found that the candidate committed any of the
enumerated prohibited acts. Noteworthy is that in the
second scenario, it is not required that there be a prior final
judgment; it is sufficient that the Commission itself made
the determination.
To impose prior conviction of an election offense as a
condition sine qua non before a Petition for
Disqualification can be launched would be tantamount
to requiring proof beyond reasonable doubt, which is
significantly beyond what our laws require. [Francisco v.
COMELEC, April 24, 2018]
124

Moreno vs. COMELEC,

498 SCRA 547
• The legal effect of probation is only to suspend

the execution of the sentence.
• In fact, a judgment of conviction in a criminal
case ipso facto attains finality when the accused
applies for probation, although it is not
executory pending resolution of the application
for probation.
• If the candidate for elective office was convicted
but was granted probation, he may run,
because he did not serve his sentence.
125
What are the limits of campaign spending?
The aggregate amount that a candidate or party may spend

for election campaign shall be as follows:
For candidates. - Ten pesos (P10.00) for President and

Vice-President; and for other candidates Three Pesos
(P3.00) for every voter currently registered in the
constituency where he filed his certificate of candidacy:
Provided, That a candidate without any political party and
without support from any political party may be allowed to
spend Five Pesos (P5.00) for every such voter; and
For political parties. - Five pesos (P5.00) for every voter
currently registered in the constituency or constituencies
where it has official candidates. (Section 13, RA 7166)
(Ejercito v. COMELEC, November 25, 2014]
126

QUESTION:
Salvador, who belonged to a local political
party, was a mayoralty candidate in San Jose
City, Nueva Ecija in 2010.
Salvador spent a total of P449,000.00 in the
2010 election, when the maximum expenditure
allowed by law is P275,667.00.
Salvador now argues that under R.A. 7166, he
was allowed to spend P5.00 per voter (instead
of P3.00 per voter) since he received no
support from his party although he was a
member thereof. Is Salvador guilty of
overspending?
127
ANSWER: YES.
The law is clear — the candidate must both be
without a political party and without support
from any political party for the P5.00 cap to
apply.
In the absence of one, the exception does not
apply.
Thus, his limit is P3.00 per registered voter.
To allow Salvador’s contention is to deviate from the
intention of the legislature in enacting the law, as the
same would find all candidates on equal footing,
whether member of a political party or not.
[SALVADOR v. COMELEC, G.R. No. 230744,September 26,
2017]
128

QUESTION:
Maturan failed to file his Statement of Contributions
and Expenditures (SOCE) in the 2010 elections.
Accordingly, the COMELEC imposed upon him an
administrative fine, which he paid immediately.
Likewise, for his 2013 candidacy, Maturan does not
have a SOCE on record. Maturan argues that by
virtue of the withdrawal of his candidacy on 12 May
2013, just a day before the elections, he is not
required to file his SOCE.
He again filed a certificate of candidacy in the 2016
elections. The COMELEC disqualified him.
Is the COMELEC correct?
129
ANSWER:
A: YES. The COMELEC is correct. In Pilar v.
Commission on Elections (July 11, 1995), the
Supreme Court held that every candidate, including
one who lost or withdraws his candidacy, is required
to file his SOCE pursuant to Section 14 of R.A. No.
7166. Good faith is not a defense.
Failure to file the SOCE shall constitute an
administrative offense for which the offenders shall
be liable to pay an administrative fine. For the
commission of a second or subsequent offense the
offender shall be subject to perpetual
disqualification to hold public office. [Maturan v.
COMELEC, March 28, 2017)
130

QUESTION:
In 2013, the COMELEC promulgated Resolution 9615
providing rules that would implement Sec 9 of RA 9006 or the
Fair Elections Act.
One of the provisions of the Resolution provide that the
posting of any election propaganda or materials during the
campaign period shall be prohibited in public utility vehicles
(PUV) and within the premises of public transport terminals.
1 UTAK, a party-list organization, questioned the prohibition
as it impedes the right to free speech of the private owners of
PUVs and transport terminals.
Issue: W/N the COMELEC may impose the prohibition on
PUVs and public transport terminals during the election
pursuant to its regulatory powers delegated under Art IX-C,
Sec 4 of the Constitution?
131
ANSWER:
No. The COMELEC may only regulate the franchise or
permit to operate and not the ownership per se of PUVs
and transport terminals.
The posting of election campaign material on vehicles
used for public transport or on transport terminals is not
only a form of political expression, but also an act of
ownership – it has nothing to do with the franchise or
permit to operate the PUV or transport terminal.
It unduly infringes on the fundamental right of the people to
freedom of speech.
Central to the prohibition is the freedom of individuals such as
the owners of PUVs and private transport terminals to express
their preference, through the posting of election campaign
material in their property, and convince others to agree with
them. [1-United Transport Koalisyon v. Commission on
Elections, G.R. No. 206020, April 14, 2015]
132

QUESTION:
On February 21, 2013, the Diocese of Bacolod City posted
two (2) tarpaulins within a private compound housing the San
Sebastian Cathedral of Bacolod. Each tarpaulin was
approximately six feet (6') by ten feet (10') in size. They were
posted on the front walls of the cathedral within public view.
The first tarpaulin contains the message "IBASURA RH Law"

referring to the Reproductive Health Law of 2012 or Republic
Act No. 10354.
The second tarpaulin contains the heading "Conscience Vote"

and lists candidates as either "(Anti-RH) Team Buhay" with a
check mark, or "(Pro-RH) Team Patay" with an "X" mark. The
electoral candidates were classified according to their vote on
the adoption of the RH Law.
133
QUESTION:
Those who voted for the passing of the law were classified by
petitioners as comprising "Team Patay," while those who
voted against it form "Team Buhay".
134

QUESTION:
On February 22, 2013, the Election Officer of Bacolod City
issued a Notice to Remove Campaign Materials addressed to
the Bishop of the Diocese of Bacolod City. The election officer
ordered the tarpaulin's removal within three (3) days from
receipt for being oversized. COMELEC Resolution No. 9615
provides for the size requirement of tarpulins or campaign
posters of NOT MORE than two feet (2') by three feet (3').
The Diocese of Bacolod City replied that it is not a candidate

for the election, and that the tarpaulin/poster of Team Buhay
and Team Patay is not an election propaganda. It argued that
the poster/tarpaulin is an exercise of free speech and free
expression and forms part of its private property. Thus, it
cannot be regulated by the COMELEC. Decide.
135
ANSWER:
The Diocese of Bacolod City is not a candidate. Neither does
it belong to any political party. COMELEC does not have the
authority to regulate the enjoyment of the preferred right to
freedom of expression exercised by a non-candidate in this
case.
The law and COMELEC Rules regulating the posting of
campaign materials only apply to candidates and political
parties, and the Diocese of Bacolod City is neither of the two.
Regulation of speech in the context of electoral

campaigns made by persons who are not candidates or
who do not speak as members of a political party is
unconstitutional.
Diocese of Bacolod v. Commission on Elections, G. R. No.
205728, January 21, 2015.
136

Can you enforce a warrantless arrest on those

caught in the act of violating election laws?
ANSWER: NO.
OEC, Art. 266: Arrest in connection with the election
campaign. No person shall be arrested and/or
detained at any time for any alleged election
offense committed during and in connection with any
election through any act or language tending to
support or oppose any candidate, political party or
coalition of political parties under or pursuant to any
order of whatever name or nature and by
whomsoever issued EXCEPT ONLY upon a warrant
of arrest issued by a competent judge after all the
requirements of the Constitution shall have been
strictly complied with.
137
Q: In an election protest, what should be used in

the recount – the actual ballots or the picture
images of its scanned copies stored in cf cards?
A: Picture images of the ballots, as scanned and
recorded by the PCOS, are likewise “official ballots”
that faithfully captures in electronic form the votes cast
by the voter, as defined by Section 2 (3) of R.A. No.
9369.
As such, the printouts thereof are the functional
equivalent of the paper ballots filled out by the voters
and, thus, may be used for purposes of revision of
votes in an electoral protest.
(Vinzons-Chato v. COMELEC, G.R. Nos. 199149,
201350, January 22, 2013)
138

What are the two conditions that must concur before

the COMELEC can act on a verified petition seeking to
declare a afailure of election?
Held: Before the COMELEC can act on a verified
petition seeking to declare a failure of election two
conditions must concur, namely: (1) no voting took
place in the precinct or precincts on the date fixed by
law, or even if there was voting, the election resulted in
a failure to elect; and
(2) the votes not cast would have affected the result of
the election. Note that the cause of such failure of
election could only be any of the following: force
majeure, violence, terrorism, fraud or other analogous
causes. Banaga, Jr. v. COMELEC (336 SCRA 701)
139
Q: What is the prescriptive period of election offenses?
A: 5 years from the date of their commission. (Sec. 267, B.P.

881 Omnibus Election Code)
Q: Which court has jurisdiction to hear and decide

election offenses?
A:
GR: The RTC has the exclusive and original jurisdiction to
hear and decide any criminal action or proceedings for
violation of the OEC.
XPN: The MTC has jurisdiction over offenses relating to failure

to register or failure to vote.
140

LOCAL GOVERNMENT
141
• Q: Section 6, Art. X of the 1987 Constitution mentions

national taxes as the source of the just share of the
LGUs while Section 284 of the LGC states that the LGUs
share should be taken from national internal revenue
taxes instead. Is this constitutional?
• A: NO.
• The exclusion of other national taxes like customs duties
from the base for determining the just share of the LGUs
contravened the express constitutional edict in Section 6,
Article X the 1987 Constitution.
• Congress can validly exclude taxes that will constitute the
base amount for the computation of the IRA only if a
Constitutional provision allows such exclusion.
• [Gov. Mandanas v. Executive Secretary, GR No. 199802,
July 3, 2018]
142

• Q: Since Section 7 of the Local Government Code

uses "population" and "land area" as indicators in
the creation and conversion of LGUs, does it follow
that the territorial jurisdiction of an LGU is the land
where the people live and excludes seas or marine
areas?
• A:
• YES. An LGU's territorial jurisdiction refers to its territorial
boundaries or to its territory. The territory of LGUs, in turn,
refers to their land area, unless expanded by law to
include the maritime area.
• Accordingly, only the utilization of natural resources found
within the land area as delimited by law is subject to the
LGU's equitable share under Sections 290 and 291 of the
Local Government Code. [Republic v. Provincial
Government of Palawan, G.R. No. 170867. Dec. 4, 2018.]
143
• ANSWER:
• An LGU may have control over the waters but may not
necessarily claim them as part of their territory. This
supports the Court's finding that the exercise of authority
does not determine the LGU's territorial jurisdiction.
• It is true that under Sections 442 and 450 of the Local
Government Code, "(t)he requirement on land area shall not
apply" if the municipality or city proposed to be created is
composed of one or more islands.
• This does not mean, however, that the territory
automatically extends to the waters surrounding the islands
or to the open sea. Nowhere in said provisions is it even
remotely suggested that marine waters, or for that matter
the continental shelf, are consequently to be included as
part of the territory. [Republic v. Provincial Government
of Palawan, G.R. No. 170867. Dec. 4, 2018.]
144

• Q: What is a boundary dispute between LGUs? How

is it settled?
• A:
• There is a boundary dispute when a portion or the
whole of the territorial area of an LGU is claimed by
two or more LGUs. Boundary disputes between or
among LGUs shall, as much as possible, be settled
amicably (Rule III, Art. 15 of the IRR, LGC).
• Under Section 118 of the LGC:
• (a) Boundary disputes involving two (2) or more
Barangays in the same city or municipality shall be
referred for settlement to the Sangguniang Panlungsod or
Sangguniang Bayan concerned.
• Province of Antique v. Hon. Calabocal,
G.R. No. 209146. June 8, 2016
145
• Q: What is a boundary dispute between LGUs? How

is it settled?
• A:
• (b) Boundary disputes involving two (2) or more
municipalities within the same province shall be referred
for settlement to the Sangguniang Panlalawigan
concerned.
• (c) Boundary disputes involving municipalities or
component cities of different provinces shall be jointly
referred for settlement to the Sanggunians of the
provinces concerned.
• (d) Boundary disputes involving a component city or
municipality on the one hand and a highly urbanized city
on the other, or two (2) or more highly urbanized cities,
shall be jointly referred for settlement to the respective
Sanggunians of the parties.
146

• Q: What is a boundary dispute between LGUs? How is it

settled?
• A:
• (e) In the event the Sanggunian fails to effect an amicable
settlement within sixty (60) days from the date the dispute
was referred thereto, it shall issue a certification to that effect.
Thereafter, the dispute shall be formally tried by the
Sanggunian concerned which shall decide the issue within
sixty (60) days from the date of the certification referred to
above.
• SECTION 119. Appeal. —any party may elevate the
decision of the Sanggunian concerned to the proper RTC
having jurisdiction over the area in dispute. The RTC shall
decide the appeal within one (1) year from the filing thereof.
Pending final resolution of the disputed area prior to the
dispute shall be maintained and continued for all legal
purposes.
147
• Q: Is Congress correct in limiting the share of LGU’s

only to national “internal” revenue taxes?
• A: NO.
• The phrase national internal revenue taxes in Section 284
of the LGC is undoubtedly more restrictive than the term
national taxes written in Section 6 of Art. X of the
Constituition.
• As such, Congress has actually departed from the letter
of the 1987 Constitution stating that national taxes
should be the base from which the just share of the LGU
comes. Such departure is impermissible.
• Equally impermissible is that Congress has also thereby
curtailed the guarantee of fiscal autonomy in favor of the
LGUs under the 1987 Constitution.[Gov. Mandanas v.
Executive Secretary, GR No. 199802, July 3, 2018]
148

• Q: Can the Mayor order the demolition of a hotel for lack

of a business permit?
• A: YES.
• In the exercise of police power and the general welfare
clause, property rights of individuals may be subjected
to restraints and burdens in order to fulfil the objectives
of the government.
• The LGC authorizes LGU’s, acting through their local chief
executives, to issue demolition orders. Sec. 444 (b) (3) (vi)
of the LGC, which empowered the mayor to order the
closure and removal of illegally constructed establishments
for failing to secure the necessary permits.
• Otherwise stated, the government may enact legislation that
may interfere with personal liberty, property, lawful
businesses and occupations to promote the general welfare.
(Aquino v. Municipality of Malay, Aklan, G.R. No.
211356, September 29, 2014)
149
• Q: Can the Mayor order the demolition of

illegal structures without any court order?
• A: YES.
• But this is true only for illegal structures
built on government land. The LGC
authorizes local chief executives to issue
demolition orders. Sec. 444(b)(3)(vi) of the LGC
empowers the mayor to order the closure and
removal of illegally constructed establishments
built on government property for failing to
secure the necessary permits.
• CRISOSTOMO B. AQUINO vs. MUNICIPALITY OF
MALAY, AKLAN, G.R. No. 211356, September 29, 2014,
J. Velasco, Jr.
150

• Q: Can the Mayor be compelled by writ of Mandamus

to issue a business permit?
• A: NO.
• A mayor cannot be compelled by mandamus to issue a
business permit since the exercise of the same is a
delegated police power hence, discretionary in nature.
• Section 444(b)(3)(iv) of the Local Government Code of
1991, grants the power of the mayor to issue license and
permits and correspondingly the power NOT to ISSUE or
to REVOKE one already granted.
• Necessarily, the exercise thereof cannot be deemed
ministerial. As to the question of whether the power is
validly exercised, the matter is not within the province of a
writ of mandamus. RIMANDO V. NAGUILAN EMISSION
TESTING CENTER, G.R. NO. 198860. JULY 23, 2012
151
• Q: The City of Marikina enacted an ordinance that

requires property owners to lower fences, re-build it
with 6 meters setback and make it 80% see through. Is
this ordinance valid?
• A: NO. The State may not, under the guise of police power,
permanently divest owners of the beneficial use of their
property solely to preserve or enhance the aesthetic
appearance of the community. The SC ruled that the
ordinance is unreasonable and oppressive as it will
substantially divest the property owner of the beneficial use
of their property solely for aesthetic purposes.
• The real intent of the setback requirement was to make the
parking space free for use by the public, considering that it
would no longer be for the exclusive use of SSC.
• Section 9 of Article III of the 1987 Constitution, provides that
private property shall not be taken for public use without just
compensation. [Fernando v. SSC, March 12, 2013]
152

• Q: Do LGU’s have an inherent power to tax?

• A: LGUs have no inherent power to tax except to the extent
that such power might be delegated to them either by the
basic law or by the statute.
• Under the 1987 Constitution, where there is neither a
grant nor a prohibition by statute, the tax power must
be deemed to exist although Congress may provide
statutory limitations and guidelines.
• Every LGU is now empowered and authorized to create
its own sources of revenue and to levy taxes, fees, and
charges which shall accrue exclusively to the local
government unit as well as to apply its resources and assets
for productive, developmental, or welfare purposes, in the
exercise or furtherance of their governmental or proprietary
powers and functions.(Ferrer v. Bautista, G.R. No. 210551,
June 30, 2015)
153
• Q: Do LGU’s have an inherent power to tax?

• A: NO.
• For sure, fiscal decentralization does not signify the
absolute freedom of the LGUs to create their own
sources of revenue and to spend their revenues
unrestrictedly or upon their individual whims and caprices.
• Congress has subjected the LGUs’ power to tax to the
guidelines set in Section 130 of the LGC and to the
limitations stated in Section 133 of the LGC.
• The concept of local fiscal autonomy does not exclude
any manner of intervention by the National Government in
the form of supervision if only to ensure that the local
programs, fiscal and otherwise, are consistent with the
national goals.
• [Gov. Mandanas v. Executive Secretary, GR No. 199802,
July 3, 2018]
154

• Q: Who determines the legality or propriety of a

local tax ordinance or revenue measure?
• A: It is the Secretary of Justice who shall determine
questions on the legality and constitutionality of
ordinances or revenue measures.
• The appeal must be filed within thirty (30) days
from the effectivity of the tax ordinance.
• The Secretary of Justice has sixty (60) days from the
date of receipt of the appeal to issue a ruling;
otherwise, the aggrieved party may file appropriate
proceedings with a court of competent jurisdiction
(RTC).
• The appeal shall not have the effect of
suspending the effectivity of the ordinance. (Sec.
187 R.A. 7160)
155
• Q: What is the effect if the tax

ordinance was not published in full
(only excerpts / summary)?
• A: The requirement of publication in full
for 3 consecutive days is mandatory for
a tax ordinance to be valid.
• The tax ordinance will be null and
void if it fails to comply with such
publication requirement. (Coca-Cola v.
City of Manila, G.R. No. 161893 June
27, 2006)
156

May LGU’s hire private counsel?

In the case of Ramos vs. CA (108 SCRA 728), the
Supreme Court declared that a private lawyer cannot
represent a local government unit even if the services
rendered was gratis.
Moreover, in the case of Edgar Mancenido, et. al., vs.
Court of Appeals (330 SCRA 419), the Supreme Court
stated that an LGU may only hire a private attorney
when the provincial fiscal is disqualified.
However, the LGU may hire a private lawyer as a legal
officer under a consultancy agreement, duly
approved by the local sanggunian. Such
sanggunian resolution will clothe him with the
authority to act as the legal officer of the LGU.
(DILG Opinion No. 26 s. 2004 dated 03 February 2004)
157
• Q: Can the Annual Budget be used as continuing

authority for the LCE to enter into contracts without
prior authorization from the Sanggunian?
• A: NO.
• Sec. 22 of the LGC states: “Unless otherwise provided in
this Code, no contract may be entered into by the local
chief executive in behalf of the local government unit
without prior authorization by the sanggunian
concerned.”
• EXCEPT: When the appropriation ordinance already
contain in sufficient detail the project and cost of a capital
outlay such that all that the local chief executive needs to do
after undergoing the requisite public bidding is to execute
the contract, no further authorization is required, the
appropriation ordinance already being sufficient.
• [Quisumbing vs. Gov. Garcia, G.R. No. 175527. Dec. 8, 2008. ]
158

• Q: If the item in the Annual Budget is termed

“Consultancy Services” does the Mayor need prior
authorization from the Sanggunian before he enters
into contract for services for each consultant?
• A: NO.
• Clearly, the line-item "Consultancy Services" in the MOOE
budget of the Office of the Mayor is meant to provide
consultants to the Office of the Mayor for the purpose of its
day-to-day operations.
• This is as specific as the line-item could be reasonably
provided for in the appropriation ordinance, and the
Sangguniang Bayan, by including this in the appropriation
ordinance, already acceded to the procurement of
consulting services by the Office of the Mayor. [Mayor
Alfredo Germar v. Feliciano Legaspi, October 1, 2018 ]
159
Hiring of Consultants
• Is there a limit on the consultants that a
Mayor can hire?
• Yes. Under Section 22 (c) of the LGC, the
mayor cannot hire consultants without prior
authorization from the Sanggunian. (DILG Opinion
No. 40-2003 dated 26 March 2003)
• The annual budget serves as authorization and

limitation on how many consultants a mayor can
hire.
• Note that civil service rules state that a
consultant should execute a MOA or contract for
services (not an appointment) with an LGU.
160

Who may be hired as consultants?

The Rules do not prescribe any qualification except that
they should perform functions not ordinarily performed
by any existing staff or personnel of the LGU.
Pursuant to Section 2(a), Rule 11 of CSC Memo Circular
No. 40 dated 14 December 1998, consultancy
services are not considered government services
and no employer-employee relationship exists
between the LGU and the consultant.
The position of consultant cannot be considered as
an appointment or designation in any capacity to
a public office or position. So a defeated
candidate in the last election can be appointed as
consultant immediately after the election. (DILG
Opinion No. 26 s. 2001 dated 16 April 2001)
161
Can relatives be hired as consultants?

The Civil Service Commission (CSC) came out with
CSC Resolution No. 020790 (Policy Guidelines
for Contract of Services) which clearly states
the prohibition of hiring those covered under
the rules on nepotism through a contract of
service and job order.
Nepotism is defined as an appointment issued in
favor of a relative within the third civil degree
of consanguinity or affinity of any of the
following: (1) appointing authority; (2)
recommending authority; (3) chief of the bureau
or office; and (4) person exercising immediate
supervision over the appointee. [Dator v.
Ombudsman, October 8, 2018]
162

Can The Vice Mayor Hire Consultants

• Yes. But he must first be authorized by the
Sanggunian to enter into the Consultancy contract
(Section 22-C, LGC).
• Under Section 456 of R.A. 7160, there is no inherent
authority on the part of the city vice-mayor to enter into
contracts on behalf of the local government unit, unlike
that provided for the city mayor.
• Thus, the authority of the vice-mayor to enter into
contracts on behalf of the city is strictly circumscribed
by the ordinance granting it.
• The ordinance is valid only for a specific period and
with a specific contract. (ARNOLD D. VICENCIO VS. HON.
REYNALDO A. VILLAR, ET AL. , G.R. NO. 182069. JULY 3, 2012)
163
TERM & TENURE
164

• Q: What is the term of office of an elected

local official?
• A: The three-term limit rule is embodied in
Section 8, Article X of the 1987 Constitution,
to wit:
• Section 8. The term of office of elective local
officials, except barangay officials, which shall be
determined by law, shall be three years and no such
official shall serve for more than three consecutive
terms. Voluntary renunciation of the office for any
length of time shall not be considered as an
interruption in the continuity of his service for the full
term for which he was elected.
165
• Q: What is the term of office of an elected

local official?
• A: Three (3) years starting from noon of June
30 following the election or such date as may
be provided by law, except that of elective
barangay officials, for maximum of 3
consecutive terms in same position (Section
43, LGC).
• The term of office of Barangay and

Sangguniang Kabataan elective officials, by
virtue of R.A. No. 9164, is three (3) years.
166

PROBLEM:
Latasa was elected and served as mayor of the
Municipality of Digos, Davao del Sur for terms 1992-
1995, 1995-1998, and 1998-2001.
During petitioner's third term, Digos was converted
into a component city. Can Latasa run for City Mayor
in the 2001 election?
A: NO. Because the area and inhabitants of the
locality are the same and the municipal mayor
continued to hold office until such time as city elections
are held. The conversion of the municipality into a city
did not convert the office of the municipal mayor into a
local government post different from the office of the
city mayor. [Latasa v. Comelec, GR 154829, 12.10.2003]
167
• Q: Can a sanggunian member who has served for 3

consecutive terms in one district run again for another
term in a newly renamed or formed district inside the
same LGU?
• A: NO.
• First, the territorial jurisdictions of the two (2) districts are the
same except for the municipalities of Gainza and Milaor
which were excluded by R.A. No. 9716;
• Second, the inhabitants of the 3rd District of Camarines Sur,
where [Naval] is presently running as member of the
[Sanggunian], are the same voters who elected him for the
past three (3) consecutive terms; and
• Lastly, the inhabitants of the [3rd] District are the same
group of voters whom [Naval] had served as member of the
[Sanggunian] representing the 2nd District. [Naval v.
COMELEC, July 8, 2014]
168

• Is the preventive suspension of an elected

public official an interruption of his term
of office for purposes of the three-term
limit rule?
• No. A preventive suspension cannot simply
be a term interruption because the
suspended official continues to stay in office
although he is barred from exercising the
functions and prerogatives of the office within
the suspension period.
• The best indicator of the suspended official’s
continuity in office is the absence of a
permanent replacement and the lack of the
authority to appoint one since no vacancy
exists. (Aldovino v. COMELEC, G.R. No.
184836, 23 December 2009)
169
Aldovino v. COMELEC
G.R. No. 184836, 23 December 2009
Term limitation is triggered after an elective

official has served his three terms in office
without any break.
Preventive suspension, by its nature, is a
temporary incapacity to render service
during an unbroken term; in the context
of term limitation, interruption of service
occurs after there has been a break in the
term.
170

Aldovino v. COMELEC
G.R. No. 184836, 23 December 2009
A serious extended illness, inability through force

majeure, or the enforcement of a suspension
as a penalty, may prevent an office holder from
exercising the functions of his office for a time
without forfeiting title to office.
Preventive suspension is no different because it
disrupts actual delivery of service for a time
within a term.
All these instances will not interrupt the term for
purposes of applying the 3-term limit rule.
171
THE STORY OF MAYOR

BOKING MORALES
(Mabalacat, Pampanga)
172

• FIRST CASE:
• Morales was elected mayor of the Municipality of
Mabalacat, Pampanga for THREE (3) consecutive
terms: 1995-1998, 1998-2001, and 2001-2004.
• In the 2004 elections, Morales ran again as mayor of
the same town and was proclaimed mayor for the term
commencing 1 July 2004 to 30 June 2007.
• A petition for quo warranto was later filed against
Morales alleging that he was ineligible to run for a
"fourth" term, having served as mayor for three
consecutive terms.
• Morales answered that his supposed 1998-2001 term
could not be considered against him, because he was
not able to fully serve his 2nd term as it was nullified by
the RTC. Is Morales correct?
173
• ANSWER:
• No. Morales exceeded the three-term limit rule,
because he was mayor for the entire period from
1998 to 2001, notwithstanding the decision of the
RTC.
• The fact of being belatedly ousted, which was after
the expiry of his term, could not constitute an
interruption in Morales' service of the full term, and
Morales could not be considered as a mere
"caretaker of the office" or "de facto officer" for
purposes of applying the three-term limit rule.
• Whether as 'caretaker' or 'de facto' officer, he
exercises the powers and enjoys the prerequisites of
the office which enables him 'to stay on indefinitely.
• Rivera v. COMELEC, 551 Phil. 37 (2007).
174

• SECOND CASE:
• Morales occupied the position of mayor of Mabalacat
for the following periods: 1 July 1995 to 30 June 1998,
1 July 1998 to 30 June 2001, 1 July 2001 to 30 June
2004, and 1 July 2004 to 16 May 2007.
• However, the SC ruled in a previous case that Morales
was not the duly elected mayor for the 2004-2007
term. Eventually, Morales also won the elections and
assumed the mayoralty position for the 2007-2010
term.
• Dizon filed a petition to disqualify Morales as mayor on
the ground that his assumption of the mayoralty
position on 1 July 2007 makes the 2007-2010 term his
fifth term in office, which violates the three-term limit
rule. Is Dizon correct?
175
• ANSWER:
• No. For purposes of determining the resulting
disqualification brought about by the three-term
limit, it is not enough that an individual has served
three consecutive terms in an elective local office,
he must also have been elected to the same
position for the same number of times.
• There should be a concurrence of two conditions
for the application of the disqualification: (1) that
the official concerned has been elected for three
consecutive terms in the same local government
post and (2) that he has fully served three
consecutive terms. (Dizon v. COMELEC GR
182088 Jan.30, 2009)
176

• ANSWER:
• Morales cannot be deemed to have served the full
term of 2004-2007 because he was ordered to
vacate his post before the expiration of the term.
• His occupancy of the position of mayor of
Mabalacat from 1 July 2004 to 16 May 2007 cannot
be counted as a term for purposes of computing the
three-term limit.
• Indeed, the period from 17 May 2007 to 30 June
2007 served as a gap for purposes of the three-
term limit rule. Thus, the present term [1 July 2007
to 30 June 2010] is effectively his first term for
purposes of the three-term limit rule. (Dizon v.
COMELEC GR 182088 Jan.30, 2009)
177
• PROBLEM: (Morales Strikes Again, 2019)

• Morales was elected and has served as mayor of
Mabalacat, Pampanga for three consecutive terms:
(1) 2007-2010; (2) 2010-2013; and (3) 2013-2016.
• However, Morales insists that his second term as
mayor of the Municipality of Mabalacat was
interrupted by the conversion of the municipality
into a component city.
• Morales claims that Mabalacat City is an entirely
different political unit from the Municipality of
Mabalacat, having an increased territory, income
and population.
• Can he run again for Mayor in the 2016
election?
178

• ANSWER: NO (Finally)
• The conversion of Mabalacat into a city did not
change even by an inch the land area previously
covered by the Municipality of Mabalacat.
• Consequently, the inhabitants are the same group
of voters who elected Morales to be their mayor for
three consecutive terms, and over whom he held
power and authority as their mayor.
• Accordingly, Morales never ceased from acting and
discharging his duties and responsibilities as chief
executive of Mabalacat, despite the conversion of
the Municipality of Mabalacat into Mabalacat City.
• Halili v. COMELEC, G.R. No. 231643.
January 15, 2019.
179
• Q: Should his COC be cancelled?

• A: YES
• Knowing fully well that he had been elected and
had fully served three consecutive terms for the
same local government post, Morales'
representation in his COC that he was eligible to
run as mayor constitutes false material
representation as to his qualification or eligibility for
the office, which is a ground for a petition to deny
due course to or cancel a COC.
• Accordingly, Morales' COC is void ab initio, and he
was never a candidate at all, and all votes for him
were considered stray votes. Halili v. COMELEC,
G.R. No. 231643. January 15, 2019.
180

• Q: Who should be proclaimed winner?

• A: The second placer
• A person whose COC had been denied due course
and/or cancelled under Section 78 is deemed to have not
been a candidate at all, because his COC is considered
void ab initio and thus, cannot give rise to a valid
candidacy and necessarily to valid votes.
• The rule on succession under Section 44 of RA 7160, as
espoused by Halili, would not apply if the permanent
vacancy was caused by one whose COC was void ab
initio.
• In case of vacancies caused by those with void ab initio
COCs, the person legally entitled to the vacant position
would be the candidate who garnered the next highest
number of votes among those eligible. Halili v.
COMELEC, G.R. No. 231643. January 15, 2019.
181
PUBLIC
INTERNATIONAL LAW
182

Can the President allow Chinese fishermen

to fish within the Philippines’ EEZ?
• The State shall protect the nation's marine wealth in
its archipelagic waters, territorial sea, and exclusive
economic zone, and reserve its use and enjoyment
exclusively to Filipino citizens. (Article 12, Section
2, 1987 Constitution).
• As the sole organ of our foreign relations and the
constitutionally assigned chief architect of our foreign
policy, the President is vested with the exclusive
power to conduct and manage the country's interface
with other states and governments. [Rene Saguisag,
et al., v. Executive Secretary, et al., GR No. 212426,
January 12, 2016.]
183
• Q: It has been reported that China built military

installations on reefs and islands within the
Philippines’ EEZ, can this be construed as an
invasion on Philippine territory?
• A: NO.
• The EEZ is not equivalent to Philippine territory.
• The Exclusive Economic Zone is an area beyond
and adjacent to the territorial sea, which shall not
extend beyond 200 nautical miles from the baseline
from which the territorial sea is measured.
• Territorial sea is 12 nautical miles from the baseline.
• Contiguous zone is 24 nautical miles from the
baseline.
• Continental Shelf is 150 nautical miles from the
baseline.
184

185
• Q: Distinguish “internal waters” from

“archipelagic waters.”
• A:
• The term “internal waters” refer to all waters within
the 12-nautical-mile vicinity of the territorial sea and
further inward, regardless of breadth or dimensions.
[Prof. Magallona v. Hon. Ermita, et al. 671 Phil.
244, (2011).]
• The term “archipelagic waters” under UNCLOS
Part III, Article 49 (1, 2, 4), refer to the body of water
lying landward of a country’s baselines, including the
air space over it and the submarine areas
underneath. [Capitol Wireless Inc. v. Provincial
Treasurer of Batangas, May 30, 2016]
186

• Q: Distinguish “internal waters” from

“archipelagic waters.”
• A:
• The Philippines maintains the sui generis character of our
archipelagic waters as equivalent to the internal waters of
continental coastal states.
• In other words, the landward waters embraced within the
baselines determined by RA 9522, i.e., all waters around,
between, and connecting the islands of the archipelago,
regardless of their breadth and dimensions, form part of the
internal waters of the Philippines.
• Accordingly, such waters are not covered by the jurisdiction
of the UNCLOS and cannot be subjected to the rights
granted to foreign states in archipelagic waters, [Magallona
v. Hon. Ermita, et al. 671 Phil. 244, 266-267 (2011).]
187
• Q. Is the “contiguous zone” part of our

“Philippine waters?”
• A:
• A portion of the “contiguous zone” (the first 12
nautical miles within the territorial sea) is part of our
“Philippine waters”.
• But outside the territorial sea – to another 12
nautical miles outward – it is still part of the
contiguous zone but no longer part of our Philippine
waters.
• In other words, only the first 12 nautical miles (out of
the 24 n.m.) of the contiguous zone falls within our
Philippine waters.
188

• Q: WHAT IS MEANT BY THE TERM –

“PHILIPPINE WATERS”?
• A: Under Section 2 (a) of PD 532, "Philippine
waters" is defined as follows:
• All bodies of water, such as but not limited to,
seas, gulfs, bays around, between and connecting
each of the Islands of the Philippine Archipelago,
irrespective of its depth, breadth, length or
dimension, and all other waters belonging to the
Philippines by historic or legal title, including
territorial sea, the sea-bed, the insular shelves, and
other submarine areas over which the Philippines
has sovereignty or jurisdiction. (Emphasis supplied)
• People v. dela Pena, GR No. 219581, January 31, 2018
189
• Q. State whether you agree or not with the

following statements on our National
Territory and explain why:
•
• 1. Under the archipelago doctrine, the
waters around, between, and connecting the
islands of the archipelago form part of the
territorial sea of the archipelagic state.
• 2. A “regime of islands” uses the normal

baseline method to determine its marine
zones.
190

• Q. Are the Kalayaan Island Group (KIG) and Scarborough

Shoal part of the Philippine Archipelago?
• A: NO.
• Congress enacted RA 9522 and specifically did not
enclose the KIG and the Scarborough Shoal as part of
the Philippine archipelago.
• Although the Philippines has consistently claimed
sovereignty over the KIG and the Scarborough Shoal for
several decades, these outlying areas are located at an
appreciable distance from the nearest shoreline of the
Philippine archipelago, such that any straight baseline
loped around them from the nearest basepoint will
inevitably "depart to an appreciable extent from the
general configuration of the archipelago." [Magallona v.
Hon. Ermita, et al. 671 Phil. 244, 266-267 (2011).]
191
• Q. RA 9522 excluded the Kalayaan Island Group (KIG)

and Scarborough Shoal from the Philippine Archipelago.
Is this constitutional?
• A: YES.
• Congress' decision to classify the KIG and the
Scarborough Shoal as "'Regime of Islands' under the
Republic of the Philippines is consistent with Article 121
of UNCLOS.
• Although the Philippines has consistently claimed
sovereignty over the KIG and the Scarborough Shoal for
several decades, these outlying areas are located at an
appreciable distance from the nearest shoreline of the
Philippine archipelago. [Magallona v. Hon. Ermita, et
al. 671 Phil. 244, 266-267 (2011).]
192

• QUESTION:
• On October 27, 2015 the USS Lassen (a US
military ship) carried out the first freedom
of navigation patrol to challenge China’s
territorial claims over the 12-nautical-mile
region surrounding its artificial islands in
the South China Sea (West Philippine Sea).
Chinese authorities responded angrily.
• What is meant by “freedom of
navigation”? Is the US correct in
conducting FON patrols in the South
China Sea? Explain.
193
• ANSWER:
• Freedom of navigation (FON) is a
principle of customary international law
which states that ships flying the flag of
any sovereign state shall not suffer
interference from other states while in
international waters.
• This right is now also codified as article
87(1)a of the 1982 United Nations
Convention on the Law of the Sea.
194

Right of Innocent Passage

• It means navigation through the territorial
sea of a State for the purpose of
traversing the sea without entering
internal waters, or of proceeding to
internal waters, or making for the high
seas from internal waters, as long as it is
not prejudicial to the peace, good order
or security of the coastal State. (Articles 18
[1][2], 19[1], UNCLOS)
195
Right of Innocent Passage

• The United Nations Convention on the Law of the
Sea (UNCLOS) enshrines the concept of innocent
passage through a coastal state’s territorial sea.
• Passage is innocent so long as it is not
prejudicial to the peace, good order or
security of the coastal state.
• A vessel in innocent passage may traverse the
coastal state’s territorial sea continuously and
expeditiously, not stopping or anchoring except in
force majeure situations.
196

Transit Passage
• It is the right to exercise freedom of navigation and
overflight solely for the purpose of continuous and
expeditious transit through the straits used for
international navigation, i.e., between two areas of the
high seas or between two exclusive economic zones.
• All ships and aircraft enjoy the right of transit
passage.
• The requirement of continuous and expeditious transit
does not preclude passage through the strait for the
purpose of entering, leaving or returning from a State
bordering the strait, subject to the conditions of entry
to that State. (Magalona, 2005; Article 38[2],
UNCLOS)
197
Distinguish Innocent Passage

from Transit Passage
• Innocent passage is for travel within
territorial waters while transit passage is
for any zone.
• Innocent passage applies only to ships
while transit passage applies to
aircrafts as well.
• In transit passage, military vessels are
also allowed which are not allowed in
innocent passage.
198

• QUESTIONS:
• Explain each concept in no more than two
sentences each.
• 1. Terra nullius
• 2. Intertemporal Law
• 3. Contiguous zone
• 4. Hot pursuit
• 5. “Flags of convenience"
• 6. Passive personality principle
• 7. Objective territorial principle (effects doctrine)
• 8. Agrement and Exequatur
• 9. "Effective control" (Nicaragua vs. U.S.)
• 10. Progressive realization
199
• QUESTIONS:
• 1. Under Article 36 of the Statute of the International
Court of Justice (ICJ), what is the scope of the
contentious jurisdiction of the ICJ?
• 2. What are the ways by which a State can accept or
recognize the ICJ'S jurisdiction in contentious
cases?
• 3. Explain and distinguish the concepts of State
immunity and immunity of a head of State.
• 4. What is the UN ECOSOC Resolution 1503
(Confidential Consideration)? How does it work,
procedurally, and how does this procedure obtain
results?
200

• QUESTIONS:
• On Sources of Obligation Under
International Law:
• 1. Discuss the various ways by which
international law may apply to Philippine
municipal law. In this context, explain how our
Supreme Court had appreciated the
applicability of international law to concrete
cases before it.
• 2. Is our concept of a treaty or international
agreement under the 1987 Constitution the
same as the Vienna Convention on the Law of
Treaties? Explain your answer.
201
• QUESTIONS:
• On International Legal Personality:
• 1. The Sultanate of Sulu seeks a remedy
before the ICJ in regard to the Sabah claim.
Does it have international legal personality to
do so? Explain your answer.
• 2. How do you legally justify the entry of the
Philippine government into peace agreements
with armed groups which do not even
recognize the Philippine Constitution and
even assert "state-like entity status" under
international law?
202

• QUESTIONS:
• On State Responsibility:
• Explain the legal standards for
establishing responsibility for a wrongful
act or omission by a state under
international law.
•
• On Dispute Resolution:
• Discuss the various modes of settling
international disputes citing the advantages
or disadvantages for each.
203
Sample Problem on Extra-Territoriality

• Q: The Ambassador of State X to the Philippines
bought, in the name of his government, two houses
and lots at Forbes Park, Makati. One house is
used as the chancery and residence of the
ambassador, and the other as quarters for
nationals of State X who are studying in the
University of Santo Tomas.
• The Registrar of Deeds refused to register the sale
and to issue Transfer Certificates of Title in the
name of State X on the ground of the prohibition of
the Constitution against the alienation of lands in
favor of aliens. Is his refusal justified?
204

• A: NO. The prohibition in the Constitution against alienation

of lands in favor of aliens does not apply to foreign
governments to be used as chancery and residence of its
diplomatic representatives.
• We are obligated under PIL to facilitate the acquisition of a
foreign embassy of premises necessary for its mission, or to
assist the latter in obtaining accommodation in some other
way.
• Therefore, the refusal of the Register of Deeds to register
the sale and the issuance of TCT in the name of State X is
unjustified.
• However, in so far as the house and lot to be used as
quarters of the nationals of State X who are studying in the
University of Santo Tomas are concerned, the Register of
Deeds correctly refused registration. Here, the prohibition in
the constitution against the transfer of properties to aliens
should be followed.
205
QUESTION:
The new Bangsamoro Basic Law (BBL)
established an autonomous Bangsamoro
Region to be considered an associated
state (a state within a state) in the
Philippines.
It will have its own law-making powers
and police; but will be under the national
government with regard to foreign policy
and national defense.
Is this Constitutional? Explain.
206

ANSWER: NO.
The concept of an associated state (state within a state)
is not recognized under the present Constitution. Indeed,
the concept implies powers that go beyond anything ever
granted by the Constitution to any local or regional
government. It also implies the recognition of the associated
entity as a state.
The Constitution does not contemplate any state in this
jurisdiction other than the Philippine State, much less
does it provide for a transitory status that aims to prepare any
part of Philippine territory for independence.
The concept of association – runs counter to the national
sovereignty and territorial integrity of the Republic (Prov. of
North Cotabato v. The Gov’t of the Rep. of the
Philippines, G.R. No. 183591, October 14, 2008).
207
Diplomatic v. Consular Immunity

• Under Article 32 of the Vienna Convention on
Diplomatic Relations, a diplomatic agent
shall enjoy immunity from the criminal, civil
and administrative jurisdiction of the
receiving state.
• On the other hand, under Article 41 of the
Vienna Convention on Consular Relations, a
consular officer enjoys immunity from the
civil and administrative, but not criminal,
jurisdiction of the receiving state.
208

When is a diplomat not Immuned?

• He shall enjoy immunity from civil and
administrative jurisdiction except in the case of:
• (i) A real action relating to property situated in
the territory of the receiving state, unless he holds it
on behalf of the sending state for the purpose of the
mission;
• (ii) An action relating to succession in which the
diplomatic agent is invoked as executor,
administrator, heir or legatee as a private person
and not on behalf of the sending state;
• (iii) An action relating to any professional or
commercial activity exercised by the diplomatic
agent in the receiving state outside his official
functions.
209
When is a consul not Immuned?

• Under Article 43 of the Convention, Consular
officers are not immuned when the civil
action:
• (i) Arises out of a contract concluded by a
consular officer in which, he did not contract
expressly or impliedly as an agent of the
sending state;
• (ii) By a third party for damage arising
from an accident in the receiving state
caused by a vehicle, vessel, or aircraft.
210

Q: Can the President, on his own, terminate a treaty?

A: NO. Typically, a treaty provides for its termination by notice
of one of the parties, usually after a prescribed time from the
date of notice. Of course, treaties may also be terminated by
agreement of the parties, or by breach by one of the parties, or
by some other means.
Because the Constitution requires the consent of the
Senate for making a treaty, one can logically argue that its
consent is as well required for terminating it.
Finally, because treaties are, like statutes, the supreme law of
the land, it may well be argued that, again like statutes, they
may be undone only through law–making by the entire
Congress; additionally, since Congress may be required to
implement treaties and may displace them through legislation,
this argument is re-enforced.
211
• 2008 BAR EXAM QUESTION:

• The President alone without the
concurrence of the Senate abrogated a
treaty.
• Assume that the other country-party to the
treaty is agreeable to the abrogation
provided it complies with the Philippine
Constitution.
• If a case involving the validity of the treaty
abrogation is brought to the Supreme
Court, how should it be resolved?
212

• Suggested Answer:
• The Supreme Court should declare the treaty abrogation
invalid.
• While the Constitution is silent on whether a treaty
abrogation shall require the concurrence of the Senate to
make it valid and effective, the treaty-ratifying power of
Senate carries with it the power to concur a treaty abrogated
by the President by way of necessary implication.
• Under the doctrine of incorporation, a treaty duly ratified by
the Senate and recognized as such by the contracting State
shall form an integral part of the law of the land.
• The President alone cannot effect the repeal of a law of
the land formed by a joint action of the executive and
legislative branches, whether the law be a statute or a
treaty. To abrogate a treaty, the President’s action must be
approved by the Senate.
213
Q: Can the President unilaterally withdraw the

Philippines from the Rome Statute (treaty establishing the
ICC)?
A: YES. Article 127 of the Rome Statute,
ratified and signed by the Philippines, lays out
the terms which member-states need to follow
if they want to withdraw:
"1. A State Party may, by written notification
addressed to the Secretary-General of the
United Nations, withdraw from this Statute.
The withdrawal shall take effect one year after
the date of receipt of the notification, unless
the notification specifies a later date.”
214

Q: Does this mean that the ICC did not acquire

jursidction over President Duterte and the cases filed
against him can now be dismissed?
A: NO. Article 127 of the Rome Statute states:
“2. A State shall not be discharged, by reason of its
withdrawal, from the obligations arising from this Statute
while it was a Party to the Statute, including any financial
obligations which may have accrued.
Its withdrawal shall not affect …. criminal
investigations and proceedings … which were
commenced prior to the date on which the withdrawal
became effective, nor shall it prejudice in any way the
continued consideration of any matter which was already
under consideration by the Court prior to the date on which
the withdrawal became effective."
215
Q: Does the Constitution prohibit service contracts or

joint explorations of our natural resources with foreign
nationals or companies?
A: NO.
The last paragraph of Section 2, Article XII of the 1987
Constitution, reads as follows:
“The President may enter into agreements with foreign-owned
corporations involving either technical or financial assistance
for large-scale exploration, development, and utilization of
minerals, petroleum, and other mineral oils according to the
general terms and conditions provided by law, based on real
contributions to the economic growth and general welfare of the
country. In such agreements, the State shall promote the
development and use of local scientific and technical resources.”
“The President shall notify Congress of every contract entered
into in accordance with this provision, within thirty days from its
execution.”
216

Q: What are the requisites for such service contracts or

joint explorations with foreign nationals or companies to
be valid?
A:
Such service contracts may be entered into only with respect
to minerals, petroleum and other mineral oils. The grant
thereof is subject to several safeguards, among which are
these requirements:
(1) The service contract shall be crafted in accordance
with a general law that will set standard or uniform terms,
conditions and requirements, presumably to attain a certain
uniformity in provisions and avoid the possible insertion of
terms disadvantageous to the country. [Resident Marine
Mammals of the Protected Seascape Tañon Strait v. Reyes,
756 SCRA 513 (2015)]
217
Q: What are the requisites for such service contracts or

joint explorations with foreign nationals or companies to
be valid?
A:
(2) The President shall be the signatory for the
government because, supposedly before an agreement is
presented to the President for signature, it will have been
vetted several times over at different levels to ensure that it
conforms to law and can withstand public scrutiny.
(3) Within thirty days of the executed agreement, the
President shall report it to Congress to give that branch of
government an opportunity to look over the agreement and
interpose timely objections, if any. [Resident Marine
Mammals of the Protected Seascape Tañon Strait v. Reyes,
756 SCRA 513 (2015)]
218

• Q: Who is a refugee?
• 1. The person must be outside their country of
origin or habitual residence.
• 2. The person must have a well founded fear
of persecution for reasons of: race, religion,
nationality, political opinion, membership of a
particular social group
3. The person must be unable or unwilling to
avail of the protection of their own State for
reasons of such persecution. (Article 1A of
the 1951 Convention On Migrants and
Refugees)
219
• Q: What is the principle of “Non-

Refoulement”?
• A: It is a customary principle of international
law which prohibits the expulsion or return of
refugees to their state of origin. Article 31 of
the UN Charter states:
• No Contracting State shall expel or return a
refugee in any manner whatsoever to the
frontiers of territories where his life or freedom
would be threatened on account of his race,
religion, nationality, membership of a
particular social group or political opinion.
220

• Q: What constitutes perfidy? Is it prohibited? Give

examples.
• A: Perfidy consists of acts inviting the confidence of an
adversary to lead him to believe that he is entitled to, or is
obliged to accord, protection under the rules of International
Law applicable in armed conflict, with intent to betray that
confidence. It is prohibited to kill, injure or capture an
adversary by resort to perfidy. The following acts are
examples of perfidy:
• a) The feigning of an intent to negotiate under a flag of
truce or of a surrender;
• b) The feigning of an incapacitation by wounds or sickness;
• c) The feigning of civilian, non-combatant status; and
• d) The feigning of protected status by the use of signs,
emblems or uniforms of the United Nations or of neutral or
other States not Parties to the conflict.
221
• Q: What are ruses of war? Are they prohibited? Give

examples.
• A: Ruses of war are acts which are intended to mislead an

adversary or to induce him to act recklessly but which
infringe no rule of International Law applicable in armed
conflict and which are not perfidious because they do not
invite the confidence of an adversary with respect to
protection under that law.
• Ruses of war are legal. The following are examples of ruses
of war:
• a) The use of camouflage;
• b) Decoys;
• c) Mock operations;
• d) Misinformation.
222

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2019 Bar Reviewer in Administrative Law, 10/29/2019

Law on Public Officers, Election Law, Local

2019 PRE-WEEK BAR REVIEW

By: Atty. Enrique V. dela Cruz, Jr.

Copyright@ Atty. Enrique V. dela Cruz, Jr. 1

Bar Questions (Definitions)

Bar Questions (Definitions)

Copyright@ Atty. Enrique V. dela Cruz, Jr. 2

Is the PNRC (Red Cross) a GOCC, therefore its employees

• Is the Boy Scouts of the Philippines a Quasi-Public

• A: NO. The BSP is a public corporation or a government

Copyright@ Atty. Enrique V. dela Cruz, Jr. 3

• Q: Are Local Water Districts considered government

Copyright@ Atty. Enrique V. dela Cruz, Jr. 4

Copyright@ Atty. Enrique V. dela Cruz, Jr. 5

• Q: DISTINGUISH QUASI-LEGISLATIVE FROM

• Q: DISTINGUISH QUASI-LEGISLATIVE FROM

Copyright@ Atty. Enrique V. dela Cruz, Jr. 6

When do administrative rules take effect?

• 15 days after publication not 15 days

Copyright@ Atty. Enrique V. dela Cruz, Jr. 7

Is publication necessary for validity?

• Yes. Rules and Regulations must be

• Q: Define and explain the

Copyright@ Atty. Enrique V. dela Cruz, Jr. 8

Copyright@ Atty. Enrique V. dela Cruz, Jr. 9

• Contingent rules are those

Rules with Penalties

• Every rule establishing an offense or

Copyright@ Atty. Enrique V. dela Cruz, Jr. 10

Is notice & hearing necessary?

• No. Where the rule is procedural, or

– As regards rates prescribed in the

Copyright@ Atty. Enrique V. dela Cruz, Jr. 11

Copyright@ Atty. Enrique V. dela Cruz, Jr. 12

When the Office of the Mayor issues notices /demolition

Can one invoke the right against

Copyright@ Atty. Enrique V. dela Cruz, Jr. 13

Will “res judicata” apply to cases involving

Doctrine of Primary Jurisdiction

Copyright@ Atty. Enrique V. dela Cruz, Jr. 14

When will the Doctrine of Primary Jurisdiction apply?

Q: When will the Doctrine of Exhaustion

Copyright@ Atty. Enrique V. dela Cruz, Jr. 15

• Q: CAN THE COURTS EXERCISE JUDICIAL

• Q: IF THE DISPUTE IS BETWEEN GOVERNMENT

Copyright@ Atty. Enrique V. dela Cruz, Jr. 16

• Q: IF THE DISPUTE IS BETWEEN GOVERNMENT

• Q: IF THE DISPUTE IS BETWEEN GOVERNMENT

Copyright@ Atty. Enrique V. dela Cruz, Jr. 17

What makes an office - a “public office”?

• The most important characteristic is the

Copyright@ Atty. Enrique V. dela Cruz, Jr. 18

Who is a public officer?

Copyright@ Atty. Enrique V. dela Cruz, Jr. 19

Copyright@ Atty. Enrique V. dela Cruz, Jr. 20

A female official of the Bureau of Customs (BOC) referred

Copyright@ Atty. Enrique V. dela Cruz, Jr. 21

• Q: Can active members of the AFP be

• NO. Section 5(4), Article XVI of the 1987

The Ombudsman filed charges of “Usurpation of

Copyright@ Atty. Enrique V. dela Cruz, Jr. 22

The general Rule is that the decision of the Ombudsman